Construction, Forestry and Maritime Employees Union v JW Land Construction Pty Ltd
[2024] FedCFamC2G 145
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Construction, Forestry and Maritime Employees Union v JW Land Construction Pty Ltd [2024] FedCFamC2G 145
File number(s): CAG 47 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 22 February 2024 Catchwords: INDUSTRIAL LAW – Application for contravention under Fair Work Act 2009 (Cth) and under the Work Health and Safety Act 2011 (ACT) - Union officials inspecting suspected breaches of WHS standards return to the Site the following day to follow-up and review remaining matters of safety which were not finalised on the first day of inspection - whether Union officials formed reasonable suspicion of remaining breaches of WHS standards and whether they could enter the site under the same Right of Entry Notice without providing further ‘particulars’ - the Court determines that Union officials were hindered and obstructed in the performance of their authorised duties by being required to provide further ‘particulars’ despite clear Right of Entry Notices - facts strongly support breaches - contraventions established - declarations to be made and matter fixed for penalty hearing Legislation: Fair Work Act 2009 (Cth), s.502, 503, 793
Work, Health and Safety Act 2011 (ACT), ss.117 – 118
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union(The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) (2021) 309 IR 353
Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd (2015) 228 FCR 225
Australian Building and Construction Commissioner v Gava [2018] FCA 1480
Australian Building and Construction Commission v Powell (2017) 251 FCR 470
BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2019) 285 IR 43
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528
Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237
Construction, Forestry, Maritime, Mining, and Energy Union v Fair Work Ombudsman [2023] FCA 202
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Richard Crookes Constructions Pty Ltd [2022] FCA 1142
Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163
Darlaston v Parker (2010) 189 FCR 1
Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338
George v Rockett (1990) 170 CLR 104
Prior v Mole (2017) 261 CLR 265
Ruddock v Taylor (2005) 222 CLR 612
Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942
Thoms v Commonwealth (2022) 96 ALJR 635; 401 ALR 529
Division: Division 2 General Federal Law Number of paragraphs: 190 Date of last submission/s: 9 October 2023 Place: Canberra Date of hearing: 29-30 March, 12 May 2023 Counsel for the Applicant Mr P. Boncardo Solicitor for the Applicant Construction, Forestry and Maritime EmployeesUnion Counsel for the Respondent Mr M. Seck Solicitor for the Respondent Holman Webb Lawyers ORDERS
CAG 47 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
Applicant
AND: JW LAND CONSTRUCTION PTY LTD
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Within 21 days, being by 14 March 2024, the parties are to provide the Court with an agreed Minute of Declarations and Orders that reflects the Court’s findings and determinations.
2.Within 21 days, being by 14 March 2024, the parties are to advise the Court whether there is any agreement regarding any penalty range in relation to each contravention, and if there is such an agreement, whether that penalty/those penalties might be determined on the basis of written submissions.
3.In the absence of any agreement pursuant to Order 2, the parties are to advise within 21 days whether any further evidence will be necessary regarding the determination of penalty/penalties, and/or evidence and submissions can be confined to a further, single day of hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
In Australian Building and Construction Commission v Powell, the Full Federal Court of Australia (Allsop CJ, White and O’Callaghan JJ) said, at [15] (emphasis added):[1]
… it is helpful to say something as to the approach to the provisions, in both the FW Act and the 2004 Victorian Act, and indeed in the other legislation to be mentioned. First, to the extent that a provision is a civil remedy or civil penalty provision a necessary clarity of meaning should be striven for, to the extent that is possible and conformable with the language employed and context legitimately available. Secondly, notwithstanding the closely regulated environment of industrial and employment legislation, provisions as to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament practically and with an eye to commonsense so that they can be implemented in a clear way on a day-to-day basis at work sites. The legislation needs to work in a practical way at the work site, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site.
[1] Australian Building and Construction Commission v Powell (2017) 251 FCR 470. See also general comments by the Full Court regarding, among other things, right of entry, the operation of Part 3-4 of the FW Act, and “workplace right”, in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528; and in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union(The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473 especially at [48] ff (Tracey J; Allsop CJ concurring at [1] – [5].
Regrettably, many of the arguments and contentions advanced in this matter were strongly antithetical to the principles and approach clearly stated by the Full Court in Powell regarding the practical operation of the legislation and that it not be (or become) caught up in, and overborne by, “fine distinctions” concerning matters relating to “entry on to a site.” “Fine distinctions” were patently of paramount importance during the trial and especially in final submissions. Respectfully, such minute focus and fine-grained analysis, is really only productive of greater disputation. It is the kind of analysis more usually found in so-called “tax cases” and similar. It is not productive of ready or immediately helpful consideration and resolution of the basic, daily realities on work-sites all over the country. It is to these daily on-site realities I apprehend the Full Court was referring in Powell. As already noted, the comments in Powell were cited more recently still by the Full Court in the Laverton North and Cheltenham Premises Case (already cited) with obvious approval. To state the obvious: Courts, Counsel, practitioners and all others involved in the building industry, should (and need to) pay close attention to the instruction from the Full Federal Court, especially where, as here, that instruction is repeated more recently by another, differently constituted Full Court. In very practical terms, as important as it always is to test evidence and legal propositions, needless legal “hair-splitting” assists no one.
This matter concerns alleged breaches of ss.502 and 503 of the Fair Work Act 2009 (Cth) (“the FW Act”) by the Respondent company, JW Land Construction Pty Ltd (“the Company” or “JW Land”) and two of its senior managers, Mr Henning and Mr Hooper. More particularly, the Applicant Union contends that one of its officers (Mr Poskus), who was authorised under ss.117 and 118 of the Work, Health and Safety Act 2011 (ACT) (“the WHS Act”) to attend the relevant site at Currong Street near the central business district in Canberra (also referred to at times as the Founders Lane site), was hindered or obstructed in the performance of his authorised duties, contrary to specified sections of the FW Act. Basic details are set out below.
The individual Respondents initially elected not to give evidence, and claimed a privilege against self-exposure to a pecuniary penalty; they did not file defences. At the end of the second day of the trial and the conclusion of the Union official’s evidence (Mr Poskus), these individuals notified the Court and the Applicant that they would waive their claim of privilege.
The matter was heard initially in late March 2023. Following events described later in these reasons, including that Orders had been made in August 2022 confirming the filing of Affidavits by the Respondents immediately upon declaring that the privilege claimed would be waived, the evidence of the individual Respondents did not ultimately take place until 12th May 2023. A time-table was to be agreed for the filing of written submissions. This occurred.
Regrettably, various and multiple amendments to the filing timetable took place by consent between Counsel and/or those instructing them. Alas, also, the various extensions to the timetable meant that final submissions were not ultimately filed until 9th October 2023. Accepting that many Counsel are very busy, so too is the Court. I also accept that neither highly experienced Counsel intended any slight, offence or disrespect to the Court by a certain less than urgent attention to the filing of submissions, the timetable for which I accept was solely intended to be accommodating to one or either (or both) Counsel because of their various other and competing commitments. All of this is to indicate or to highlight the basic reason for some delay and the flow-on effects that this accommodation has led to for the Court. Such matters have been canvassed with Counsel in open Court and need not be addressed further here.[2]
[2] Both Counsel would be only too well aware of the blunt comments by Rares ACJ, as part of the Full Court decision in Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 (“Quirk”) at [2] regarding matters that involved an “unfocused plethora of issues” and the duties of Counsel in the presentation of a party’s case.” I do not suggest that the same comments apply here. They are salutary, nonetheless.
For better or for worse, in matters of this kind, it is increasingly common-place that in addition to Affidavit evidence and multiple documents, there is video footage of one kind or another, whether taken by some form of “body-cam” (e.g. a “GoPro”), and regularly also by video taken on one or more mobile phones. As important and useful as this is, it also adds to the volume of evidence the Court has to address, as do Counsel in submissions. It often becomes an exercise in the hermeneutics of video footage from construction sites, and then an exegesis of what was perceived, and equally, what was understood, by the construction “actors” (or protagonists) on the stage that was the building site on the day(s) in question. I do not intend to trivialise, still less to criticise, the use of video footage, or those who appear in it. There is, however, something of an element of a critical review required and how one should assess the actions of all involved, as it were, in so-called “real-time.” Of course, all such assessment and review can and must only be done in accordance with standard and authoritative principles in relation to, for example, matters of evidence, and regarding the sections in question in the light of authoritative statements by the High Court and Federal Court of Australia.
All of this is to say, in no unduly critical way, that the events in question here took place over a relatively modest period of time. Comparatively and on a scale of “gravity”, the issues in dispute were not at the highest or most severe end by a long shot. However, compared to the extent and nature of the legal and factual issues at the heart of this matter, the amount of evidence, and likewise energy and voluminous submissions (doubtless very large legal fees likewise) were, to a significant degree, in my view, really quite disproportionate. Indeed, listening to the evidence, and especially having watched all of the video footage, particularly all which was put to witnesses, not infrequently I found myself wondering what I might be missing. I was concerned (and remain so) how and why such remarkable amounts of time, money and resources were being spent on this litigation rather than both sides resolving it at mediation. Accepting the importance of the issues to each side, I remain still somewhat mystified or at least perplexed. Put another way: the cost (in every sense) of pursuing “principle”, such as seemed very much to be an unstated consideration here, is always very high.
For the reasons that follow, in my view, the Applicant Union quite clearly discharged its onus of establishing the relevant breaches it alleged against the Respondents. Indeed, while some infractions on building sites are very much like “beauty” – i.e in the eye of the beholder – here the video footage, in my view, plainly showed obfuscation and misguided delay by the individual Respondents that fell well within the terms of the sections of the FW Act that were pleaded. The declaratory relief sought by the Applicant Union should be granted and the matter fixed to deal with the issue of penalty, including (if possible) solely by written submissions in the light of the Court’s findings.
Applicant’s Orders Sought
The Statement of Claim, filed 20th October 2021, relevantly made the following claims regarding contraventions and the relief sought in relation to them:
D. The Contraventions
40.In the circumstances described in paragraphs 27- 28 and 35- 38 above, by his words and conduct in not allowing Poskus to inspect the suspected contraventions between approximately 7:37 AM and 8:25 AM on 17 March 2021, Henning intentionally hindered and/or obstructed Poksus exercising rights in accordance with Part 3-4 of the Act.
41. In the circumstances, Henning contravened s 502(1) of the FW Act.
42.By operation of s 793 of the FW Act, Henning’s words and conduct constituting his contravention of s 502(1) of the FW Act and his state of mind in relation to those words and conduct are taken to have been JW Land’s.
43. In the circumstances, JW Land contravened s 502(1) of the FW Act.
44.In the circumstances described in paragraphs 27- 28 and 35- 38 above, by his words and conduct in not allowing Poskus to inspect the suspected contraventions between approximately 7:37 AM and 8:25 AM on 17 March 2021, Hooper intentionally hindered and/or obstructed Poksus in the exercising rights in accordance with Part 3-4 of the Act.
45. In the circumstances, Hooper contravened s 502(1) of the FW Act.
46.By operation of s 793 of the FW Act, Hooper’s words and conduct constituting his contravention of s 502(1) of the FW Act and his state of mind in relation to those words and conduct are taken to have been JW Land’s.
47. In the circumstances described, JW Land contravened s 502(1) of the FW Act.
48.In the circumstances described in paragraphs 28.1 and 29- 30 above, Hooper took action with the intention of giving the impression and/or was reckless as to whether the impression was given that an occupier of premises could delay or otherwise not permit a permit holder to exercise rights under ss 117-118 of the WHS Act unless and until an inspector attended the premises in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
49. In the circumstances, Hooper contravened s 503(1) of the FW Act.
50.By operation of s 793 of the FW Act, Hooper’s words and conduct constituting his contravention of s 503(1) of the FW Act and his state of mind in relation to those words and conduct are taken to have been JW Land’s.
51. In the circumstances described, JW Land contravened s 503(1) of the FW Act.
52.In the circumstances described in paragraph 28.2 and 31- 32 above, Henning took action with the intention of giving the impression and/or was reckless as to whether the impression was given that an occupier of premises could delay or otherwise not permit a permit holder to exercise rights under ss 117-118 of the WHS Act where the occupier had ‘closed out’ a contravention of the WHS Act prior to the entry occurring in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
53. In the circumstances, Henning contravened s 503(1) of the FW Act.
54.By operation of s 793 of the FW Act, Henning’s words and conduct constituting his contravention of s 503(1) of the FW Act and his state of mind in relation to those words and conduct are taken to have been JW Land’s.
55. In the circumstances described, JW Land contravened s 503(1) of the FW Act.
56.In the circumstances described in paragraph 28.3 and 33- 34 above, Hooper took action with the intention of giving the impression and/or was reckless as to whether the impression was given that an occupier of premises could delay or otherwise not permit a permit holder to exercise rights under ss 117-118 of the WHS Act where the suspected contraventions had previously been investigated by another permit holder in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
57. In the circumstances, Hooper contravened s 503(1) of the FW Act.
58.By operation of s 793 of the FW Act, Hooper’s words and conduct constituting his contravention of s 503(1) of the FW Act and his state of mind in relation to those words and conduct are taken to have been JW Land’s.
59. In the circumstances described, JW Land contravened s 503(1) of the FW Act.
E. Relief
60.Declarations pursuant to s 16 of the Federal Circuit Court of Australia Act 2001 (Ctth) that:
60.1Henning contravened s 502(1) of the FW Act on 18 March 2021 by intentionally hindering and/or obstructing Poskus, who was a permit holder, exercising rights in accordance with Part 3-4 of the FW Act;
60.2.JW Land, by its employee or agent Henning contravened s 502(1) of the FW Act on 18 March 2021 by intentionally hindering and/or obstructing Poskus, who was a permit holder, exercising rights in accordance with Part 3-4 of the FW Act;
60.3.Hooper contravened s 502(1) of the FW Act on 18 March 2021 by intentionally hindering and/or obstructing Poskus, who was a permit holder, exercising rights in accordance with Part 3-4 of the FW Act;
60.4.JW Land, by its employee or agent Hooper contravened s 502(1) of the FW Act on 18 March 2021 by intentionally hindering and/or obstructing Poskus, who was a permit holder, exercising rights in accordance with Part 3-4 of the FW Act;
60.5.Hooper contravened s 503(1) of the FW Act on 18 March 2021 by taking action with the intention of giving the impression and/or was reckless as to whether the impression was given that an occupier of premises could delay or otherwise not permit a permit holder to exercise rights under ss 117-118 of the WHS Act unless and until an inspector attended the premises in circumstances where such a thing was not authorised by Part 3-4 of the FW Act;
60.6.JW Land, by its employee or agent Hooper contravened s 503(1) of the FW Act on 18 March 2021 by taking action with the intention of giving the impression and/or was reckless as to whether the impression was given that an occupier of premises could delay or otherwise not permit a permit holder to exercise rights under ss 117-118 of the WHS Act unless and until an inspector attended the premises in circumstances where such a thing was not authorised by Part 3-4 of the FW Act;
60.7.Henning contravened s 503(1) of the FW Act on 18 March 2021 by taking action with the intention of giving the impression and/or was reckless as to whether the impression was given that an occupier of premises could delay or otherwise not permit a permit holder to exercise rights under ss 117-118 of the WHS Act where the occupier had ‘closed out’ a contravention of the WHS Act prior to the entry occurring in circumstances where such a thing was not authorised by Part 3-4 of the FW Act;
60.8.JW Land, by its employee or agent Henning contravened s 503(1) of the FW Act on 18 March 2021 by taking action with the intention of giving the impression and/or was reckless as to whether the impression was given that an occupier of premises could delay or otherwise not permit a permit holder to exercise rights under ss 117-118 of the WHS Act where the occupier had ‘closed out’ a contravention of the WHS Act prior to the entry occurring in circumstances where such a thing was not authorised by Part 3-4 of the FW Act;
60.9.Hooper contravened s 503(1) of the FW Act on 18 March 2021 by taking action with the intention of giving the impression and/or was reckless as to whether the impression was given that an occupier of premises could delay or otherwise not permit a permit holder to exercise rights under ss 117-118 of the WHS Act where the suspected contraventions had previously been investigated by another permit holder in circumstances where such a thing was not authorised by Part 3-4 of the FW Act;
60.10.JW Land, by its employee or agent Hooper contravened s 503(1) of the FW Act on 18 March 2021 by taking action with the intention of giving the impression and/or was reckless as to whether the impression was given that an occupier of premises could delay or otherwise not permit a permit holder to exercise rights under ss 117-118 of the WHS Act where the suspected contraventions had previously been investigated by another permit holder in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
61.Orders pursuant to s 546(1) of the FW Act that the Respondents pay pecuniary penalties for their respective contraventions of ss 502(1), and 503(1) of the FW Act, with such penalties to be paid to the Applicant pursuant to s 546(3) of the FW Act.
Respondent’s Orders Sought
Leaving to one side the formal pleading issues raised by the Respondents, each of them resisted the claims made by the Applicant and denied (and formally opposed) any of the relief sought by the Applicant.
Relevant statutory provisions
Sections 502 and 503 of the FW Act are a central focus of this matter. Those sections provide:
502 Person must not hinder or obstruct permit holder
(1)A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2)To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.
(3)Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.
503 Misrepresentations about things authorised by this Part
(1)A person must not take action:
(a) with the intention of giving the impression; or
(b) reckless as to whether the impression is given;
that the doing of a thing is authorised by this Part if it is not so authorised.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2)Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.
Also central are the terms of ss.117 and 118 of the WHS Act. Section 117 of that Act provides:
Entry to inquire into suspected contraventions
(1)A WHS entry permit-holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.
Note A reference to an Act includes a reference to statutory instruments made or in force under the Act, including a regulation and any law or instrument applied, adopted or incorporated by the Act …
(2)The WHS entry permit-holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.
Section 118 of the WHS Act provides:
Rights that may be exercised while at workplace
(1)While at the workplace under this division, the WHS entry permit-holder may do 1 or more of the following in relation to the suspected contravention of this Act:
(a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;
(b) consult with the relevant workers in relation to the suspected contravention;
(c) consult with the relevant person conducting a business or undertaking about the suspected contravention;
(d) require the relevant person conducting a business or undertaking to allow the WHS entry permit-holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that—
(i)is kept at the workplace; or
(ii)is accessible from a computer that is kept at the workplace;
(da)take photographs, films, or audio, video or other recordings relevant to the suspected contravention;
(e) warn any person whom the WHS entry permit-holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.
(2)However, if it would result in a contravention of a law of the Commonwealth or a law of a State—
(a) the relevant person is not required, under subsection (1) (d), to allow the WHS entry permit-holder to inspect or make copies of a document; and
(b) the WHS entry permit-holder must not, under subsection (1) (da), take photographs, films, or audio, video or other recordings.
Note State includes the Northern Territory.
(3)A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) (d).
WHS Civil Penalty Provision.
Maximum penalty:
(a) in the case of an individual—$10 000; or
(b) in the case of a body corporate—$50 000.
(4)Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.
(5)If, in the course of inquiring into a suspected contravention of this Act, the WHS entry permit-holder reasonably suspects that another contravention of this Act has occurred, the WHS entry permit-holder may exercise a right mentioned in subsection (1) in relation to the other contravention.
Applicant’s Oral Evidence
Videos played
In Mr Poskus’ Affidavit, filed 7th October 2022, he set out summarily the matters he said occurred on 17th and 18th March 2021, which gave rise to the claims now before the Court. Relevant parts of that Affidavit are as follows (emphasis in original):
14.In the afternoon of 17 March 2021, Mr Bolitho spoke to me at the Branch office. He informed me that he had attended the Site and entered under s 117 of the WHS Act to investigate suspected contraventions of the WHS Act that day. Mr Bolitho told me about safety issues at the Site. He said words to the effect of:
Emergency evacuations diagrams are missing throughout the Site. They have one at the front, and it does not comply with the Standard. The electrical boards throughout the Site have got penetrations in them. The company actioned some of the issues which we identified, but not all of them have been actioned out. I didn't get around to having a look at the whole of the Site while I was there. The issues seem to be throughout the Site. These issues need following up. They're serious. Are you able to go over tomorrow and make sure that they have fixed the emergency evacuation diagrams and the rest of the electrical boards?
15.When Mr Bolitho referred to the Standard, I understood that he was referring to AS3745 Planning for emergencies in facilities. Section 3.5.5 of that Standard sets out the minimum elements required for an evacuation diagram. I was aware of the content of the Standard at that time, as I had previously dealt with issues relating to emergency evacuation procedures on construction sites.
16.I told Mr Bolitho that I would visit the Site the next day.
17.Based on what Mr Bolitho had told me, I suspected that contraventions of the WHS Act had occurred at the Site or were still occurring. I suspected that the lack of emergency diagrams issue was a breach of Regulation 43 of the WHS Regulations and s 19(1) of the WHS Act. I also suspected that the issues with the electrical boards were a contravention of Regulation 163 and ss 19(1) and (3)(a) of the WHS Act.
…
18 March 2021
20.On the morning of 18 March 2021, I spoke to Josh Bolitho on the telephone to confirm the information about the safety issues he had observed the day before. I also asked him what needed to be followed up. He reiterated what he had told me the day before and also said words to the effect of:
Yesterday, the builder [JW Land] told me that they were going to fix the emergency evacuation diagrams and display these in the right places on the project. You'll need to check whether that has happened.
21.On 18 March 2021, together with James Darnton-Turner and Brian Windsor, who were officials and permits holder from the CEPU, I attended the Site. Before arriving at the Site, I completed a copy of a notice under s 119 of the WHS Act. Annexed to this affidavit and marked "LP-4" is a copy of that notice. The notice sets out the suspected contraventions I attended the Site that morning to investigate. These were:
a.unsafe electrical installations (being the electrical boards detailed above);
b.emergency procedures (being the lack of emergency evacuations diagrams around the Site and their failure to comply with the Standard).
22.My purpose in attending the Site and was to investigate these suspected contraventions.
23.When I attended the Site for the purpose of seeking entry to investigate these contraventions, I wore a Go-Pro camera which was attached to my chest on a harness and recorded the visit.
…
29.Based on my recollections and having reviewed the Go-Pro video, I note that:
a.I arrived at the Site at 7:30AM and called Mr Henning at 7:31AM and told him I was there and wanted to enter. I was at the gate where entry to the Site is at this point. I was with Mr Darnton-Turner and Mr Windsor;
b.Mr Henning and Mr Hooper came to the gate, and I gave Mr Henning the s 119 WHS Act notice I had prepared;
c.Mr Henning and Mr Hooper directed us to go into the Site office. Originally, we were told this was to sign in. We got into the Site office at 7:37 AM;
d.Mr Henning and Mr Hooper did not allow us to leave the site office, other than to use the toilets, to exercise our powers under s 118 of the WHS Act until 8:25AM.
…
31. I said to the ABCC inspectors words to the effect of:
"We are here on safety; why are you guys here? You guys don't have jurisdiction on safety"
32. At that point the video recording ends.
33. The inspectors replied:
"JW Land has invited us down to discuss right of entry"
34. I said words to the effect of:
I am not finished here on safety so you cannot be in this meeting, if you don't leave then we will leave.
35.The inspectors said words to the effect that they were happy to talk to anyone who wanted to talk to them.
36.I replied, "that is not us", and Mr Darnton-Turner and I walked out of the meeting room and waited on the other side of the glass door for an officer of JW Land to escort us off the Site.
37.Almost immediately one of the JW Land officers, I think it was Mr Hooper, came out of the meeting room and escorted us to the gate, where we left.
Impact of Mr Henning and Mr Hooper’s conduct
38.At the start of the day, I thought that this was going to be a short visit because we were just following up the safety issues raised the previous day. Usually, builders don't tell you they will fix an issue and then not let you follow up. I expected that I would just be in and out, and I had planned the rest of my day around that. I was not expecting to spend an hour waiting in the office before I was able to inspect the site.
39.As a result of Mr Henning and Mr Hooper not allowing me (and Mr Darnton-Turner) to leave the Site office other than to use the toilets, I was delayed for some 48 minutes in exercising my rights under ss 117-118 of the WHS Act to investigate the suspected contraventions I had identified. This wasted my time as I was required to wait to do my job and not attend to other tasks which I could have otherwise done.
The GoPro footage of Ms Poskus became Exhibit LP1.
The first day of the hearing commenced with Counsel for the Applicant showing approximately 40 minutes of footage from Mr Poskus’ “body cam”, GoPro camera. The footage covers the interactions between Mr Poskus, Mr Hooper, Mr Henning, Mr Darnton-Turner, Mr Windsor and Mr Marotti.
Due to disagreements between the parties over the transcript of the video, a joint transcript identifying the differences according to each party was provided to the Court on 7th July 2023. Its 64 pages, with the relatively modest number of disagreements recorded in different colour fonts, is annexed to these reasons. While not quite akin to the mediæval question of “how many angels dance on the head of a pin”, it had something of this “feel” to it in the attempted surgical precision that each side sought to bring to the analysis and deciphering of relatively relaxed conversation on the day in question, but which precision rarely is the reality on any building site. This is also to say that even with the benefit of “real-time” recording of conversations, significant dispute remained – regrettably.
Oral Evidence of Joshua Bolitho
Mr Bolitho, who is employed as an organiser by the Construction and General Division, ACT Divisional Branch of the Construction, Forestry, Maritime, Mining and Energy Union (now known as the Construction, Forestry and Maritime Employees Union; “the Union”), affirmed an Affidavit on 7th October 2022.[3] Mr Bolitho was a good, clear, indeed, impressive witness. There was no hint of any “agenda” in his evidence, which he gave in simple, factual terms, with no obvious embellishment. I have no reason to, and do not, doubt his evidence in any relevant respect. It follows that I accept his evidence and prefer it wherever there is any conflict between his evidence and the evidence given by or on behalf of the Respondents.
[3] T 27
In cross-examination, Mr Bolitho stated that he was not a trained electrician, and confirmed that he did not have any practical training in electrical matters. He confirmed that he often attends sites on behalf of the Union as a permit holder to address safety issues, occasionally with the Communications, Electrical and Plumbing Union (“CEPU”) officials.[4]
[4] T 28
Mr Bolitho said that he had dealt with Mr James Darnton-Turner and understood that Mr Darnton-Turner is an official of the CEPU. He said that Mr Darnton-Turner has more experience than himself in the electrical field, and hence relies on his expertise in relation to electrical safety issues. Mr Bolitho also confirmed that he knew Mr Brian Windsor, an official at the CEPU, and accepted that he did not understand Mr Windsor to have any expertise in electrical matters. Mr Bolitho confirmed that he would defer to Mr Darnton-Turner’s expertise if any specific electrical issue arose in terms of safety. Mr Bolitho said that he did have training in work, health and safety in the building and construction industry, alongside a Certificate IV in Work, Health and Safety.[5]
[5] T 28
Mr Bolitho was taken to his Affidavit canvassing a conversation between himself and Mr Darnton-Turner on 16th March 2021, concerning electrical safety at the Founders Lane site, otherwise known as the Currong Street site. Mr Bolitho confirmed that he had been to the Founders Lane site on approximately 10 occasions prior to this conversation, in exercising his right of entry under the WHS Act. He confirmed that Mr Darnton-Turner and Mr Windsor occasionally attended together with him, as well as Mr Luke Poskus, [now] a former official of the Construction and General Division, ACT Branch of the CFMEU. Mr Bolitho confirmed that the electrical safety concerns raised on 16th March 2021 were based on a previous occasion, in which Mr Darnton-Turner had been to Founders Lane. The conversation also included Mr Darnton-Turner’s observations of other sites not connected to Founders Lane. Mr Bolitho confirmed that O’Neill & Brown, an electrical contractor, was responsible for the electrical works on these sites. It was suggested to him that Mr Bolitho and Mr Darnton-Turner had attended the site on 30th October 2020, although he could not recall the visit.[6]
[6] T 29 - 31
Mr Bolitho was taken to a record kept by JW Land in annexure NH2 to the Affidavit deposed to by Mr Nicholas Haralambous, showing times that various officials had exercised their right of entry at Founders Lane. Mr Bolitho was taken to the date of the 30th October 2020, where he confirmed that his name appeared alongside the names of Mr Darnton-Turner and Mr Poskus. Mr Bolitho confirmed that these visits were to inspect various suspected contraventions of WHS legislation, alongside watching out for anything else that might give rise to possible breaches of the legislation. Mr Bolitho acknowledged that he had visited the site on 19th February 2021 to deal with an emergency access and egress issue. It was suggested to him that on this occasion he had given attention to the issue of access and egress on the site and had found no issues regarding the placement of emergency evacuation diagrams on this occasion.[7]
[7] T 32 – 34
Mr Bolitho stated that based on his conversation with Mr Darnton-Turner, he had prepared a form setting out his suspected contraventions. He was shown this document, on page 33 of Mr Haralambous’ Affidavit, as well as 2 similar forms completed by Mr Darnton Turner and Mr Brian Windsor. It was suggested to him that the form completed by him was a mirror of these notices. He confirmed that he, Mr Windsor and Mr Darnton-Turner were entering the worksite at Founders Lane to investigate the same suspected contraventions of the WHS Act. He said that he believed Mr Windsor also attended to obtain certain documents. It was suggested to Mr Bolitho that the purpose of seeking to enter the Founders Lane site was not to investigate a suspected contravention of the WHS. Mr Bolitho denied this.[8] This line of questioning somewhat begged the question: “why else would Mr Bolitho go to a construction site other than to inspect matters that had given rise to certain suspicions?” Put somewhat colloquially, and I hope not too harshly, such visits were not, for example, social occasions, just to “have a chat.”
[8] T 24 - 37
Mr Bolitho confirmed that on most occasions prior to 17th March 2021, he was in the presence of Mr Darnton-Turner or Mr Windsor during site visits, although they had separated on some occasions. He confirmed that the first issue he had raised was that there were no emergency evacuation diagrams beyond the front of the site outside the gate in accordance with clause 43 of the Work Health and Safety Regulations. He said that this issue had not come to his mind on any previous visit to the site. He confirmed that he understood the relevant regulations. He conceded that he had not seen the emergency plan before the visit, although it was received by him at the visit.
Mr Bolitho was taken to a copy of the Australian Standard at annexure JB2 to his affidavit. He confirmed that he was familiar with the Standard given his role as a Union official. It was suggested to him that the Standard did not state precisely where the emergency evacuation diagrams should be located or how, but that this is a matter for the Emergency Planning Committee to determine.[9]
[9] T 38 – 42
The Court noted that Mr Bolitho’s issue had been that he did not see any plan, and hence he would not necessarily have been concerned with the fine detail of what may have been included in that plan. Mr Bolitho confirmed this, however said he was also concerned about the contents of the plans which would eventually be put up. It was suggested to him that the Standard does not indicate that the location must be ‘prominent.’[10] Respectfully, (a) such a question was hair-splitting and (b) more relevantly, it would be both illogical and completely inappropriate to have evacuation diagrams in places that were not “prominent.” Put another way and somewhat colloquially: why have evacuation diagrams if they were not displayed prominently? If not prominently displayed, it would be self-defeating in their purpose and pose, potentially, increased liability for the PCBU.
[10] T 43
Questions returned to the date of the 17th March 2021. Mr Bolitho said that the issue of the emergency evacuation diagrams was raised at the beginning of the site visit, and again conceded that he did not recall who raised it first. He recalled that there was contact with WorkSafe ACT as a result and believed that Inspector Matthew Davis was contacted by one of the managers, Mr Matthew Hooper or Mr Scott Henning. Mr Bolitho said that he was not party to the phone call. It was suggested to Mr Bolitho that Inspector Davis had said; “The emergency evacuation plan is okay, but have a toolbox talk to highlight the routes to exit.” Mr Bolitho recalled a toolbox talk occurring immediately after discussion with Inspector Davis, however he did not recall any view that the plan was “okay”. He said that he was present at the toolbox talk, alongside all other workers (with the exception of the crane operator). Mr Henning had spoken on behalf of the company regarding the emergency evacuation procedures for approximately ten minutes.[11] Again, the question might be posed, somewhat rhetorically, regarding whether a “toolbox talk” to construction workers would be sufficient (e.g. in terms of the duty of care owed by the building and management company running the site) to ensure that workers (and visitors) on site knew where emergency exists were on the site. It must surely be an exercise in basic safety to ensure that safety exists are not dependent upon the memory of works from a toolbox talk, but in an emergency, all on site can readily see emergency evacuation notices. In my view, respectfully, it would be illusory to view a toolbox talk as a sufficient remedy if there remained issues regarding the adequacy of them, including their clearly visible placement on site.
[11] T 43 – 44
Questions moved to the date of the 18th March 2021. It was suggested to Mr Bolitho that he would have used diagrams on this occasion to assist in deciphering the access and egress points. Mr Bolitho rejected this statement, advising that this would instead involve ensuring that employees have safe access in and out of work areas. Mr Bolitho confirmed that the next issue raised on this visit was electrical switchboards, which Mr Darnton-Turner had taken the lead on due to his expertise. He said that he had also identified a few other issues, which had included the gaps in the switchboards and some inappropriate holes in the back of those boards. He confirmed that some of these issues were rectified, but some were not. The second issue had involved jacks in exposed wiring, and the third was that about half a dozen switchboards had such large holes in them, which meant that they should not have been in use. Mr Bolitho confirmed that one of the boards was then isolated and addressed on the spot due to it being so dangerous that it should not have been in use at all. [12]
[12] T 45 – 46
Mr Bolitho confirmed that the inspection took approximately six to seven hours, and that they had attended the Ground Level, and Levels 3, 7 and 8. He agreed that there was not enough time to finish the remainder of the site. Mr Bolitho confirmed that after each safety issue arose, discussions would occur between Mr Hooper, Mr Henning, Mr Darnton-Turner, Mr Windsor and himself. As far as he could recall, Mr Bolitho was not aware of anyone taking notes. In my view, this was surprising – to say the least. He said that there was one occasion where Mr Darnton-Turner had identified a power lead being faulty, and Mr Henning had said he saw Mr Darnton-Turner pull it out, although Mr Darnton-Turner denied that he had done so. Mr Bolitho said that they had been trying to ascertain whether the switchboards were safe. Counsel for the Respondent sought to confirm that Mr Bolitho understood that the switchboard safety process involves testing and inspection by an electrical inspector for safety, followed by certification by the inspector prior to installation. He was unsure whether or not any follow up inspections occurred after the first certification, although he was aware the site electrician should regularly check them. Mr Bolitho did not recall the electrical inspector attending with them on the 17th March 2021.[13]
[13] T 47 - 50
Mr Bolitho did not recall any discussion about the production of Certificates of Electrical Safety (CES), however he did confirm that Mr Hooper and Mr Henning had said that they had obtained CES forms. It was suggested to him that the issues identified on this day were examples of ‘tampering with the wiring’. He said that he could not speak to why the wiring was damaged.[14]
[14] T 50
Mr Bolitho said that Mr Declan Geraghty, a safety manager, was present at the beginning of the site visit. He did not recall any discussions with Mr Geraghty about the length of time that it would take to put up emergency evacuation diagrams. Mr Bolitho confirmed that he had a conversation with Mr Poskus following the site visit on 17th March 2021. In this conversation, Mr Bolitho confirmed that he informed Mr Poskus that some of the electrical boards had issues with gaps and had been isolated as a result. While Mr Bolitho had informed Mr Poskus as to which floors they had visited the previous day, he had not advised which electrical boards had been examined. He explained that he had assumed that “James from the ETU” (Electrical Trades Union) would attend the site with Mr Poskus the following day to go through these details. He said that he had also expected cooperation between the Unions and management to establish a plan to complete the rest of the inspection.[15]
[15] T 50 – 53
Mr Bolitho confirmed that although the purpose of the inspection was to investigate the suspected contraventions, it had ‘morphed’ into a more general inspection when the switchboard issues were discovered. He recalled that Mr Adam Bounds, a work site inspector, had accompanied people on parts of the walk on 17th March 2021. Mr Peter Moltmann, a WorkSafe ACT inspector, was also present. Mr Bolitho recalled that Mr Peter O’Neill, an electrical inspector, was contacted by telephone at the end of the inspection. Mr Bolitho had observed a discussion between Mr Bounds, Mr Moltmann and Mr O’Neill to address the electrical safety issues; the main issue being the emergency lighting. He accepted that Mr Darnton-Turner had disagreed that the emergency lighting was compliant.[16]
[16] T54 – 57
In re-examination, Mr Bolitho was asked to clarify which members of management had accompanied him during his visits to the site prior to 17th March 2021. He said that there were different members of management at different points, however it was usually a combination of Mr Henning, Mr Hooper, Mr Geraghty and occasionally Mr Haralambous.[17]
[17] T 57
Mr Bolitho also confirmed that in his experience, it was unusual to find so few emergency diagrams on the site. He added that they had separately identified a lack of fire extinguishers and access points on the site. He said that the issues regarding evacuation diagrams outlined in cross-examination were located throughout the site, with the fire extinguisher issue confined to level 8. He confirmed that he had made a record with respect to the visit.[18]
[18] T 58
He accepted that, to the best of his knowledge and experience, a switchboard which might have been signed off as compliant on a particular day may become non-compliant in the future. Thus, he confirmed that a previously compliant switchboard with a CES might not address his concerns about its present or future compliance.[19]
[19] T 59
Mr Bolitho was asked how or why he assumed that Mr Darnton-Turner would attend the site the next day; he simply said that Mr Darnton-Turner had informed him on the site that he would do so. Finally, Mr Bolitho confirmed that Mr Geraghty had indicated to him that he was working on the emergency diagrams during the site visit.[20]
[20] T 59
Oral Evidence of Luke Poskus
At the time of the inspection in question on 18th March 2021, Mr Poskus confirmed that he was then employed by the ACT branch of the CFMEU in 2021.[21] He now works in Sydney with a different Union, the CEPU, having started with this Union in August 2022.
[21] T 60 – 61
On the afternoon of 17th March 2021, Mr Poskus said that he recalled a conversation with Mr Bolitho in the Union office. Mr Poskus had been visiting the Founders Lane site that day with Mr Darnton-Turner and Mr Windsor from the CEPU, both of whom, he advised, were his colleagues. Mr Poskus confirmed that he had no qualifications as an electrician but has some knowledge of electrical safety due to his role as a permit holder and Union official. He confirmed that Mr Bolitho had given him a ‘high level summary’ of his observations during the site visit. He had not taken any notes at the time, so he said that the recount of this conversation was from his memory. He further advised that based on this conversation, he had filled out a notice to enter the workplace the next day under s.117 of the WHS Act. He had not seen any notes that Mr Bolitho had made, nor was he aware of the length of time that Mr Bolitho had been on site that day.[22]
[22] T 61 – 63
Mr Poskus said that he understood the site visit was to assess the emergency evacuation procedures and involved a walk around the entirety of the site. Mr Poskus confirmed that Mr Bolitho had told him that he had not yet finished inspecting the whole site. Because of previous visits to the site, including with Mr Darnton-Turner, he stated that he had some level of familiarity with the location. Mr Poskus said that during his conversation with Mr Bolitho, some issues were identified as being actioned, however not all of them. As Mr Bolitho had not identified which issues were “actioned”, Mr Poskus did not have certainty as to the areas of the site that had already been inspected. He said that he was expecting to find this out the next day from management once he was able to get a look at the site.[23]
[23] T 63 – 65
Questions moved to the Work Health and Safety Regulations (“the Regulations”). Mr Poskus confirmed that he was familiar with the Regulations, particularly clause 43 (under s.19 WHS Act), and regulation 163. It was suggested to him that Mr Bolitho had never raised concerns about a contravention or breach of these Regulations. Mr Poskus confirmed that this was not explicitly said, however he had made an inference of such contraventions based on the information that he had been told. Mr Poskus was taken to his “entry notice” for 18th March 2021. He confirmed that he had completed it before he went on site. It was highlighted to Mr Poskus that he had mentioned Regulations 43 and 149 in his entry notice, but not Regulation 163. He confirmed that Mr Bolitho had never mentioned this Regulation explicitly in their conversation, however explained that this would be unlikely as Regulation 149 is the procedure to be followed to rectify the switchboards, and instead he would have been identifying the contraventions. He said that Regulation 149 was applicable as it covers this rectification process. Mr Poskus denied that he had never suspected a contravention of Regulation 149, as he had not explicitly written this in his affidavit.[24]
[24] T 66 – 68
Questions then moved to Regulation 43, which Mr Poskus confirmed deals with a PCBU’s obligation to prepare and maintain an effective emergency plan. Best practice, he confirmed is governed by AS3745, although this standard does not have any force of law by itself. He stated that following his conversation with Mr Bolitho, he had suspected a contravention of Regulation 43, rather than the standard. Mr Poskus said that he was unsure whether or not he had actually seen the emergency action plan prior to his visit to the site on 18th March 2021. He confirmed that he understood the standard did not state where the emergency plans should be located, just what needs to be represented on them. Despite this, Mr Poskus said that usually they would be located near the emergency exit stairs. He also confirmed that some of the plans did not have pictograms at all, advising that they did in fact contravene this standard. Although he confirmed that Mr Bolitho had not yet told him whether or not an emergency action plan was in place, Mr Poskus rejected the suggestion that he had no basis to suspect a contravention of clause 43.[25]
[25] T 69 – 75
Mr Poskus was directed to Regulation 163, which he confirmed requires compliance with AS3012 for electrical installation, construction and demolition sites. He confirmed that within this standard, various provisions discuss isolation and safe installation of electrical equipment. It was suggested to him that if he had suspected a contravention of Regulation 163, he would have included it in his notice. Mr Poskus responded that he did not include it because Regulation 149 is an extract from the standard. Mr Poskus said that he did not recall Mr Bolitho discussing issues of emergency lighting with him during the discussion.[26]
[26] T 76
Mr Poskus confirmed that walking through the entire site would take some time, although he accepted that it would depend on the speed of the walk, the issues identified, and the assistance provided. He was taken to par. 20 of his Affidavit, which referenced a conversation with Mr Bolitho on the morning of 18th March 2021 regarding the emergency evacuation diagrams. Mr Poskus confirmed that Mr Bolitho had not told him where the emergency diagrams needed to be displayed. He stated that the right place for such diagrams would be determined according to the standard by the PCBU safety committee, rather than the EPC, as the latter refers to a finished building committee plan.[27]
[27] T 77 – 79
Mr Poskus confirmed that he was wearing the GoPro body camera on 18th March 2021, and that had arrived at the site around 7.30am. He had called Mr Henning upon arrival at 7.31. He confirmed that Mr Darnton-Turner and Mr Windsor were both present, although there had been no coordination about what was going to happen that day. Mr Poskus confirmed that Mr Darnton-Turner is a licensed electrician, hence he respected his knowledge and expertise in the area of electrical safety issues. A brief five-minute conversation had occurred between Mr Darnton-Turner and Mr Windsor after they signed in at 7.37am. Mr Poskus did not recall any additional information about the previous day beyond the information that Mr Bolitho had expressed. [28]
[28] T 79 – 83
At this point the video footage of the sign-in from Mr Poskus’s body camera was shown. It showed a conversation in the office area between himself, Mr Henning and Mr Hooper. The footage was paused at a point where Mr Poskus made a comment that he was at the site to exercise his right of entry under the WHS Act, and there was some discussion between Mr Poskus, Mr Henning and Mr Hooper about where they were up to and what they had to rectify. He had said that all they had to tell him was where they were up to with the distribution boards and which boards needed to be fixed. He said that these issues could be canvassed in a one-minute discussion. Counsel for the Respondent sought confirmation that a discussion was had at one stage to call the electrical inspector. Mr Poskus recalled this, although he could not identify who had suggested the call. He then said that nobody ended up waiting for the inspector, because they did not usually come out while the Union was on site. He said that Mr Darnton-Turner had told him that it was ‘pointless’ to call the inspectors. It was suggested to Mr Poskus that despite him not thinking it was a good idea, he could not have known what Mr Henning and Mr Hooper were thinking.[29]
[29] T 83 – 86
Mr Poskus stated that he understood that at all times during the on-site walk that they had to be escorted by representatives of JW Land, however there had been no offer to do this. He said that after 45 minutes of ‘unnecessary waiting around’, Mr Haralambous had arrived, and they proceeded to walk around the site. It was suggested to Mr Poskus that he had called various people to get in touch with an inspector, which he confirmed had occurred. He said that this was prior to his understanding that doing so would be pointless.[30]
[30] T 86 – 87
Mr Poskus said that nobody had told him that an inspector for WorkSafe had been called regarding the evacuation diagram issues the day before, nor was he told that two WorkSafe inspectors had been present, and an electrical safety inspector had been on the phone trying to deal with some of the same issues. He said, however, that none of these things would have made much of a difference to his inspection. He stated that he had been relying on JW Land to tell him what had been worked through and what had not, rather than from, for example, any conversation with Mr Darnton-Turner. He could not recall any such discussion occurring. It was suggested to him that going to Mr Darnton-Turner would have been a more efficient course of action. However, Mr Poskus stated that as he was not a subject matter expert, he would not have gone to him. He stated that all he needed was the summary given to him by Mr Bolitho.[31]
[31] T 87 – 88
Mr Poskus said that neither Mr Henning nor Mr Hooper had asked him where he wanted to go. Instead, he had told them that he was at the site to follow up from where they were up to from the inspection the previous day. He had been waiting for them to explain where they were up to, and to go and visit those areas. Mr Poskus confirmed that from his conversation with Mr Bolitho, he had understood that certain things had been rectified and resolved, and that Mr Bolitho was asking Mr Poskus to follow up on what still needed to be done. It was suggested to Mr Poskus that the entire basis for his presence on the site was not to deal with things that had already been dealt with, and that he had no basis to suspect a contravention that had already been handled. Mr Poskus stated that he still had the right to inspect under his permit, due to the lack of evacuation diagrams on the site. Given Mr Bolitho had only inspected half of the site, Mr Poskus said that he had expected to inspect the other half.[32] In my view, the consistency between the evidence of Mr Bolitho and Mr Poskus was plain and uncontrived in any respect.
[32] T 88 – 90
Mr Poskus recalled that after signing in, a discussion had occurred about Mr Windsor having asked for the documents on the previous day under s.120 of the WHS Act. He recalled Mr Windsor saying that he had asked for some documentation and had given 24 hours’ notice on the previous day. He confirmed that he understood that Mr Windsor was waiting on the production of those documents by JW Land.[33]
[33] T 96 – 97
Mr Poskus also confirmed that after some period Mr Windsor left, although did not recall the handing over of documents from JW Land to Mr Windsor as suggested by the Respondents’ Counsel. Mr Poskus did not recall being asked by Mr Hooper and Mr Henning about the s.117 WHS Act notice that he had served or provided that morning. He said that he had drafted his notice without speaking with Mr Windsor or Mr Darnton-Turner and had based it [only] on what Mr Bolitho had told him the day before.
Regarding the emergency diagrams [again], Mr Poskus confirmed that JW Land had been given two days to put up the emergency evacuation diagrams. However, Mr Poskus commented that he had later called Mr Bolitho to check on this, who had said this was not the case. He then stated that he knew that JW Land was lying but could not understand why. He agreed that Mr Bolitho had not actually told him on this phone call how much time he had given JW Land to put up the diagrams but stated that this was because such issues needed to be fixed immediately. Mr Poskus said that officials do not have the right or the power to give anyone a fixed period of time to rectify the issues, especially where those issues are classed in category 1.[34]
[34] T 98
Mr Poskus confirmed that he had stated that he would clear up the confusion by speaking with Mr Bolitho on the issue. He had then put Mr Bolitho on speakerphone, and Mr Bolitho had given his account as to why he did not think he had given 48 hours’ notice to JW Land. He did not recall Mr Hooper or Mr Henning explaining what they had told Mr Bolitho, nor did he recall them stating that they understood Mr Bolitho had given them 2 days because he was coming back on Friday. He vaguely recalled a discussion about a toolbox talk which had occurred on the previous day to deal with the emergency evacuation procedures.[35]
[35] T 99
Mr Poskus did not recall any remark made by Mr Henning that he did not know why they were there in relation to s.117 WHS Act. He confirmed again that the reason he was there on 18th March was to complete the inspection of issues (noted to him by Mr Bolitho) which had not been finished on the 17th, and to ensure that they had been rectified. All he needed to know to do his “follow-up” was where they were up to from the previous day inspection. He could not recall any conversation between Mr Darnton-Turner and Mr Henning about what they understood to have been ‘closed out’ the previous day. Furthermore, he could not recall whether Mr Darnton-Turner had left early on the previous day to pick up his children, obviously because he was not there. [36]
[36] T 100
Mr Poskus recalled a discussion about the CES forms, which occurred initially between Mr Darnton-Turner and Mr Henning. He could not recall the presence of anybody else during that conversation. Mr Poskus said that he knew there would only be one reason for calling for the CES forms, which was that the boards were non-compliant. Consequently, he had not been listening to the conversation to comprehend what the issues were, as this could be inferred. To his understanding, Mr Poskus said that the CES forms would demonstrate that the process had been undertaken (at some earlier point in time) by an independent electrical inspector for approval and certification.[37]
[37] T 101 – 102
He confirmed that following the discussion, he had said to Mr Darnton-Turner to ‘let Mr Hooper talk’ and to let him know when he would be finished. He did not recall Mr Hooper saying that he wanted an electrical inspector that day to check the electrical boards. It was suggested to him that two inspectors named Peter had attended the day before and resolved the issues. He did not recall this occurring. Nor did he recall Mr Darnton-Turner stating that the issue was outside Mr O’Neill’s jurisdiction, or Mr Hooper offering to ask Mr O’Neill to resolve the issue. Mr Poskus confirmed that he had said that a CES form did not necessarily indicate compliance, and referred to AS3012 and Regulation 149. He confirmed that he had also recommended that they go and check the other half of the boards that had not been checked the previous day.[38]
[38] T 102 – 103
Mr Poskus confirmed that he had raised the fact that he thought Mr Henning and Mr Hooper had been hindering and obstructing the process. It was put to him that Mr Henning had explained that they had spent seven hours on the previous day trying to resolve various issues, and that one of the issues had resolved in twenty minutes when the WorkSafe inspector had attended. He did not recall this statement. It was then suggested to him that Mr Poskus had responded that he did not care what the inspectors did. Mr Poskus said that this was not something he would say. He also denied that Mr Henning had repeated that all of the issues had been addressed on the previous day.[39]
[39] T 103
Mr Poskus said that he had suggested to ring the regulator, which was shown in the body cam footage. He agreed that he had walked away from the table to make this call, however denied that he had then told the others to wait for the regulator to attend. He denied that he had asked for someone to assist him to find the regulator’s number, as he would have simply contacted Access Canberra (a number that he had memorised). He did not recall Mr Darnton-Turner stating that he wanted to see every board on site, nor that he wanted an electrical inspector with them.[40]
[40] T 104 – 105
Mr Poskus said that the ‘waiting around’ that had occurred during this period was due to the reluctance from JW Land to take them on the site walk. Mr Henning had then stated that he was seeking some advice on the issue, and Mr Hooper asked for a ‘clear scope’ of what Mr Poskus had wanted to be done. Mr Poskus stated this was a clear attempt to hinder and obstruct. He stated that he found it hard to believe that they did not know what the issues were, as they had intended to follow on from the issues identified on the previous day. [41]
[41] T 105 – 107
Mr Poskus confirmed that following this 45 minute ‘waiting’ period, they had commenced walking through the ground floor of the site while waiting for the inspector. He could not recall when they were joined on this part of the walk by Mr Haralambous, but to his memory, he had not seen Mr Haralambous that morning. Mr Poskus said that they had first looked at the electrical switchboards to deal with the associated issues, and then moved on to the evacuation diagrams. Counsel suggested that the video did not appear focused on the latter issue, despite Mr Poskus advising the Court that the evacuation diagrams was a ‘life and death’ issue.[42]
[42] T 107 – 108
He said that before completing their inspection, the ABCC inspectors had arrived and they had all moved into a room. He had asked the inspectors why they had arrived, given safety was not their jurisdiction. He said that the presence of the ABCC was a physical interference with their inspection, hence the reason to pause to the inspection. He acknowledged that the ABCC had not told them to cease the inspection.[43]
[43] T 108 – 110
Mr Poskus stated that a WorkSafe inspector had then arrived, although he could not remember this person attending the walk. He confirmed that he had then left the site and did not come back to complete the issues. He said that he did not report back to Mr Bolitho about whether or not the job had been completed, nor did he have any discussion with the ABCC or the WorkSafe inspector. He said that shutting down the site by issuing a prohibition notice was in WorkSafe’s jurisdiction, not his. Although he did not complete any formal report following the inspection, he stated that he had made contemporaneous notes about the morning due to the obstruction by JW Land and the visit by the ABCC. These notes, he said, just went to the legal team and only covered the times that they were there. Mr Bolitho would not have had any access to them. Despite his obstruction concerns, Mr Poskus stated that he did not make any complaints to WorkSafe about them.[44]
[44] T 110 – 113
Mr Poskus was then taken to a list of entries by Union officials created by JW Land based on their records, annexed to Mr Haralambours’ Affidavit. He confirmed that he saw his name appear on a few occasions following 18th March. He confirmed that he had not come back to the site to deal with the emergency evacuation diagrams under s.117 WHS Act. It was suggested to Mr Poskus that Mr Henning and Mr Hooper had never physically restrained (emphasis added) him from coming onsite. He responded that he was unable to wander around the site without a member of the PCBU escorting him. It was suggested to Mr Poskus that if he had wanted to be escorted on the site in the presence of an inspector, he would have to wait for the inspector to do so. Mr Poskus said that there was no requirement for them to wait for the regulator.[45]
[45] T 113 – 115
Re-examination commenced with questions about why Mr Poskus needed to be accompanied by a member of the PCBU to enter the site. He explained that he was unfamiliar with their emergency evacuation procedures, hence he was unable to wander around on his own. He confirmed that he had not been waiting for an inspector to attend before he exercised his right. He confirmed that he had contacted WorkSafe to check the validity of their comments that everything on the site was good. Mr Poskus said that he had spoken with Mr Bolitho about exactly what had transpired after he had attended the site.[46]
[46] T 115 – 116
He was then taken to Regulation 43 of the Work Health and Safety regulations, and the AS3745 standard of the Australian Standards. After some confusion, Mr Poskus clarified that in respect to the presence of emergency plans, he might have been referring to the work environment facility code, rather than the Work Health and Safety (Construction Work) Code of Practice.[47]
[47] T 118 – 119
He explained that the CES forms had been relevant to determine whether an investigation about the electrical distribution boards would occur, as it is the starting point after receiving a complaint. He then stated that the existence of these forms had a large impact on their investigation.[48]
[48] T 119
The evidence of Mr Poskus was clear, sometimes emphatic but reasonably so. There was no obvious “agenda”. He readily conceded matters where he had no clear recollection. I have no reason to doubt his evidence, which I otherwise accept. Unless otherwise specified, or properly challenged by independent documentary evidence, like the evidence of Mr Bolitho, I prefer and accept the evidence of Mr Poskus in any instance where it conflicts with that of any witness on behalf of the Respondents.
Respondents’ Oral Evidence
Oral Evidence of Scott Matthew Henning
For background to, and context for, Mr Henning’s oral evidence, it is important to record the following paragraphs from his Affidavit, filed 30th March 2023:
82.I then had a conversation with Mr Poskus because I believed that his s 117 form looked almost identical to the notice we received the day before from CFMMEU Official Joshua Bolitho and I wanted to understand what specifically Mr Poskus wanted to see given that we had spent approximately 6 hours the previous day reviewing those same issues for which Mr Bolitho was present.
83.I was surprised that Mr Poskus was on site to view the same issues as I believed that the issues had been closed out the previous day on 17 March 2021 when Mr Bolitho was at the Site and during the conversation with the WorkSafe ACT Inspectors which Mr Bolitho was present for.
84.Initially Mr Poskus stated that he was aware that not all of the issues were closed out on the previous day and raised the issue of the emergency plans. I advised Mr Poskus that Mr Bolitho had accepted that it would take JWLand approximately 48 hours to update the emergency plans and distribute these across the Site. Mr Poskus acknowledged that being aware that JWLand had an interim plan in place and had conducted a toolbox talk the previous day.
85.During this conversation Mr Poskus commented that he didn’t know where we were up to in relation to the emergency plan issue. I understood this to mean that he’d received some information about the steps JWLand had taken to address the emergency plan issue raised by Bolitho and I attempted to assist Mr Poskus to understand where the issue was at by outlining what steps had been taken and what the timeframe for completion was as discussed with Mr Bolitho the previous day.
86.Mr Poskus then called Mr Bolitho to discuss the timeframe for JWLand to rectify the emergency plan issue and Mr Bolitho appeared to suggest that no such timeframe was discussed. I reminded Mr Bolitho that Mr Geraghty had shown him the rectified emergency plans the previous day, to which he agreed, and that these were in the process of being distributed across the 48 zones on Site.
87.Mr Poskus questioned the 48 hour timeframe for updating the emergency plans and I explained to him that we had been in a safety meeting with the Union Officials until 2.30pm the previous day and were not able to complete this yet. I also explained to Mr Poskus that we had added additional details to the emergency plans including the locations of the nurse on calls on each floor of the Site. Mr Poskus appeared to understand the 48 hour estimated timeframe when this was explained to him.
88.Following this, I raised the other issue regarding the DM Boards and explained where this issue was at. I explained that the previous day WorkSafe ACT had stated that the CES forms were compliant, however that Mr Marotti was conducting a review of each of the DB Boards and that WorkSafe ACT had closed out the issue. Mr Marotti also explained to the Union Officials the steps that he and his team had taken to address the concerns raised the previous day.
89.Despite this, Mr Poskus advised that he wanted to see the DB Boards as he was not present the previous day and understood from Mr Darnton-Turner that half of the DB Boards had not been reviewed by the Union Organisers.
90.During this conversation, Mr Hooper stated that issues that had taken several hours the previous day had been closed out during a two minute phone call and suggested that the Electrical Inspector should attend the Site to assist.
91.I understood Mr Hooper’s comment to mean that the Union Officials were not qualified to make a determination about the DB Boards or the emergency lighting and wanted someone qualified to assist given the time it had taken the previous day to review an issue that was closed out during a two minute phone call.
92.Mr Poskus asked Mr Hooper and myself to tell him if we were refusing him entry and I stated “no, we’re discussing it”.
93.I had no, and never had any, intention of refusing Mr Poskus and Mr Darnton-Turner’s entry to the Site, nor was I questioning their right to enter the Site. I was simply trying to understand what it was that the Union Officials wanted to see given that I believed the issues had been closed out the previous day in the presence of Mr Bolitho and Mr Darnton-Turner. My intentions were to narrow the issues so we didn’t have to repeat looking through the same things as we had done yesterday. As Mr Poskus was not present the previous day, I was trying to assist him understand what had been addressed and fixed up.
94.I stated to Mr Poskus that we were not refusing his entry to the Site but discussing it as up until this point of the conversation, I believed that we were assisting the Union Officials in providing them with relevant information regarding the status of the issues which had been raised the previous day and for which I believed they were attending the site to see had been closed out.
95.Mr Poskus had asked if JWLand was refusing him access to the Site to which I stated “I did not say that”.
96.Mr Poskus then made a statement “I will ring the regulator”. I understood Mr Poskus’ reference to the ‘regulator’ to mean WorkSafeACT.
97.Mr Poskus said “let’s get the regulator down here then.” Mr Poskus then stepped away from the table where we were seated and made a phone call. I believed that Mr Poskus was calling WorkSafe ACT and asking them to attend the Site to discuss the issues raised. This belief was confirmed when Mr Poskus made a comment to Mr Darnton-Turner than the regulator was coming to the site.
98.I was then of the belief that we were waiting for WorkSafe ACT to attend the Site to speak with the Union Organisers and JWLand in relation to the issues which had been closed out by WorkSafe ACT.
99.I then asked the Union Officials what it was in particular that they wanted to see, to which Mr Darnton-Turner stated “I want to see every board.” Until Mr Darnton-Turner stated that he wanted to see all of the DB Boards, I was unsure what the Union Officials actually wanted to see as I had believed they were there to close out the issues from the previous visit.
100.At this point I left the table and retrieved by hard hat and go-pro which I wore in preparation for the safety walk which would be undertaken when WorkSafe ACT arrived to the Site. I always wear a hard hat when I leave the Site Office and am walking to the Site. I believe that the Union Officials would have seen me retrieving and wearing the hat and go pro as I was standing and speaking with the Union Officials when I placed these onto my head.
101.The Union Officials were still sitting at the table at this stage and made no attempt to commence the safety walk. Because of this, it was still my belief that we were all waiting for WorkSafe ACT to arrive on Site.
102.Mr Poskus stated that I didn’t understand the WHS Act and that I was obstructing him from getting onto the Site. I then said, “we are not obstructing you, we are getting advice and we’ll get back to you soon.”
103.The ‘advice’ I referred to was electrical advice as I am not a subject matter expert and it was my belief that Mr Marotti was on the phone to the Electrical Inspector.
104.Mr Poskus became aggressive and started belittling me, suggesting that I didn’t know what the law was and accusing me of hindering and delaying them. I denied hindering and delaying the Union Officials and confirmed that we just wanted more information
105.Following that conversation, Mr Hooper approached me and said we needed to speak to the Union Officials and get more specific details from the Union Officials.
106.Mr Hooper said to Mr Darnton-Turner and Mr Poskus that we would like some more information on the specifics of what the officials wanted to inspect. Mr Poskus said that all the information I needed was in the section 117 form.
107.Any questions I then asked the Union Officials in relation to their s 117 noticed was met with a repeated “it’s on the s117”.
108.The s117 forms referred to issues with emergency lighting and temporary DB Boards and I was simply trying to understand what the issue was specifically as I believed these matters had been dealt with on the previous day.
109.After refusing to provide any additional details, Mr Poskus then suggested that the safety walk start from where it left off the previous day. This was helpful as until this point, I had no idea what specifically the Union Officials wanted to see.
…
113.At no stage was it my intention to hinder or obstruct Mr Poskus in exercising his rights of entry. What I intended to do was try to assist Mr Poskus and Mr Darnton-Turner identify what they wanted to see and where they wanted to go, given we had already spent around 7 hours on the previous day dealing with issues. As Mr Poskus was not present the previous day and appeared not to be aware of what happened, I was trying to understand what they wanted to see, explain what issues had been resolved and avoid wasting unnecessary time. Once I believed an inspector was coming, I decided to wait because I thought the presence of an inspector would help narrow the issues and resolve any difference of opinion.
The oral evidence of Mr Henning commenced on the fourth day of the trial, following some difficulties relating to the Respondents seeking to resubmit affidavits on the third day which, ultimately and regrettably, led to the matter being adjourned until 12th May 2023.
Mr Henning confirmed that he worked as a site manager and had trade qualifications.[49]
[49] T 8
Cross-examination commenced with confirmation that Mr Henning began work for JW Land as the site manager responsible for the Founders Lane project in March or April 2020. He confirmed that there was no construction work occurring near the site office, and that it was relatively separate to the construction zones. Mr Henning confirmed that he was responsible for managing the Union rights of entry at the Founders Lane site in March 2021. Mr Hooper and himself were, at various times, the JW Land representatives who would usually accompany Union officials. He acknowledged that Union officials who held entry permits under the FW Act and the WHS Act had a right to enter the premises to investigate suspected contraventions of the WHS Act, accompanied by a JW Land representative. He was also aware that Union officials with such permits had a right to inspect work systems after entering the site, among other things relevant to the contravention, and could consult with JW Land as the PCBU. He confirmed that JW Land was also required to allow a Union official to inspect and make copies of documents directly relevant to the suspected contraventions, as the PCBU.[50]
[50] T 10 – 11
Regarding the emergency evacuation diagrams, Mr Henning confirmed the significance of these diagrams, and the risks that their absence might create in an emergency. He acknowledged the importance of a PCBU to ensure that they were sufficient in detail and number across a construction site. He said that, as at 18th March 2021, Founders Lane consisted of two buildings, the first with five levels and the second with eight, alongside three basement levels. He confirmed that there were noticeboards located towards the entrance of the site, next to the site office and near the lunchrooms, alongside others ‘randomly around the site,’ although not on every level. He said that emergency evacuation diagrams had been displayed on these noticeboards, as at 18th March 2021.[51]
[51] T 11 – 13
Mr Henning confirmed that on 17th March 2021, Mr Bolitho, Mr Darnton-Turner and Mr Windsor had attended the site to exercise entry rights and had been present for six or so hours. He confirmed that they had identified a number of issues associated with the emergency evacuation diagrams, including that they did not identify where the viewer was located on each diagram, nor any emergency access parts, nor a legend or pictorial representation of the floor. He confirmed that Mr Declan Geraghty was the site manager at the time, and that he had instructed Mr Geraghty to update the plans upon hearing about these issues. After discussing with Inspector Davis from WorkSafe, he had also directed Mr Geraghty to the insufficient number of diagrams on each floor. Although Inspector Davis had not seen the plans, he had told Mr Henning by phone that they needed updating. He had advised Mr Henning to arrange a whole-site toolbox about evacuation routes, which took approximately 15-20 minutes.[52]
[52] T 13 – 15
CFMEU video 5 ‘GPO20248’ Unknown person: [inaudible] CFMEU video 5 ‘GPO20248’ 4:26 Poskus: Good, thanks.
Scotty. Oh, ay man, where’s the nearest toilet? Can I get someone to take us to the toilet? [inaudible] I got to do a piss. Can someone take us to the toilet?CFMEU video 5 ‘GPO20248’ Hooper: Let me get my hard hat man I’ll take you there. CFMEU video 5 ‘GPO20248’ 4:36 Poskus: How are ya brother? How are ya going? How are ya? You been alright? Nice to meet you. I didn’t think you had one in here. CFMEU video 5 ‘GPO20248’ Hooper: Sorry? CFMEU video 5 ‘GPO20248’ 4:44 Poskus: I didn’t think you had one in here. CFMEU video 5 ‘GPO20248’ Hooper: No. CFMEU video 5 ‘GPO20248’ 4:47 Poskus: I don’t know how long we’ll be sitting around waiting for so I don’t want to hold it any longer. Hey buddy, how are ya? CFMEU video 5 ‘GPO20248’ Unknown person: Good, how are you? CFMEU video 5 ‘GPO20248’ Poskus: Good mate. CFMEU video 5 ‘GPO20248’ Hooper: [inaudible] turn the camera off? CFMEU video 5 ‘GPO20248’ 5:28 Poskus: Nah, I’ll point it up to the sky man. These are the men’s ones, yea? CFMEU video 5 ‘GPO20248’ Hooper: [inaudible] CFMEU video 5 ‘GPO20248’ Poskus: Sweet. Hey buddy, how are ya? CFMEU video 5 ‘GPO20248’ Unknown person: Hey. CFMEU video 5 ‘GPO20248’ 6:34 Poskus: If it doesn’t matter where we wait, can we just wait here so I can have a smoke? If it doesn’t matter where we wait, can we just wait here while I have a smoke? CFMEU video 5 ‘GPO20248’ Hooper: CFMMEU: [inaudible]
JW Land: we’ll probably start taking off soon
CFMEU video 5 ‘GPO20248’ 6:52 Poskus: And that’s the thing. Imagine we break the law in relation to our right of entry, it be all over. CFMEU video 5 ‘GPO20248’ Darnton-Turner: [inaudible] CFMEU video 5 ‘GPO20248’ 7:05 Poskus: Mmm, smells real good at the canteen. What’s the food like at the canteen? You can smoke here, yeah? You’re not going to stitch me up and say no smoking outside? CFMEU video 5 ‘GPO20248’ Hooper: No. CFMEU video 5 ‘GPO20248’ 7:26 Poskus: How long do these batteries last for? CFMEU video 5 ‘GPO20248’ Darnton-Turner: Three hours. CFMEU video 5 ‘GPO20248’ Poskus: Three hours. [inaudible].
Are all the units sold done here already?CFMEU video 5 ‘GPO20248’ Marotti: [on the telephone]
CFMMEU: [inaudible].JW Land: Because. No well ah can you come down to the site? I need you to check on [inaudible].
CFMEU video 5 ‘GPO20248’ Poskus: Ah, you read protection [inaudible]? CFMEU video 5 ‘GPO20248’ Darnton-Turner: [inaudible] they're not emergency lights either are they? [inaudible] CFMEU video 5 ‘GPO20248’ 8:04 Poskus: You’d know man, you’re the electrician brother.
That’s a weird looking building, ay? That white one with the, with the, ah, sky lights? Weird shape. What’s that doing here?CFMEU video 5 ‘GPO20248’ Hooper: [inaudible] CFMEU video 5 ‘GPO20248’ 8:26 Poskus: Ah, that’s a bit of an architect’s fantasy, is it? CFMEU video 5 ‘GPO20248’ Hooper: CFMMEU: [inaudible]
JW Land: Call them down [inaudible]
CFMEU video 5 ‘GPO20248’ 8:34 Poskus: I’ve just never looked at it before. Look at the shape of it. It’s just weird the ways it’s faceted. But that, that shows not only internally what they’d look like externally as well with the cladding CFMEU video 5 ‘GPO20248’ 8:34 Marotti CFMMEU: [inaudible]
JW Land:[inaudible] They have sort of one man [inaudible] One man is standing [inaudible]
CFMEU video 5 ‘GPO20248’ Hooper: [inaudible] They put three or four of their displays in there. CFMEU video 5 ‘GPO20248’ Poskus: Oh yeah. CFMEU video 5 ‘GPO20248’ Hooper: [inaudible] CFMEU video 5 ‘GPO20248’ Marotti: [inaudible] Not all the way out to [inaudible] Yeah right now CFMEU video 5 ‘GPO20248’ Hooper: [point and nodding at Marotti] Yeah, right out, right now. CFMEU video 5 ‘GPO20248’ Marotti CFMMEU: -
JW Land: He’ll come at some stage [inaudible] …substation
CFMEU video 5 ‘GPO20248’ Hooper Yeah right out. CFMEU video 5 ‘GPO20248’ 9:07 Marotti: Have you been out there? Have you had a look? CFMEU video 5 ‘GPO20248’ Hooper: I’ve been there yesterday afternoon, but haven’t been there since. CFMEU video 5 ‘GPO20248’ Marotti: [inaudible] do they go right out? CFMEU video 5 ‘GPO20248’ Hooper: Not yet. They haven’t finished. CFMEU video 5 ‘GPO20248’ 9:18 Poskus: [belch] Excuse me. CFMEU video 5 ‘GPO20248’ Marotti [on the phone] [inaudible] just so you know. Yeah yeah yeah, I’ll give them a ring. Yep CFMEU video 5 ‘GPO20248’ Poskus: I see you opted for the helmet harness Scotty, you didn’t go for the full body harness? CFMEU video 5 ‘GPO20248’ Henning: [inaudible] CFMEU video 5 ‘GPO20248’ 9:46 Poskus: You got two free hands, doesn’t matter if your helmet falls off? CFMEU video 5 ‘GPO20248’ Henning: I was looking at that one, but I felt it would be a bit too… CFMEU video 5 ‘GPO20248’ 9:58 Poskus: Well, it is with a jacket on. CFMEU video 5 ‘GPO20248’ Henning: [inaudible] CFMEU video 5 ‘GPO20248’ 10:02 Poskus: Well, it doesn’t suit me, it doesn’t suit me, put it that way. CFMEU video 5 ‘GPO20248’ Henning: You gotta fucken… CFMEU video 5 ‘GPO20248’ Poskus: Yeah? CFMEU video 5 ‘GPO20248’ Henning: It loosens your hard hat. CFMEU video 5 ‘GPO20248’ 10:07 Poskus: Apparently the boys were saying that the batteries only last three hours. CFMEU video 5 ‘GPO20248’ Henning: Nah, 15 minutes. CFMEU video 5 ‘GPO20248’ Poskus: How good’s that. That’s crap. CFMEU video 5 ‘GPO20248’ Henning: That’s fucking shithouse. CFMEU video 5 ‘GPO20248’ 10:12 Poskus: Is that what we’re waiting for, for the batteries to go dead? CFMEU video 5 ‘GPO20248’ Henning: CFMMEU: -
JW Land: [pointing at go-pro on helmet]
And you can’t, you can’t
CFMMEU: [inaudible]
JW Land:[inaudible as Poskus talking]CFMEU video 5 ‘GPO20248’ 10:16 Poskus: Is that what you guys were waiting for, be honest, you’re waiting for the batteries to go dead? Just telling you now. CFMEU video 5 ‘GPO20248’ Henning: I like, I like your humour mate, but yeah, um…
CFMMEU: [inaudible]JW Land: [inaudible as Poskus talking]
CFMEU video 5 ‘GPO20248’ 10:21 Poskus: Just so you do know, Jimmy checked his phone. He called you first. I didn’t know he called you, right. At 7:28 he called you. It’s been almost an hour. We’re two minutes shy of an hour. CFMEU video 5 ‘GPO20248’ Henning: [inaudible] we got you in straight away CFMEU video 5 ‘GPO20248’ Hooper: Yep. CFMEU video 5 ‘GPO20248’ 10:29 Poskus: Yes. 100%. CFMEU video 5 ‘GPO20248’ Henning: And we resumed the case… CFMEU video 5 ‘GPO20248’ Hooper: We resolved Brian’s concerns. CFMEU video 5 ‘GPO20248’ 10:33 Poskus; Yep, we dealt with that. CFMEU video 5 ‘GPO20248’ Hooper: [inaudible] CFMMEU: [inaudible]
JW Land: Then we talked about scope.CFMEU video 5 ‘GPO20248’ Henning: The whole process isn’t about walking the site, it’s about communication. CFMEU video 5 ‘GPO20248’ 10:39 Poksus: Absolutely. Yeah. You want to make sure we’re complying with the law and at the least, once we do, we expect you to comply with the law. CFMEU video 5 ‘GPO20248’ Henning: 100% yeah. CFMEU video 5 ‘GPO20248’ 10:45 Hooper: (nodding) But also just there’s the direction of what we’re doing. CFMEU video 5 ‘GPO20248’ Marotti [on phone] on the inside of the substation there should be. Oh you have. CFMEU video 5 ‘GPO20248’ 10:50 Poskus: You’re saying that, you reckon the formats on that notice are no good. You want to, the SafeWork Act have issued those books – so you reckon that they need to add more fields? CFMEU video 5 ‘GPO20248’ Hooper: I didn’t say that. CFMEU video 5 ‘GPO20248’ 10:57 Poskus: You’re saying that they aren’t enough information? CFMEU video 5 ‘GPO20248’ Hooper: No. CFMEU video 5 ‘GPO20248’ Poskus: So, you do know? CFMEU video 5 ‘GPO20248’ 11:02 Hooper: No, I just said I wanted direction for today’s walk. Yesterday, we had seven hours of walking around. I just want direction. CFMEU video 5 ‘GPO20248’ Poskus: Well, I’m guessing that… CFMEU video 5 ‘GPO20248’ Hooper: CFMMEU: [inaudible]
JW Land: [inaudible as Poskus talking]
CFMEU video 5 ‘GPO20248’ 11:09 Poskus: I’m guessing that youse weren’t just standing around looking at the same issues for seven hours. I wasn’t here though. CFMEU video 5 ‘GPO20248’ Hooper: Ah mate. CFMEU video 5 ‘GPO20248’ 11:13 Poskus: Jimmy, did you find multiple issues? Or did you have the same issue for seven hours the whole time? CFMEU video 5 ‘GPO20248’ Darnton-Turner: No. Multiple issues. CFMEU video 5 ‘GPO20248’ Poskus: Oh well, that’s why it took so long. CFMEU video 5 ‘GPO20248’ 11:19 Darnton-Turner: Lighting boards, [inaudible]. CFMEU video 5 ‘GPO20248’ Hooper: That was fixed yesterday. CFMEU video 5 ‘GPO20248’ 11:23 Darnton-Turner: Emergency lighting, not adequate. CFMEU video 5 ‘GPO20248’ Hooper: Was rectified. CFMEU video 5 ‘GPO20248’ 11:27 Darnton-Turner: It wasn’t rectified. CFMEU video 5 ‘GPO20248’ Hooper: Rectified. CFMEU video 5 ‘GPO20248’ 11:31 Darnton-Turner: There was emergency lighting you got no access in the, in the fire escape, in the main hallways.
CFMMEU: [inaudible]JW Land: [inaudible as Poskus talking]
CFMEU video 5 ‘GPO20248’ 11:38 Poskus: That was an old issue we brought up the last time I did the walk with you. Remember? CFMEU video 5 ‘GPO20248’ Hooper: No. CFMEU video 5 ‘GPO20248’ Poskus: It was the lighting issue, you had to get someone to come put the lights in. CFMEU video 5 ‘GPO20248’ Hooper: [shakes head] CFMEU video 5 ‘GPO20248’ Poskus: You don’t remember? CFMEU video 5 ‘GPO20248’ Hooper: Nope. CFMEU video 5 ‘GPO20248’ 11:44 Darnton-Turner: The emergency lighting issue isn’t cleared. CFMEU video 5 ‘GPO20248’ 11:51 Poskus; To be honest, we thought we’d have be out of here by now if you guys were just complying with the law and let’s go have a look. If anything, if we’re going to be here for seven hours, it’s going to be because of you guys. CFMEU video 5 ‘GPO20248’ Hooper: CFMMEU: [inaudible]
JW Land: We’re waiting for you guys
CFMEU video 5 ‘GPO20248’ Marotti: [inaudible] CFMEU video 5 ‘GPO20248’ Hooper: [inaudible] CFMEU video 5 ‘GPO20248’ Marotti: [inaudible] CFMEU video 5 ‘GPO20248’ 12:15 Unknown person: Carmen do you mind if I borrow? [inaudible] CFMEU video 5 ‘GPO20248’ Marotti: [inaudible] CFMEU video 5 ‘GPO20248’ Unknown person: [inaudible] do you mind if I borrow… CFMEU video 5 ‘GPO20248’ Marotti: [inaudible] CFMEU video 5 ‘GPO20248’ Unknown person: [inaudible] CFMEU video 5 ‘GPO20248’ Unknown person: [inaudible] CFMEU video 5 ‘GPO20248’ 12:52 Poskus: I’m confused man. What’s going on? CFMEU video 5 ‘GPO20248’ Darnton-Turner: I don’t know. CFMEU video 5 ‘GPO20248’ 12:58 Henning: We’ll go have a look at the one he said he’s fixed and to make sure that you’re happy with them. CFMEU video 5 ‘GPO20248’ 13:05 Poskus: Well maybe just look at one of them. I don’t know. You’re the expert bro. I’m sure they haven’t done one and just bodgied up the rest. I’m sure the guys did the right job yesterday. CFMEU video 5 ‘GPO20248’ 13:13 Henning: No, no, cause they’ve gone through the boards. CFMEU video 5 ‘GPO20248’ 13:16 Poskus: I thought the issue was to look at the ones that haven’t been duly inspected. CFMEU video 5 ‘GPO20248’ Henning: I don’t know if that’s the direction, I’m not sure. CFMEU video 5 ‘GPO20248’ 13:22 Poskus: Well, that’s, if there’s any confusion here, we’re the same cause we don’t know what’s going on down here. I thought, I was waiting for the lions and tigers to come down here cause this is a circus at the moment. But mate, if you’re happy to take us… CFMEU video 5 ‘GPO20248’ Darnton-Turner: We waiting for an inspector or what? CFMEU video 5 ‘GPO20248’ Marotti No [shaking head] no inspector. CFMEU video 5 ‘GPO20248’ Poskus: …we’re waiting for you to take us. CFMEU video 5 ‘GPO20248’ Hooper: No we can’t get an inspector CFMEU video 5 ‘GPO20248’ Darnton-Turner: Ok alright CFMEU video 5 ‘GPO20248’ 13:37 Poskus; We’ll follow your lead man. CFMEU video 5 ‘GPO20248’ Hooper Um cool. CFMEU video 5 ‘GPO20248’ Marotti: [inaudible] CFMEU video 5 ‘GPO20248’ 13:40 Darnton-Turner We’ll start by having a look at this board over here. CFMEU video 5 ‘GPO20248’ 13:51 Poskus; I’m Luke yeah. I was going to introduce myself to you. You’re not the sparky. I thought you were the guy from [inaudible]. Good morning. How are ya? CFMEU video 5 ‘GPO20248’ Hooper: You want to get something? CFMEU video 5 ‘GPO20248’ Poskus: Oh nah mate, I’ll get a bottle of water in a minute. CFMEU video 5 ‘GPO20248’ Darnton-Turner CFMMEU: [inaudible]
JW Land: It’s very hard to get reduced to 63
CFMEU video 5 ‘GPO20248’ Hooper: [inaudible] CFMEU video 5 ‘GPO20248’ Poskus: Nah, nah mate. I’ll get it. Just wasn’t sure if I had enough change. I was joking. Can’t be more than 5 bucks. Good morning. How are you? CFMEU video 5 ‘GPO20248’ 14:37 Canteen worker: Good. How are you? CFMEU video 5 ‘GPO20248’ Poskus: Can I get a bottle of water please? CFMEU video 5 ‘GPO20248’ Canteen worker: Sure. CFMEU video 5 ‘GPO20248’ 14:45 Poskus: Jimmy, you want a bottle of water? CFMEU video 5 ‘GPO20248’ Darnton-Turner: No. CFMEU video 5 ‘GPO20248’ Poskus: You want a bottle of water mate? CFMEU video 5 ‘GPO20248’ Unknown person: [inaudible] CFMEU video 5 ‘GPO20248’ Canteen worker: There you go. Sorry, I’m just new. CFMEU video 5 ‘GPO20248’ 14:56 Poskus: No, you’re right. CFMEU video 5 ‘GPO20248’ Canteen worker: Three bucks. CFMEU video 5 ‘GPO20248’ Poskus: Three dollars. Sold. Thank you. Thank you very much. CFMEU video 5 ‘GPO20248’ Darnton-Turner: [inaudible] look at this stuff CFMEU video 5 ‘GPO20248’ Hooper: Nah no no no. James was here with someone else [inaudible] oh were you? CFMEU video 5 ‘GPO20248’ 15:14 Poskus: This was months ago though. Yea. Guys, there’s a lady coming through. There you go. How’s that for access? CFMEU video 5 ‘GPO20248’ Canteen worker: [inaudible] CFMEU video 5 ‘GPO20248’ Poskus: How are ya? CFMEU video 5 ‘GPO20248’ Darnton-Turner: (talking to Marotti and Hooper) [inaudible] CFMEU video 5 ‘GPO20248’ Poskus: So, what’s the issue with this one? CFMEU video 5 ‘GPO20248’ Darnton-Turner: Ay? CFMEU video 5 ‘GPO20248’ 15:38 Poskus: What’s the issue with this one? CFMEU video 5 ‘GPO20248’ Darnton-Turner: Emergency lights CFMEU video 5 ‘GPO20248’ 15:44 Poskus: I seen you looking at something behind the board was an issue behind there? CFMEU video 5 ‘GPO20248’ Darnton-Turner: Yeah. There’s a… It’s the way the [inaudible]. CFMEU video 5 ‘GPO20248’ 15:59 Poskus: What’s the, you guys [inaudible] this is normal hours. What’s it a 5:30 finish? Or do you stay back till it’s done, or [inaudible]? CFMEU video 5 ‘GPO20248’ Hooper: Normally, everyone is out of here by 3:30-4. CFMEU video 5 ‘GPO20248’ 16:11 Poskus: Yeah. No overtime. Fantastic. Where were these jobs when I was on the tools. CFMEU video 5 ‘GPO20248’ Darnton-Turner: [inaudible] CFMEU video 5 ‘GPO20248’ Marotti: [inaudible] CFMEU video 5 ‘GPO20248’ 16:26 Darnton-Turner: What about like along here. CFMEU video 5 ‘GPO20248’ Unknown person: [inaudible] CFMEU video 5 ‘GPO20248’ 16:36 Darnton-Turner: So, what about, is there any emergency lighting? CFMEU video 5 ‘GPO20248’ 17:11 Poskus: Hey, ah, that lead running through the water under there, that can’t be safe? CFMEU video 5 ‘GPO20248’ Darnton-Turner: [inaudible] CFMEU video 5 ‘GPO20248’ 17:18 Poskus: Have you, have you guys seen that? Good morning. How are ya going? CFMEU video 5 ‘GPO20248’ Unknown person: How ya going? CFMEU video 5 ‘GPO20248’ Poskus: That doesn’t look too safe, does it? The electrical lead running through the water underneath. CFMEU video 5 ‘GPO20248’ Darnton-Turner: [inaudible] CFMEU video 5 ‘GPO20248’ 17:32 Poskus: I just noticed it then. CFMEU video 5 ‘GPO20248’ Unknown person: [inaudible] it’s not connected CFMEU video 5 ‘GPO20248’ Poskus: Yea I know, but he’s plugged it up to the feed [inaudible] up to the end of it. Trace it back up there. CFMEU video 5 ‘GPO20248’ Unknown person: We should take it out. CFMEU video 5 ‘GPO20248’ 17:40 Poskus: Yea. Absolutely. I can’t do it. It’s not my site CFMEU video 5 ‘GPO20248’ Unknown person: Nah nah nah I’ve got it CFMEU video 5 ‘GPO20248’ Poskus: Have you noticed that Scotty? Have you seen that before? That lead running through the water under there? I just noticed it then.
CFMMEU: -
JW Land: [Henning walking around canteen tracking lead which Poskus is talking about]They must get using it for something but I don’t know what they use it for. [inaudible]. It definitely runs up. It’s plugged in, but it’s not connected to anything.
CFMEU video 5 ‘GPO20248’ Henning: They spilt milk from the coffee machine. CFMEU video 5 ‘GPO20248’ 18:22 Poskus: They spilt milk? Ah right. CFMEU video 5 ‘GPO20248’ Henning: [inaudible] CFMEU video 5 ‘GPO20248’ 18:30 Poskus: So, that’s not plugged into a GPL at the moment? CFMEU video 5 ‘GPO20248’ Henning: What do you mean? CFMEU video 5 ‘GPO20248’ Poskus: The end of the lead. I thought the end of the lead was plugged in, the extension lead. CFMEU video 5 ‘GPO20248’ Henning: I don’t know. CFMEU video 5 ‘GPO20248’ Poskus: Nah, that’s what it is. CFMEU video 5 ‘GPO20248’ Henning: Not even plugged in. CFMEU video 5 ‘GPO20248’ 18:41 Poskus: Yeah. Yeah. That’s what I said. It doesn’t look good, an extension lead running through a puddle of water. Why would they need, why wouldn’t they… obviously they’ve run that for a reason. Someone must have used it at some point for something. What would they need to use it for you reckon? Someone’s tried to use it at some point. CFMEU video 5 ‘GPO20248’ Hooper: It’s not even plugged in CFMEU video 5 ‘GPO20248’ Poskus: Oh thank god CFMEU video 5 ‘GPO20248’ Henning: [inaudible] So all was right, It wasn’t even plugged in. CFMEU video 5 ‘GPO20248’ 19:18 Poskus: At least, once you open it, that’s when you’ll have a look, yeah? Thank god it wasn’t plugged in, but surely someone wouldn’t do something stupid like run like go to the [inaudible] board and like run it under the canteen for no reason? CFMEU video 5 ‘GPO20248’ Henning: [inaudible] CFMEU video 5 ‘GPO20248’ 19:48 Poskus: Oh thank god. Obviously those are the ones your hoping for yeah - happy days CFMEU video 5 ‘GPO20248’ Marotti: We going? CFMEU video 5 ‘GPO20248’ Henning: [inaudible] CFMEU video 5 ‘GPO20248’
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