Construction, Forestry, Maritime, Mining and Energy Union v Canberra Contractors - [2023] FedCFamC2G 754

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Construction, Forestry, Maritime, Mining and Energy Union v Canberra Contractors [2023] FedCFamC2G 754

File number(s): CAG 43 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 24 August 2023

Catchwords: INDUSTRIAL LAW – Application for contraventions under Fair Work Act 2009 (Cth) and under the Work, Health and Safety Act 2011 (ACT), while on site Union officials inspecting one suspected breach of WHS standards form reasonable suspicion of another, different suspected breach, the issue in the case was whether the Union officials were entitled under the WHS Act to inspect the second suspected contravention or whether they were required to leave the site and prepare a further Right of Entry Notice, facts strongly support both breaches and Court determines that the WHS Act plainly authorises inspection of other suspected breaches while a permit holder is already on site, contraventions established, declarations to be mad and matter fixed for penalty hearing.

Legislation:
Evidence Act 1995 (Cth), s.140

Fair Work Act 2009 (Cth), ss. 502 – 503, 793

Work Health & Safety Act 2011 (ACT), ss. 19, 117 – 118, 118A

Work Health & Safety Regulations 2011 (ACT), rr. 34 – 36

Cases cited:
Ashby v Slipper (2014) 219 FCR 322

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 Gava [2018[ FCA 1480.

Australian Building and Construction Commission v Powell (2017) 251 FCR 470

Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd (2015) 228 FCR 225

Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 345

Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279

BGC POS Pty Ltd v Construction, Forestry, Maritime and Energy Union (2019) 285 IR 43

Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46

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

Dare v Pulham (1982) 148 CLR 658

Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338

George v Rockett (1990) 170 CLR 104

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653

Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563

Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666

Qantas Airways v Gama (2008) 167 FCR 537

Ramsay v Sunbuild Pty Ltd (2014) 221 FCR 315

Ruddock v Taylor (2005) 222 CLR 612

Setka v Gregor (No.2) (2011) 195 FCR 203

Thoms v Commonwealth of Australia (2022) 96 ALJR 635; 401 ALR 529

Division: Division 2 General Federal Law

Number of paragraphs: 175

Date of last submission/s: 6 April 2023

Date of hearing: 30 – 31 January 2023

Place: Canberra

Counsel for the Applicant Mr P Boncardo

Solicitor for the Applicant Construction, Forestry, Maritime, Mining And Energy Union

Counsel for the Respondent Mr B Buckland

Solicitor for the Respondent MBA Legal

ORDERS

CAG43 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
Applicant

AND:
CANBERRA CONTRACTORS
First Respondent

and:
ANGELOR CERULLO
Second Respondent

AND:
JOHN GRAHAM
Third Respondent

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

24 August 2023

THE COURT ORDERS THAT:
1.Within 7 days, the Applicant is to provide the Court with an engrossed script of the declarations to be made by the Court.
2.Within 14 days, the parties are to advise the Court of their position as to whether the issue of penalties should be dealt with by way of written submissions and previously filed material, and whether there is any agreement as between to the parties as to penalties, subject to Court approval.

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 & Overview

Three matters should be observed at the outset.
First, the statutory cornerstone of the current matter is s.118(5) of the Work, Health and Safety Act 2011 (ACT) (“the WHS Act”). That section provides as follows:
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
Secondly, the factual matrix of the current matter is very straight-forward; indeed, it is quite uncomplicated.
Summarised, after receiving a complaint about the state of the amenities on a building site, two officials from the Applicant (“the Union officials”) attended the site with requisite Entry Permit and Notice, walked along a somewhat narrow walkway and inspected the amenities. Walking back along the same walkway, a truck passed and one of the Union officials felt a passing gush of wind in the aftermath. That official then became concerned about the safety of workers and visitors on site due to the lack of adequate safety barrier protection along the walkway. At the time of the passing truck, the walkway only had star pickets and small flags to delineate its existence, but had no protective barrier between any passing vehicle and pedestrians. Pursuant to s.118(5) of the WHS Act, the Union officials sought formally to inspect the safety of the walkway barrier. The officials of the First Respondent Company (the Second Respondent, Mr Cerullo, and the Third Respondent, Mr Graham) refused to allow this to occur unless and until a new Right of Entry Notice was produced and required the Union officials to leave the site and return with the requisite documentation.
Thirdly, the issue before the Court was whether the Applicant is correct in its assertion that, upon a permit-holder forming the relevant “suspicion” of there being another possible contravention on site, s.118(5) of the WHS Act entitles and authorises the inspection of that other possible contravention. The Applicant contended that s.118(5) so authorises, while the Respondents argued to the contrary. For the reasons that follow, on a plain and straight-forward reading of s.118(5) of the WHS Act, and in the light of the basic factual matters set out in more detail below, the Applicant’s argument is correct and the declaratory relief sought should be made.
Also for the reasons that follow, quite unfortunately for all involved in the litigation, such a relatively straight-forward statutory provision, and likewise a relatively uncomplicated factual situation did not lead to either (a) a relatively uncomplicated set of pleadings, or (b) the relatively uncomplicated conduct of the trial. Quite the opposite unfolded with multiple iterations of pleadings by the Applicant, multiple sets of submissions, unfortunately poor evidence from the Respondents, and next to futile pleading points by the Respondents. I say “almost futile” simply because, however tedious the multiple iterations of the Statement of Claim were, there can be no dispute that (a) the Applicant’s evidence, (b) the Applicant’s submissions, and (c) the Applicant’s conduct of the case, individually and collectively, outlined clearly the basic issues, factually and legally, that were the subject of the dispute and what the Court was being asked to determine.
Also for the reasons that follow, in my firm view, the matter should not have run; conversely, it should have resolved well before the commencement of the trial. This was even more so the case had there been a proper evaluation of the CCTV and similar recordings, and similarly had the First Respondent’s witnesses (the Second and Third Respondents) been properly prepared well before the trial commenced and their evidence properly evaluated. Had this occurred, it is inconceivable that calling Mr Graham as a witness would have been pursued, rather than making such decision on the second morning of the trial that he was “medically unfit” to give evidence, albeit without any recent medical evidence to support this situation. And the obvious difficulties in the evidence of the Second Respondent, Mr Cerullo, noted later in these reasons, would likewise have been apparent. With such deficient evidence, the Respondents had, at best, significantly compromised evidence to support the complete denial of the Applicant’s claims.
As originally pleaded, the Applicant sought relief against the Respondents for a small number of discrete, alleged breaches of ss.501, 502 and 503 of the Fair Work Act 2009 (Cth) (“the FW Act”). Those alleged breaches were then pleaded relevantly to give rise to liability of s.793 of the FW Act regarding the corporate liability of the First Respondent.
After a number of iterations, ultimately the claims pursuant to a breach of s.501 of the FW Act were not pursued.
For the reasons that follow, each of the other, discrete contraventions as pleaded against each of the Respondents, in my view, were clearly established on the facts, and in accordance with the authorities advanced by the Applicant. The very limited authorities relied upon by the Respondents assisted not a jot, while the arguments advanced regarding the operation of the relevant sections were seriously awry and unsupported by authority.
In addition to these matters, the terms of the legislation and Regulations in issue, in my view and explained below, are so patently clear that the actions of the Respondents’ witnesses on the day in question, and as argued on their behalf at trial, were unsupported by basic tenets of construction and application to the facts set out here, including on the Respondents’ own case. To anticipate what follows, the Respondents argued (notably but not exclusively by Mr Graham) that they wished to wait for WorkSafe inspectors to arrive on site, to clarify what the legal position was regarding the further inspection sought by the Union officials, and for WorkSafe to determine whether there were any safety or other issues that might come within the terms of the alleged contraventions. This was in circumstances where Mr Graham’s Affidavit (filed 4^th August 2022) asserted (par.7) that, by reference to certain training there noted, he said that he had “a sound knowledge of my rights and obligations when it comes to right of entry.” His actions on the day in question strongly indicated otherwise. The same comment general comment also applies to the evidence of Mr Cerullo.
The various legislative and regulatory regimes in play here do not, in any relevant respect, delegate to any WorkSafe inspector (or equivalent) the right to determine matters going to any alleged breach of safety matters on site, especially regarding whether there was/were any breaches of safety standards. To contend otherwise, as Mr Graham did, was neither appropriate nor helpful.
As well, the WorkSafe Report (set out in detail later in these reasons), which was based solely on the Respondent’s account of events, confirmed that both issues raised by the Union officials on the day in question (i.e. (a) cleanliness of amenities and (b) appropriate safety barriers along a walkway to the site office) were later agreed by the First Respondent Company to be corrected, and were in fact “fixed.” The Respondents relied upon the Report from WorkSafe. It became part of the evidence in the case. Yet the Respondents still pursued their oppositional stance on matters of evidence and law, especially in relation to the “safety barrier” issue. To put it somewhat rhetorically: if something was acknowledged to now be “fixed”, logically, there must have been some problem that required rectification. Yet, in general terms, the Respondents ran their case on the basis that there were various implicit limitations on the operation of s.118(5) of the WHS Act, and/or that the facts did not support the claims, and/or that the evidence of the Applicant was inapt and that of the Respondents should be preferred. As the reasons below make plain, none of the Respondent’s contentions withstood scrutiny.
Further still, given the narrow scope of alleged contraventions, the multiple iterations of pleadings, together with an almost eye-glazing number of submissions, only added to the inordinate consumption of resources. For example, the Applicant filed written submissions on 6^th July 2022, 17^th August 2022, 28^th February 2023, and 7^th March 2023. The early submissions were expansive. Without stating so, I took them as, in many respects, an educative exercise (among other things), perhaps especially directed to the Respondents, outlining in detail how the inter-related and over-lapping legislative regimes (ACT and Commonwealth) operate. Apart from their length, the significant educative import was generally helpful – and one would hope so, for the Respondents.
The Respondents filed submissions on 4^th August 2022, 22^nd November 2022 (earlier filed on 4^th August 2022 but later revised), 28^th February 2023, 7^th March 2023, and 6^th April 2023.
As already stated, whether on a sort of “cost-benefit” analysis, or simply what was/is proportionate to the nature and extent of the claims, in my view, both sides of the contest engaged in quite disproportionate expenditure of resources, which should have been more productively used towards resolving the litigation.
Other, more detailed comments about procedural and evidentiary matters are set out later in these reasons. By way of overview, I turn to the detail of the litigious imbroglio.
As told by the Applicant’s witnesses, Mr Poskus and Mr Maher (at the time, both gentlemen were Union organisers employed by the Applicant, with Mr Poskus also being the “area organiser” where the site in question was located), and generally accepted by the limited evidence on behalf of the Respondents, the original issue between the parties related to the state of cleanliness of the “amenities” at a construction site on the southern side of the national capital. As recorded in Mr Poskus’s Affidavit, filed 6^th July 2022 (pars.12 – 17), via a report to the Applicant’s offices, he was told that a complaint had been received concerning the onsite “toilets not being cleaned, and they were blocked.”
Annexure LP-3 to Mr Poskus’s Affidavit is a copy of his Notice of Entry by WHS Permit Holder, Work Health and Safety Act 2011 (“the WHS Act”). This Notice confirms that Mr Poskus (and a similar Notice from Mr Maher – Annexure SM-2 to his Affidavit, filed 6^th July 2022) was attending the relevant site (hereafter referred to as “the Woden site” or “the site”, being the Canberra suburb in question) pursuant to s.117 of the WHS Act, for the purposes of inquiring into a suspected contravention of the WHS Act relating to the following:
(a)WHS Act Section 19;
(b)Regulation 41; and
(c)Amenities are not being maintained.
In general terms here but explored at some length later, in his Affidavit, Mr Poskus (and similarly in that of Mr Maher) confirmed that he visited the Woden site on 11^th August 2021[1] and (a) outlined his engagement with personnel upon arriving at the Woden site, including showing them his entry permit and advising that he was there with Mr Maher to inspect the amenities; (b) (par.31) informed Mr Cerullo (Director of Operations with the Respondent Company) that, under the WHS Act, the Union officials also had a right to “document and take footage of suspected contraventions and if we saw another contravention we could also deal with that while we are on the site”; and (c) reported that upon this information being told to Mr Cerullo the latter objected and said [in an apparently aggressive tone] “No way” (par.32).
[1] At par.18 of his trial Affidavit, Mr Poskus stated that he and Mr Maher arrived at the site at approximately 11.50am. At par.99 of the same Affidavit, he turned to Mr Maher and said: “This is pointless” and left the site at around 2pm. Accordingly, rather than have occupied personnel from the Union and the Respondents for, perhaps a maximum of 1 hour (but probably less given the issues on site were in a very small geographical space), approximately double this time was used up by everyone. As a general observation, building sites, like most workplaces, are busy places. Time-wasting of any kind, and similar, assists no one.
To a very significant degree, the trial’s focus was less upon the cleanliness of the amenities (the original suspected breach, and which were inspected without much ado or difficulty) and rather more upon the contentions, facts and legal principles relating to the “suspected contraventions” discovered by the Union officials after they had entered the site. This other, later-discovered contravention related exclusively to the nature, quality and sufficiency of the physical barrier on a walk-way that led to the site office to protect workers, visitors and pedestrians on site from passing vehicles, including trucks and other machinery. Initially, the “barrier” on site was only a series of “star pickets” with stringed flags between them. During the lunch period on the day, there was evidence (including from CCTV) that plainly showed that large plastic coloured barriers, which can be filled with water, were placed along the side of the site walkway. If more was needed, the installation of these much larger and more usual safety barriers could be taken as some admission that the safety “barrier” of flags on string between star pickets along the walkway was inadequate. To put it rhetorically: Why else “bring in significant reinforcements” during the site visit by the Union officials?
As pleaded, the Union officials were entitled to inspect further contraventions noticed whilst on site by operation of s.118(5) of the WHS Act. It was further pleaded that Messrs Poskus and Maher were prevented from so investigating by Mr Cerullo, and in turn by the Respondent’s Safety Manager, Mr Graham. Only Mr Cerullo was cross examined; although Mr Graham provided an Affidavit on behalf of the Respondent, as explained later, in quite unusual circumstances, he gave no oral evidence at the trial.
By Application filed 30^th September 2021, and particularised in the Further Amended Statement of Claim, filed 19^th October 2022, the Applicant Union (hereafter “the Union”) sought declaratory relief, and ultimately pecuniary penalties, under the Fair Work Act 2009 (Cth) (“the FW Act”), against the Respondent for alleged breaches of the WHS Act and its regulations.
As pleaded, not only is relief sought against the Second and Third Respondents (Mr Cerullo and Mr Graham respectively) for alleged breaches of ss.502(1), 503(1) of the FW Act, but also against the First Respondent, pursuant to s.793 of the same Act, arising from the conduct of its employees, Messrs Cerullo and Graham.
In addition to the Affidavit and oral evidence of Mr Poskus and Mr Maher (both of whom were very good and clear witnesses, who readily gave concessions when appropriate, and who, in my view, did not embellish their evidence; they were clear and factual), there was also significant evidence from CCTV cameras and other recorded material. Although Counsel for the Respondents’ sought to down-play it, and at times actually to ignore relevant parts of it, that contemporaneous evidence from CCTV and as recorded on mobile phone(s), in my view, plainly supported and corroborated the evidence of the Applicant’s witnesses.

As the trial unfolded, the evidence of the Respondent gradually, if not steadily, imploded or at least collapsed to a significant degree. Although obviously not having settled beforehand, as the evidence “played out” (or did not “play out” as the case turned out), in my view, every effort should have been taken to resolve it rather than to prolong the litigation. Unfortunately, this did not occur.
The evidentiary high (or low, according to perception) water mark came when the Respondent’s witness(es) started to give evidence, and/or when there was a “no show” of one of them, Mr Graham. This is discussed later in these reasons. Further, when a witness is asked early in oral evidence in late January 2023 if he has reviewed his Affidavit evidence from August 2022, even if only to refresh his memory of that evidence, and the response is a firm “no”, which was the case with Mr Cerullo, the portents of a relatively trouble-free cross examination take on a different and troubling hue. Such was the case here.
All of this is to say that, subject to what follows, the Applicant’s witnesses were compelling and straight-forward. Their evidence was supported by the CCTV and mobile phone footage. Unfortunately, Mr Cerullo’s evidence for the Respondent was regularly unclear and conflicting. He was a poor and regularly flustered witness. This is not a criticism, per se, but simply a statement of fact from close observation. Clearly his preparation was deficient, if not non-existent.[2] His recollection of events was regularly contradicted by the CCTV evidence. Mr Graham’s sudden “non-attendance” to give evidence was supported only by an old, general medical certificate from 13^th September 2021, together with the non-medical assessment by the Respondents’ Counsel on the morning of the second day of the trial that it was not in the [mental] health interests of Mr Graham to give evidence. It was suggested to the Respondent that, as a matter of procedural fairness, a formal Application would need to be made to rely on any further medical evidence in relation to Mr Graham’s health. No such Application was filed.[3]
[2] The Court’s concern about the obvious lack of preparation of the Respondents’ witnesses was raised directly with Counsel for the Respondent during the trial, notably in the light of the circumstances surrounding the sudden non-attendance of Mr Graham to give evidence on the morning of the second day of the trial. Among other places, see T 162.
[3] In relation to each of these matters, see T 114 – 116, and 161 – 163.
It is common in Applications of the kind here that the Court (and everyone else) seeks to extract from the evidence in its various forms a degree of precision, accuracy, coherence and intelligibility that “real life” on building sites (as in “life” more generally) rarely contemplates or provides. The Court is acutely conscious of the fact that Union officials, on the one hand, and other “officials” and workers on building sites, on the other, do not usually contemplate that their words and actions are going to be presented and dissected in a Court, invariably many months, or even longer, after the events in question. All of this said, while general acknowledgement is given of the day-to-day reality of the attempted order, but not infrequently dishevelled nature, of life on a building site, the Court invariably has to do the best that it can with the evidence presented by the parties. That is what is attempted here, giving due allowance for the frailty and failings of memory and much else.
For the reasons that follow, in my view the contraventions have been properly, fairly and reasonably established. While the matter will, in consequence, be fixed for a half-day hearing on penalty, in keeping with comments already made, I would strongly urge the parties not only to reach agreement on an agreed statement of facts, but also in relation to penalty, even if it is only regarding the possible or appropriate “range” within which a penalty should be determined.
The Applicant’s Claims – liability
The Applicant filed a Further Amended Statement of Claim on 31^st January 2023 in the following terms (excluding only certain formal matters:
…
B.       The Site
6.At all material times, the Site was a workplace within the meaning of s 8 of the WHS Act.
Particulars
a.The Site was a place where work was carried out for a business or undertaking.
b.        The Site was a place where workers performed work.
7.At all material times, the Site was a ‘premises’ for the purposes of s 12 of the FW Act.
8.At all material times, Canberra Contracts was a person conducting a business or undertaking (PCBU) at the Site for the purposes of s 5 of the WHS Act.
9.As a PCBU at the Site, Canberra Contractors:
9.1.had a primary duty of care under s 19(1) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers engaged, or caused to be engaged, by it while those workers were at work in Canberra Contractors’ business or undertaking at the Site;
9.2.was required to ensure, pursuant to s 19(3) of the WHS Act, so far as reasonably practicable:
(a)the provision and maintenance of a work environment without risks to health and safety;
(b)the provision and maintenance of safe systems of work;
9.3.was required by r 41 of the Work Health and Safety Regulation 2011 (ACT) (the WHS Regulations) to, amongst other things, to ensure that amenities were maintained to be in good working order, clean and safe;
9.4.was required by s 21 of the WHS Act to ensure, so far as is reasonably practicable, that the use of mobile plant on the Site was without risks to the health and safety of any person.
9.5.was required by r 214 of the WHS Regulations to manage risks to health and safety associated with mobile plant colliding with any person or thing;
9.6.was required by r 215 of the WHS Regulations to ensure that mobile plant does not collide with pedestrians or other powered mobile plant.
10.At all material times, Canberra Contractors employed employees who conducted work at the Site who were ‘relevant workers; for the purposes of s 116 of the WHS Act.
Particulars
a.The First Respondent employed employees who were eligible to be members of the Applicant who performed work at the Site, including but not limited to:
i.        Labourers; and
ii.        Plant operators.
b.The Applicant was entitled under its rules, including Rule 2B and 2E, to represent the industrial interests of these employees.
C.       The Events of 11 August 2021
11.On 11 August 2021, Maher and Poskus were together when Maher received a phone call from an employee of the Union engaged in reception duties (the CFMEU Receptionist). The CFMEU Receptionist informed Maher and Poskus that she had received a complaint about the site by telephone. The CFMEU Receptionist told Maher and Poskus that the caller complained that the amenities on the site were “terrible”, that the toilets weren’t cleaned, and that the toilets were blocked.
12.By reason of the matters described to them by the CFMEU Receptionist as detailed in paragraph 11 above, Poskus and Maher reasonably suspected that a contravention of the WHS Act affecting relevant workers had occurred or was occurring on the Site.
Particulars
a.Poskus and Maher suspected that Canberra Contractors had not complied with its obligation under s 19(1) of the WHS Act, to ensure so far as reasonably practicable the health and safety of workers at the Site as there were risks posed to workers’ health and safety as a result failure to ensure amenities were clean and functioning.
b.Poskus and Maher suspected that Canberra Contractors had not complied with its obligation under regulation 41 of the WHS Regulations, to ensure that amenities were maintained to be in good working order, clean and safe.
13.On 11 August 2021, at approximately 11.50 AM, Poskus and Maher attended the Site for the purposes of inquiring into the suspected contraventions detailed in paragraph 12 above.
14.Poskus and Maher attended the Site during the working hours of the Site.
15.By reason of the matters set out in paragraphs 11- 14 above, Poskus and Maher had a right under s 117 of the WHS Act to enter the Site for the purpose of inquiring into the suspected contraventions described in paragraph 12 above.
16.After entering the Site, Poskus and Maher went to the Site office where they were directed by a person who appeared to be working in the Site office, to wait for “a person in charge”.
17.A person arrived at the site office and identified himself as the Site foreman.
18.Poskus and Maher each provided the person who identified himself to them as the Site foreman with a notice of entry pursuant to s 119 of the WHS Act.
Particulars
a.The notices were provided to the foreman while Poskus and Maher were waiting in the Site office.
b.        A copy of each notice is available for inspection on request.
19.After some time Cerullo arrived at the Site office and asked Poskus and Maher for their permits.
20.Poskus and Maher each showed Cerullo a copy of:
20.1.the permit issued under s 512 of the FW Act to each of them respectively; and
20.2.the permit issued under s 134 of the WHS Act to each of them respectively.
21.Poskus then notified Cerullo, pursuant to s 118A of the WHS Act, that he intended to exercise rights under s 118(1)(da) of the WHS Act.
Particulars
a.        The notice was verbal.
b.The notice was given to Cerullo immediately after Poskus showed him his entry permits.
c.The notice was to the effect that Poskus intended to make video recordings.
22.While on Site, Poskus and Maher exercised their rights pursuant to s 118(1)(a) of the WHS Act to inspect any work system, plant, substance, structure or other thing relevant to the suspected contraventions set out in the s 119 notice they had provided.
Particulars
a.Cerullo escorted Poskus and Maher around the site during this inspection of the Site amenities.
23.While conducting this inspection, Poskus and Maher observed that mobile plant was operating without physical barriers separating it from the amenities area where there was pedestrian access.
24.On the basis of this observation Poskus and Maher formed the reasonable suspicion that another contravention of the Act (other than those notified on the notice they had previously given pursuant to s 119 of the Act) had occurred.
Particulars
a.Poskus and Maher formed the reasonable suspicion that the circumstances of the operation of mobile plant without barriers were a contravention of s 19(1) of the Act.
b.Poskus and Maher formed the reasonable suspicion that the circumstances of the operation of mobile plant without barriers were a contravention of s 21 of the Act.
c.Poskus and Maher formed the reasonable suspicion that the circumstances of the operation of mobile plant without barriers were a contravention of r 214(d) of the Regulations.
d.Poskus and Maher formed the reasonable suspicion that the circumstances of the operation of mobile plant without barriers were a contravention of r 215(4) of the Regulations.
25.Poskus and Maher requested that Cerullo allow them to inspect the area where the barrier was required, pursuant to s 118(5) and s 118(1) of the WHS Act.
26.Cerullo refused to allow Poskus or Maher to inspect the area where the barrier was required.
Particulars
a. Cerullo stated that he would not allow the permit holders to inspect the area of the barrier contravention because it was not identified as a contravention on the notices pursuant to s 119 which they had previously given him.
27.In saying the things detailed in paragraph 26 above, Cerullo 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 s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the Act.
28.At all material times, Part 3-4 of the FW Act did not authorise an occupier to delay or otherwise not permit a permit holder to exercise rights under s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the WHS Act.
29.Poskus informed Cerullo that he had a right under s 118(5) to inspect contraventions other than the contraventions identified on the s 119 notice already given.
30.Cerullo informed Poskus and Maher that he would seek advice and proceeded to make a telephone call to Graham, the Company Safety Manager
31.Cerullo spoke to Graham.
32.Poskus asked Cerullo if he could also speak to Graham.
33.Cerullo put the telephone on loudspeaker and Poskus spoke to Graham.
34.Poskus advised Graham that he wished to inspect the area of the suspected barrier contravention pursuant to s 118(5) of the Act.
35.Graham advised Poskus that he needed to seek further clarification from WorkSafe and ended the telephone call and that Poskus and Maher should wait and not be allowed to conduct the inspection while he sought that clarification.
36.Poskus and Maher continued to wait in the Site office with Cerullo who continued to refuse to allow them to inspect the area of the suspected barrier contravention.
37.After some time Cerullo, received a telephone call and, after the call, advised Poskus and Maher that they were not permitted to inspect the area of the suspected barrier contravention and that if they had inspected all the matters on their initial notice pursuant to s 119, relating to the amenities, they were to leave the site.
…
41.At all material times, Part 3-4 of the FW Act did not authorise an occupier to delay or otherwise not permit a permit holder to exercise rights under s 118(5) of the WHS Act while the occupier obtained “clarification”.
42.Poskus and Maher then left the site.
43.While outside the site, Poskus and Maher completed notices pursuant to s 119 of the Act in relation to the suspected barrier contravention (the second notices).
Particulars
a.A copy of each of the second notices is available for inspection on request.
44.      Poskus and Maher attended at the Site gate where Graham met them.
45.Poskus then notified Graham pursuant to s 118A of the WHS Act, that he intended to exercise rights under s 118(1)(da) of the WHS Act.
Particulars
a.        The notice was verbal.
b.        The notice was given to Graham during the discussion at the site gate.
c.The notice was to the effect that Poskus intended to make video recordings.
46.Poskus and Maher gave the second notices, in relation to the suspected barrier contravention, to Graham and informed him that they were there to inspect the suspected barrier contraventions.
47.Graham did not allow Poskus and Maher immediate entry to the site.
48.Graham delayed Poskus and Maher from exercising rights under ss 117-118 of the WHS Act in relation to the suspected barrier contraventions. ~~Further, or in the alternative, Graham prevented delayed Poskus and Maher from inspecting the suspected barrier contraventions.~~
~~Particulars~~
a.Graham told Poskus and Maher that he had called WorkSafe and that Poskus and Maher would have to wait for a WorkSafe Inspector to attend the site to provide an “adjudication” in relation to the suspected barrier contraventions.
…
51.Poskus and Maher waited until approximately 2.00 PM and, as no WorkSafe ACT Inspector had attended by that time, they left the Site.
52.Cerullo and Graham’s respective conduct described in paragraphs 25 - 48 above was intentional.
53.By reason of Cerullo and Graham’s conduct described in paragraphs 25- 48 above:
53.1.Poskus and Maher were prevented from exercising powers conferred by s 118(1) and s 118(5); and/or
53.2.Poskus’ and Maher’s exercise of rights under ss 117-118 of the WHS Act was made more difficult; and/or
53.3.Poskus’ and Maher’s exercise of rights under ss 117-118 of the WHS Act were appreciably interfered with.
D.       The Contraventions
54.In the circumstances described in paragraphs 25 - 26 and 29 - 37 above, by his words and conduct in not allowing Poskus and Maher to inspect the suspected barrier contravention on 11 August 2021, Cerullo intentionally hindered and/or obstructed Poskus and Maher when they were exercising rights in accordance with Part 3-4 of the Act.
55. In the circumstances, Cerullo contravened s 502(1) of the FW Act.
56.By operation of s 793 of the FW Act, Cerullo’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 Canberra Contractors’.
57.In the circumstances, Canberra Contractors contravened s 502(1) of the FW Act.
58.In the circumstances described in paragraphs 25 - 26 above, Cerullo 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 s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the Act in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
59.In the circumstances, Cerullo contravened s 503(1) of the FW Act.
60.By operation of s 793 of the FW Act, Cerullo’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 Canberra Contractors’.
61.In the circumstances described, Canberra Contractors contravened s 503(1) of the FW Act.
62.In the circumstances described in paragraphs 29- 37 above, Cerullo 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 s 118(5) of the WHS Act while the occupier obtained “clarification” in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
63.In the circumstances, Cerullo contravened s 503(1) of the FW Act.
64.By operation of s 793 of the FW Act, Cerullo’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 Canberra Contractors’.
65.In the circumstances described, Canberra Contractors contravened s 503(1) of the FW Act.
66.In the circumstances described in paragraphs 33 - 35 above, by his words and conduct in not allowing Poskus and Maher to inspect the suspected barrier contraventions on 11 August 2021, Graham intentionally hindered and/or obstructed Poksus and Maher in the exercise of rights in accordance with Part 3-4 of the Act.
67.In the circumstances, Graham contravened s 502(1) of the FW Act.
68.By operation of s 793 of the FW Act, Graham’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 Canberra Contractors’.
69.In the circumstances described, Canberra Contractors contravened s 502(1) of the FW Act.
70.In the circumstances described in paragraphs 33 - 35 above, Graham 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 s 118(5) of the WHS Act while the occupier obtained “clarification” in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
71.In the circumstances, Graham contravened s 503(1) of the FW Act.
72.By operation of s 793 of the FW Act, Graham’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 Canberra Contractors’.
73.In the circumstances described, Canberra Contractors contravened s 503(1) of the FW Act.
…
82.Further, ~~or in the alternative to paragraph 7470 above~~, in the circumstances described in paragraphs 47-48 above, by his words and conduct in not allowing Poskus and Maher to inspect the suspected barrier contraventions on 11 August 2021, Graham intentionally hindered and/or obstructed Poksus and Maher when they were exercising rights in accordance with Part 3-4 of the Act.
83.In the circumstances, Graham contravened s 502 of the FW Act.
84.By operation of s 793 of the FW Act, Graham’s words and conduct constituting his contravention of s 502 of the FW Act in paragraph 82 above and his state of mind in relation to those words and conduct are taken to have been Canberra Contractors.
85.In the circumstances described, Canberra Contractors contravened s 502 of the FW Act.

A Second Further Amended Statement of Claim was filed by consent on 28^th March 2023. Relevant parts of this version of the Statement of Claim were as follows (excluding various “strike-through” paragraphs):
…
C.       The Events of 11 August 2021
11.On 11 August 2021, Maher and Poskus were together when Maher received a phone call from an employee of the Union engaged in reception duties (the CFMEU Receptionist). The CFMEU Receptionist informed Maher and Poskus that she had received a complaint about the site by telephone. The CFMEU Receptionist told Maher and Poskus that the caller complained that the amenities on the site were “terrible”, that the toilets weren’t cleaned, and that the toilets were blocked.
12.By reason of the matters described to them by the CFMEU Receptionist as detailed in paragraph 11 above, Poskus and Maher reasonably suspected that a contravention of the WHS Act affecting relevant workers had occurred or was occurring on the Site.
Particulars
a.Poskus and Maher suspected that Canberra Contractors had not complied with its obligation under s 19(1) of the WHS Act, to ensure so far as reasonably practicable the health and safety of workers at the Site as there were risks posed to workers’ health and safety as a result failure to ensure amenities were clean and functioning.
b.Poskus and Maher suspected that Canberra Contractors had not complied with its obligation under regulation 41 of the WHS Regulations, to ensure that amenities were maintained to be in good working order, clean and safe.
13.On 11 August 2021, at approximately 11.50 AM, Poskus and Maher attended the Site for the purposes of inquiring into the suspected contraventions detailed in paragraph 12 above.
14.      Poskus and Maher attended the Site during the working hours of the Site.
15.By reason of the matters set out in paragraphs 11- 14 above, Poskus and Maher had a right under s 117 of the WHS Act to enter the Site for the purpose of inquiring into the suspected contraventions described in paragraph 12 above.
16.After entering the Site, Poskus and Maher went to the Site office where they were directed by a person who appeared to be working in the Site office, to wait for “a person in charge”.
17.A person arrived at the site office and identified himself as the Site foreman.
18.Poskus and Maher each provided the person who identified himself to them as the Site foreman with a notice of entry pursuant to s 119 of the WHS Act.
Particulars
a.The notices were provided to the foreman while Poskus and Maher were waiting in the Site office.
b.        A copy of each notice is available for inspection on request.
19.After some time Cerullo arrived at the Site office and asked Poskus and Maher for their permits.
20.      Poskus and Maher each showed Cerullo a copy of:
20.1.the permit issued under s 512 of the FW Act to each of them respectively; and
20.2.the permit issued under s 134 of the WHS Act to each of them respectively.
21.Poskus then notified Cerullo, pursuant to s 118A of the WHS Act, that he intended to exercise rights under s 118(1)(da) of the WHS Act.
Particulars
a.        The notice was verbal.
b.The notice was given to Cerullo immediately after Poskus showed him his entry permits.
c.The notice was to the effect that Poskus intended to make video recordings.
22.While on the Site, Poskus and Maher exercised their rights pursuant to s 118(1)(a) of the WHS Act to inspect any work system, plant, substance, structure or other thing relevant to the suspected contraventions set out in the s 119 notice they had provided.
Particulars
a.Cerullo escorted Poskus and Maher around the site during this inspection of the Site amenities.
23.While conducting this inspection, Poskus and Maher observed that mobile plant was operating without physical barriers separating it from the amenities area where there was pedestrian access.
24.On the basis of this observation Poskus and Maher formed the reasonable suspicion that another contravention of the Act (other than those notified on the notice they had previously given pursuant to s 119 of the Act) had occurred.
Particulars
a.Poskus and Maher formed the reasonable suspicion that the circumstances of the operation of mobile plant without barriers were a contravention of s 19(1) of the Act.
b.Poskus and Maher formed the reasonable suspicion that the circumstances of the operation of mobile plant without barriers were a contravention of s 21 of the Act.
c.Poskus and Maher formed the reasonable suspicion that the circumstances of the operation of mobile plant without barriers were a contravention of r 214(d) of the Regulations.
d.Poskus and Maher formed the reasonable suspicion that the circumstances of the operation of mobile plant without barriers were a contravention of r 215(4) of the Regulations.
25.Poskus and Maher requested that Cerullo allow them to inspect the area where the barrier was required, pursuant to s 118(5) and s 118(1) of the WHS Act.
26.Cerullo refused to allow Poskus or Maher to inspect the area where the barrier was required.
Particulars
a.Cerullo stated that he would not allow the permit holders to inspect the area of the barrier contravention because it was not identified as a contravention on the notices pursuant to s 119 which they had previously given him.
27.In saying the things detailed in paragraph 26 above, Cerullo 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 s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the Act.
28.At all material times, Part 3-4 of the FW Act did not authorise an occupier to delay or otherwise not permit a permit holder to exercise rights under s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the WHS Act.
29.Poskus informed Cerullo that he had a right under s 118(5) to inspect contraventions other than the contraventions identified on the s 119 notice already given.
30.Cerullo informed Poskus and Maher that he would seek advice and proceeded to make a telephone call to Graham, the Company Safety Manager
31.Cerullo spoke to Graham.
32.Poskus asked Cerullo if he could also speak to Graham.
33.Cerullo put the telephone on loudspeaker and Poskus spoke to Graham.
34.Poskus advised Graham that he wished to inspect the area of the suspected barrier contravention pursuant to s 118(5) of the Act.
35.Graham advised Poskus that he needed to seek further clarification from WorkSafe and ended the telephone call and that Poskus and Maher should wait and not be allowed to conduct the inspection while he sought that clarification.
36.Poskus and Maher continued to wait in the Site office with Cerullo who continued to refuse to allow them to inspect the area of the suspected barrier contravention.
37.After some time Cerullo, received a telephone call and, after the call, advised Poskus and Maher that they were not permitted to inspect the area of the suspected barrier contravention and that if they had inspected all the matters on their initial notice pursuant to s 119, relating to the amenities, they were to leave the site.
38.In saying the things detailed in paragraph~~s 29-~~37 above, Cerullo ~~and Graham each~~ took action with the intention of giving the impression and/or were 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 s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the Act.
39.At all material times, Part 3-4 of the FW Act did not authorise an occupier to delay or otherwise not permit a permit holder to exercise rights under s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the Act.
40.In saying the things detailed in paragraph~~s 29-37~~ 35 above, ~~Cerullo and~~ Graham each took action with the intention of giving the impression and/or were 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 s 118(5) of the WHS Act until they had obtained “clarification”.
41.At all material times, Part 3-4 of the FW Act did not authorise an occupier to delay or otherwise not permit a permit holder to exercise rights under s 118(5) of the WHS Act while the occupier obtained “clarification”.
42.Poskus and Maher then left the site.
43.While outside the site, Poskus and Maher completed notices pursuant to s 119 of the Act in relation to the suspected barrier contravention (the second notices).
Particulars
a.A copy of each of the second notices is available for inspection on request.
44.      Poskus and Maher attended at the Site gate where Graham met them.
45.Poskus then notified Graham pursuant to s 118A of the WHS Act, that he intended to exercise rights under s 118(1)(da) of the WHS Act.
Particulars
a.        The notice was verbal.
b.        The notice was given to Graham during the discussion at the site gate.
c.The notice was to the effect that Poskus intended to make video recordings.
46.Poskus and Maher gave the second notices, in relation to the suspected barrier contravention, to Graham and informed him that they were there to inspect the suspected barrier contraventions.
47.Graham did not allow Poskus and Maher immediate entry to the Site ~~told Poskus and Maher that they could not enter the site until a WorkSafe Inspector arrived~~.
Particulars
~~a.        Graham said “you are not coming on”.~~
b.Graham told Poskus and Maher that he had called WorkSafe and that Poskus and Maher would have to wait for a WorkSafe Inspector to attend the site before he would allow them to inspect the suspected barrier contraventions.
48.Graham delayed Poskus and Maher from exercising rights under ss 117-118 of the WHS Act in relation to the suspected barrier contraventions. ~~Further, or in the alternative, Graham prevented delayed Poskus and Maher from inspecting the suspected barrier contraventions.~~
Particulars
a.Graham told Poskus and Maher that he had called WorkSafe and that Poskus and Maher would have to wait for a WorkSafe Inspector to attend the site to provide an “adjudication” in relation to the suspected barrier contraventions.
…
51.Poskus and Maher waited until approximately 2.00 PM and, as no WorkSafe ACT Inspector had attended by that time, they left the Site.
52.Cerullo and Graham’s respective conduct described in paragraphs 25 - 48 above was intentional.
53.By reason of Cerullo and Graham’s conduct described in paragraphs 25- 48 above:
53.1.Poskus and Maher were prevented from exercising powers conferred by s 118(1) and s 118(5); and/or
53.2.Poskus’ and Maher’s exercise of rights under ss 117-118 of the WHS Act was made more difficult; and/or
53.3.Poskus’ and Maher’s exercise of rights under ss 117-118 of the WHS Act were appreciably interfered with.
D.       The Contraventions
54.In the circumstances described in paragraphs 25 - 26 and 29 - 37 above, by his words and conduct in not allowing Poskus and Maher to inspect the suspected barrier contravention on 11 August 2021, Cerullo intentionally hindered and/or obstructed Poksus and Maher when they were exercising rights in accordance with Part 3-4 of the Act.
55. In the circumstances, Cerullo contravened s 502(1) of the FW Act.
56.By operation of s 793 of the FW Act, Cerullo’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 Canberra Contractors’.
57.In the circumstances, Canberra Contractors contravened s 502(1) of the FW Act.
58.In the circumstances described in paragraphs 25 - 26 above, Cerullo 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 s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the Act in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
59.In the circumstances, Cerullo contravened s 503(1) of the FW Act.
60.By operation of s 793 of the FW Act, Cerullo’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 Canberra Contractors’.
61.In the circumstances described, Canberra Contractors contravened s 503(1) of the FW Act.
62.In the circumstances described in paragraphs 29- 37 above, Cerullo 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 s 118(5) of the WHS Act unless the matters they sought to investigate were identified on a notice pursuant to s 119 of the WHS Act ~~while the occupier obtained “clarification”~~ in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
63.In the circumstances, Cerullo contravened s 503(1) of the FW Act.
64.By operation of s 793 of the FW Act, Cerullo’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 Canberra Contractors’.
65.In the circumstances described, Canberra Contractors contravened s 503(1) of the FW Act.
66.In the circumstances described in paragraphs 33 - 35 above, by his words and conduct in not allowing Poskus and Maher to inspect the suspected barrier contraventions on 11 August 2021, Graham intentionally hindered and/or obstructed Poksus and Maher in the exercise of rights in accordance with Part 3-4 of the Act.
67.In the circumstances, Graham contravened s 502(1) of the FW Act.
68.By operation of s 793 of the FW Act, Graham’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 Canberra Contractors’.
69.In the circumstances described, Canberra Contractors contravened s 502(1) of the FW Act.
70.In the circumstances described in paragraphs 33 - 35 above, Graham 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 s 118(5) of the WHS Act while the occupier obtained “clarification” in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
71.In the circumstances, Graham contravened s 503(1) of the FW Act.
72.By operation of s 793 of the FW Act, Graham’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 Canberra Contractors’.
73.In the circumstances described, Canberra Contractors contravened s 503(1) of the FW Act.
…
82.Further, ~~or in the alternative to paragraph 74 above~~, in the circumstances described in paragraphs 47-48 above, by his words and conduct in not allowing Poskus and Maher to inspect the suspected barrier contraventions on 11 August 2021, Graham intentionally hindered and/or obstructed Poksus and Maher when they were exercising rights in accordance with Part 3-4 of the Act.
83.In the circumstances, Graham contravened s 502 of the FW Act.
84.By operation of s 793 of the FW Act, Graham’s words and conduct constituting his contravention of s 502 of the FW Act in paragraph 82 above and his state of mind in relation to those words and conduct are taken to have been Canberra Contractors.
…
E.       Relief
90.Declarations pursuant to s 16 of the Federal Circuit Court of Australia Act 2001 (Cth) that:
90.1.Cerullo contravened s 502(1) of the FW Act on 11 August 2021 by intentionally hindering and/or obstructing Poskus and Maher, who were permit holders, exercising rights in accordance with Part 3-4 of the FW Act;
90.2.Canberra Contractors, by its employee or agent Cerullo contravened s 502(1) of the FW Act on 11 August 2021 by intentionally hindering and/or obstructing Poskus and Maher, who were permit holders, exercising rights in accordance with Part 3-4 of the FW Act;
90.3.Cerullo contravened s 503(1) of the FW Act on 11 August 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 s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the Act in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
90.4.Canberra Contractors, by its employee or agent Cerullo contravened s 503(1) of the FW Act on 11 August 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 s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the Act in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
90.5.Cerullo contravened s 503(1) of the FW Act on 11 August 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 s 118(5) of the WHS Act unless the matters they sought to investigate were identified on a notice pursuant to s 119 of the WHS Act ~~while the occupier obtained “clarification”~~ in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
90.6.Canberra Contractors, by its employee or agent Cerullo contravened s 503(1) of the FW Act on 11 August 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 s 118(5) of the WHS Act unless the matters they sought to investigate were identified on a notice pursuant to s 119 of the WHS Act ~~while the occupier obtained “clarification”~~ in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
90.7.Graham contravened s 502(1) of the FW Act on 11 August 2021 by intentionally hindering and/or obstructing Poskus and Maher, who were permit holders, exercising rights in accordance with Part 3-4 of the FW Act;
90.8.Canberra Contractors, by its employee or agent Graham contravened s 502(1) of the FW Act on 11 August 2021 by intentionally hindering and/or obstructing Poskus and Maher, who were permit holders, exercising rights in accordance with Part 3-4 of the FW Act;
90.9.Graham contravened s 503(1) of the FW Act on 11 August 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 s 118(5) of the WHS Act while the occupier obtained “clarification” in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
90.10.Canberra Contractors, by its employee or agent Graham contravened s 503(1) of the FW Act on 11 August 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 s 118(5) of the WHS Act while the occupier obtained “clarification” in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
~~90.11.Graham contravened s 501 of the FW Act on 11 August 2021 by refusing Poskus and Maher, who were permit holders entitled to enter the Site, entry to the Site;~~
90.12.Canberra Contractors, by its employee or agent Graham contravened s 5031 of the FW Act on 11 August 2021 by refusing Poskus and Maher, who were permit holders entitled to enter the Site, entry to the Site.
90.13.Graham contravened s 503(1) of the FW Act on 11 August 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 refuse entry to the Site, 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;
90.14.Canberra Contractors, by its employee or agent Graham contravened s 503(1) of the FW Act on 11 August 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 refuse entry to the Site, 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;
90.15.Graham contravened s 502 of the FW Act on 11 August 2021 by intentionally hindering and/or obstructing Poskus and Maher, who were permit holders, exercising rights in accordance with Part 3-4 of the FW Act;
90.16.Canberra Contractors, by its employee or agent Graham contravened s 502(1) ~~503(1)~~ of the FW Act on 11 August 2021 by intentionally hindering and/or obstructing Poskus and Maher, who were permit holders, exercising rights in accordance with Part 3-4 of the FW Act;
90.17.Further, or in the alternative to 90.13, Graham contravened s 503(1) of the FW Act on 11 August 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 s 118(5) of the WHS Act unless they were identified on a notice pursuant to s 119 of the Act in circumstances where such a thing was not authorised by Part 3-4 of the FW Act.
~~90.18.Further, or in the alternative to 90.14, Canberra Contractors, by its employee or~~ ~~agent Graham contravened s 503(1) of the FW Act on 11 August 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 s 118(5) of the WHS Act unless~~ ~~they were identified on a notice pursuant to s 119 of the Act in circumstances~~ ~~where such a thing was not authorised by Part 3-4 of the FW Act.~~
The Respondent’s Grounds of Opposition

The Respondents filed an original Defence on 5^th November 2021. Another Defence was filed (formally it was styled at the filing stage as a “Response”) on 6^th May 2022. Rather than file a further amended Defence, on 6^th April 2023, the Respondents filed brief, further submissions, styled “Respondents’ Submissions on Amended Second Contravention.” Those submissions are set out in full below.
The Defence of the Respondents, filed 6^th May 2022, was as follows:
1.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 1 of the Statement of Claim (SoC).
2.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 2 of the SoC.
3.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 3 of the SoC.
4.The ~~First Respondent~~Respondents does not know and therefore cannot admit the matters pleaded at paragraph 4 of the SoC.
5.The ~~First Respondent~~Respondents does not know and therefore cannot admit the matters pleaded at paragraph 5 of the SoC.
6.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 6 of the SoC.
7.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 7 of the SoC.
8.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 8 of the SoC.
9.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 9 of the SoC.
10.In answer to the allegations at paragraph 10 of the SoC, the ~~First Respondent~~Respondents admit the matters pleaded in that paragraph:
~~a.a. admits the matters alleged in the chapeu of paragraph 10 of the SoC;~~
~~b.b. admits the matters pleaded at paragraph 10a of the SoC; and~~
~~c.c. does not know and therefore cannot admit the matters pleaded at paragraph 10b of the SoC.~~
11.In answer to the allegations at paragraph 11 of the SoC, the ~~First Respondent~~Respondents:
a.does not know and therefore cannot admit the allegations of fact in respect of telephone calls pleaded at paragraph 11 of the SoC; and
b.~~denies~~ deny that the amenities at the site were "terrible", that the toilets were not cleaned, and that the toilets were blocked.
12.In answer to the allegations at paragraph 12 of the SoC, the ~~First Respondent~~Respondents:
a.does not know and therefore cannot admit the suspicions allegedly held by Poskus and Maher;
b.~~denies~~ deny that it the First Respondent had not complied with its obligation under s 19(1) of the WHS Act; and
c.~~denies~~ deny that it the First Respondent had not complied with its obligation under s ~~19(1)~~ 41 of the WHS ~~Act~~Regulations.
13.In answer to the allegations at paragraph 13 of the SoC, the ~~First Respondent~~Respondents:
a.admits that Poskus and Maher arrived at the worksite at around this time; and
b.does not know and therefore cannot admit the purpose for which Poskus and Maher attended the site.
14.The ~~First Respondent~~Respondents admits the fact pleaded at paragraph 14 of the SoC.
15.In answer to the allegations at paragraph 15 of the SoC, ~~First Respondent~~Respondents:
a.        ~~relies~~ rely on paragraphs 11 to 14 above; and
b.otherwise do not know and therefore cannot admits the allegations at paragraph 15 of the SoC.
16.In answer to the allegations at paragraph 16 of the SoC, the ~~First Respondent~~Respondents:
a.~~denies~~ deny that the person referred to directed Poskus and Maher to wait for a person in charge;
b.say that both Poskus and Maher at separate times left the site office, entered the amenities demountable, and returned to the site office using a designated pedestrian pathway separated by a physical barrier without hindrance or obstruction of any kind.
17.In response to the allegations at paragraph 15 of the SoC, the ~~First Respondent~~Respondents:
a.say that the person referred to was Andrew Evison (Evison), the site's leading hand; and
b.otherwise ~~denies~~ deny the allegations at paragraph 17 of the SoC.
18.The ~~First Respondent~~Respondents ~~denies~~ deny the fact pleaded at paragraph 18 of the SoC.
19.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 19 of the SoC.
20.In answer to the allegations at paragraph 20 of the SoC, the ~~First Respondent~~Respondents:
a.        admits that Poskus and Maher showed Cerullo some documents;
b.otherwise does not know and therefore cannot admit the allegations at paragraph 20 of the SoC.
21.In answer to the allegations at paragraph 21 of the SoC, the ~~First Respondent~~Respondents:
a.says that Poskus stated to Cerullo that Poskus intended to inspect the amenities of the site;
b.says that this was at or around the time Poskus and Maher showed their entry permits to Cerullo;
c.~~denies~~ deny that Poskus stated that he intended to make video recordings; and
d.otherwise ~~denies~~ deny the allegations in paragraph 21 of the SoC.
22.In answer to the allegations at paragraph 22 of the SoC, the ~~First Respondent~~Respondents:
a.admit that Cerullo escorted Poskus and Maher around the site during their inspection of the amenities;
b.otherwise deny the allegations in that paragraph. ~~denies the allegation in the chapeau of paragraph 22 of the SoC; and~~
~~c.admits the particulars at paragraph 22a of the SoC.~~
23.In answer to the allegations at paragraph 23 of the SoC, the ~~First Respondent~~Respondents:
a.says that there was a fence line separating the roadway from the pedestrian walkway outside of the amenities area;
b.says that the fence line was made from star pickets with two lines covered in orange flags strung between the star pickets;
c.says that the fence line ran from the front gate, past the four demountable buildings referred to as the amenities area in the SoC;
d.says that the fence line was between 1 to 2 metres away from the demountable buildings; and
e.otherwise ~~denies~~ deny the allegations in paragraph 23 of the SoC.
24.The ~~First Respondent~~Respondents do not know and cannot admit whether Poskus or Maher formed any suspicion and otherwise deny ~~denies~~ the matters pleaded at paragraph 24 of the SoC.
25.In answer to the allegations at paragraph 25 of the SoC, the ~~First Respondent~~Respondents:
a.rely~~ies~~ on the matters pleaded at paragraph 23 above;
b.says that Poskus and Maher were in the location mentioned in paragraphs 23 and 25 of the SoC at all times while on the site; and
c.says that Poskus asked Cerullo to escort him around the entire worksite; and
d.says that Cerullo refused to escort Poskus and Maher around the entire work site; and
e.otherwise ~~denies~~ deny the allegations at paragraph 25.
26.In answer to the allegations at paragraph 26 of the SoC, the ~~First Respondent~~Respondents:
a.        ~~relies~~ rely on the matters pleaded at paragraph 25 above;
b.        otherwise deny~~ies~~ the allegations at paragraph 26 of the SoC.
27.The ~~First Respondent~~Respondents deny~~ies~~ the matters pleaded at paragraph 27 of the SoC.
28.Paragraph 28 pleads matters of law.
29.In answer to the allegations at paragraph 29 of the SoC, the ~~First Respondent~~Respondents:
a.        admits that Poskus said this at some stage while on site;
b.        says that Cerullo asked Poskus where in the site he wanted to go to;
c.        says that Poskus refused to nominate a location on the site; and
d.        otherwise deny~~ies~~ the allegations in paragraph 29 of the SoC.
30.In answer to the allegations at paragraph 30 of the SoC, the ~~First Respondent~~Respondents:
a.        admits that Cerullo made a telephone call to Graham;
b.says that Cerullo made the telephone call to Graham in response to Poskus demanding to be escorted around the whole site; and
c.        otherwise ~~denies~~ deny the allegations in paragraph 30 of the SoC.
31.The ~~First Respondent~~Respondents admits the matter pleaded at paragraph 31 of the SoC.
32.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 32 of the SoC.
33.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 33 of the SoC.
34.In answer to the allegations at paragraph 34 of the SoC, the ~~First Respondent~~Respondents:
a.        rely~~ies~~ on the matters pleaded at paragraphs 23 and 25 above;
b.says that Poskus said he wanted to be escorted around the entire site; and
c.        otherwise deny~~ies~~ the matter pleaded at paragraph 34 of the SoC.
35.In answer to the allegations at paragraph 35 of the SoC, the ~~First Respondent~~Respondents:
a.says that Graham told Poskus that he was not entitled to be escorted around the entire site;
b.says that Graham offered to call WorkSafe to come and adjudicate the issue; and
c.otherwise deny~~ies~~ the allegations at paragraph 35 of the SoC.
36.In answer to the allegations at paragraph 36 of the SoC, the ~~First Respondent~~Respondents:
a.        says that Poskus and Maher waited in or around the site office;
b.        rely~~ies~~ on the matters pleaded at paragraphs 23 and 25 above; and
c.        otherwise deny~~ies~~ the allegations at paragraph 35 of the SoC.
37.The ~~First Respondent~~Respondents deny~~ies~~ the matters pleaded at paragraph 37 of the SoC.
38.The ~~First Respondent~~Respondents deny~~ies~~ the matters pleaded at paragraph 38 of the SoC.
39.Paragraph 39 pleads matters of law.
40.The ~~First Respondent~~Respondents deny~~ies~~ the matters pleaded at paragraph 40 of the SoC.
41.Paragraph 41 pleads matters of law.
42.The ~~First Respondent~~Respondents admits the matter pleaded at paragraph 42 of the SoC.
43.In answer to the allegations at paragraph 43 of the SoC, the ~~First Respondent~~Respondents:
a.        admits that Poskus and Maher drafted new notices at some stage; and
b.        deny~~ies~~ that this was before the allegations pleaded at 44 of the SoC.
44.The ~~First Respondent~~Respondents admits the matters pleaded at paragraph 44 of the SoC.
45.In answer to the allegations at paragraph 45 of the SoC, the ~~First Respondent~~Respondents:
a.says that Graham and Poskus had a conversation outside of the front gate of the worksite;
b.deny~~ies~~ that Poskus made the notification pleaded at paragraph 45 of the SoC; and
c.otherwise deny~~ies~~ the ~~particulars at paragraph 45a, 45b, and 45c of the SoC~~ allegations of fact in that paragraph.
46.In answer to the allegations at paragraph 46 of the SoC, the ~~First Respondent~~Respondents:
a.says that Poskus and Maher did not provide written notices to Graham at this time;
b.rely~~ies~~ on paragraphs 23 and 25 of the SoC; and
c.otherwise deny~~ies~~ the allegations at paragraph 46 of the SoC.
47.In answer to the allegations at paragraph 47 of the SoC, the ~~First Responden~~tRespondents:
a.says that Graham told Poskus that Graham had spoken to WorkSafe and that WorkSafe had told Graham that Poskus and Maher were not allowed to proceed further;
b.says that Graham told Poskus that Worksafe were happy to come to the site and adjudicate
c.say that Poskus told Graham that WorkSafe were possibly going to come to the worksite at their request;
d.says that Graham went back inside the site at this time while Poskus and Maher stayed outside the front gate;
e.otherwise deny~~ies~~ the allegations at paragraph [47] of the SoC.
48.In answer to the allegations at paragraph 48 of the SoC, the ~~First Responden~~tRespondents:
a.        rely~~ies~~ on paragraphs 16, 23, 25 and 47 above; and
b.        otherwise deny~~ies~~ the matters pleaded at paragraph 48 of the SoC.
49.The ~~First Responden~~tRespondents deny~~ies~~ the matters pleaded at paragraph 49 of the SoC.
50.Paragraph 50 pleads a matter of law.
51.In answer to the allegations at paragraph 51 of the SoC, the ~~First Responden~~tRespondents:
a.says that Evison and other employees on the site placed orange barriers capable of being filled with water but which were not filled with water (orange barriers) along the fence line outlined in paragraph 23 above while Poskus and Maher were in the carpark outside the front gate;
b.says that Poskus and Maher re-entered the work site at approximately 1:30 pm;
c.says that this is when Poskus and Maher provided Graham with new entry notices;
d.says that Poskus and Maher observed the orange barriers;
e.says that Poskus and Maher spoke to Graham in an aggressive and intimidating manner;
f.~~says~~ say that Poskus and Maher remained in the areas outlined in paragraph 23 above until approximately 1:50pm;
g.admits that at the time Poskus and Maher left the work site, no WorkSafe inspector had arrived; and
h.say that WorkSafe inspectors attended the work site later that day.
52.The ~~First Responden~~tRespondents rely on paragraphs 25 to 48 above, admit that the acts admitted to have been done by Cerullo and Graham in those paragraphs were intentional, and otherwise deny~~ies~~ the matters pleaded at paragraph 52 of the SoC.
53.The ~~First Responden~~tRespondents deny~~ies~~ the matters pleaded at paragraph 53 of the SoC.
54.The ~~First Responden~~tRespondents deny~~ies~~ the contraventions alleged at paragraphs 54 to 89 of the SoC.
55.The ~~First Responden~~tRespondents opposes the relief sought at paragraphs 90 to 91 of the SoC.
Legislative and regulatory provisions
Because certain sections of the WHS Act and Regulations feature so prominently in the discussion that follows, it is as well to set them out here before the more formal discussion of principle and such matters later in these reasons.
Work Health and Safety Act 2011 (ACT)
19       Primary duty of care
(1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of –
(a)       workers engaged, or caused to be engaged, by the person; and
(b)workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
(2)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
(3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable –
(a)the provision and maintenance of a work environment without risks to health and safety; and
(b)       the provision and maintenance of safe plant and structures; and
(c)       the provision and maintenance of safe systems of work; and
(d)the safe use, handling, storage and transport of plant, structures and substances; and
(e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
(4)      If:
(a)a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and
(b)the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available;
the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.
(5)A self‑employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.
NoteA self-employed person is also a person conducting a business or undertaking for the purposes of this section.
117Entry 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.
NoteA 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 (see Legislation Act, s 104).
(2)The WHS entry permit-holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.
118Rights 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 (see Legislation Act, dict, pt 1).
(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
Note 1 Evidential burden – see the Criminal Code, s 58.
Note 2At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking (see s 120).
Note 3The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 (Cwlth).
118A   Notice of exercise of right under s 118(1) (da)
(1)This section applies in relation to the exercise of a right under section 118 (1) (da) by a WHS entry permit-holder.
(2)The WHS entry permit-holder must give notice to the relevant person conducting a business or undertaking about the exercise of the right—
(a)if, at the time the WHS entry permit-holder enters the workplace under this division, the WHS entry permit-holder intends to exercise the right in relation to the suspected contravention of this Act—as soon as reasonably practicable after entering the workplace; and
(b)if, while at a workplace under this division, the WHS entry permit-holder forms the intention to exercise, or has exercised, the right in relation to another contravention of this Act in the circumstances mentioned in section 118 (5)—as soon as reasonably practicable after forming that intention or exercising the right.
Work Health and Safety Regulations 2011 (ACT)
34       Duty to identify hazards
A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety.
35       Managing risks to health and safety
A duty holder, in managing risks to health and safety, must –
(a)eliminate risks to health and safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety—minimise those risks so far as is reasonably practicable.
36       Hierarchy of control measures
(1)This section applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.
(2)A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this section.
(3)The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:
(a)substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk;
(b)isolating the hazard from any person exposed to it;
(c)implementing engineering controls.
(4)If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.
(5)If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.
NoteA combination of the controls set out in this section may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose.
214 Powered mobile plant – general control of risk – Act, s 21
The person with management or control of powered mobile plant at a workplace must in accordance with part 3.1 (Managing risks to health and safety), manage risks to health and safety associated with the following:
(a)       the plant overturning;
(b)       things falling over on the operator of the plant;
(c)       the operator being ejected from the plant;
(d)       the plant colliding with any person or thing;
(e)mechanical failure of pressurised elements of plant that may release fluids that pose a risk to health and safety.
NoteWHS Act – s 21 (see s 9).
215     Powered mobile plant – specific control measures
(1)This section applies to a person with management or control of powered mobile plant at a workplace.
(2)The person must ensure, so far as is reasonably practicable, that a suitable combination of operator protective devices for the plant is provided, maintained and used.
Maximum penalty:
(a)       in the case of an individual – $6 000; or
(b)       in the case of a body corporate – $30 000.
NoteStrict liability applies to each physical element of each offence under this regulation, unless otherwise stated (see s 6A).
(3)The person must ensure, so far as is reasonably practicable, that no person other than the operator rides on the plant unless the person is provided with a level of protection that is equivalent to that provided to the operator.
Maximum penalty:
(a)       in the case of an individual – $6 000; or
(b)       in the case of a body corporate – $30 000.
(4)The person must ensure that the plant does not collide with pedestrians or other powered mobile plant.
Maximum penalty:
(a)       in the case of an individual – $6 000; or
(b)       in the case of a body corporate – $30 000.
NoteStrict liability applies to each physical element of each offence under this regulation, unless otherwise stated (see s 6A).
(5)Without limiting subsection (4), if there is a possibility of the plant colliding with pedestrians or other powered mobile plant, the person must ensure that the plant has a warning device that will warn persons who may be at risk from the movement of the plant.
Maximum penalty:
(a)       in the case of an individual – $6 000; or
(b)       in the case of a body corporate – $30 000.
Note     Strict liability applies to each physical element of each offence under this regulation, unless otherwise stated (see s 6A).
Fair Work Act 2009 (Cth)
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 section 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.
793     Liability of bodies corporate
Conduct of a body corporate
(1)      Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2)If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a)that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b)that the person had that state of mind.
Meaning of state of mind
(3)      The state of mind of a person includes:
(a)       the knowledge, intention, opinion, belief or purpose of the person; and
(b)       the person’s reasons for the intention, opinion, belief or purpose.
Disapplication of Part 2.5 of the Criminal Code
(4)Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.
Note:Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
(5)      In this section, employee has its ordinary meaning.
The Applicant’s Evidence
Oral Evidence of Mr Luke Poskus

Although recorded in submissions, for completeness it should be noted here that, perhaps curiously, the Respondents pleaded no defence arising from the terms of s.503(2) of the FW Act, which provides that: “Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.”
Regarding the operation and scope generally of s.793 of the FW Act, for current purposes, it is sufficient to note the Full Court’s brief comments in Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd, at [121] (Buchanan & Jagot JJ), by reference to well-known High Court authority (which need not be recorded here):[65]
… the effect of s 793 and the scope that section provides for a corporation to be bound by the acts of its agent even if those acts are undertaken without actual authority, provided that the agent acts within the scope of his or her apparent authority.
[65] Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd (2015) 228 FCR 225. See also the comments by Charlesworth J in Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 at [8] – [50].
It is admitted in the Respondents’ Defence (at pars.2 and 3) that Mr Cerullo and Mr Graham were relevantly acting within their apparent or actual authority in relation to the incidents in question here.
Consideration and Disposition
Given the comments already made earlier in these reasons regarding the evidence given at trial (the comments above regarding that evidence should be taken as formal findings of the Court), I need only note the following here, with such comments also being taken as formal findings.
For the reasons given earlier, I prefer and accept the evidence of Mr Poskus and Mr Maher on behalf of the Applicant to the evidence of Mr Cerullo. The evidence of the Union officials was clear, cogent, and unvarnished. Further, as already noted, their accounts of events on the day in question were firmly supported by the contemporaneous CCTV and other recordings. Any minor inaccuracies were acknowledged and accepted by the Applicant’s witnesses. Conversely, those recordings, significantly undercut the evidence of Mr Cerullo, who was, unfortunately, otherwise an ill-prepared, and generally unreliable witness for the reasons given earlier, including that he was a poor historian of relevant events, where his account(s) were usually contradicted both by the evidence of the Union officials but also by the video footage.
In any situation where there is (or was) any conflict between the evidence of the Union officials, on the one hand, and the sole witness for the Respondents (Mr Cerullo), on the other, I strongly prefer that of the Union officials.
Matters concerning the evidence (and contraventions) of Mr Graham
Also for reasons given above, the late non-appearance of Mr Graham to give evidence added to the significantly compromised evidence on behalf of the Respondents generally. Such evidence from his Affidavit, which I allowed in part on the Applicant’s oral motion in the light of Mr Graham’s non-attendance, was also at odds with the consistent and accepted evidence on behalf of the Applicants. I also recall the inference, pursuant to the principles set out in Jones v Dunkel, which the Court draws in the exercise of its discretion in the light of the facts and circumstances relevantly found that his evidence would not have assisted his case, or that of the Respondents more generally.[66]
[66] See also the High Court’s discussion about the operation of the inference that may be drawn from Jones v Dunkel in Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 345 at [167] and [169].
Also in relation to Mr Graham, given that (a) he gave no oral evidence, (b) the adverse inference drawn against him regarding his non-attendance to give evidence, (c) the clear and consistent evidence of the Union officials accepted by the Court, and (d) the evidence of the Union officials being supported by the video footage of one kind or another, in my view, it is apposite to conclude that the evidence of the Union officials regarding the contraventions involving Mr Graham stands unchallenged. As such, in accordance with long-standing Full Court authority, “as a general proposition, evidence which is not inherently incredible and which is unchallenged, ought to be accepted.”[67]
[67] See Ashby v Slipper (2014) 219 FCR 322 at [77] (Mansfield and Gilmour JJ).
In my view, it follows from what has just been set out that the contraventions alleged against Mr Graham must succeed. Inevitably, it must also follow that, pursuant to s.793 of the FW Act, the contraventions alleged against the First Respondent that are consequential upon the establishment of the contraventions against Mr Graham, are also made out.
General observations
In short, (a) the clear, firm and accepted evidence of Messrs Poskus and Maher, (b) the significant CCTV and other recorded material, and (c) the significantly compromised evidence on behalf of the Respondents, in my view, plainly establish – factually – the contraventions as pleaded, including the reasonable forming by the Union officials of relevant suspicions regarding the alleged contraventions before going on to the site, and whilst on site on the day. Otherwise, and in addition to the reasons here, I accept the submissions of the Applicant regarding the evidence of the witnesses at trial. I also accept and adopt the Applicant’s submissions regarding the “salient factual findings” set out in the Applicant’s Closing Submissions (filed 28^th February 2023) at pars.12 (a) – (k).
Further still, the Report of Mr Chipperfield from WorkSafe ACT (noted earlier in these reasons and relied, but not commented, upon notably by the Respondents), which was prepared entirely on information provided by the Respondents, both generally supports the account of events by the Union officials (not least being two identified “issues” on site that were “fixed”), and conversely, rather undercut or undermined the evidence of the Respondents, significantly limited as it was essentially to that of Mr Cerullo.
In relation to the operation of the relevant sections of the FW Act and the WHS Act in the light of the facts, I note the following quite summarily. For each of the contraventions considered below, the following matters are not in dispute:
(a)Both Mr Poskus and Mr Maher had a valid Right of Entry Permit, for the purposes of both the FW Act and the WHS Act, on the day in question when they attended the site;
(b)The Union officials identified, orally to Mr Cerullo, and as per their first Notice of Entry by WHS Entry Permit Holder (Annexure LP-3 to Mr Poskus’ trial Affidavit) under the WHS Act, what it was they wished to inspect in relation to the amenities (details are set out earlier in these reasons);
(c)The Union officials’ first Right of Entry Notice identified certain matters that the Union officials wished to inspect, which included “amenities are not being maintained”; those amenities were inspected without incident;
(d)In walking to and from the amenities block on site on the day in question, the Union officials passed along a walkway that was delineated by star pickets between which were strung small flags;
(e)Annexure LP-6 to Mr Poskus’ trial Affidavit is his second Notice of Entry by WHS Entry Permit Holder (“Right of Entry Notice”) regarding suspected contraventions in relation to “WHS Act section 19; [WHS] Regulation 214-215; [and] separation and protection of moving plant & pedestrians”; and
(f)During the lunch break on site on the day in question, the Respondents arranged for the star pickets and flags to be removed and for large plastic barriers to replace them next to the walkway from the entrance gate to the site office, albeit that these plastic barriers were not filled with water, or interlocked together..
Mr Cerullo’s first contravention: breach of s.502(1) FW Act
The first contravention pleaded against Mr Cerullo relates to s.502(1) of the FW Act, which prohibits a person from hindering or obstructing a permit holder from exercising rights under this Part of the FW Act ) (pars. 25 – 26 and pars. 29 – 37 of the Applicant’s Second Further Amended Statement of Claim).
The Court obviously accepts the principles regarding the operation of s.502 of the FW Act as set out by Colvin J in BGC POS Pty Ltd v CFMMEU, set out earlier in these reasons, which principles were recently noted by Katzmann J in CFMMEU v Fair Work Ombudsman, also noted above.
The question to be addressed, therefore is: “was there deliberate (as opposed to accidental), conscious conduct by Mr Cerullo which had the objective effect of hindering or obstructing the permit holder(s)” inspecting the “safety barrier issue” along the site walkway on the facts and circumstances set out and accepted by the Court here. In my view, the answer must be an unequivocal “yes” for the following reasons.
First, I accept that the inspection undertaken by the Union officials regarding the condition of the amenities, generally speaking, was relatively unproblematic, in the sense that it went ahead with little difficulty, albeit after some initial slightly testy discussion between the Union officials and Mr Cerullo. As already indicated, I prefer and accept Mr Poskus’ (and Mr Maher’s) account of events in relation to their engagements and discussions with Mr Cerullo generally and in relation to the events surrounding this contravention.
Secondly, I accept the evidence of the Union officials (and Mr Poskus in particular) that his interest in the delineation and safety for workers and others along the walkway was piqued only when, while walking along it, a truck passed and he felt, in its wake, the wind from it. The fact that he had the opportunity to inspect the star pickets and flags while earlier en route to the amenities is neither here nor there. At that time, as his evidence confirmed, his focus and interest was on the condition of the amenities. As such, and until the passing of the truck and its accompanying attention-grabbing following wind, he had neither immediate reason nor circumstance (both as pleaded and as a matter of evidence) to consider, or to form any relevant “reasonable suspicion” in relation to, the safety and efficacy of the “safety barrier”, which at that time comprised only star pickets and small flags strung between them.
The Respondents’ argued that because he had such opportunity, this precluded, and obviated the need for, a later inspection. They did so without reference to any authority to support this proposition. Nor was there proper attention to the statutory construction of s.118 of the WHS Act. I reject it for the following reasons:
(a)The original Notice of Entry made no reference to the star pickets and flags along the walkway. The focus of the Union officials at the time was upon the state and condition of the amenities. It was only after the truck passed Mr Poskus while moving along the site walkway that he was alerted to the issue of delineation and safety, which later came to be specified in the second Notice of Entry;
(b)Mr Cerullo directed Mr Poskus (and Mr Maher) that they were required to provide a separate Right of Entry Notice in relation to the “safety barrier issue” and that, until such was provided, they could not inspect the walkway in this regard;
(c)Remarkably, during the trial, Mr Poskus was challenged about his recollection, and the import of it, regarding the passing truck. During his cross examination, he was never shown or taken to the CCTV evidence of said truck. In my view, given that there was such footage available, which was only shown to him by the Applicant’s Counsel in Reply, it bordered on improper for Counsel for the Respondents to challenge him about his evidence in this regard. “Testing” evidence is one thing; knowing that there was clear video footage precisely what the witness deposed to but not taking him to it, is quite another. The video footage clearly showed the truck going past Mr Poskus at some modest speed and quite close to the then star pickets and flags. To state the obvious: star pickets and flags would provide zero protection to any worker or pedestrian from too closely passing trucks or plant;
(d)Further, it is illogical to argue, as the Respondents did, that an earlier opportunity to inspect something that was not (to speak colloquially) “on the radar” of the Union officials was sufficient to obviate the need for a later or differently focussed inspection. Put another way (rhetorically): how and why could Union officials be prevented from a later inspection simply because they may have had an earlier opportunity to inspect but, at that earlier time, they had no relevant knowledge of, or interest in (or suspicion about), the later discovered potential breach?
(e)Section 118(5) of the WHS Act specifically provides that a WHS permit holder, who reasonably suspects another contravention of the WHS Act, may investigate this “other [potential] contravention” that comes to light in the course of the original investigation that was conducted pursuant to s.117 of the WHS Act. The Respondents’ attention to, and discussion of, the precise terms of ss.117 and 118 was unfortunately quite modest.;
(f)According to the case law noted above, particularly the principles outlined by Colvin J in BGC POS, there is no time or geographical limitation of the kind proposed by the Respondents. I repeat, the Respondents provided or referred to no authority in support of the position(s) they advanced;
(g)At [26] in BGC POS, Colvin J set out what was comprehended by the proscriptions set out in s.502(1). Although set out above, for ease of reference I note again here that His Honour said:
The ordinary meanings of the words hinder and obstruct overlap. To hinder is to delay, interrupt or cause difficulty to do something or for something to happen. To obstruct is to block or get in the way of something, but may refer to preventing or interfering with a physical action or the movement of something. The term hinder is usually applied to describe the actions of persons whereas the term obstruct may be applied to persons as well as inanimate objects. A person may hinder or obstruct without specifically intending to achieve that result. The terms are not confined to deliberate actions. So, a person may accidently hinder or obstruct.
Having regard to the facts and circumstances here which I have accepted, the actions of Mr Cerullo relevantly hindered and obstructed the Union officials, as permit holders from conducting an inspection in accordance with the terms of s.118 of the WHS Act. As such, there was a contravention of s.502(1) of the FW Act by Mr Cerullo.
Pursuant to s.793(1) – (3) of the FW Act, it follows that the state of mind and actions of Mr Cerullo are relevantly taken “to have been engaged in also by” Canberra Contractors. Therefore the contravention alleged against the First Respondent is relevantly established.
Mr Cerullo’s second & third contravention: breaches of s.503(1) FW Act
The second and third contraventions pleaded against Mr Cerullo concern the allegations of contravening s.503(1) of the FW Act, which prohibits a person from misrepresenting things authorised under this Part of the FW Act.
The essential factual circumstances that ground these contravention are hardly in dispute. Although canvassed earlier in these reasons, it may be recalled that after Mr Cerullo and Mr Graham spoke on the phone, Mr Cerullo thereafter told the Union officials that they could not inspect those parts of the site concerning safety barriers. This was because, and specifically for the purposes of the terms, and alleged contraventions, of s.503(1), (a) Mr Cerullo averred, they had previously inspected matters that were set out in their first Right of Entry Notice (which dealt solely with the condition of the amenities) (pars. 25 – 26 of the Applicant’s Second Further Amended Statement of Claim), and (b) he also contended, either separately and/or supported by Mr Graham, that any further inspection was conditional upon them providing a new Right of Entry Notice, which dealt with the issue of safety barriers on site (pars 29 – 37 of the Applicant’s Second Further Amended Statement of Claim).
In addition to preferring (again) the evidence of Mr Poskus (and Mr Maher) to that of Mr Cerullo, the plain words of s.118(5) of the WHS Act, make abundantly clear that the Union officials were entitled to inspect any other suspected contravention where a permit-holder “reasonably suspects that another contravention of this Act has occurred.” The reasonable suspicion of the permit-holders (Messrs Poskus and Maher) regarding the safety and adequacy of the barriers along the walkway were clearly communicated to Mr Cerullo (and to Mr Graham). The response from Mr Cerullo (and Mr Graham) to require another Right of Entry Permit to be provided before an inspection of the barriers was both contrary to s.118(5) of the Act, and misleading regarding its operation and plain intention.
In my view, the principles set out by the Full Court in Bragdon v Director of the Fair Work Building Industry Inspectorate, regarding the establishment of “intention”, and likewise by Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (“ÁBCC v CFMEU 2017”) regarding “reckless” conduct for the purposes of s.503(1), apply, and are satisfied here on the evidence according to the requisite standard under s.140 of the Evidence Act 1995 (Cth).[68] In Bragdon, at [68], the Court said (internal citations omitted):[69]
Where intention is an element of an offence, it must be proved. It is not sufficient to rely on “foreseeability, likelihood and probability”. It must be affirmatively established that the offender “meant to produce the particular result.”
[68] See also the comments by Branson J, as part of the Full Court, in Qantas Airways v Gama (2008) 167 FCR 537 at [138] – [139]. In the latter paragraph, her Honour said: “…the correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides. …the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved.’
[69] Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46.
In ABCC v CFMEU (2017), at [153] Bromberg J said:
I consider that for the purposes of s 503(1)(b) a person will be reckless as to whether an impression is given that something is authorised if, in the circumstances known to them at the time they took the action, they could reasonably be expected to have foreseen that their actions would give the impression that their doing of a thing was authorised by Part 3–4 of the FW Act.
In my view, the actions of Mr Cerullo (and Mr Graham) readily satisfy the requisite intention required under s.503(1)(a) of the FW Act, and equally so (in the alternative under s.503(1)(b)) in relation to the reckless impression conveyed to the Union officials regarding the plainly incorrect “requirement” (and plainly contrary to s.118(5) of the WHS Act) of a second Right of Entry Permit regarding inspection of the adequacy of the safety barriers along the walkway to the site office. For current purposes, it is unnecessary to delve deeper into the newly installed plastic barriers not being filled with water, which would clearly have made them much stronger and thereby more protective of pedestrians and workers on site, and/or whether they were “joined” or interlocked together – Mr Poskus’ evidence was that they were not and therefore they were not properly installed.

For the same reasons given in relation to the contravention of s.502 and the consequential liability of the First Respondent pursuant to s.793 of the FW Act, because of the Court’s findings against Mr Cerullo in relation to the two breaches of s.503 of the FW Act, also pursuant to s.793 of the same Act, the First Respondent shares in the liability as a result of these second and third contraventions by Mr Cerullo.
For the reason given, the declarations sought by the Applicant should be made.
Miscellaneous & conclusion
Before concluding, two other matters need to be addressed.
First, the Respondents regularly raised in written submissions what are generally described as “pleading points.” To speak generally, they contend that (a) the Applicant is bound by its pleading (a generally uncontentious proposition), and (b) certain matters were not relevantly pleaded in relation to one or more of the Respondents.
Apart from the Applicant refuting the latter contention, I need only note the following:
(a)It is undeniable that pleadings serve the multiple goals of (i) giving notice to the other party of the case that is to be met at trial, and equally (ii) they outline the issues to be addressed at trial;[70]
(b)At the same time, the High Court has also determined that pleadings may be amended, especially where “amendment would not raise a fresh issue based upon a different cause of action or particulars”, and which would only amend the expression of the course of events so that the “facts pleaded would conform to the evidence given”;[71]
(c)Accepting the almost eye-glazing multiple iterations of the Statement of Claim, over a significant period of time, the Respondents properly and fairly raised a number of pleading points. That said, in my view, any fair reading of any of the versions of the Statement of Claim, in the light of the Affidavits of Mr Poskus and Mr Maher relied upon (and their oral evidence), and the issues joined at trial, there can be no doubt that anyone, including the Respondents, could not know the precise details of the case being run, the evidence relied upon, and the issues to be determined by the Court. Further, the versions of various events deposed to by Mr Cerullo and Mr Graham likewise make plain that the Respondents knew precisely the nature and content of the contraventions alleged against them by the Applicant.
(d)In my view, for the reasons noted, together with the evidence of the witnesses and the Court’s findings in relation to them, any of the pleading points propounded by the Respondents in their submissions have no substance.
[70] Among many places, see the High Court’s comments in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279.
[71] See Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666 at 668 – 669 (Stephen, Mason and Jacobs JJ). To similar, broad effect where the focus was more upon the evidence rather than using the pleadings, in a sense, to straight-jacket the evidence, and where the Court allowed amendment and/or where there was no objection to the evidence, see other High Court decisions such as Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563, and Dare v Pulham (1982) 148 CLR 658. More recently, see the summary of principle by Ipp J in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653 at [424]. His Honour’s comments refer, among other things, to the way the matter was run at trial and any direct or indirect acquiescence in the evidence led at, and conduct of the, trial. Among other things, his Honour also observed that, ultimately, cases are determined on the evidence, not the pleadings.
Secondly, and finally, in addition to the Court making the declarations sought by the Applicants, absent agreement in writing between the parties to resolve the matter on a final basis, the most appropriate procedural course is as follows:
(1)Within 7 days, the Applicant is to provide the Court with an engrossed script of the declarations to be made by the Court;
(2)Within 14 days, the parties are to advise the Court whether the issue of penalties can or should be dealt with “on the papers”, and whether (for example) there is either an agreed “range” of penalties, or even actual agreement regarding penalty, subject to Court approval.

I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 24 August 2023

File number(s):	CAG 43 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	24 August 2023
Catchwords:	INDUSTRIAL LAW – Application for contraventions under Fair Work Act 2009 (Cth) and under the Work, Health and Safety Act 2011 (ACT), while on site Union officials inspecting one suspected breach of WHS standards form reasonable suspicion of another, different suspected breach, the issue in the case was whether the Union officials were entitled under the WHS Act to inspect the second suspected contravention or whether they were required to leave the site and prepare a further Right of Entry Notice, facts strongly support both breaches and Court determines that the WHS Act plainly authorises inspection of other suspected breaches while a permit holder is already on site, contraventions established, declarations to be mad and matter fixed for penalty hearing.
Legislation:	Evidence Act 1995 (Cth), s.140 Fair Work Act 2009 (Cth), ss. 502 – 503, 793 Work Health & Safety Act 2011 (ACT), ss. 19, 117 – 118, 118A Work Health & Safety Regulations 2011 (ACT), rr. 34 – 36
Cases cited:	Ashby v Slipper (2014) 219 FCR 322 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 Gava [2018[ FCA 1480. Australian Building and Construction Commission v Powell (2017) 251 FCR 470 Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd (2015) 228 FCR 225 Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 345 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 BGC POS Pty Ltd v Construction, Forestry, Maritime and Energy Union (2019) 285 IR 43 Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46 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 Dare v Pulham (1982) 148 CLR 658 Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 George v Rockett (1990) 170 CLR 104 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653 Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563 Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666 Qantas Airways v Gama (2008) 167 FCR 537 Ramsay v Sunbuild Pty Ltd (2014) 221 FCR 315 Ruddock v Taylor (2005) 222 CLR 612 Setka v Gregor (No.2) (2011) 195 FCR 203 Thoms v Commonwealth of Australia (2022) 96 ALJR 635; 401 ALR 529
Division:	Division 2 General Federal Law
Number of paragraphs:	175
Date of last submission/s:	6 April 2023
Date of hearing:	30 – 31 January 2023
Place:	Canberra
Counsel for the Applicant	Mr P Boncardo
Solicitor for the Applicant	Construction, Forestry, Maritime, Mining And Energy Union
Counsel for the Respondent	Mr B Buckland
Solicitor for the Respondent	MBA Legal

CAG43 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Applicant
AND:	CANBERRA CONTRACTORS First Respondent
and:	ANGELOR CERULLO Second Respondent
AND:	JOHN GRAHAM Third Respondent

order made by:	JUDGE W J NEVILLE
DATE OF ORDER:	24 August 2023