Construction, Forestry, Mining and Energy Union v Class 1 Form Pty Ltd

[2017] FCCA 696

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v CLASS 1 FORM PTY LTD & ANOR [2017] FCCA 696

Catchwords:
INDUSTRIAL LAW – Application for the imposition of a pecuniary penalty.

Legislation:

Evidence Act1995 (Cth), s.140(2)

Fair Work Act 2009, ss.360, 361, 502, 539(2)

Work, Health and Safety Act 2011 (ACT), ss.117, 118(1)(b)

Cases cited:
Australian Building and Construction Commissioner v Hall [2017] FCA 274
Briginshaw v Briginshaw (1938) 60 CLR 336
Manley v Tucs (1984) 58 ALR 217

Applicant: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent: CLASS 1 FORM PTY LTD

Second Respondent: TONY JOSEPH TALEB

Third Respondent: PETER ZARDO

Fourth Respondent: ELIAS TALEB

File Number: CAG 21 of 2015

Judgment of: Judge Jarrett

Hearing date: 29 March 2017

Date of Last Submission: 29 March 2017

Delivered at: Brisbane

Delivered on: 7 April 2017

REPRESENTATION

Counsel for the Applicant: Mr Reitano

Solicitors for the Applicant: Slater & Gordon

No appearance for the Third Respondent

ORDERS

1. Pursuant to s.539(2) of the Fair Work Act 2009 (Cth) and in respect of the third respondent’s contravention of s.502(1) of the Fair Work Act 2009 (Cth) committed on 19 January, 2015 the third respondent pay to the applicant a penalty fixed in the sum of $1,000.

2. The penalty to be paid by the third respondent to the applicant be paid within 30 days of the date of these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Canberra

CAG 21 of 2015

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

And

Class 1 Form Pty Ltd

First Respondent

Tony Joseph Taleb

Second Respondent

Peter Zardo

Third Respondent

Elias Taleb

Fourth Respondent

REASONS FOR JUDGMENT

1. A person contravenes s.502 of the Fair Work Act 2009 (Cth) if that person intentionally hinders or obstructs an official of an organisation such as the applicant, to whom the Fair Work Commission has issued an entry permit, from exercising rights in accordance with Part 3-4 of that Act. To do so will render the person committing the contravention liable to the imposition of a pecuniary penalty.

2. In this case, the applicant alleges that on 19 January, 2015 at a construction site that I will refer to in these reasons as the Hudson Square Project Site, the third respondent refused to allow one of the applicant’s officers, Mr Garry Hamilton, to speak to a worker then working at the site. The applicant alleges that Mr Hamilton was attempting to exercise a right in accordance with Part 3-4 of the Fair Work Act. The relevant right that Mr Hamilton was purporting to exercise is said to arise from s.118(1)(b) of the Work, Health and Safety Act 2011 (ACT).  Mr Hamilton held an entry permit under that Act as well as under the Fair Work Act. It is alleged that he was attempting to consult with a particular worker in relation to a suspected contravention of the Work, Health and Safety Act.

3. By its Further Amended Application filed 28 April, 2016 the applicant seeks a declaration and the imposition of a penalty on the third respondent for the alleged contravention. 

4. While the third respondent initially responded to the application and instructed solicitors to represent him, those solicitors withdrew from acting for him on or about 5 February, 2016.  The third respondent has not participated in these proceedings since that time.

5. The applicant’s proceedings against the first, second and fourth respondents was the subject of agreement between them.  The parties put before me an agreed statement of facts and an agreed penalty for my consideration.  I delivered separate reasons relating to those respondents and imposed a pecuniary penalty on each for the admitted contraventions.  Consequently, these reasons do not touch upon the matters alleged against those respondents.  They only deal with the claims against the third respondent that have been dealt with in his absence.

6. The applicant tendered five affidavits upon which it wished to rely to prove its case.  There are three by Gary Hamilton, one by Johnny Lomax and one by Kenneth Miller. 

7. The evidence demonstrates that Mr Hamilton held entry permits under the Fair Work Act and the Work, Health and Safety Act that authorised him to enter work sites in accordance with those Acts. On the day in question, Mr Hamilton was accompanied by two colleagues, Mr Johnny Lomax and Mr Miller. They also held relevant entry permits.

8. Amongst other things, the entry permit issued pursuant to the Work, Health and Safety Act authorised Mr Hamilton to:

   a)enter the site to enquire into a suspected contravention of the Work Health and Safety Act (pursuant to s.117 of the Work, Health and Safety Act); and

   b)consult with the relevant workers in relation to the suspected contravention (pursuant to s.118(1)(b) of the Work, Health and Safety Act).

9. The applicant’s case is that the third respondent prevented Mr Hamilton from consulting a worker – described in the evidence as a dogman, in relation to the suspected contravention that Mr Hamilton said he was investigating.

10. Relevantly, Mr Hamilton’s evidence, in his affidavit filed on 2 April, 2015 about this is as follows:

    29. As we left the lunch shed I said to Mr. Zarbo words to the effects:

    “We have received report the Site only has one dogman”

    30. Mr. Zarbo replied words to the effect:

    “We have two dogman on Site and we only need one dogman on Site regardless. “

    31. I replied to Mr. Zarbo words to the effect:

    “If the Site only has one dogman then how does he sling the load for the tower crane on the ground floor and then set the load down on the top of the building and remain fully in control and supervision of the lift at all times? “

    32. Mr. Zarbo replied words to the effect:

    “I know the rules we only need one dogman Site, we have two on Site today but even if there was not two dogman on Site we are not doing anything wrong if we only have one. “

    33. I then said to Mr. Zarbo words to the effect:

    “Can I please speak to the Site’s dogman?”

    34. Mr. Zarbo replied words to the effect:

    “No you do not have the authority to speak with the Site’s dogman. “

    35. I then said to Mr. Zarbo words to the effect:

    “Can I please have a look at the Site’s SWMS (meaning Safe Work Method Systems for the tower crane? “

    36. Mr. Zarbo then took me into the Site shed and provided me with two folders which contained the SWMS for the tower crane on Site. I had a brief look at the SWMS and noticed that the dogman was responsible for load clearances for emergency access, devices, structures and the like.  I took a photograph of the relevant part of the SWMS which I included in a Work Health and Safety Report (the Report) I drafted and later produced to ACT WorkSafe and Mr. Elias Taleb at Class 1 Form Pty Ltd via email.  Now shown to me and marked as Annexure GH-3 to this Affidavit is a true copy of the said Work Health and Safety Report.

    37. I then continued to peruse through the SWMS and noticed that one dogman and one crane operator had been inducted into the SWMS which suggested that only one dogman was on site. I took a picture of the inductions record which is also included in the Report contained in Annexure GH-3.

    38. Once I had taken the relevant pictures of the SWMS I again said to Mr. Zarbo words to the effect:

    “Can I speak with the dogman (meaning the dogman who has been inducted on site pursuant to the SWMS)?”

    39. Mr Zarbo replied words to the effect:

    “No you do not have the authority to do so. “

    40. I then asked Mr. Zarbo to watch carefully what I was doing and I retrieved my mobile telephone and accessed a legal website called Whilst Mr. Zarbo was watching I accessed the Work Health and Safety Act 2011 (ACT) (the Act), I continued to scroll down the electronic documents to section 118 which refers to rights an authorised work health and safety permit holder can exercise whilst on Site which states:

    “WORK HEALTH AND SAFETY ACT 2011-SECT 118

    Rights that may be exercised while at workplace

    (1) While at the workplace under this division, the WHS entry permit-holder may do 1 or more of the following in relation to the suspected contravention of this Act:

    (a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;

    (b) consult with the relevant workers in relation to the suspected contravention;

    (c) consult with the relevant person conducting a business or undertaking about the suspected contravention;

    (d) require the relevant person conducting a business or undertaking to allow the WHS entry permit-holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that-

    (i) is kept at the workplace; or

    (ii) is accessible from a computer that is kept at the workplace;

    (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, the relevant person conducting the business or undertaking is not required under subsection (J) (d) to allow the WHS entry permit-holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

    (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.

    Note 1 Evidential burden - see the Criminal Code, s 58.

    Note 2 At 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 (sees 120).

    Note 3 The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 (Cwlth).”

    41 . I made particular reference to section 118(1)(b) and then repeated my request to speak with the dogman on Site.

    42. Mr. Zarbo replied words to the effect:

    “But you have not told me what the breach is.”

    43. I replied to Mr. Zarbo words to the effect:

    “I believe the Site requires two dogman, one on the ground floor of the Site to sling the load and one at the top of the building to set the load down. Can I please talk to the dogman regarding how he slings the load on the ground floor and then sets the load down on the top floor of the building safely?”

    44. Mr. Zarbo replied words to the effect:

    “You have not told me what the breach is”

    45. At this point I said to Mr. Johnny Lomax, who was standing outside the site shed, words to the effect:

    “Johnny can you come in here?”

    46. At this point Mr. Lomax entered the room and I said to Mr. Zarbo words to the effect:

    “I believe that the Site requires two dogman to lift loads safely can I talk to the dogman?”

    47. Mr. Zarbo replied words to the effect:

    “No.”

    48. Mr. Zarbo continued to be argumentative alleging that I had not told him what the breach was and was I alleging the dogman and crane crew could not do their job properly and maybe the crane crew should be sacked.

    49. At this stage I ignored Mr. Zarbo comments and said words to the effect:

    “We will wait for Worksafe to arrive”

    50. Mr. Zarbo replied to my suggestion words to the effect:

    “Once they arrive you can get off Site.”

    51. I replied to Mr. Zarbo words to the effect:

    “So when WorkSafe arrive are you going to kick us off site?”

    52. Mr. Zarbo replied words to the effect:

    “When WorkSafe arrive you are not needed and they can to come on the Site and check the safety you are not needed.”

    (errors in the original)

11. Mr Lomax gave evidence in his affidavit filed on 15 July, 2016:

    5.  I have problems with my memory and suffer from memory loss. I believe this is due playing rugby league professionally for over 10 years.

    …

    22. After a couple of minutes of waiting outside the gate the Third Respondent walked over to Hamilton, Miller and I outside the gate.

    …

    24. Hamilton, Miller and I walked with the Third Respondent to the toilet and lunch room.  This was located about I 0 meters inside from the front entrance.  We inspected the lunch room and toilet and found them to be in a satisfactory state.

    25. Hamilton then raised the issue of having just one dogman on site. Up until this point the Third Respondent was calm but immediately after Hamilton raised the dogman issue, the Third Respondent became agitated.

    26. Hamilton explained that we had reports that there was only one dogman on site and was not able to maintain sight of the load while communicating with the crane driver.  Hamilton explained that best safety practice is to have two dogman on site.

    27 The Third Respondent kept insisting that the site only needed one dogman but that they had two on site in any event.

    28. Hamilton then asked to see the Safe Work Method Statement (“SWMS”). The SWMS record the workers who have been inducted on the site.

    29. Hamilton walked into the site shed with the Third Respondent to inspect the SWMS.

    30. Hamilton asked me to follow him into the site shed to be witness what was said.  Hamilton inspected the SWMS in site shed and then asked the Third Respondent to speak with the dogman.  I cannot recall where Miller was at this time.

    31. The Third Respondent said words the effect of “you do not have authority to speak to the dogman, you are not going on site to speak to the dogman.”

    32. Hamilton showed The Third Respondent a legal website on his phone but the third respondent kept refusing to allow Hamilton to speak to the dogman.

    33. Hamilton said to the Third Respondent words to the effect of “so you are not going to allow us to speak to the dogman even though we have a right to.”

    34. The Third Respondent repeated over and over again words to effect of “you are not speaking to the dogman.”  The Third Respondent by this point was very agitated and I was fearful that the Third Respondent’s behaviour would physically escalate.

    35. The Second Respondent went on to aggressively tell us words to the effect of “get off site and wait for Worksafe” At some point during this conversation 2 Worksafe inspectors arrived. Hamilton has a conversation with the inspectors. I do not remember speaking to the inspectors.

    (errors in the original)

12. Mr Miller gave evidence in his affidavit filed on 15 July, 2015 that:

    24. Either Lomax or Hamilton began to talk to the Third Respondent about reports that the site only had one dogman.

    25. I heard the Third Respondent say that there was were two dogman but that it did not matter because it was safe to have one dogman.  I heard Hamilton say to the Third Respondent words to the effect of “we have had reports of our member who is the dogman running up multiple storeys all day, and that it was not safe.”

    26. At some point in this conversation I heard Hamilton ask to see the Safe Work Method Statements (“SWMS”).

    27. After inspecting the SWMS I heard Hamilton ask the Third Respondent on a number of occasions words to the effect of “I want to speak to the inducted dogman. “ The Third Respondent refused to allow Hamilton to speak to the dogman.

    28. A short time later Lomax, Hamilton and I waited outside because WorkSafe had arrived.

    (errors in the original)

13. The applicant bears the onus of proof.  In Australian Building and Construction Commissioner v Hall [2017] FCA 274 Flick J examined the onus and standard of proof to be applied in applications for the imposition of pecuniary penalties for contraventions of the Fair Work Act and how the onus and standard of proof was affected by ss.360 and 361 of the Act. Speaking generally of the standard of proof his Honour made the following points (at [18] – [20]):

    a)when making findings of fact, due regard must be had to the gravity of the matters alleged: Evidence Act 1995 (Cth), s.140(2);

    b)the standard of proof referred to in s.140(2) is a re-statement of the standard of proof referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336; and

    c)findings as to a contravention of the Fair Work Act are not findings lightly to be made.

14. Mr Hamilton purported to enter the site exercising his rights pursuant to his entry permit issued under the Work, Health and Safety Act.  That section provides:

    117 Entry to inquire into suspected contraventions

    (1) A WHS entry permit-holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

    Note A reference to an Act includes a reference to statutory instruments made or in force under the Act, including a regulation and any law or instrument applied, adopted or incorporated by the Act (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.

15. Section 118 of the Work, Health and Safety Act is set out above in the extract from Mr Hamilton’s evidence.  I will not repeat it.

16. The applicant’s case is that Mr Hamilton reasonably suspected that a contravention of the Work, Health and Safety Act had occurred or was occurring when he entered the Hudson Square Construction Site.  But the evidence about that issue is scant.  Mr Hamilton’s evidence (in exhibit 1) about this issue is:

    5. Prior to attending the Site on 19 February 2015 I had a conversation with Mr. Johnny Lomax (Lomax) and Kenneth Miller (Miller) who are also officials of the CFMEU, who told me that Miller had received reports from members of the Union regarding the cleanliness of the Site's amenities namely the toilets and the lunch rooms.

    6. Miller also told me that it was also reported to him by members of the Union that the Site only had one dogman on the tower crane which resulted in unsafe lifting practices with the tower crane.

17. It is clear from Mr Hamilton’s evidence that the only information that he had about the suspected contravention relating to the tower crane came from Mr Miller.  Mr Miller’s evidence about this issue was as follows (in exhibit 5):

    6. One of the reoccurring issues was that the site only had one qualified dogman on site at a time. This can be a safety issue depending on the kind of construction that is occurring. It is generally a safety issue for a multi-story construction site where loads are not able to be sighted from the same spot that they are picked up and put down.

    7. I remember receiving a number of phone calls from the dogman on site, Clark Day (“Day”), who told that he had to act as the dogman on the ground, chain a load and then as it was being picked up the crane, run up multiple storeys to then direct the crane driver where to drop it on the upper level. I remember Day saying words to effect of “By the end of the day I feel like I’ve run a marathon, going up and down those stairs all day.”

    (errors in original)

18. It is apparent that Mr Hamilton’s knowledge of any suspected contravention relating to the dogman and the operation of the tower cranes was limited to what he was told by Mr Miller.  His evidence goes no further.  Nor does it descend into any particularity about what Mr Miller told him other than “that the Site only had one dogman on the tower crane which resulted in unsafe lifting practices with the tower crane”.  Mr Miller’s evidence does not assist because Mr Miller does not give evidence that he told Mr Hamilton anything about the tower crane or lifting practices.

19. Mr Hamilton gave evidence that he had completed a document described as a “Work Health and Safety Entry Notice” bearing a number 0151.  That is a pre-printed form that has facility for particulars to be inserted appropriate to the circumstances in respect of which the notice is given.  Relevantly, at about the middle of the form the following is provided:

1. Whilst there is reference to “High Risk Construction SWMS”, there is no reference to work done by either the tower crane or the dogman.  There are no particulars relating to the tower crane or the dogman written into the space provided for “further details of the breach”.

1. In his affidavit filed on 15 July, 2016 Mr Hamilton refers to notes that he made when he was on the Hudson Square Project site.  The notes are annexed to his affidavit.  The notes relating to the tower crane and dogman are as follows:

   –Peter Zarda – project mgt

   –Ask to chat to the dogman

   –They said they have two dogmen

   –would not let me talk to dogman

   –He said we had no right go E talk to dogman

   –I advised Peter that I had received complaints that dogman not proper supervised

2. Mr Hamilton did not give any evidence that he had received complaints that the dogman was not properly supervised.  The information that Mr Miller says he had received was that the dogman had to run up and down stairs all day.  It did not relate to the dogman not being properly supervised.  So even if I might infer that Mr Miller had passed on the complaints that he had received to Mr Hamilton, the issue noted on the day in question by Mr Hamilton in his contemporaneous note related to a lack of supervision in some unidentified way, not the necessity for the dogman to pass up and down stairs all day – an issue of fatigue as it was put to me by counsel for the applicant in submissions.

3. Whether a permit holder had a reasonable suspicion that a contravention of the Work, Health and Safety Act had occurred or is occurring is determined objectively: Manley v Tucs (1984) 58 ALR 217 at 221-222.

4. Mr Hamilton’s suspicion upon which he claims he acted in relation to the “dogman” issue was, according to his evidence, based solely upon what he was told by Mr Miller and that having one dogman resulted in “unsafe lifting practices”.  But there is nothing to suggest that Mr Hamilton took any steps to clarify or test Mr Miller’s opinion.  There is nothing to suggest that he sought an explanation of the basis upon which Mr Miller formed that view.  Moreover, there is nothing in Mr Miller’s evidence that suggests that he told Mr Hamilton anything at all about the operation of the tower crane or the dogman, let alone the basis upon which he formed those views.  Moreover, Mr Hamilton’s contemporaneous note appears inconsistent with his affidavit evidence, such as it is, about the nature of the suspected contravention in respect of which he wished to speak to the dogman.

5. Notwithstanding the obvious difficulties with the applicant’s evidence about these matters however, I am satisfied that Mr Hamilton probably had a reasonable suspicion that when the third respondent refused to let Mr Hamilton talk to the dogman, Mr Hamilton was exercising rights in accordance with the Fair Work Act or the Work, Health and Safety Act as the applicant alleges. I accept that it was probably the case that on 19 February, 2015 Mr Hamilton had a proper basis (i.e. viewed objectively, a reasonable suspicion that a contravention of the Work, Health and Safety Act had been or was being committed on the site) for exercising the right provided for in s.118(1)(b) of the Work, Health and Safety Act. Accordingly s.118(1)(b) was probably engaged in the circumstances and the third respondent committed a contravention of the Fair Work Act when he refused to permit Mr Hamilton to speak to the dogman.

6. The maximum penalty that might be imposed upon the third respondent is 60 penalty units (s.539(2) of the Fair Work Act). That equates to a maximum penalty at the time of the contravention of $10,800.

7. The third respondent’s contravention was deliberate and persistent.  He was, however demanding Mr Hamilton’s particulars of the alleged contravention.  In my view, even on Mr Hamilton’s evidence, as well as that of Mr Lomax, no proper particulars of the suspected contravention were given to the third respondent.  The Notice of Entry was not particularised and Mr Hamilton’s explanation for his demand was unhelpful in my view.

8. The evidence demonstrates that the third respondent was otherwise cooperative with Mr Hamilton, Mr Lomax and Mr Miller in relation to the other matters of concern to them.  I do not accept that the third respondent became aggressive as I have been urged to accept.  Whilst Mr Lomax (who admittedly has a poor memory) asserts that the third respondent became angry and aggressive, Mr Hamilton’s evidence is not consistent with that.

9. I am conscious that there is a need to deter behaviour such as that of the third respondent when he obstructed Mr Hamilton from speaking with the dogman.  There is nothing before me, however, to suggest that the type of contravention with which I am dealing is particularly prevalent in the community.

10. Having regard to the circumstances in which the contravention took place and the matters I have referred to in these reasons, in my view an appropriate penalty is $1,000.

Conclusion

1. I make the orders set out at the commencement hereof.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 April 2017.

Date: 7 April, 2017