Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Ltd - [2013] FMCA 154

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v HUME HIGHWAY CONSTRUCTIONS PTY LTD & ANOR

[2013] FMCA 154

INDUSTRIAL LAW – Right of entry – hindering or obstructing – refusing or unduly delaying.

WORDS & PHRASES – “Exercising rights” – “refuse” – “unduly”.

Fair Work Act 2009, ss.494, 501, 502, 512, 539, 546, 550
Occupational Health & Safety Act 2000 (NSW), ss.77, 79
Fair Work Regulations 2009, reg.3.25
Crimes Act 1914, ss.4AA, 4F

Darlaston v Parker (2010) 189 FCR 1
Clare & Gilbert Valleys Council v Crawford [2005] SADC 135
Jones v Dunkel (1959) 101 CLR 298
CFMEU v Safety Glass Pty Ltd [2010] FCA 989
R v Loughnan [1981] VR 443
Pine v Doyle [2005] FCA 977
Innes v Rail Corporation of New South Wales [2013] FMCA 36
Michaels v R (1995) 184 CLR 117
Board of Control of Michigan Technical University v Deputy Commissioner of Patents (1981) 53 FLR 26

Applicant:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

First Respondent:

HUME HIGHWAY CONSTRUCTIONS PTY LTD ACN 147 946 343

Second Respondent:

ANTHONY JOHN GITTANY

File Number:

SYG 892 of 2012

Judgment of:

Cameron FM

Hearing dates:

7 & 8 February 2013

Date of Last Submission:

8 February 2013

Delivered at:

Sydney

Delivered on:

5 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr I Latham

Solicitor for the Applicant:

Ms L Charlson, Construction, Forestry, Mining & Energy Union

Solicitors for the Respondents:

Joe Weller & Associates

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 892 of 2012

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Applicant

And

HUME HIGHWAY CONSTRUCTIONS PTY LTD ACN 147 946 343

First Respondent

ANTHONY JOHN GITTANY

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

On 6 December 2011 three of the applicant’s employees attended the first respondent’s construction site in order, they said, to investigate suspected breaches by the respondents of their obligations under the Occupational Health & Safety Act 2000 (NSW) (“OH&S Act”). The applicant (“CFMEU”) alleged that although the OH&S Act and the Fair Work Act 2009 (“FWA”) authorised its three employees to enter those premises, in contravention of ss.501 and 502 of the FWA respectively, the respondents refused and/or unduly delayed that entry and intentionally hindered or obstructed them in the exercise of their rights to investigate health and safety concerns. The CFMEU sought declarations to this effect and the imposition of pecuniary penalties in respect of those contraventions.
The second respondent, Mr Gittany, is a shareholder of the first respondent, Hume Highway Constructions. The CFMEU alleges that Hume Highway Constructions was responsible for the conduct of Mr Gittany and that Mr Gittany had accessorial liability under s.550 of the FWA for the alleged contraventions of Hume Highway Constructions.
For the reasons which follow, the application will be dismissed.

Relevant legislation

Section 77 of the OH&S Act (which has since been repealed by the Work Health & Safety Act 2011 (NSW)) permitted an authorised representative of an industrial organisation to enter a place of work in the following circumstances:
77 Powers of entry of places of work
An authorised representative of an industrial organisation of employees may, for the purpose of investigating any suspected breach of the occupational health and safety legislation, the Coal Mine Health and Safety Act 2002 or the Mine Health and Safety Act 2004, enter any premises the representative has reason to believe is a place of work where members of that organisation (or persons who are eligible to be members of that organisation) work.
Under the OH&S Act an authorised representative was a person who had been issued with an authority by the NSW Industrial Registrar under pt.7 of chp.5 of the Industrial Relations Act 1996 (NSW): s.79(1) of the OH&S Act.
Entry permits could also be issued under s.512 of the FWA by what was then Fair Work Australia. At the relevant time that section provided:
512 FWA may issue entry permits
FWA may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if FWA is satisfied that the official is a fit and proper person to hold the entry permit.
An official who has been granted an entry permit under s.512 of the FWA may, pursuant to s.494 of that Act, exercise what that section describes as a “State or Territory OHS right”. Section 494 relevantly provides:
494 Official must be permit holder to exercise State or Territory OHS right
Official must be permit holder
(1) An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.
Meaning of State or Territory OHS right
(2) A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises, is a State or Territory OHS right if the right is conferred by a State or Territory OHS law, and:
(a) the premises are occupied or otherwise controlled by any of the following:
(i) a constitutional corporation;
…
Meaning of State or Territory OHS law
(3) A State or Territory OHS law is a law of a State or a Territory prescribed by the regulations.
At the relevant time the OH&S Act was prescribed by reg.3.25 of the Fair Work Regulations 2009 for the purposes of s.494(3) of the FWA.
Sections 501 and 502 of the FWA provide:
501 Person must not refuse or delay entry
A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.
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.
…
(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.
Sections 501 and 502(1) are civil remedy provisions: s.539 of the FWA. The maximum penalty for a contravention of s.501 or s.502 is 60 penalty units for an individual and 300 penalty units for a corporation: ss.539 and 546(2). At the relevant time a penalty unit was worth $110: ss.4AA, 4F Crimes Act 1914.

Applicant’s allegations

The CFMEU alleged that on 6 December 2011 three of its employees, Brian Miller, Chikmann Koh and Mansour Razaghi, sought to enter a construction site in Yagoona, New South Wales which was controlled or occupied by Hume Highway Constructions (“Premises”), to investigate suspected breaches of the OH&S Act. It submitted that Messrs Miller, Koh and Razaghi were, at all material times, authorised representatives under the OH&S Act and permit holders under the FWA and therefore entitled to enter the Premises.

Contravention of s.502

The CFMEU alleged that while Messrs Miller, Koh and Razaghi were inspecting a concrete pump, Mr Gittany, acting for himself and on behalf of Hume Highway Constructions, verbally abused them by saying words to the effect of “get the fuck off the job” and “I’ve called the police”. The CFMEU alleged that Mr Gittany then turned to individuals it described as employees of Hume Highway Constructions and said words to the effect of:
Get the 4 by 2s and we will get them off the job.
The CFMEU alleged that, in response, the individuals it described as employees of Hume Highway Constructions shouted at Messrs Miller, Koh and Razaghi to “fuck off”.
The CFMEU also alleged that Stephen Jeitani, whom it alleged was an associate of Mr Gittany, walked over to Mr Miller, took off his jacket and repeatedly shouted “get the fuck off the job”. It alleged that Mr Jeitani then forcefully pushed Mr Miller’s right shoulder. When Mr Miller accused Mr Jeitani of assault, the latter responded “I don’t give a fuck. Just get off the job”. The CFMEU alleged that Mr Jeitani was later convicted of common assault on Mr Miller.
The CFMEU alleged that the respondents intentionally hindered or obstructed Messrs Miller, Koh and Razaghi in the exercise of their rights under s.494 of the FWA and that they thereby contravened s.502 of the FWA.

Contravention of s.501

The CFMEU alleged that after the assault on Mr Miller, he and Messrs Koh and Razaghi waited outside the Premises for the police to arrive. The CFMEU alleged that Mr Gittany, acting for himself and on behalf of Hume Highway Constructions, did not permit them to re-enter the Premises to complete their investigation. The CFMEU alleged that by refusing or delaying their entry into the Premises, the respondents contravened s.501 of the FWA.

Evidence

Mark Cunningham

Mr Cunningham deposed that he works at the CFMEU’s office in Lidcombe, New South Wales as the Counter Organiser. He deposed that he handles general enquiries from the public and from the CFMEU’s members.
Mr Cunningham deposed that on 6 December 2011 he received a report from an anonymous caller who stated that the Premises had no amenities, no evacuation plan and no first aid but did have electrical problems and unsafe scaffolding. Mr Cunningham deposed that following this conversation he notified Mr Miller, the State Organiser responsible for Yagoona, who told him that he would try to get to the site “straight away”. Mr Cunningham deposed that he also telephoned WorkCover to advise them of the complaint.

Brian Miller

Mr Miller is employed by the CFMEU as a State Organiser in its New South Wales branch. He deposed that he holds a state right of entry permit as well as a federal right of entry permit.
Mr Miller deposed that on 6 December 2011 he was advised by Mr Cunningham that the latter had received a “call in” about various safety issues at the Premises. At about 8am, Mr Miller attended the site with two other State Organisers, Mr Koh and Mr Razaghi. He deposed that when they arrived at the site he had a conversation with Mr Gittany to the following effect:
Mr Miller: We have had calls to our office about some safety problems, including workers working in the rain, inadequate amenities, electrical problems, first aid problems, danger of falls from heights, and no evacuation plan. We are here under our state right of entry. We need to do a safety walk.
Mr Gittany:I am too busy. I will get Mitch to walk you through the site.
Mr Miller said that Mr Gittany also told him that he was in charge of the job.
Mr Miller said that after inspecting the amenities room he and Messrs Koh and Razaghi moved on to the first aid area, after which they went to a car park outside the Premises to check the scaffold which went around the outside of the building but which also stood in that car park. Mr Miller deposed that the first stage of the inspection took about fifteen minutes.
Mr Miller could not remember saying to Messrs Koh and Razaghi, at the conclusion of the first stage of the inspection, words to the effect of “Come on, we’re all leaving now.” He said that he could not recall whether somebody suggested they all go to the car park but they had to go to there because that was where the scaffold was.
At that time, a concrete pump associated with the building work was located in the car park. Mr Miller deposed that he checked the pump’s paperwork and saw that the workers compensation policy was out of date and insufficient. He discussed this with the pump operator who said that he would check with his office. Mr Miller deposed that the pump operator spoke to someone on the telephone and started to pack up shortly afterwards. Mr Miller said that neither he nor his colleagues told the pump operator to leave and the operator made the decision himself after having made some telephone calls.
Mr Miller’s evidence was that, once in the car park, he and Messrs Koh and Razaghi attended to different tasks, including looking at the pump itself, and it was possible that the latter were not close enough to him to hear what he said to the pump operator but it was also possible that they could have, because they did move around the pump area.
According to a statement to police made by Mr Miller and dated 6 December 2011, a copy of which was annexed to his affidavit affirmed 23 July 2012, Messrs Miller, Koh and Razaghi were checking the concrete pump when Mr Gittany approached them, along with four or five other site workers, and started to abuse them, saying things like “get the fuck off the job” and “I’ve called the police”. When Mr Miller responded that they were not on the site, would not leave and would wait for the police to arrive, Mr Gittany turned to his workers and said “get the 4 by 2’s and we will get them off the job”. A male, whom Mr Miller later identified as Stephen Jeitani, then walked over to him, took his jacket off and shouted repeatedly “get the fuck off the job”. Mr Jeitani then pushed Mr Miller’s right shoulder. Mr Miller deposed that when he accused Mr Jeitani of assaulting him, the latter responded “I don’t give a fuck just get off the job”. Mr Miller said when confronted with the angry building workers, he did have some concern for the physical welfare of his colleagues.
Mr Miller disputed the contention put to him that the workers who approached him were angry because the concrete pour had stopped. He said that they were angry because Mr Gittany had stirred them up with a view to getting the CFMEU officials off the site. He said that there was a constant stream of abuse and that most of it came from Mr Gittany. Mr Miller said that did not know who those men worked for but that quite a few of them agreed with Mr Gittany and his order that the CFMEU officials leave the site.
Mr Miller deposed that after Mr Jeitani pushed him, the building workers walked to the other side of the car park while he and Messrs Koh and Razaghi waited near the entrance for the police. He thought that it took the police more than fifteen minutes to arrive. He deposed that they were not permitted to re-enter the site to continue their safety inspection before the police and an inspector from WorkCover arrived.
Mr Miller said that he believed that either Mr Koh or Mr Razaghi had called the police or possibly it had been his supervisor because Mr Miller thought that he had called him. He said that he could not exactly remember who had telephoned the police but as far as he recalled, the police had been called by one of the organisers and possibly his supervisor as well.
Mr Miller agreed that once the police arrived things calmed down quite a bit.
Mr Miller deposed that he identified several safety issues during the second stage of his inspection and took some photographs which he annexed to his affidavit. He deposed that WorkCover later issued improvement notices, prohibition notices and penalty notices in relation to the Premises.

Chikmann Koh

Mr Koh is employed by the CFMEU as a State Organiser in its New South Wales branch. He deposed that he holds both a state right of entry permit and a federal right of entry permit.
Mr Koh deposed that he attended the Premises with Messrs Miller and Razaghi on 6 December 2011. Mr Miller was leading the group. According to a police statement which he made on that day, and which he annexed to his first affidavit, Mr Koh and his co-workers were met at the site by Mr Gittany who then instructed his foreman to walk them through the Premises. In his oral evidence Mr Koh said that from the beginning Mr Gittany shouted and yelled.
In his second affidavit, affirmed on 6 November 2012, Mr Koh deposed that he had previously inspected the Premises in September, October and November 2011 and found “that safety conditions on the site were terrible”. He went on to depose that when he and Messrs Miller and Razaghi arrived at the site on 6 December 2011, Mr Miller said words to the following effect to Mr Gittany:
Our area organisers have previously visited and given you time to fix the safety problems. It looks like the site is still a mess. We want to come on and do a safety inspection.
Mr Koh stated that after briefly walking through the interior of the building site they moved to the car park to assess a concrete pump. In his affidavit of 6 November 2012, Mr Koh put it this way:
... after we entered the site, I estimate that we spent approximately 10 minutes looking at the lunch shed. The lunch shed was terribly dirty. The refrigerator was old and disused. Some of the electrical tools had no tags at all, and some tags had expired. … We discussed these problems with the person who Tony Gittany had asked to show us around the site. We then came to the car park where the concrete pump was installed.
In his oral evidence Mr Koh said that before going out to the car park because there was a concrete pump in operation there, he and Messrs Miller and Razaghi had been in the amenities room with the foreman who had been accompanying them. In his oral evidence Mr Koh initially said that he thought that Mr Miller had told them to leave the amenities block because they heard the concrete pump pumping but later said that he could not clearly remember what Mr Miller had said or why he had told them to leave the room.
Mr Koh deposed that the planned concrete pour was temporarily paused while they spoke to the operator and in his affidavit of 6 November 2012 he recounted what he had heard Mr Miller say to the pump operator. By contrast, in his oral evidence Mr Koh said that he was not close enough to Mr Miller when the latter was talking to the pump operator to hear what those two men said and did not have any idea about whether Mr Miller had told the operator to pack up and leave. When it was pointed out to him that this evidence contradicted his affidavit, Mr Koh said that he had understood some of the conversation between Mr Miller and the pump operator but not other parts and that in any event he was not concerned with the conversation so did not pay attention to it.
Mr Koh said in his police statement that when he and his colleagues were talking to the pump operator, Mr Gittany and seven or eight of “his” workers surrounded them. One of them had a hammer in his hand. Mr Koh stated that Mr Gittany said to them:
Fuck off, get out of the building site. I’m giving you 10 minutes to leave
while the building workers also yelled and told them to “fuck off”. In his oral evidence he said that he clearly remembered that Mr Gittany had said this. Mr Koh stated that a male from the group then approached Mr Miller, told him to “fuck off, get out of the job” and pushed him. Mr Koh stated that he stepped in at that point and told Mr Gittany to calm down. He stated that several of the workers then came closer to him and began to yell and swear at him. Mr Koh stated that some of the workers took Mr Gittany away as he was becoming aggressive. He recalled Mr Gittany saying that he would call the police. They arrived a short time, perhaps thirty minutes, later.
When the men approached them at the concrete pump, Mr Koh had some concern for his safety.

Mansour Razaghi

Mr Razaghi is also employed by the CFMEU as a State Organiser in its New South Wales Branch. He deposed that he holds a state right of entry permit as well as a federal right of entry permit.
Mr Razaghi deposed that on 6 December 2011 he attended the Premises with Messrs Miller and Koh. Mr Razaghi also deposed that he had visited the site once before, in late 2011, and found major safety problems, poor amenities and other deficiencies.
Mr Razaghi annexed to his affidavit a copy of a police statement which he deposed he made on the day of the events at the Premises but which was in fact dated the next day. According to that statement, upon arrival at the Premises he and his co-workers made themselves known to the site manager, Mr Gittany, who then instructed “Mitch” to take them on a safety walk through the site. They started at the amenities block where they found several breaches.

Mr Razaghi stated that a short time later, while they were in the site office discussing with Mr Gittany some of the safety breaches that had been identified, the latter became verbally aggressive and started shouting and swearing. Mr Razaghi said that he believed that Mr Gittany’s reaction to them was a result of the deficiencies which they had identified. He said that Mr Gittany said that he did not want the inspection to go any further. Although Mr Razaghi did not remember everything that Mr Gittany may have said, he did recall him swearing at them and telling them to “get out”.
At this point, because it was a heated situation, Mr Miller asked him and Mr Koh to leave the site and go to the adjoining car park. He left the site because Mr Miller told him and Mr Koh to.
Mr Razaghi deposed that once in the car park he and Mr Miller saw a concrete pumper there which was being set up for operation. They decided to check the driver’s paperwork and found that the workers compensation policy was out of date and had an incorrect classification. Mr Razaghi said that he could hear what Mr Miller said to the pump operator in relation to whether he had current workers compensation insurance but did not remember him telling the operator to pack up and leave. He deposed that when the workers compensation insurance issue was raised with the pump operator, the latter said that he was “not going to risk it” and started to pack up.
Mr Razaghi stated that a short time after he and his colleagues spoke to the pump operator they were approached by Mr Gittany and five or six building workers. Mr Gittany proceeded to yell at him to get back into the car and to leave the jobsite or he would call the police. Mr Razaghi was pleased that Mr Gittany spoke of calling the police because he was concerned for the safety of himself and his colleagues. Mr Gittany also said that he would have all persons who were part of the union forced off the job site. A short time later he saw an unknown male approach Mr Miller and push him on the shoulder.
Some time after the confrontation another CFMEU colleague, Mr Ratana, came and spoke to Mr Gittany but Mr Razaghi did not hear what they said. Because Mr Ratana did not say that they could go back on the site he concluded that they were not allowed to. However, they did return to the site about five minutes after the police left.
Mr Razaghi said that things calmed down after the police arrived. The police stayed for about fifteen minutes. An inspector from WorkCover also arrived while the police were there. When the police left, the CFMEU officials and the WorkCover inspector went onto the site unimpeded.

Joseph Ratana

Mr Ratana deposed that he has been employed by the CFMEU as a State Organiser since 2001 and holds both a state and a federal right of entry permit.
Mr Ratana deposed that he had attended the Premises on approximately three occasions in about November 2011 and had identified to Mr Gittany a number of serious safety hazards on the site which Mr Gittany agreed to fix.
Mr Ratana deposed that on 6 December 2011 he attended the Premises at the request of Mr Miller. When he arrived at approximately 10am, he saw that Messrs Miller, Koh and Razaghi were standing in the car park next to the Premises. Mr Ratana deposed that he approached Mr Gittany and that they had a conversation to the following effect:
Mr Ratana:What’s going on?
Mr Gittany:They have gone for a safety walk. We are trying to fix the scaffold.
Mr Ratana:It should have been fixed a long time ago because we already pointed it out to you. You need to let them on. They are entitled to come on.
Mr Gittany:Why?
Mr Ratana deposed that, at that point, Mr Koh and Mr Razaghi arrived at the site gate and that Mr Gittany shouted:
Get off my site! What are you doing here? Get out.
and that Mr Razaghi subsequently walked away. Mr Ratana deposed that in order to diffuse the situation he instructed Mr Koh to leave the site as well. He deposed that Mr Gittany said “they are not coming in”.
Mr Ratana deposed that when he left the site shortly afterwards, Messrs Miller, Koh and Razaghi remained in the car park as Mr Gittany refused to allow them back onto the site.
Mr Ratana said that he left the site before the police arrived.

Anthony Gittany

Mr Gittany said that he was the foreman on the site, working with

AG & CG Construction Pty Ltd. He deposed that his company managed the Yagoona project on behalf of Hume Highway Constructions and that his company had no employees, only subcontractors.
He denied that he was an employee of Hume Highway Constructions, saying that his company was. When this nomenclature was queried, Mr Gittany corrected himself and said that his company was a contractor to Hume Highway Constructions. He said that he was employed by AG & CG Construction which had a contract with Hume Highway Constructions. Mr Gittany agreed that he was a shareholder in Hume Highway Constructions but said that his wife was the real owner of the shares because it was she who had invested in the company.
Mr Gittany said that the two principal shareholders in Hume Highway Constructions gave the orders on site but on 6 December 2011, they were not there. He said that on that day he was the only person on site representing Hume Highway Constructions.
In relation to the morning of 6 December 2011, Mr Gittany deposed that he delegated one of the workers on the site to show the CFMEU’s officials around. After that, the officials walked approximately ten metres onto the site and then walked straight out again. He said that it did not take them even a minute to walk in and out and, in that period, they said nothing about safety hazards they had identified. He said:
They walked straight out onto the driveway then onto the car park and straight to the concrete pump.
He deposed that at that time there was a concrete truck near the Premises which was being operated by an independent third party whom he had arranged to supply concrete for the job. Mr Gittany deposed that a concrete pour was about to commence when the CFMEU’s officials approached the truck. When he went, alone, to see what was going on he heard Mr Miller say to the truck driver words to the effect of:
Turn around and go back there is going to be no pour today.
In his oral evidence, Mr Gittany said that Mr Miller told the operator to “pack up and go home.” Mr Gittany said that the operator said:
They’re saying all this bullshit, they want me to pack up and go home.
He denied the CFMEU’s assertion that Mr Miller spoke to the operator about his workers compensation insurance coverage, saying:
I had his workers comp – by law, whoever works on the site has to give us a work methods statement, workers comp, any other insurances. When they come to start the job, at any time, as soon as they come onto site to start, they have to give us those papers, and his papers were up to date.
Mr Gittany explained the situation in the following terms:
I knew the issue it was with the union and the truck driver; they wanted them to stop working on that day because it’s RDO. They didn’t want anybody to work day [recte: they] – the union, all they do – go and push their weight on the builders and on other people to make sure they stop working. But by law, they can’t stop anybody from working.
Mr Gittany deposed that he told Mr Miller that he could not interfere in the running of the site but was ignored. He deposed that, shortly afterwards, the workers who were supposed to be involved in the concrete pour came up and complained about the job being terminated. Mr Gittany said that the workers, being the people doing the pour and the linesmen working with the boom pump, were complaining loudly because they were going to lose a lot of money if the day’s work was stopped. Mr Gittany said that he did not know the names of these men although he knew the companies for whom they worked. He remembered them saying words to the effect of:
They’re not supposed to be doing this. They’re supposed to be helping us. The union is supposed to be on our side, not fucking us up. We’re supposed to be getting $750 each a day today, because it’s not a roster day, and all they did was fuck us around, and now we have to go home.
Mr Gittany said that all these men were doing the same job and were large men. He said they “kicked up such a big fuss” and deposed that in an effort to defuse the situation he told Mr Miller to “get off the job”. He also told Mr Miller that he had called the police. Mr Gittany deposed that, at the time, he was also of the view that the CFMEU’s officials’ interference with the contract with the concrete supplier was not a genuine exercise of their legitimate right to inspect the site and he assumed that the police would not only be able to restore some order but assist him in addressing their rights to inspect the site.
Mr Gittany deposed that he did not swear or become aggressive, nor did he say anything to anyone about “4 by 2s”. He also deposed that he did not direct anyone on the site to “get them off the job” or words to that effect.
It was said in cross-examination:
Mr Latham:Mr Gittany, you said at this stage, didn’t you, that you would have all persons who were members of the union forced off the site?
Mr Gittany:   That’s right.
Mr Latham:   You did say that, didn’t you?
Mr Gittany:   Say what?
Mr Latham:What I just said to you, that you would have all persons who were part of the union forced off the job site?
Mr Gittany:   Forced off?
Mr Latham:   Yes?
Mr Gittany:   Not only that were part of the union – everybody.
Mr Latham:   Sorry?
Mr Gittany:They shut the job down. They – they shut the whole job done, because of the – there was going to be a big fight, so all the trades just packed up and left.
Mr Latham:   And you said, “Get them off the site,” didn’t you?
Mr Gittany:Of course I wanted them off the site; what do you reckon.
Mr Latham:   “Get them off the job,” you said, didn’t you?
Mr Gittany:   Yes
Mr Latham:And you said to them, “Get out. You have to get off my job”?
Mr Gittany:   That’s right.
Mr Latham:   I see?
Mr Gittany:Because there going to – there was going to be a big fight and somebody going to end up getting killed.
Mr Latham:But there wasn’t any big fight at this stage at all, was there?
Mr Gittany:   No. Yes, there was.
Mr Latham:   And you said?
Mr Gittany:Mr Miller had nearly a fight with one bloke there. They were right up against each other. There was no fist thrown, but they were right up against each other.
Mr Latham:   Well, just ---?
Mr Gittany:And they had another eight blokes surrounded them. What do you think going to happen.
Mr Latham:Just wait one moment, Mr Gittany. We will get to that. And you started shout at them, saying “Get the fuck off the job”?
Mr Gittany:   No, I said, “Get off the job.”
Mr Latham:And Mr Miller said to you, “We’ve got a right to be here”?
Mr Gittany:He has got a right to be on the site, on the job, not next-door neighbours.
Mr Latham:And then, by this stage, there were a number of other people – workers from the site – who had turned up at the car park there, weren’t there?
Mr Gittany:   Yes, the people who were doing the concreting.
Mr Latham:Yes. And some of those people were saying the same sorts of things that you had already said, weren’t they?
Mr Gittany:Those people came down – they were really upset. Each one of those person was going to earn about 750, 800 dollars that day.
Mr Gittany deposed that he witnessed the confrontation between Mr Miller and Mr Jeitani. He deposed that they stood chest to chest but that Mr Jeitani did not push Mr Miller, although he did hear Mr Miller asserting that he had been assaulted. Mr Gittany deposed that Mr Jeitani was not employed by him or by Hume Highway Constructions and was not a subcontractor. It was his understanding that Mr Jeitani was an employee of a subcontractor to the project.
Mr Gittany deposed that after the police arrived, Mr Ratana, who was known to him, came to the site. They had a discussion and he subsequently agreed to let Mr Miller, Mr Koh and Mr Razaghi back onto the site to finish their inspection.
Mr Gittany said that he had told the CFMEU’s officials to “Just stay there”. He said that that was the only thing he said or did which intentionally stopped them from going onto the site. Mr Gittany said that he prevented them from re-entering the site for a while and let them in later.
Mr Gittany said that once the police defused the situation and there were no longer any workers on the site, Messrs Miller, Koh and Razaghi completed their inspection. He conceded that, until that point, he had refused them entry but said that he had done so because if he had not there would have been a very big fight.
Mr Gittany said that he made enquiries about obtaining evidence from the witnesses to the relevant events but he deposed that he had been unable to locate the workers who had been on site on the day. Later he said that he had the contact details for their employers and that none of the workers wanted to come and give evidence against the union.

Submissions

Applicant’s submissions

The CFMEU submitted that it had been proved or admitted that:
a)Hume Highway Constructions controlled or occupied the Premises;
b)at approximately 8am the respondents permitted Messrs Miller, Koh and Razaghi to enter the Premises for the purposes of undertaking a safety inspection; and
c)once Messrs Miller, Koh and Razaghi left the Premises and entered the car park, the respondents did not permit them to re-enter the Premises until the police and WorkCover arrived.
The CFMEU submitted that the effect of the evidence was that Mr Gittany began shouting and swearing at its officials, told them to get off the Premises, threatened them and incited other workers on the site to threaten them and refused to allow them back onto the Premises.
Citing Darlaston v Parker (2010) 189 FCR 1 at 17 [52], the CFMEU submitted that the reference in s.502 of the FWA to “intentionally hinder or obstruct” is a reference to any appreciable act or conduct, other than an act or conduct which is accidental, that makes it more difficult for the person who is “hindered or obstructed” to discharge his or her functions. It submitted that “unduly” means “without due cause or justification; unrightfully, undeservedly; to excess, beyond the due degree”: Clare & Gilbert Valleys Council v Crawford [2005] SADC 135 at [73].
It was submitted that all that was required to contravene s.502 was that there be hindrance or obstruction of a permit holder, whether or not the relevant conduct occurred upon the premises in question. The CFMEU submitted that Mr Gittany’s shouting and swearing amounted to intentional hindrance or obstruction because it prevented Messrs Miller, Koh and Razaghi from re-entering the Premises and thus from going about their proper duties in an unimpeded way.
The CFMEU submitted that it did not matter whether Mr Gittany was an employee or a shareholder of Hume Highway Constructions, the question was simply whether he acted as its representative on the day. It was submitted that Hume Highway Constructions had the right to exclude people from its property and if its representative did exclude people then Hume Highway Constructions had to take responsibility for its representative’s actions. The CFMEU also submitted that it did not have to prove a formal request to re-enter the Premises on the basis that it was sufficient that Mr Gittany told them to stay away.
The CFMEU also submitted that the Court was entitled to draw Jones v Dunkel (1959) 101 CLR 298 inferences against the respondents given their failure to call any material witnesses other than Mr Gittany and what was said to have been their lack of a satisfactory explanation for that failure. It was submitted in this connection that Mr Gittany gave two inconsistent explanations for not having called additional witnesses. In this regard, the CFMEU pointed to the fact that at one point Mr Gittany said that he was not able to contact witnesses who might be called for the respondents and secondly that when he did contact them they did not want to appear. It was submitted that as he was able to contact the witnesses, he should have called them. It was also observed that he had not produced the concrete pump’s insurance documents which he said he had been given.
The CFMEU submitted that the respondents had mounted a defence of necessity, although this had not been pleaded and was therefore not available. However, it was submitted that, if the Court were to permit the defence to be mounted, it was nevertheless not available under the FWA because:
a)no such defence existed in the FWA;
b)the FWA provided a civil, not a criminal regime and the defence of necessity was a defence to a criminal charge;
c)criminal law defences did not apply in the circumstances;
d)the FWA set out a comprehensive code as to right of entry;
e)once the basis of entry was established, the permit holder was entitled to “unimpeded access”: CFMEU v Safety Glass Pty Ltd [2010] FCA 989 at [18]; and
f)the FWA provided other mechanisms for dealing with an abuse of the right of entry.
The CFMEU submitted that Mr Gittany’s evidence was unsatisfactory, internally inconsistent, conflicted with independent third party evidence on matters such as his shareholdings and the weather on the day and that he had been argumentative. It was also submitted that in the giving of his evidence he gave a fair example of the sort of argumentative and emotional figure that the CFMEU’s officials described in connection with their site visit on 6 December 2011.

Respondents’ submissions

The respondents submitted that there was no evidence that Hume Highway Constructions controlled the Premises and, further, that it was far from clear whether it occupied them. The respondents noted that the CFMEU’s case was narrowed to an allegation that Hume Highway Constructions was the occupier of the Premises, while the evidence was that although Hume Highway Constructions owned the site it was the builder who occupied it.
They also submitted that Hume Highway Constructions was not present on the Premises at the relevant time. In this connection the respondents submitted that Mr Gittany was not a director or an employee of Hume Highway Constructions but was, instead, a director and employee of AG & CG Construction Pty Ltd which managed the project on behalf of Hume Highway Constructions. It was submitted that an inference could be drawn that Mr Gittany was neither the owner of the land nor the developer nor the builder and that the evidence indicated that he was not an employee of Hume Highway Constructions, notwithstanding the admission which had been made to that effect in the defence and again in the Notice Disputing Facts.
They further submitted that, in any event, the alleged events were said to have occurred on land that was not part of the site and was not owned by Hume Highway Constructions. The respondents submitted that the allegation in the pleadings was that the events occurred at the Premises, which was not the case. They argued that it was an impossibility on the pleadings for a contravention to have occurred because what was alleged concerned entry to the Premises, a place to which the CFMEU officials had been given access at 8am, while the argument turned on events which happened elsewhere.
It was further submitted that s.502 of the FWA presupposes that a permit holder is exercising his rights of entry at the time he is hindered or obstructed and that, in this case, Messrs Miller, Koh and Razaghi were not exercising their rights because they were in the car park and not on the Premises. It was also argued that, after the confrontation, Messrs Miller, Koh and Razaghi did not request re-entry to the Premises, or seek to exercise a right of re-entry which was hindered or obstructed, but waited in the car park for the arrival of the police, which occurred possibly as little as fifteen minutes after Mr Gittany called them. It was submitted that standing around in the car park was not an attempt to exercise a right of entry.

The respondents pointed to the fact that s.501 said that an occupier or controller must not unduly delay entry and implied that the second entry was not unduly delayed in the circumstances, arguing that, given the circumstances, the delay was not undue but prudent and cautious and what a reasonable person would do. It was said that, although there were different versions of who caused the concrete pour to be prevented, the fact was that it was stopped and the idea that the workers were angry about this had the ring of truth about it. In this regard, it was submitted that even on Mr Miller’s evidence, the workers came down to the pump area after the driver of the truck agreed to pack up. It was submitted that it was credible that Mr Razaghi held certain concerns for his safety upon being confronted by a crowd of angry workers. It was submitted that Mr Gittany’s actions in effectively suspending everything until the arrival of the police, by telling Messrs Miller, Koh and Razaghi to leave the job pending the police’s arrival, was a commonsense thing to do, particularly in circumstances where an assault did occur.
Referring to R v Loughnan [1981] VR 443, the respondents also submitted that they had a defence of necessity. It was further submitted that although the proceedings were civil in nature, at their core they were criminal proceedings involving the potential imposition of a penalty.
The respondents submitted that it was not incredible that their potential witnesses would not wish to give evidence. Similarly, it was not incredible that Mr Gittany did not know the identities or the telephone numbers of the workers employed by the subcontractors and that he could only contact them through their employing subcontractors. For those reasons, it was submitted that a Jones v Dunkel inference should not be drawn.
The respondents made various submissions in relation to the way the CFMEU’s case was pleaded and, in particular, whether certain allegations were duplicitous.

Consideration

Preliminary matters

I find that Messrs Miller, Koh and Razaghi were permit holders pursuant to s.512 of the FWA and entitled to enter the Premises pursuant to “State or Territory OHS rights” to check for occupational health and safety breaches.
I also find that, as the owner of the Premises, Hume Highway Constructions had authority to exclude persons from the site subject to, relevantly, the rights of entry possessed by Messrs Miller, Koh and Razaghi as permit holders. Exactly who had occupation and control of the Premises at the relevant time was far from clear but, at least for the purposes of the concrete pour and in the absence of the principals of Hume Highway Constructions and the builder, I infer that Mr Gittany and his company had, at least, control of the Premises.
I further find that the workers who confronted Messrs Miller, Koh and Razaghi were not employees of Hume Highway Constructions. Accepting only for the purpose of determining the status of those workers on the site that Mr Gittany was not an employee of Hume Highway Constructions, I also find that they were not employees of Mr Gittany’s company AG & CG Construction Pty Ltd. I conclude that they were employees of (other) subcontractors or were subcontractors themselves.

Relevant events

There was no disagreement between the parties that when Messrs Miller, Koh and Razaghi requested entry to the site at 8am on 6 December 2011, they were granted it and then entered the site with a person whom Mr Gittany directed accompany them. It was also agreed, in very general terms, that Messrs Miller, Koh and Razaghi had not completed an inspection of the site before they left it and went to the adjacent car park, which was not part of the Premises, where, after an exchange between one or more of the CFMEU officials and its operator, a concrete pump ceased operation, an event which was close in time to a physical confrontation at which Messrs Miller, Razaghi, Koh and Gittany were present as were a number of building workers who had, until then, been working in the Premises. A form of stand-off then ensued pending the arrival of the police and an inspector from WorkCover, after whose arrival the safety walk recommenced and was completed.
Based on these events, and specifically what it asserted as the detailed facts surrounding them, the CFMEU alleged that the respondents had:
a)breached s.502 of the FWA because they hindered or obstructed Messrs Miller, Koh and Razaghi while they were in the car park; and
b)breached s.501 of the FWA because they refused or unduly delayed Messrs Miller, Koh and Razaghi’s return to the Premises from the car park.

Section 502 – hindering and obstructing

The CFMEU’s case alleging a breach of s.502 was not presented clearly. In its points of claim it alleged that Messrs Miller, Koh and Razaghi were hindered and obstructed in the exercise of an unspecified right while in submissions it argued that hindrance and obstruction by Mr Gittany prevented Messrs Miller, Koh and Razaghi from re-entering the Premises. Two potential rights appear to be asserted by the points of claim and the submissions, one being associated with the car park, presumably inspection of the concrete pump, and the other being an entitlement “to enter the premises”, which presumably meant the Premises.
In relation to the former characterisation of the CFMEU’s claim, it was not demonstrated that pt.3-4 of the FWA provided Messrs Miller, Koh and Razaghi with an enforceable right to enter the car park or, indeed, to inspect the concrete pump.
The respondents sought to draw a distinction between the Premises and the car park, characterising the car park as not being part of the Premises, a submission supported by the weight of the evidence which was to the effect that the car park was a public car park of sorts and not part of the Premises. In this regard, the CFMEU’s witnesses appeared to agree that the car park was not part of the work site, even if some scaffolding stood on it, and Mr Gittany’s evidence was that it was owned by “the shop next door”. Certainly, it has not been demonstrated that the car park was owned or occupied by Hume Highway Constructions. In the circumstances I find that the car park was not part of the Premises but was separate premises.
Because the car park was separate premises, the question whether a federal “State or Territory OHS right” applied to it must be addressed separately from the question whether a federal “State or Territory OHS right” applied to the Premises. As a federal right, a “State or Territory OHS right” will only exist if certain constitutional criteria found in s.494 of the FWA are satisfied. The criterion relevant for this case was whether the car park was occupied or controlled by a constitutional corporation - the CFMEU did not seek to demonstrate any other circumstance which might have satisfied the Constitution-based criteria
No evidence was adduced to show that the car park, or even the part of it where the pumping equipment was located, was occupied or controlled by a constitutional corporation, whether Hume Highway Constructions or some other company, and it has not been demonstrated that it was. For instance, although the particulars of the allegation of breach of s.502 described the concrete pump as belonging to Hume Highway Constructions, that particular was not supported by the evidence; the burden of what Mr Miller said was that the pump operator answered to someone other than Hume Highway Constructions and Mr Gittany said that it was operated by a third party. Moreover, it has not been demonstrated that the placement of pumping equipment amounted to the occupation or control required by s.494.
In such circumstances I am not persuaded that on 6 December 2011 in the car park adjacent to the Premises, any “State or Territory OHS right” was enlivened in association with Messrs Miller, Koh and Razaghi’s inspection of the concrete pump. Consequently, any hindrance or obstruction which they allege was associated with that inspection did not amount to a contravention of s.502 of the FWA.
Further, to the extent that the CFMEU asserted that Mr Gittany’s conduct in the car park amounted to a hindrance or obstruction of a right purportedly held by Messrs Miller, Koh and Razaghi to enter the Premises, that was not a right which was in the course of being exercised while those officials were in the car park. Section 502 says that a person must not intentionally hinder or obstruct a permit holder “exercising rights” in accordance with pt.3-4 of the FWA. That wording implies that at the time the obstruction or hindrance occurs the permit holder is in the course of exercising rights provided by pt.3-4, a situation to be distinguished from a permit holder “seeking to exercise” such rights, as referred to in s.501. The fact that there is a distinction between the two situations is made apparent by s.500, which refers to a permit holder “exercising, or seeking to exercise, rights in accordance with this Part”. Moreover, ss.501 and 502 are relevantly identical to a predecessor section considered in Pine v Doyle [2005] FCA 977 where Merkel J said at [15] that a provision which spoke of a person “exercising powers” of entry required that the power be exercised as a matter of fact, rather than as a matter of law, whereas a provision which spoke of a person being “entitled to enter” was a reference to the exercise of the statutory power as a matter of law. That is to say, while s.501 concerns the assertion of a right, s.502 concerns its actual exercise in the sense of it being put into practical effect.
The initial exercise of Messrs Miller, Koh and Razaghi’s rights of entry to the Premises concluded when they left the Premises for the car park. They might have asserted a right to enter the Premises for a second time once they had completed their dealings with the concrete pump operator but they did not embark upon the exercise of the right until they had actually re-entered the Premises. Consequently, any hindrance or obstruction in the car park of their right to re-enter the Premises did not affect a right which was in the course of being exercised or amount to a contravention of s.502.
For these reasons I conclude that no breach of s.502 of the FWA has been made out.

Section 501 – refusal or unduly delaying entry

The evidence given by Messrs Miller and Koh concerning the events shortly after their arrival at the Premises on 6 December 2011 was reasonably consistent. It was to the effect that upon their arrival they were met by Mr Gittany who gave them access to the Premises and allocated a person to accompany them on their safety walk.
They said that they inspected the amenities or lunch room and perhaps the first aid room following which they went into the car park. Mr Koh said they spent approximately ten minutes in the lunch room and Mr Miller said that this first stage of the inspection took about fifteen minutes. Mr Koh said that they discussed the problems which they had identified during this part of the inspection with the person accompanying them.
Mr Miller said that they went to the car park to inspect scaffolding and Mr Koh said that they went to the car park because they heard the concrete pump in operation, although he later said he could not remember that. In his police statement Mr Koh said that they left the Premises “to assess the concrete pump”. Mr Koh said that Mr Miller told them to leave the amenities block but Mr Miller did not remember that.
Mr Razaghi’s recollection was significantly different and provides a third and very dramatic reason why he and his colleagues left the Premises and went to the car park. In his police statement arising out of the assault on Mr Miller which, notwithstanding what he deposed in his affidavit of 23 July 2012 appears to have been made one day after the statements made by Messrs Miller and Koh, Mr Razaghi said that after the initial stage of the inspection they were in the site office where they raised their concerns with Mr Gittany who then became aggressive, shouted, swore and told them to “get out”. Mr Razaghi said in cross-examination that Mr Miller then told him and Mr Koh to leave the Premises because the situation had become heated.
These inconsistencies are not insignificant. Neither Messrs Miller nor Koh referred to the allegedly egregious conduct of Mr Gittany which Mr Razaghi said was the reason for the three of them removing to the car park. It is not credible, given the allegations concerning Mr Gittany’s subsequent conduct in the car park, that such early misbehaviour would not have been remembered and remarked upon by all three men. In this connection I have not overlooked Mr Koh’s oral evidence that Mr Gittany had shouted and yelled from the beginning but I am not persuaded, had Mr Gittany conducted himself in that fashion, that it would not have been mentioned in Mr Koh’s police statement or in one of his affidavits. This is particularly so given that in his second affidavit Mr Koh said that the site deficiencies were discussed with the person who accompanied them on the safety walk.
As to the events which took place once Messrs Miller, Koh and Razaghi reached the car park, Mr Miller said that he pointed out to the operator of the concrete pump that his workers compensation policy was out of date and insufficient and that it was on the strength of that that the operator packed up and left. Both Mr Koh and Mr Razaghi deposed that they heard Mr Miller discussing the pump operator’s workers compensation insurance issue although in cross-examination Mr Koh said that he had not and then provided an unconvincing explanation for this inconsistency. Mr Miller said in cross-examination that he and Messrs Koh and Razaghi attended to different tasks and it was possible that the latter were not close enough to him to hear what he said to the pump operator although it was also possible that they could have. In his police statement Mr Razaghi said:
We all decided to check the driver’s paperwork for the concrete pumper
which suggests that all three of them inspected the paperwork. Indeed, although Mr Miller said that they performed different tasks, including inspecting the pump itself, neither Mr Koh nor Mr Razaghi indicated that they had performed any other tasks, with Mr Koh going so far as to say that his role was restricted, supplementary and not very active. The CFMEU’s witnesses’ accounts of what happened at the concrete pump were sufficiently different to be unconvincing.
Mr Miller said that it was while they were concerning themselves with the concrete pump that he and Messrs Koh and Razaghi were approached by Mr Gittany who was accompanied by workers from the site. He said that Mr Gittany started to abuse and swear at them, ordered them away and said that he had called the police. Mr Miller said that Mr Gittany said to the workers
Get the 4 by 2’s and we will get them off the job.
The workers were angry and yelling at the CFMEU officials. Mr Koh said that they were surrounded by the angry workers. At some point during this fracas, Mr Miller was assaulted by Mr Jeitani who said to him
Get the fuck off the job.
Each of Messrs Miller, Razaghi and Mr Koh said that they were concerned for their safety.
The thesis implicitly advanced by the CFMEU was that when it came to safety breaches, the respondents were repeat offenders and that Mr Gittany wanted to prevent the CFMEU and its officials from investigating any breaches which the Premises might have evidenced. Even if that were the case, the applicant did not contradict Mr Gittany’s evidence that the workers who confronted Messrs Miller, Koh and Razaghi were not his employees and it did not attempt to explain why subcontractors and employees of subcontractors would follow Mr Gittany into a confrontation with the union which covered their industry.
On the other hand, Mr Gittany did advance an explanation for the workers’ anger and one which I find persuasive. This was that the workers were angry at the cessation of work because they would lose a day’s pay. In this connection I found Mr Gittany to be a very candid and direct witness whose evidence I accept. By contrast, Mr Miller was, in my view, less than frank and demonstrated a disinclination to give straightforward answers in cross-examination. I also take into account the significant difference between Mr Razaghi’s account of what happened at the Premises before the car park inspection and Mr Koh’s unimpressive explanation in cross-examination for the inconsistency between his affidavit and oral evidence. Overall, where Mr Gittany’s evidence differs from that of Messrs Miller, Koh and Razaghi, I prefer his evidence.
Given that Mr Gittany freely admitted to refusing to allow Messrs Miller, Koh and Razaghi to return to the Premises until the police arrived, I do not find that Mr Ratana’s account of what he and Mr Gittany said substantively contradicts Mr Gittany’s version of events or provides a substantive basis to doubt the correctness of Mr Gittany’s evidence. In those circumstances, the question of Jones v Dunkel inferences does not arise.
Consequently, I find that Mr Gittany did not threaten Messrs Miller, Koh and Razaghi or endeavour to keep them from re-entering the Premises in the manner alleged by the CFMEU or for the reason implicitly advanced by the CFMEU as the motivation for such conduct. Further, because I have concluded that the building workers who confronted Messrs Miller, Koh and Razaghi were not employees of Hume Highway Constructions or of AG & CG Construction Pty Ltd, any aggressive actions taken by Mr Jeitani were not ones for which Hume Highway Constructions or AG & CG Construction Pty Ltd were responsible.
Nevertheless, all parties agreed that Messrs Miller, Koh and Razaghi were prevented from re-entering the Premises for a period as they awaited the arrival of the police. This raises the question whether the delay, which all parties agreed was at Mr Gittany’s insistence, amounted to a refusal of entry or to an undue delay to entry in breach of s.501 of the FWA. It also raises the question of the proper meanings of “refuse” and “unduly” where they appear in s.501.
Although the evidence does not support a finding that Messrs Miller, Koh and Razaghi expressly asked to re-enter the Premises, it can be accepted that Mr Gittany understood that they wished to. For present purposes I will assume, without deciding, that a failure to afford entry in such circumstances can amount to a breach of s.501.
The word “refuse” in s.501 is undefined and there is no reason to suppose that it is used in any sense other than the one it has in ordinary speech. In this connection, the Macquarie Dictionary (5^th ed.) relevantly defines “refuse” to mean:
2. to decline to give; to deny (a request, a demand, etc).
3. to express a determination not (to do something).
The Shorter Oxford English Dictionary (6^th ed.) relevantly defines “refuse” as:
6. Deny (a person) permission to do something; prohibit from, forbid that.
7. Decline to give or grant; deny (something) to a person; decline to give (a person) something requested.
The authorities also indicate that a refusal requires an act of will: see the cases discussed in Innes v Rail Corporation of New South Wales [2013] FMCA 36 at [37]ff.
The juxtapositioning in s.501 of “refuse” and “unduly delay” indicates that a denial of entry which involves a refusal is something more than a denial of entry which involves undue delay. This reflects the fact that a denial may be conditional or unconditional. The only denial of entry which, realistically, is more adverse to a right of entry than one involving undue delay is one where access will not be afforded. That is to say, in s.501 “refuse” is intended to mean an unconditional denial of entry whereas a conditional denial of entry, where entry will not be denied once a condition is satisfied, is not a refusal for the purposes of s.501 although it may amount to undue delay.

In this case I find that Mr Gittany’s denial of Messrs Miller, Koh and Razaghi’s rights of entry was not unconditional but conditional, the condition for entry being the arrival of the police. I therefore find that on 6 December 2011 the respondents did not refuse entry to Messrs Miller, Koh and Razaghi contrary to s.501.
Because I have found that entry was not refused, the question becomes whether the conditional denial of entry unduly delayed Messrs Miller, Koh and Razaghi in the exercise of their rights of re-entry to the Premises.
As with “refuse”, the word “unduly” is undefined and again there is no reason to suppose that it is used in any sense other than the one it has in ordinary speech. In Clare & Gilbert Valleys Council v Crawford it was held at [73] that:
As a matter of ordinary language unduly means “Without due cause or justification; unrightfully, undeservedly; To excess; beyond the due degree”: Shorter Oxford Dictionary.
However, in s.501, where “unduly” qualifies “delay”, it would be better understood to mean an interval of time which is excessive, unreasonable or unnecessary in the circumstances: Michaels v R (1995) 184 CLR 117 at 123; Board of Control of Michigan Technical University v Deputy Commissioner of Patents (1981) 53 FLR 26 at 33. That is the meaning which I conclude it has in s.501 of the FWA.
Mr Gittany’s explanation for not permitting Messrs Miller, Koh and Razaghi to re-enter the Premises before the arrival of the police was that until then the situation presented too much of a risk to public order for him to permit it. I accept that explanation, noting that Messrs Miller, Koh and Razaghi all said that they had concerns for the safety of their group arising out of the aggressive behaviour of the angry building workers. In my view a delay of this sort, and for the reason identified by Mr Gittany, was prudent and appropriate and for that reason I conclude that it did not amount to an undue delaying of entry. In the latter respect, it appears that the police did not take long to arrive at the Premises, possibly no more than thirty minutes.
For those reasons, and in the particular circumstances of this case where the need for the delay was not caused or provoked by the respondents, I conclude that the respondents did not contravene s.501 of the FWA.

Other matters

In light of my conclusion that the alleged contraventions of the FWA have not been made out, it is not necessary to consider the various other matters raised by the parties such as the respondents’ responsibility or liability for each others’ conduct, whether a defence of necessity was available, whether the evidence contradicted Mr Gittany’s admission to have been employed by Hume Highway Constructions and whether a number of pleading issues raised by the respondents would have any significance for the disposition of this matter.

Conclusion

As I have concluded that the FWA was not contravened as alleged, the application will be dismissed.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 5 April 2013

CORRECTIONS

Paragraph 88 line 4 – delete “to”.
Paragraph 111 line 1 – delete “Althought” insert “Although”.