Director, Fair Work Building Industry Inspectorate v Myles
[2013] FCCA 2229
•20 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE v MYLES & ORS | [2013] FCCA 2229 |
| Catchwords: PRACTICE & PROCEDURE – Declarations – phrasing of order for declaratory relief. PRACTICE & PROCEDURE - Appropriateness of application of pleading rules – multiple parties and multiple contraventions. |
| Legislation: Building and Construction Industry Improvement Act 2005 (Cth) Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth) Fair Work (Building Industry) Act 2012 (Cth) Fair Work Act 2009 (Cth), ss.12, 481, 499, 500, 539, 484, 549, 550, 551, 552, 553, 554, 557, 558, 793 Workplace Health and Safety Act 1995 (Qld), ss.90D, 90I, 90K, 90L |
| Biss v Smallburgh RDC [1965] CH 335 Young, P.W. Declaratory Orders (2nd ed, Butterworths, 1984) |
| Applicant: | DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE IN SUBSTITUTION FOR THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
| First Respondent: | JOSEPH MYLES |
| Second Respondent: | KANE PEARSON |
| Third Respondent: | SHANE TREADAWAY |
| Fourth Respondent: | AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES |
| Fifth Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Sixth Respondent: | THE CONSTRUCTION, FORESTRY, MINING AND ENERGY INDUSTRIAL UNION OF EMPLOYEES QUEENSLAND |
| File Number: | BRG 961 of 2011 |
| Judgment of: | Judge Burnett |
| Hearing date: | 25 July 2012 |
| Date of Last Submission: | 25 July 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 20 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Pratt |
| Solicitors for the Applicant: | Gadens Lawyers |
| Senior Counsel for the Respondents: Junior Counsel for the Respondents: | Mr W. Friend SC Mr J. Merrell |
| Solicitors for the Respondents: | Hall Payne Lawyers |
ORDERS
That the matter be listed for mention at 9:30am on 19 February 2014.
That the matter be listed for penalty hearing at 10:00am on 28 February 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 961 of 2011
| DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE IN SUBSTITUTION FOR THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
Applicant
And
| JOSEPH MYLES |
First Respondent
| KANE PEARSON |
Second Respondent
| SHANE TREADAWAY |
Third Respondent
| AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES |
Fourth Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Fifth Respondent
| THE CONSTRUCTION, FORESTRY, MINING AND ENERGY INDUSTRIAL UNION OF EMPLOYEES QUEENSLAND |
Sixth Respondent
REASONS FOR JUDGMENT
Introduction
In February 2010, Laing O’Rourke Australia Construction Pty Ltd (“Laing O’Rourke”) was the principal contractor for the construction of a 23 level office and retail building at 123 Albert Street, Brisbane. In that capacity it was also the occupier of the site.
In early February 2010 notice was given to Laing O’Rourke by the Second Respondent, Kane Pearson, of an intention to exercise a right to enter the site on 11 February 2010. The basis for that entry and the matters which occurred on the site on 11 February 2010 are the subject of controversy. That controversy led to the involvement of the then Australian Building and Construction Commissioner, who alleges contraventions of s.500 of the Fair Work Act2009 (Cth) (“FW Act”) against the various respondents.[1] The first, second and third respondents were each variously employed as organisers of the fourth (“BLF”), fifth (“CFMEU”) and sixth (“CFMEU (QLD)”) respondents. More specifically, Mr Myles was an organiser for the BLF and CFMEU, Mr Pearson was an organiser for the BLF and CFMEU and Mr Treadaway was an organiser for the CFMEU and CFMEU (QLD). Each of them, in their capacity as organisers of those respective industrial associations, were permit holders as defined in s.12 of the FW Act and authorised representatives pursuant to s.90D of the Workplace Health and Safety Act 1995 (Qld) (“WH&S Act”).
[1] The proceedings were instituted on 31 October 2011 at which time the person empowered under the Building and Construction Industry Improvement Act 2005 (Cth) to bring such proceedings was the Australian Building and Construction Commissioner. On 1 June 2012 the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth) commenced and changed the name of the Building and Construction Industry Improvement Act 2005 (Cth) to the Fair Work (Building Industry) Act 2012 (Cth). The transitional act, inter alia, abolished the ‘Office of the Australian Building and Construction Commissioner’ and created the ‘Office of the Fair Work Building Industry Inspectorate.’ Transitional provisions were provided for in Item 1, Schedule 2 of the transitional act, which included, inter alia, provision for the continuation of proceedings such as this. By order made on 23 July 2012 at the commencement of trial, the applicant, ‘Australian Building and Construction Commissioner,’ was substituted with the ‘Director, Fair Work Building Industry Inspectorate.’
Although there is some dispute as to the detail, in broad terms it is accepted that on 11 February 2010 Messrs Myles, Pearson and Treadaway were purporting to exercise rights pursuant to Part 3–4 FW Act (Right of Entry) and Part 3–4 Division 3 FW Act (State or Territory OHS rights). It was contended for the respondents that they were specifically seeking to exercise those rights pursuant to s.90I WH&S Act.
Given that the significant factual dispute between the parties was largely premised upon the intention contended in support of the respondents’ exercise of a right of entry, it is appropriate at the outset to identify the broad statutory ambit investing such rights.
Right of entry under the FW Act is provided for in s.481, which relevantly provides:
“Entry to investigate suspected contravention
(1) A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:
(a) whose industrial interests the organisation is entitled to represent; and
(b) who performs work on the premises.
(2) The fair work instrument must apply or have applied to the member.
(3) The permit holder must reasonably suspect that the contravention has occurred, or is occurring. The burden of proving that the suspicion is reasonable lies on the person asserting that fact.”
Right of entry under the WH&S Act is provided for in s.90I, which relevantly provides:
“Powers if a suspected contravention of the Act involves
workplace health and safety
(1) An authorised representative for an employee organisation
may enter a place if—
(a) the place is a workplace or a relevant workplace area;
and(b) a worker working at the place is an eligible member of
the employee organisation; and(c) the authorised representative reasonably suspects that a contravention of the Act involving workplace health and safety has happened or is happening at the place that relates to or affects an eligible member of the employee organisation at the place.
(2) After entering the place, the authorised representative may—
(a) inspect any plant, substance or other thing at the place relevant to the suspected contravention mentioned in
subsection (1)(c); or(b) observe work carried on at the place; or
(c) speak to a person, with the person’s consent, who is an eligible member of the employee organisation; or
(d) speak to the occupier of the place about anything relevant to the suspected contravention mentioned in subsection (1)(c); or
(e) require the production for inspection of documents, including employment records, relevant to the suspected contravention mentioned in subsection (1)(c); or
(f) copy a document at the place relevant to the suspected contravention mentioned in subsection (1)(c); or
(g) require the occupier to give the authorised representative reasonable help to exercise the authorised representative’s powers under paragraphs (a) to (f).
…”
The FW Act and the WH&S Act provide for differing rights that may be exercised while on the premises. The differing rights will be addressed below in the context of the facts as required. An appropriate authorised person under each act is permitted to enter the site and inspect, interview and inspect documents. However the applicant complains that the respondents contravened s.500 FW Act in the course of exercising those right of entry powers.
The complaints are contained within allegations in the amended statement of claim (“ASOC”). The ASOC is an expansive document alleging the incidents giving rise to the alleged contraventions in respect of which ambit claims are made for declarations.
Specifically, the applicant alleges contraventions of s.499 and/or s.500 of the FW Act. Section 499 provides:
“Occupational health and safety requirements
A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.”
Section 500 provides:
“Permit holder must not hinder or obstruct
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.”
The Applicant’s case
The applicant’s case essentially alleges that the respondents, in exercising their rights as permit holders, failed to comply with reasonable safety requirements at the site and/or intentionally hindered, obstructed or acted in an improper manner while exercising their rights as permit holders and failed to wear appropriate personal protective equipment (PPE).[2]
[2] A matter which appears to have been alleged but never pursed, for reasons stated later.
However, the detail in the ASOC masks, in part, the actual contraventions being pursued. As the old saying goes, if you do not know where you are going then any road will take you there. In civil litigation the accepted ‘road map’ for the journey is the applicant’s statement of claim, with the destination being the relief sought. In the context of this metaphor, the defendant’s response serves to identify those points along the journey where the defendant would urge a differing destination. In this case the applicant baldly contends for declarations of contravention of s.500 FW Act, and nothing more.
P.W. Young, in his seminal text Declaratory Orders,[3] observes that the pleading rules for claims for declarations are the same as for any other proceeding. He noted that the only particular matter that ought to be mentioned was that the applicant should set out specifically the form of declaration sought: Biss v Smallburgh RDC.[4]
[3] P.W. Young. Declaratory Orders (2nd ed, Butterworths, 1984).
[4] [1965] CH 335 at 361.
Biss v Smallburgh RDC highlights the difficulty an application for declaration suffers when no consideration is given to the specific form of order sought and the applicant instead simply prays for a broad and apparently unbounded declaration.
In Biss v Smallburgh a declaration was sought concerning the usage of land for town planning purposes. An issue arose concerning the form of the declaration because, on the evidence, it was possible that the description of the area in respect of which the declaration was sought was much larger than the actual area that, on the evidence, ought to have been subject to the declaration, if any. At 360-361, Harman L.J. observed:
“In the face of that evidence it is not at all surprising that the judge came to the conclusions he reached about the 35 acres, and I must say I agree with him. It seems to me perfectly hopeless on such evidence as there was to try to persuade the court that the whole 35 acres was a caravan site in March, 1960. Indeed, in this court that contention was after a time abandoned and it was no longer sought to obtain a declaration covering the whole 35 acres.
From then on the cross-appeal was conducted after the manner of a Dutch auction where the auctioneer starts at the top price and comes gradually down till he finds a bidder. So here various lines of demarcation were suggested, coming down at last to about three acres round the house, and we were treated to a minute review of the evidence in order to show that in particular there was considerable evidence of the stationing of caravans (a) on the area immediately to the south of the farmhouse, (b) between it and the sea, and (c) round about the first pylon carrying the electric power line to the house.
For myself I do not think that this is a legitimate way of conducting an action such as this. No suggestion was made of any amendment to the pleadings, which be it remembered dealt only with the 72 acres or the 35 acres as a whole, and I do not think that the remedy by declaration can properly be used in this way. It is a useful method, but I think that he who seeks a declaration must make up his mind and set out in his pleading what that declaration is.”
In the absence of the pleadings of that case it is difficult to appreciate the ambit of those issues at trial. Accordingly, it is difficult to determine how his Lordship’s view might apply to a case such as this. In this case the ASOC comprehensively alleges a series of contraventions which each can be seen to stand alone. Plainly, in that context a bald claim for declarations regarding contravention of s.500 FW Act is particularly unhelpful in identifying which of the complaints the applicant is pursuing. In any event, notwithstanding the breadth of declarations sought, Davies L.J. in Biss v Smallburgh was clear in his view:
“Had the evidence proved that the plaintiffs were entitled to something less than their full claim, it would, I think, have been unfortunate if their failure to make, either originally or by amendment, the appropriate or alternative claim should have deprived them of their right to a declaration.”[5]
[5] At 369.
In a contemporary and analogous context this issue has arisen before the High Court in Rural Press Ltd v Australian Competition and Consumer Commission.[6] In that case the Court was considering declarations for contraventions of the Trade Practices Act 1974 (Cth). The orders made by the trial judge were expressed in very broad terms. At paragraph 89, Gummow, Hayne and Heydon JJ observed:
“[89]… The declarations spoke merely of “an arrangement” having a purpose and effect, without giving any content to that expression and without indicating the gist of the findings of the primary judge identifying the arrangement.
[90] These declarations provide a bad precedent and were of a kind which the trial judge should not have agreed to make even if urged to do so by the parties.”
[6] (2004) 203 ALR 217.
In his text, Young provides some precedent examples for declaratory orders. They commonly identify with some particularity the subject matter for the declarations. He also refers to the forms of declaratory orders that can be found, for instance, in Atkin’s Court forms as providing useful guidance. [7] In this case the applicant failed to do more than claim for declarations in a form admonished by the High Court. However, it is clear that it should not be unduly shut out of its claim because of that technical failing.
[7] Lord J. Atkin. Atkin’s Encyclopaedia of Court Forms in Civil Proceedings (Volume 14, 2nd ed, Butterworths, 1980).
This is not the first time that this Court has been presented with such a difficulty. It is a common failing but, for reasons advanced below, this case illustrates a more egregious example. Unfortunately the case was tried before the difficulty became apparent.[8]
[8] I accept responsibility for my failing to be more vigilant in my oversight of the case.
The pleading of civil penalty complaints can present difficulty. They are hybrid claims: strictly civil in character but often set within a criminal framework. Relevantly, contraventions of the FW Act are defined as civil remedy provisions which provide for the impositions of penalties.[9] Section 549 FW Act provides that a contravention of a civil remedy provision is not an offence. Further, s.551 provides that a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention of a civil remedy provision. However s.552, s.553 and s.554 of the FW Act clearly contemplate that conduct otherwise constituting a civil remedy provision may also constitute an offence in another context.
[9] Penalties are quantified by units as provided for in the Crimes Act 1914 (Cth). Relevantly, a penalty unit has a value of $110.00 and the quantum of penalty units applicable varies dependent upon whether the respondent is a corporation or an actual person.
As a matter of process these proceedings commence as applications pursuant to the Court’s rules. However, the difficulty this case has highlighted concerns the appropriateness of proceeding with the conventional pleading process provided for under the rules when a process more akin to an information or charge, following the form of an indictment, might be more informative. That is particularly so if the applicant is not minded to set out appropriate proposed declaratory orders.
The prospect of a differing approach was alluded to by former Chief Justice Murray Gleeson in a paper entitled, Civil or Criminal – What is the difference?[10] In that paper, His Honour observed:
“[The] broad distinction between criminal and civil process is reflected in practical differences in the administration of criminal and civil justice. Criminal process is accusatorial. The prosecutor must make out a case, and the accused may remain silent. In serious matters, trial is ordinarily by jury. In most parts of Australia, juries have now largely disappeared in the administration of civil justice. In criminal cases the standard of proof is higher than in civil cases. Allegations of crime must be established beyond reasonable doubt, and citizens have the benefit of a presumption of innocence. There is no corresponding presumption that a person has not broken a contract, or has not acted negligently. Civil process is structured as a contest between parties neither of whom has any superior claim to the protection of the law. Because the potential outcome of the criminal process is punishment for an offence against public order, whereas the typical aim of civil process is vindication of private rights, the one is more demanding of the initiating party than the other … In a civil case a plaintiff is seeking a vindication of legal rights. The procedure is designed to accommodate, so far as possible, the legitimate interests of both parties. In a criminal case a citizen is charged with an offence. The power of the state is brought to bear against the citizen, and the outcome faced is conviction and punishment. In such a case the law provides that the accuser must assume heavier burdens, and the accused must be given the benefit of procedural and substantive protections defensive of human rights and dignity. Most legal systems recognise a qualitative difference between the prosecution of a citizen by the government for a crime, and the resolution of a dispute between two citizens as to their respective civil rights and obligations.”
[10] (2006) 8 TJR 1.
His Honour noted that the distinction between civil and criminal process has never been rigid and that the dividing line is becoming even more blurred. His Honour continued:
“At the extremes, it may be easy to identify the difference. Criminal process aims to punish; civil process aims to compensate. But there is a large, and increasing, grey area in between. Statutes confer upon regulatory authorities, and upon courts, powers and discretions which result in a proliferation of apparently civil sanctions for offending conduct. Writing of the position in the United States in 1992, one author said:
“Punitive civil sanctions are rapidly expanding, affecting an increasingly large sector of society in cases brought by private parties as well as by the government. These sanctions are sometimes more severely punitive than the parallel criminal sanctions for the same conduct. Punitive civil sanctions are replacing a significant part of the criminal law in critical areas of law enforcement, particularly in white-collar ... prosecutions, because they carry tremendous punitive power. Furthermore, since they are not constrained by criminal procedure, imposing them is cheaper and more efficient than imposing criminal sanctions ... With more punishment meted out in civil proceedings, the features distinguishing civil from criminal law become less clear. As civil law becomes more punitive, serious doubt arises about whether conventional civil procedure is suited for an unconventional civil law.””
Although I have noted that the successful proving of a contravention of the FW Act in this case does not give rise to an offence, such applications have many of the hallmarks of the prosecution of an offence. For instance, they often involve the exercise of the power of the Commonwealth by its agency, the Fair Work Ombudsman: s.539(1) and (2) Item 25 column 1 and 2;[11] the nature of the claim is accusatorial, with the complainant having a superior claim to the respondent to the protections afforded by s.500 FW Act; the proceeding seeks the imposition of a penalty which may default to consolidated revenue: s.558 and is not for the vindication of private rights; and, it is accepted that the complaint be proved consistent with the Briginshaw principle,[12] not merely to a satisfaction on the balance of probabilities.
[11] Although it is also possible that the person affected by the breach may also bring the claim.
[12] Briginshaw v Briginshaw (1938) 60 CLR 336.
His Honour noted that Australia already has a history of claims of this hybrid character. Claims for contraventions under the FW Act are clearly within that class.
Accepting that the law is blurred along these lines, the difficulty arising in the current context is how it would be most appropriate to plead a case such as this involving multiple complaints and parties. As this case illustrates, any number of separate events occurred over a short period of time. Those circumstances involved one respondent in respect of one series of events alleged to have given rise to contraventions and another series of events involving another two persons also alleged to have given rise to contraventions. Fortunately in this proceeding there does not appear to be any basis to consider any complaint involving the conduct of all three persons together. However, in the case of the two respondents the facts indicate their presence at the time of the occurrence of multiple alleged contraventions. There are no direct allegations that they did so as persons involved in each other’s conduct as provided for by s.550(2) FW Act, although I suspect that the pleader may have had that in mind.
If the matters were regarded and pleaded as offences there would be no issue. For instance, if a complaint was duplicitous either on its face or by reason of the evidence lead by the prosecution, the prosecutor would be required to elect which of the offences it wished to prosecute. In this application there is a strong prospect that the claims against each of group of respondents may offend the rule against duplicity. There are a series of discreet events alleged, although it is possible to contend that they merely constitute one continuing offence.
Further, with multiple parties there needs to be formal consideration given to whether or not the respondents were involved in each other’s contraventions.
While a carefully crafted statement of claim in the conventional form could address these matters, the risk is that the thinking associated with the civil process distracts the pleader from a consideration of matters, such as those I have identified, which bear particular relevance in the context of complaints. It follows that a question arises whether the standard process of pleading civil cases is an appropriate form for this species of complaint.
Arguably, if proper consideration is given to the relief being sought these issues might be addressed in the pleading. If the applicant had fully considered the terms of the declarations being sought, rather than simply express the ambit of relief, some of these issues may be been identified.
For reasons stated elsewhere, the pleadings in this case were confusing and failed to clearly identify the contraventions in respect of which declaratory relief was sought. They reflected no consideration of the issues addressed above, which ought to have been considered and adopted to pleadings of this kind. While the applicant cannot be criticised for following the process provided for under the Court’s rules, it ought not consider itself to be slavishly bound by them when a more suitable process is available. The Court rules dealing with contempt appear to provide a more appropriate framework, reflecting a clearer and arguably fairer process for these complaints. That includes having the evidence in support of the claim provided before the respondent is required to consider a response to the allegations. In instances where a multiplicity of complaints are to be made, this might provide a better procedural framework for such applications rather than relying on a pleading. In any event, both processes should be supported by a properly particularised prayer for declaratory relief.
As I have noted above, these are not criminal proceedings conducted on indictment. However it is still important, even where civil remedies may be sought and applied, that discrete contraventions are plainly and clearly identified. That process ensures not only procedural fairness for the respondents, but should also alert the complainant, as prosecutor, to some of the common pitfalls to be avoided in prosecutions. Here the pleading gives rise to serious risk of alleging complaints which are bad for duplicity, particularly because of the manner in which the allegations are made in paragraphs 30, 31, and 32 of the ASOC: Walsh v Tattersall.[13]
[13] (1996) 188 CLR 77.
For example, as against Mr Myles it is alleged at paragraph 30 of the ASOC that the conduct “pleaded in paragraphs 26 and 27 [of the ASOC] was in contravention of section 500 of the FW Act …” The pleading appears to allege that:
a)Following a confrontation with police, at or about 9:45am approximately 60 workers were spoken to by Messrs Myles and Elliot. It is alleged that Mr Myles made insulting remarks toward Mr Elliot and behaved in a manner that was a hindrance or obstruction (paragraph 26); and
b)A conversation subsequent to that event occurred which involved a series of events where Mr Myles went into various crib huts and engaged in exchanges with employees and Mr Elliot (of Laing O’Rourke) in circumstances which were alleged to be hindering or obstructive of Mr Elliot (paragraph 27).
A narrow view of the facts (as alleged in paragraph 31 of the ASOC) supports one contravention, with the incidences alleged each providing particulars of the contravention or, on a wider view, the facts support at least two contraventions (and perhaps more).[14] Adopting the narrow view, there is one contravention as alleged in paragraph 30(c) of the ASOC, with the matters alleged in paragraphs 26 and 27 each constituting particulars of the one contravention and the conduct constituting a course of conduct as provided for in s.557 FW Act. However, that was not pleaded. A broader reading would see each event as a separate contravention. Again, they were not pleaded as such.
[14] Arguably, each incident involving exchanges in the separate cribs occasioned an individual act of obstruction.
Another illustration concerns the complaints made against the first respondent, Mr Myles. In paragraph 30 of the ASOC, it appears that three complaints are made, with one complaint being made in each of subparagraphs (a), (b) and (c). However, close examination reveals that this is not expressly so. In paragraph 30(a) it is alleged, concerning Mr Myles: “repeating and relying on all of the facts and allegations pleaded above … the Applicant repeats and relies on the facts and allegations as to contraventions of section 500 of the FW Act pleaded in paragraphs 23 and 24 herein …”
Reference to paragraphs 23 and 24 is unhelpful. Paragraph 23 alleges some facts relevant to Myles’ entry to the site. Paragraph 24 then alleges that, by reason of the facts alleged at paragraph 23, the entry was unlawful “because” it was not done in accordance with s.484 FW, s.90K(2)(b) WH&S Act, s.499 FW Act and s.500 FW Act. I have already addressed the difficulties that this pleading occasions in respect of duplicitous allegations, of which paragraph 24 is a useful illustration.
Further, the one allegation contained in paragraph 30(a), which appears under the generic heading “Contraventions of section 500 of the FW Act,” became at least four allegations. That is so even putting to one side the question of whether or not this Court has jurisdiction to entertain the allegations of breaches of s.90K WH&S Act given that they are not contraventions in respect of civil remedy provisions. This difficulty is compounded through the balance of paragraphs 30, 31 and 32, which seek to support discrete allegations of contravention of s.500 FW Act against the first, second and third respondents. Those allegations in turn broadly support the complaints against the fourth, fifth and sixth respondents.
The respondents joined issue on the pleadings for each of the matters alleged against them and took no issue with the form of the complaints. Despite those matters, from an examination of both parties’ submissions it seems that they did not join issue on the precise complaints themselves. This is unsurprising given the manner in which the complaints are alleged.
The pleadings are unsatisfactory in this regard. However, neither side took up this issue and engaged in the factual dispute enlivened by the defence to the ASOC.
The court cannot be expected to distil from the proceedings which complaints were being prosecuted and which were not. Respectfully, it is not entirely satisfactory for a complaint with potentially significant penalty consequences not to do clearly articulated them. That is irrespective of whether the point is taken or not.
The failure by the complainant to fully consider these matters was amplified by the applicant’s submissions. Their focus was solely upon s.500 FW Act, with one exception. At paragraph 50 of its submissions reference was made to the complaints of contravention of s.90(K)(2b) WH&S Act (paragraph 24(B)(1A) ASOC) and s.90L WH&S Act (not referred to in the ASOC), neither of which are civil remedy provisions. However, submissions made no reference to contraventions of s.499 FW Act (pleaded at paragraph 24(b)(ii);31(b)(i);32(b)(ii) ASOC) which is civil remedy provision and which fell within the relevant complaint paragraphs alleged at paragraphs 30, 31 and 32 of the ASOC generically directed to s.500 FW Act. The ASOC has not given any appropriate shape to the applicant’s complaints.
Against that background I had considerable difficulty discerning which complaints were being prosecuted by the applicant. That matter is important because, as a matter of fairness, the respondents have a right to be clearly informed of the complaints that they face. The respondents, however, have not complained. Even so, their failure does not entitle me to disregard the ambiguity. As such, I have distilled from the ASOC and the defence, informed by the evidence and the respondent’s submissions, the complaints I apprehend as being in issue. I have determined to consider the case based upon the complaints as addressed by the respondents in their submissions, as best as they can be discerned.[15]
[15] Respectfully, the respondents have also simply fallen into the convenience of the pleading, apparently without detailed consideration of the complaints being made against each of them, what they are, how they are particularised and what response each specifically ought require except to note in oral submissions that they have not addressed the complaint alleged under s.499 and they did not run a case in respect to that part of the ASOC although their written submission appear to state the contrary.
I have embellished the broad particulars conceded by the respondents to provide meaning to the individual complaints as I understand the respondents have addressed them. In adopting this approach I have not addressed many other complaints which appear sustainable on the evidence. Ultimately, it is not the role of the Court to make out the prosecution case; the system is adversarial. However, I consider the approach I have adopted as just without trespassing beyond the proper bounds of the Court’s duty.
In practical terms, this matter may prove to be of little moment. If a narrow view is taken and one contravention established, those facts which constitute the particulars will only serve to inform penalty. Those facts not established will not detract from the contravention otherwise established and will not be relevant to penalty.
If the wider view is taken, the outcome might result in a larger number of contraventions being established. However, that matter would have little impact on penalty as the contraventions would be seen to arise from one series of transactions and a head penalty would be imposed, to which the other penalties would be subordinate and for which due allowance would be made.
I consider it appropriate that the applicant be held to its pleadings. If it intended to allege multiple contraventions then it ought to have pleaded those matters expressly. It has not done so. Although the submissions from both parties failed to address these issues, ultimately the applicant as prosecutor bears the responsibility to properly set out the complaints.
In short, the way in which the applicant has set out its case, respectfully in my view, is entirely unsatisfactory. Allegations are made historically and in narrative form, with little or no effort made to collect and organise them in a manner that would ensure the facts relevant to each discrete complaint are succinctly and comprehensively alleged. The pleading adopts a form that conflates allegations across, potentially, multiple breaches.
I have set out 15 complaints (five against each of the first, second and third respondents) that appear to stand alone and which appear to have been addressed by the respondents.
Standard of Proof
The respondent’s submissions addressed at length the relevant standard of proof. I think that the approach is now well settled. A succinct summary of the position as expressed in earlier cases such Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission[16] and Qantas Airways Ltd v Gama[17] is to be found in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd,[18] where at paragraph 110 Greenwood J observed:
“Given that ss 767(1) and 768(1) [Workplace Relations Act 1996 (Cth)] were civil remedy provisions, the learned trial judge correctly approached the question of whether the alleged contraventions had been proved by reference to a civil standard of proof but paying due regard, as s 140(2) of the Evidence Act 1995 (Cth) required, to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. As his Honour’s associated reference to Briginshaw v Briginshaw (1938) 60 CLR 336 attests, this subsection of the Evidence Act is a restatement of a well known passage (at 362) in the judgment of Dixon J (as his Honour then was) in that case, “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.””
[16] (2007) 162 FCR 466.
[17] (2008) 167 FCR 537.
[18] (2010) 186 FCR 88.
It is with these observations in mind that I have approached a consideration of the evidence.
Factual Background to Complaints against the Second and Third Respondents
Although Mr Myles is listed as the first respondent, chronologically, the complaints commence with the conduct of Messrs Pearson and Treadaway (the second and third respondents) who arrived on site much earlier in the day. There is no dispute that the second and third respondents undertook most of the conduct complained of in each other’s company and contemporaneously. The substantive issue concerned whether, as a matter of law, the conduct constituted the contraventions alleged.
It is agreed that at about 6:30am on 11 February Mr Pearson, together with Mr Treadaway, entered the site. Upon entry they signed and wrote the words “Part 7A 90I,” in the site visitors logbook, being a reference to s.90I WH&S Act. It was observed that they did not comply with the reasonable requirements of the site occupier, dictated in clearly visible signage, requiring persons to be wearing minimum PPE including eye protection, full length sleeves and gloves.
Messrs Pearson and Treadaway state that the logged entry was sincere as they claim to have held a reasonable belief that their members were at imminent risk of harm to their health and safety. There is evidence of a series of recent earlier site visits addressing safety issues. Mr Sean Element, General Foreman of the site, acknowledged the latter. In the course of these events, Mr Pearson complained that Laing O’Rourke had not corrected safety issues raised two weeks earlier. That statement itself does not prove any foundation for a safety issue. However, it can be seen to at least provide some foundation for a belief. Similarly, Mr Pearson’s evidence that he had received complaints from members regarding safety breaches does not prove that fact, although that evidence might go to the reasonableness of Mr Pearson’s state of mind concerning these issues.
Those matters aside, there was evidence of the Laing O’Rourke safety committee meeting conducted in September 2009 where, for instance, there was an agenda item relating to “no mesh-guard fitted” a matter noted by Mr Element to be an “extreme case scenario.”[19] Otherwise the complaints documented in the union records were generic, referring to such matters as “access and egress to work areas, housekeeping [and] fall from haul-lifts.”[20] There were also defects evident at an inspection on 3 February 2010 which were the subject of notification.
[19] Exhibit 12; Exhibit 14.
[20] Transcript 24 July 2012; P125 Ln 38-40.
Prima facie, there did appear to be a proper basis for entry.
Following entry Messrs Pearson and Treadaway were approached by Mr Element, who asked to see their right of entry notices and workplace health and safety authorisation. Mr Element recalls Mr Treadaway showing a notice and workplace health and safety authorisation pertaining to him. However, Mr Pearson does not recall being asked to show right of entry notices or workplace health and safety authorisation. He says that he did not therefore show his, nor does he recall Mr Treadaway producing his own.
I consider Mr Pearson’s evidence on this matter to be extraordinary. Confrontation occurred almost from the moment of arrival. Mr Element was a senior tradesman in a management role, well-versed in industrial matters; notices were subsequently produced to a person whom Mr Pearson considered worthy; the unions’ known representatives appeared unannounced; and from the outset parties commenced to stand on their rights. It is against that background that Mr Pearson says he has no recollection of a demand that he or Mr Treadaway produce their authorities, and that either of them did. In my view, Mr Pearson’s evidence on this point simply defies credulity. I do not accept that he could in the circumstances suffer a ‘forgetful’ memory or failure to recall such a seminal matter to the exercise of his right of entry.
At this time Mr Pearson is alleged to have said to Mr Element, “You’re a dickhead I’m not dealing with you. I want to talk to Duncan Elliot.” Mr Element says that he told Mr Pearson that he had to deal with him, to which Mr Pearson responded, by calling him a “fuckwit” and a “deadbeat” or “dickhead.”
Mr Pearson denied making these remarks. Mr Treadaway simply noted that there was an exchange between Messrs Pearson and Element concerning who they wished to speak with about these issues. The credibility of Messrs Pearson and Treadaway is not assisted on this point by the denial of the allegations in the defence and a failure to address them in their respective statements. Given that the only witnesses present for the respondents were Messrs Pearson and Treadaway, and that neither denied the allegations in their statements, I am left to wonder about the basis for the denials in the defence. I had an opportunity to observe Messrs Pearson and Treadaway in the witness box; neither impressed me. For reasons expressed elsewhere, I am satisfied that the statements attributed to Mr Pearson were made by him. The applicant’s case was criticised on this point because of the applicant’s failure to put its case to the relevant witnesses of the respondents. This occurred on a number of occasions in respect of a number of highly contentious matters. Indeed, the respondents regarded these omissions as so significant that they provided a schedule of omissions noting the occasions on which the applicant failed to comply with the rule in Browne v Dunn.[21] Unquestionably, these oversights were unsatisfactory, particularly in respect of conduct said to constitute the contravening behaviour. That oversight did deny the witnesses an opportunity to answer or explain critical evidence against them. However, the respondents had filed statements in reply to the applicant’s case. Insofar as they were necessary, denials were evident there. I think that there are possible explanations for why the rule was not strictly adhered to. Counsel appears to have overlooked the need to directly put his case to the respondents’ witnesses or otherwise decided that such was necessary where denials existed on the record. If it were the latter, then respectfully he overlooked the benefit a court derives from observation, particularly when a witness is taken to a point in issue and asked under oath about the competing version. I am mindful of the omissions but am inclined to view them as instances of oversight or misunderstanding by the applicant’s counsel. Adverse inferences should not be drawn from those omissions.
[21] (1894) 6 R 67 (HL).
Some attempt was made by Messrs Pearson and Treadaway to justify their conduct on the basis that the safety issues were addressed to Mr Elliott as a manger or representative of ‘Expanded Group,’ and not Laing O’Rourke and its representative, Mr Element. Expanded Group is a business unit of Laing O’Rourke. Accordingly, I consider such a contention to be wholly disingenuous. There was never any issue that Laing O’Rourke was the principal contractor and occupier of the site. It was at all times responsible for workplace health and safety matters. Messrs Pearson and Treadaway are professional industrial officers with a well-resourced and particularly active union whose workers are associated with the building and construction industry. From their day to day dealings with building industry participants they would have been aware that responsibility for safety is non-delegable and rests with the site occupier. Whom the principal should choose to assume responsibility from site to site for such matters is a question for it. However, such a course does not derogate from its duties and responsibilities as occupier. Accordingly, to state that they sought to bypass Mr Element because they thought Expanded Group was responsible for site safety simply does not ring true. That assertion by them further ignored that Expanded Group was, in any event, a business unit of Laing O’Rourke.[22] Their conduct in simply brushing Mr Element aside and demanding to see Mr Elliott was plainly game playing. Mr Element says that he was offended and embarrassed by those comments, but did not rise to the remarks as he did not wish to inflame the situation. I accept that evidence.
[22] This matter appears to be highlighted by references to Laing O’Rourke and Mr Elliott as its contact person in the complaint book – Exhibit 14.
Prior to the entry of Messrs Pearson and Treadaway, Mr Element had been in a meeting with Mr Duncan Elliott, Structures Manager for the site. He returned to that meeting to inform it of the presence of Messrs Pearson and Treadaway; they followed Mr Element into the meeting room.
Subsequently it is alleged that Mr Elliot then approached Messrs Pearson and Treadaway, who each produced entry notices. At this point Mr Elliot says that he enquired about their areas of concern, to which he says the pair advised that they were there for a “safety breach” and that “there are problems with access and egress and working at heights and also access to the lower decks.” When asked for particulars, Mr Pearson responded that the problems are “everywhere” and that he “didn’t have to tell” Mr Elliot. Mr Element recalls that at about this point Mr Pearson said, “I don’t have to put up with this. I can go anywhere I want and do anything I want.” Mr Elliott advised the two men that they would be accompanied by Mr Element.
In response, Mr Pearson said “I’m not going on [the site] with him. I’m not going on [the site] with that fucken prick [Mr Element].” It is alleged that Mr Elliot replied “If you keep going on in this manner I won’t let you on the site.” Mr Elliott stated that Mr Pearson continued to refuse to go on the site with Mr Element and repeated his use of swearing and name calling. Mr Elliot then decided that he would not allow Mr Pearson on site while he was behaving in such a manner. He said to Mr Pearson, “You’re not going on to the site.” Mr Pearson responded, “Fuck you, I’m going.” Following this exchange they left the meeting room, at which point Mr Element was instructed by Mr Elliott to follow them. I note that the pleading departs slightly from the facts on this point, alleging that Messrs Pearson and Treadaway then asked Mr Elliot to “permit” them to have a site walk. Given that the statements of Messrs Element and Elliott filed in the proceeding predate the pleading, this error appears to be one in drafting and not one which should reflect in the credibility of either of those witnesses.
The evidence of Messrs Pearson and Treadaway on these matters substantially conforms, save for evidence of the reaction to the inquiry of Mr Pearson by Mr Elliott and the language employed by Messrs Pearson and Treadaway. Mr Pearson does concede having told Mr Elliott words of similar effect to “Fuck you, I’m going” when he was told that he would not be permitted entry to the site. However, both his and Mr Treadaway’s evidence was bereft of background testimony on how this exchange came to pass. Messers Pearson and Treadaway agree with the evidence of Messrs Element and Elliott from the point where Mr Elliott says he stated, “If you keep going on in this manner I won’t let you on the site.” However, they provide no lead up to this remark beyond noting that they had given their notices to Mr Elliott. On its face it appears that Mr Elliott’s remarks were in response to the presentation of the notices.
In context, the evidence of both Messrs Pearson and Treadaway is simply not believable. They effectively ask the court to accept that Mr Elliott threatened to refuse them entry because they produced the very documents that would have authorised them under legislation to enter the site. Such conduct would have constituted a contravention by Mr Elliott of the FW Act. My assessment of Mr Elliott was that he was an intelligent and experienced manager. He understood his duties and obligations and was not the sort of person who would unnecessarily seek to antagonise or escalate any situation. He did not appear to me a person likely to ignore his statutory duties and put himself at risk of contravention of the FW Act. In my view, the comments attributed to Mr Pearson were made by him and the failure by either Mr Pearson and/or Mr Treadaway to address them in their evidence in chief was in part an attempt by them to ‘airbrush’ the history of this matter by ignoring those events which were unfavourable to them. I do not accept their evidence to the contrary later adduced in cross-examination.
It is alleged that following those matters Messrs Pearson and Treadaway left the company of Laing O’Rourke’s management employees and began to move about the site unaccompanied, which was alleged to be in breach of the company’s minimum safety requirements for the project.
It was noted by Mr Element that at this time Messrs Pearson and Treadaway were not wearing eye protection or gloves, and both were wearing short sleeved shirts. This was in contravention of the protective clothing direction evident at the site entrance.
Mr Pearson admits that he was not wearing gloves, but otherwise states that he was wearing all required PPE, including eye protection and a long sleeved shirt. Mr Treadaway also says that he was wearing all necessary PPE except gloves. Ultimately, this dispute must be resolved by reference to credit, as there were no other witnesses to this issue. Generally I have formed an unsatisfactory view of the reliability of the evidence of Messrs Pearson and Treadaway. I do not accept them as reliable. Statements made by them have in other instances proved to be wrong or incredible. I have had no such reservations in respect of the evidence of Messrs Elliott or Element, who I accept as both reliable and truthful witnesses. In a contest between the two groups I accept the testimony of Elliott and Element where it differs from that of Pearson and Treadaway.
Following those events, at about 7:15am matters moved to level 8 of the project, where approximately 15 formworkers were working. It is alleged that Mr Pearson approached the foreman of the formworkers, Mr Eddie Rodriguez, and said, “Your union fees are due,” to which he responded, “Yeah I know.”
Initially Mr Pearson stated that he did not recall making such a statement. His basis for such a statement was that he would not have done so because if Mr Rodriguez was a formworker then he is eligible to be a member of the CFMEU, “rather than my union.” In my view, this statement by Mr Pearson was disingenuous. Earlier in his written statement he had stated that he was jointly employed by the CFMEU “in respect of its Construction and General Division, Queensland Builders’ Labourers’ Divisional Branch and the Australian Building Construction Employees and Builders’ Labourers’ Federation (Queensland) Union of Employees (“BLFQ”) (collectively “the Union”).” Respectfully, his reason for believing that he would not have made the statement attributed to him is untenable and unbelievable. Mr Treadaway’s evidence was silent on the point and is of no assistance.
I am however troubled that Mr Rodriguez was not called by the applicant to give evidence on this matter. No explanation was given for the failure to produce him. In particular, there is no basis for me to be satisfied that he was not reasonably available or that he could not be located or otherwise produced. His evidence on this matter could have assisted in resolving the competing versions presently before the Court. In the absence of an explanation for his absence it is open to infer that nothing he could have said would have assisted the applicant’s case. I have earlier expressed a view that the case was not well presented. This matter simply illustrates another instance of that shortcoming. However, despite the assistance I may have received from hearing from Mr Rodriguez, I am content to decide this point on the evidence of Mr Element, who I accept as a more reliable witness than Mr Pearson.
At this point, Messrs Pearson and Treadaway separated. Mr Element continued to follow Mr Pearson, and Mr John Rose was directed to follow Mr Treadaway.
Mr Element says that Mr Pearson then approached two formworkers at about 7:30am and said to them, “Fees are due guys.” At about this time Mr Pearson said generally to a group of formworkers, “I’ve got a puppy dog behind me – throw him a bone,” that being a reference to Mr Element.[23] Mr Element says that in the course of that walk Mr Pearson did not discuss any safety issues with him or any other workers.
[23] The passage of evidence on this point was subject to criticism for breach of the rule in Browne v Dunn to which I can add nothing to my earlier observations.
Mr Pearson denies that he stated words to the effect of “Fees are due guys.” I do not accept his denial. As I have observed, these matters fall to be determined by reference to the competing credibility and reliability of the witnesses. There are only two witnesses on this issue, being Messrs Pearson and Element. I have no reservations in preferring the reliability of the evidence of Mr Element in such a contest.
In respect of the comment “I’ve got a puppy dog behind me – throw him a bone,” I note Mr Pearson’s evidence that he has no recall of making such a statement. I do not accept his lack of recall. I accept Mr Element’s evidence that the statement was made.
Although Messrs Pearson and Treadaway each deny that the other called upon workers for union fees, the fact remains that immediately after the exchange with Mr Rodriguez they separated and, accordingly, neither would have been in a position to overhear what the other was saying to workers. I do not accept their evidence as helpful on these matters, although it fortifies the view I have taken that their testimony has to be approached cautiously. This evidence is yet another instance of overreach on their part.
There is a direct conflict between the evidence of Mr Element and Messrs Pearson and Treadaway on the issue of whether or not Mr Treadaway had an EFTPOS machine on him at the time of the site visit. Mr Element says that Mr Treadaway did. Messrs Pearson and Treadaway deny that allegation. I have earlier determined Mr Element to be a far more reliable and credible witness than either Messrs Pearson or Treadaway. I have no reason to vary my view when considering this conflict.
Mr Pearson denied having an EFTPOS machine at the material time. No witness made any allegation to that effect and his evidence in that regard is consistent with his testimony that he had been the possessor of an EFTPOS machine until about late 2009, when it was lost. He has not had a replacement machine since that time.
The respondents adduced evidence from two employees responsible for the collection of union dues. Ms Lisa Stiller, an office manager with the various respondent industrial organisations, gave evidence that the union has issued some of its organisers with EFTPOS machines for the collection of membership fees. She stated that as the office manager she had access to the EFTPOS records generated by the machines for the collection of union membership fees. I also infer from her evidence that she had some responsibility for the allocation of these machines. In her evidence she affirmed that Mr Pearson had previously held a mobile EFTPOS machine but that he had advised her in late 2009 that it was lost. She confirmed his evidence that the machine had not been replaced. It was noteworthy that her evidence did not address the position concerning Mr Treadaway. Although there is evidence that Mr Pearson spoke to various employees on the site about fees being due, there was no evidence that Mr Pearson had an EFTPOS machine on him at the time he made theses statements. Allegations and evidence in respect of EFTPOS machines were made only in respect of Mr Treadaway. Ms Stiller’s statement of 11 July 2012 was made long after those allegations were first raised in the applicant’s statement of claim. Further evidence from Ms Paula Masters, another office manager employed by the union, does not assist. Her evidence stated that a search of the union’s records revealed no record of any EFTPOS payments for membership fees being made on 11 February 2010 from any mobile EFTPOS device. She further stated that no membership fees were due on 11 February 2010, and that a check of the EFTPOS records from the month of February 2010 against Mr Treadaway’s account reveals that he did not collect any membership fees via mobile EFTPOS machine at the relevant time.
Mr Treadaway denied that he had an EFTPOS machine on his person whilst at the site. For reasons earlier addressed, I do not accept Mr Treadaway as a reliable witness. A mobile EFTPOS machine is plainly an uncommon implement to be found on any person at a construction site. That peculiarity alone would be sufficient to warrant Mr Element’s recollection. I am satisfied that Mr Treadaway did have a mobile EFTPOS machine when he attended the site on that day.
Although Mr Treadaway had a mobile EFTPOS machine and both Treadaway and Pearson were calling for workers to pay their union dues, there is no evidence that any transaction was seen to be executed. Indeed, given the manner in which events were unfolding on that date I consider that the statements made by both Pearson and Treadaway in respect of union fees did not contain any serious intention of collecting fees at that time. I have come to that view because many of the statements were made, unashamedly, immediately after Mr Element announced to them that the police were on their way up. Plainly, these experienced industrial organisers were more interested in grandstanding by engaging in provocative behaviour in the presence of workers on the site, notwithstanding their presence on site purportedly being in respect of safety issues. Undoubtedly their behaviour was directed more to recruitment and membership retention than any other object. In my view, the calling for fees was meant to, and did, get a rise out of site management by its outrageous nature. However, the fact that Messrs Pearson and Treadaway each made calls for fees, whether they were sincere or otherwise, provides an insight into the real motive for their attendance on site that day.
By about 7:30am Mr Elliott had taken advice and the applicant had been contacted. Officers from the applicant arrived at the site. In due course they were joined by officers of the Queensland Police Service. Once the police arrived, contact was made by Mr Elliott with Mr Element. Mr Elliott and the police then moved to the part of the site known as the ‘eastern jump.’
While those matters were unfolding, at about 7:45am Messrs Pearson and Treadaway walked to a location commonly referred to as the ‘western jump.’ There, further exchanges occurred. At that time it is alleged that Mr Elliot directed Mr Element to tell Messrs Pearson and Treadaway to leave the site. Mr Element says that he said to them, “Gentleman the police are on the way – you’ve got to leave the site.” Mr Pearson and Mr Treadaway are alleged to have responded, “beautiful, the police are coming; we’re not going anywhere; bring it on.”
It is alleged that at this time Mr Pearson said to Mr Element that he wanted to inspect a safety issue that he had raised two weeks earlier with the site occupier. Mr Element says that he took Mr Pearson to the area concerned and pointed out the corrected works that had been carried out. Although the evidence of Messrs Pearson and Treadaway on the statements made in due course concerning this incident vary slightly from the applicant’s witnesses, the differences in respect of this issue are not material.
It is contended that at about this time Mr Pearson approached two more formworkers and stated, “Union fees are due,” a matter which is denied, although Mr Pearson contends that he stated to a number of workers words to the effect of, “Boys, it is not safe to work in these areas until they are rectified. We are advising you to leave this area until we can get Laing O’Rourke and Expanded to fix these safety issues.” He stated that, in response, Mr Element said to the workers words to the effect of, “If you stop work then there will be repercussions. We think that it would be unlawful for you to stop work.”
No other witness recalls statements to this effect being made at this time. Respectfully, I think that Mr Pearson’s recollection on this matter is in error and that he has confused this exchange with an exchange recalled by the other witnesses to have occurred later, when the witnesses were on the eastern jump.
Towards the end of these events, Messrs Pearson and Treadaway met up again. Mr Element said that at that time he noticed Mr Treadaway talking with a worker by the name of Alberto. He says that he overheard some discussion about RDOs[24] and also a reference to union fees being due. I accept his recollection of these matters, which I note Mr Treadaway does not deny but simply says that he has no recollection of.
[24] Rostered day off.
Save for that matter, there is no other evidence concerning the conduct of Mr Treadaway between the time he and Mr Pearson separated and when they left the vicinity of the western jump.
At about 8:00am Messrs Pearson and Treadaway moved together, followed by Mr Element, from the western jump of the project onto the lower levels and the eastern jump.
Whilst progressing towards the eastern jump, Messrs Pearson and Treadaway came across Mr Chris Nieland, a CFMEU site delegate. At that point it is alleged that Mr Treadaway reminded Mr Nieland that his fees were due. Mr Pearson says he was on the phone while these two men conversed, so has no knowledge of what was discussed between them. Mr Treadaway denies that he made such a statement because he says that no fees were then due and that fees were not the purpose of the visit. Mr Nieland was not called. I believe it reasonable to have expected that he would have been called by the respondents; he was their site delegate. No explanation was provided for the failure to produce him. In the circumstances, I infer that any evidence he would have adduced would not have been favourable to Mr Treadaway: Jones v Dunkel.[25] In the circumstances I am left to determine this point on the competing evidence of Messrs Treadaway and Element. I prefer the evidence of Mr Element on these events.
[25] (1959) 101 CLR 298.
At about 8:10am, Mr Element says that Mr Pearson then received a call on his telephone. Mr Element was in the vicinity of Mr Pearson when he answered his mobile phone. He turned to Mr Element and said, “Fuck off scumbag, fuck off scab. You don’t have to follow me while I’m on the phone.” Mr Pearson says he does not recall this exchange. As his recollection does not assist, I am left to resolve this dispute by reference to general credit. I have no reason to differ from my earlier findings on the credit and reliability of these witnesses. It follows that I prefer the evidence of Mr Element where the witnesses are in dispute on this matter.
It is agreed that a short time later the parties arrived at the eastern jump where there were about 10-12 workers present. Mr Element says that at this time Mr Pearson said to the workers that Laing O’Rourke had not fixed the safety issues that he had raised two weeks earlier, and that the “The jump’s not safe – five hand rails missing and no evacuation procedures.” In response, Mr Element said, “Guys, if you want to listen to [Pearson and Treadaway] go and sit down, you won’t be paid.” Messrs Pearson and Treadaway replied, “You’re threatening the guys with their jobs. The site’s not safe.”
At this point, approximately 8:35am, Mr Elliot arrived with two police officers, who approached Messrs Pearson and Treadaway.
Constable Nicole Cleal was one of the officers. Her observations of Mr Pearson following discussion with him were that he appeared agitated, uncooperative and hostile towards the police. She noted that he refused to answer questions, maintained that he was there to carry out a site inspection and said that he would not be leaving as he had a job to do. She noted that he continued to display belligerent behaviour toward police and staff who were not complying with his directions to walk off the job. I have no reason to disbelieve any of Constable Cleal’s evidence; she is plainly an independent witness to these events.
While these exchanges were occurring, Mr Element says that Mr Pearson yelled at the workers, “Guys down tools, stop work off the jump, it’s not safe.” Neither Mr Pearson nor Mr Treadaway agrees that they told workers to stop work, but they agree that statements were made about unsafe practices.
Mr Pearson says that he stated words to the effect of, “Listen boys, we’ve discussed with Expanded and Laing O’Rourke during our last few visits that the handrails and the access of the working platforms need to be rectified. They still have incorrect access to those working areas. I would advise you to go and work somewhere else on site where it is safe.” While he admits that some of the conversation alleged occurred, he denies that he yelled at the workers to down tools and stop work. I prefer Mr Element’s recollection of the words used. It accords with what was intended by Messrs Pearson and Treadaway, that is, that the workers stop work. Respectfully, the words alleged by Mr Pearson are too refined. Mr Pearson did not impress me as the sort of person who would meekly advise building workers as his passage of evidence would suggest. He struck me as someone who might customarily use stronger language when he had a point to make, as was then the case. The transcript of the recording made by Senior Sergeant Sheridan of the conversation between Sergeant MacArthur and Mr Pearson, to which he was a party, provides a more realistic portrayal of his manner of speech. While it was not coarse, nor was it refined, but was as much as would be expected of construction workers on a site.
Mr Element says he then told the workers, “Guys, remember when [Laing O’Rourke staff] addressed you the other day. If you want to listen to these blokes [Messrs Pearson and Treadaway] you’re welcome but if you do go you’ll be docked pay – it’s unlawful.” Mr Pearson says in response that Mr Element did not use the words he claims, but rather words to the effect of, “Guys, if you listen to them go and sit down, there will be repercussions if you do so.” I prefer Mr Element’s recollection on this matter. In response to Mr Element’s statement, Mr Pearson replied with words to the effect of, “You have just threatened their jobs, the jump is not safe!” While there are differences at the margin, I accept that words to like effect were exchanged on that occasion.
Messrs Pearson and Treadaway state that they were approached by police after these events and then escorted from the site. That does not accord with the recollections of either Mr Element or Constable Cleal, who recall police arriving as these events unfolded. Given the notes made by Constable Cleal and her independent nature, I consider her recollection as to the chronology to be more reliable than that of any other witnesses on this point, and accept it.
Mr Element gave evidence that Laing O’Rourke had scheduled to do a concrete pour at about 9:00am that morning. They had ordered three cement trucks and arranged for additional labour to assist with the pour. At about the same time as these events were unfolding, Mr Element was receiving phone calls and radio inquiries about the pour. It was alleged by the applicant that, by reason of the industrial events that transpired that day, the pour was cancelled.
From those events the following complaints arise.
Complaints against the Second Respondent
1. That at our about 6:30am on 11 February 2010, the Second Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he otherwise acted in an improper manner by being rude and offensive, including by swearing at and insulting by stating to Mr Element, site foreman “You’re a dickhead I’m not dealing with you. I want to talk to Duncan Elliot” and by calling Mr Element a “fuckwit,” “deadbeat” or “dickhead.”
Earlier I made findings concerning Mr Pearson’s conduct at or about the time he sought to enter the site. I am satisfied that he did speak to Mr Element in a manner that was rude and offensive, by swearing at and insulting him. That conduct was evidenced by the passage of events when Mr Pearson stated to Mr Element, “You’re a dickhead I’m not dealing with you. I want to talk to Duncan Elliot.” Mr Element says that he told Mr Pearson that he had to deal with him, to which Mr Pearson responded, by calling him a “fuckwit” and a “deadbeat” or “dickhead.” Those words were taken by Mr Element to be “embarrassing.” Although the word employed in his evidence was “embarrassing,” I understood him to mean that he took personal offence at their use. In the context and circumstances I am satisfied his remarks were clearly intended to be offensive and insulting to Mr Element.
Senior Counsel for the respondents submitted that, on a proper construction of s.500 FW Act, intention is required to prove a contravention of that section on the basis of acting in an improper manner.
Although I am satisfied that Mr Pearson had an intention to express himself in an improper manner and to direct that expression to Mr Element as an insult, in the event I am in error in this finding I reject the submission that an intention to be offensive is required. Section 500 FW Act is expressed in similar terms to s.767(1) of the since repealed Workplace Relations Act 1996 (Cth) (“WR Act”). That provision has been subject to consideration by the Federal Court. The section dissects behaviour into two limbs, providing that a person “must not intentionally hinder or obstruct any person” or a person must not “otherwise act in an improper manner.” The complaint in this instance is in respect of the second limb. Here I am satisfied that, given the context in which the words were used and the circumstances of the statement, i.e. they were directed by any invitee (albeit purportedly lawfully exercising rights of access) to a senior manager in charge of the site and directed to his subordinate, no other outcome is reasonably open. This is not simply a case of ‘blue’ language. It was clearly intended to be offensive to Mr Element and was taken as such by him.
In Gregor v Setka[26] a similar situation was considered by Burchardt FM. In that case a union official had entered the workplace because of safety concerns and proceeded to abuse and make threats toward the company’s construction manager and general foreman. Proceedings were brought against Mr Setka seeking declarations of contraventions of s.767 of the WR Act. In finding against him, Burchardt FM stated:
“[70] As to what constitutes acting in an improper manner I would respectfully adopt what was said by the High Court in R v Byrnes & Hopwood (1995) 183 CLR 501 at [514]–[515]:
“Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case.”
[71] It is clear that according to the ordinary words “act in an improper manner” that Mr Setka did so. Yelling the sort of abuse and threats that he did is plainly improper on any view of the meaning of those words.”
[26] (2010) 199 IR 267.
Hi Honour’s observations were not criticised when the matter was subject to review by the Full Court: Setka v Gregor (No 2).[27]
[27] (2011) 195 FCR 203.
There was some debate as to whether, as a matter of proper construction, s.500 of the Act required intention to prove a contravention of that section in the context of acting in an improper manner. The respondent contended that it did. However, the respondent’s contention is not supported by authority. In Darlaston v Parker,[28] Flick J addressed the issue, stating:
“[54] Difficulty is also encountered in construing the last of the phrases in s.767(1), namely the proscription of a “permit holder” acting “in an improper manner.” Presumably the Parliamentary draftsman saw no need to confine an act which amounts to “act[ing] in an improper manner” to an intentional act. But conduct which falls outside of an intentional hindrance or an intentional obstruction of a person, and yet falls within an “act in an improper manner” is not further defined by either s.767 or the Act as a whole.”
[28] [2010] 189 FCR 1.
In Setka v Gregor (No 2) at paragraphs 32-37, the Full Court observed without concluding that there was no requirement that an applicant establish an intention to act in an improper manner. The Full Court, in considering the appeal, observed:
“[30] The use of the word ‘otherwise’ tells strongly against the contention that the words which follow (‘act in an improper manner’) do not broaden the reach of the sub-section. The primary meaning attributed to ‘otherwise’ in the Shorter Oxford English Dictionary is ‘in another way, or in other ways; by other means; differently.’ The sub-section is thus to be understood as comprehending improper acts other than those involving obstruction or hindering. In this respect sub-section (1) may be contrasted with sub-section (7) which proscribes the intentional hindering or obstruction of a permit holder but does not extend to other improper conduct. If the inclusion of the words ‘otherwise act in an improper manner’ was not intended to broaden the scope of s.767(1), it might have been expected that improper conduct would not have been mentioned in that sub-section.”
A similar view has also been expressed by Greenwood J in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union and Others,[29] where at paragraph 170 his Honour observed:
“Holland contends that conduct which might fall within the description of acting in an improper manner focuses upon an objective assessment of the conduct rather than an assessment of whether each permit holder acted in an intentionally improper manner. I accept that the test is an objective test. If the conduct falling within the second limb of s.767(1) required the relevant person to intentionally act in an improper manner, the section would have said so.”
[29] (2011) 195 FCR 280.
I reject the respondent’s contention, albeit formally made, that s.500 requires intention to prove contravention on the basis of acting in an improper manner.
As I have found, I am satisfied that the words and conduct of Mr Pearson at the time were in breach of the standards of conduct that would be expected of a reasonable person in the position of Mr Pearson with knowledge of the duties, powers and authority of the position and circumstances of the case. I find that Mr Pearson adopted that conduct knowing and intending it to be offensive to Mr Element.
2. That at or about 6:30am on 11 February 2010, the Second Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by not genuinely addressing any reasonably held belief of an imminent risk to the health and safety of any worker at the site.
At the time Mr Pearson entered the site he had a prima facie basis for entry. It was not challenged that about two weeks before 11 February 2010 organisers from the respondent unions had attended the site to address safety concerns, particularly around the eastern jump. On the day in question, Mr Pearson, among others, attended the site to follow up on those earlier complaints. In his evidence, he stated to Mr Elliot that he was there for a “safety breach” and that “there are problems with access and egress and working at heights and also access to the lower decks.” That is not in dispute. Furthermore, it is not in dispute that, as Mr Pearson says, prior to his entry members had complained to the fourth respondent about a risk to their health and safety at the site. He says that it was because of those matters he attended the site on 11 February. Although I have generally determined Mr Pearson to be an unreliable witness, I have no reasonable basis to reject his evidence on this matter. That is particularly because it is objectively supportable by the previous history of site visits for safety reasons. It is not to the point that the earlier site visits may have been contrived. As I have noted above, the test to be applied in the context of a contravention application under the Briginshaw rule requires more rigorous consideration than that which would apply by reference to the common civil standard of proof on the balance of probabilities. Ordinarily that would require proof of matters to the reasonable satisfaction of the court. However, in applications such as this, “‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect references.”[30] That appears to be what the applicant seeks to do. It tries to draw vague parallels between Mr Pearson’s state of mind in entering the site and later events. The applicant’s evidence was not rigorous enough to elevate it beyond a case based upon indirect inferences. Its case fails on this count.
3. That at our about 7:15am on 11 February 2010, the Second Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that was aimed either at causing disruption to the work scheduled to take place at the site or soliciting business or both.
[30] Briginshaw v Briginshaw per Dixon J at 362.
Earlier I addressed the factual contest concerning this matter. I am satisfied that Mr Pearson did intentionally engage in solicitation. It is not to the point that fees may not have been payable immediately. The fact that Mr Pearson approached workers on the site and said to them that union fees were due constituted active promotion of the union’s business, and given that that activity took place at a time when the workers were engaged in their employment, served to distract workers from their duties, thereby hindering or obstructing them. It could not seriously be contended that the nexus between the lawful basis for being on site was so closely connected that Mr Pearson could have entertained an honest and reasonable belief that this conduct was in the exercise of entry rights.
In respect of a contravention of the first limb of s.500, it now appears to be settled that there must be established a subjective intention to hinder or obstruct. In Construction, Forestry, Mining and Energy v John Holland Pty Ltd[31] at paragraph 46, Dowsett J observed of s.767(1) WR Act:
“… The requirement that any hindrance or obstruction be intentional prima facie requires that there be a subjective intention to hinder or obstruct. It is not sufficient that the relevant conduct was willed and that the permit holder "must be taken to have been aware" of such hindering or obstructive effect. It may be sufficient that the permit holder acts, knowing that there will be a hindering or obstructive effect. It may also be possible to infer subjective intent from objective facts. However, s.767 says nothing about deemed intention.”
[31] [2010] 186 FCR 88.
In this instance the conduct was plainly subjectively intentional.
For the respondent it was contended that if that was the case, as I am satisfied, then the disruption was so minor as to not constitute a hindrance or obstruction: Darlaston v Parker. In that decision Flick J considered the question of hindrance, obstruction and improper manner. Although his Honour was considering those words in the context of the former s.767(1) WR Act, that provision is materially similar to s.500 FW Act. His Honour noted that the law in this context had developed from a series of authorities concerning police obstruction cases. After a review of those decisions, he concluded:
“For the purposes of s.767(1) it is considered that the reference to “intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within s.767(1).”[32]
[32] At paragraph 52.
I am satisfied that, when considered objectively, the conduct involving solicitation of union membership from employees engaged in the course of their employment constitutes more than a trivial act or hindrance or obstruction of those employees. Although the presence of union officials on a work site would not of itself occasion hindrance or obstruction, I am satisfied that soliciting fees and, by inference, membership whilst workers are engaged in their work and not on a break would not ordinarily be expected by a worker. Undoubtedly the unusual circumstances of the request would have caused workers to be needlessly distracted by the curiosity that a request in those circumstances would have generated. Respectfully any distraction of that kind on a major construction site would be hazardous and unwelcome and thereby constitute an appreciable obstruction or hindrance. In my view, such a request would not constitute a trivial act or an act which could not reasonably be regarded as an obstruction or interference. I am satisfied the applicant has established this contravention.
4. That at our about 8:35am on 11 February 2010, the Second Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that did in fact contribute in a substantial way to the disruptions on the site by imploring workers to down tools.
I have made findings that at about 8:35am Mr Pearson implored the workers to down tools and stop work. Mr Pearson’s statements to the workers required Mr Element’s intervention. Notwithstanding the disruption to activities was short, the fact remains that while the exchange took place between Messrs Pearson and Element the workers were distracted from their duties and thereby hindered or obstructed. In my view that distraction was appreciable. Aside from stating that he addressed the workers advising them to down tools, there was no evidence concerning his intention for issuing that direction which might be seen to be exculpatory. The conduct of this case has strong parallels on this point with the manner in which Darlaston v Parker was conducted before Flick J and his observations at paragraphs 82-86 are apposite here. His conduct was plainly obstructive and I am satisfied that he contravened s.500 in the manner alleged.
5. That between 6:30am and 9:00am on 11 February 2010, the Second Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that did hinder and obstruct the occupier of the site by interfering with a concrete pour which had been organised for 9:00am that day.
I have addressed earlier the concrete pour which did not proceed. The applicant’s complaint in respect of this matter must fail. The applicant has not adduced any evidence to demonstrate any causal link between the cancellation of the concrete pour and Mr Pearson’s conduct. While I am satisfied that a concrete pour was organised and subsequently cancelled, there was no evidence before the Court to establish that causal link. On that basis the complaint must fail.
Complaints against the Third Respondent
At the outset it is important to note that no averment is contained in the ASOC that the Second Respondent and Third Respondent engaged in the conduct with a common intention or that the contraventions occurred as a common enterprise: Stuart v R.[33] That omission is significant because establishing a common intention is critical to defining precisely which acts were jointly done: R v Barlow.[34] Nor has the applicant made any allegation pursuant to s.550 FW Act that either one or the other one were persons ‘involved in’ a contravention of the Act. The pleaded case leads only to the conclusion that these respondents were together at the time the alleged contraventions occurred. It follows that each complaint against the third respondent has to be considered separately with specific consideration of only that evidence available, in this case, against the third respondent. That is, it is necessary to separately consider the evidence admitted in relation to the third respondent, and that evidence must be considered separately in respect of each complaint. Evidence against other respondents, unless properly admissible against the third respondent, cannot be considered. For reasons which follow, that difficulty has been fatal in respect of a number of the complaints made against the third respondent.
6. That on 11 February 2010 the Third Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he otherwise acted in an improper manner by being rude and offensive, including by swearing at and insulting the management employees of the occupier of the site.
[33] (1974) 134 CLR 426.
[34] (1997) 188 CLR 1 at 13.
The evidence demonstrates that Mr Treadaway was on the site between about 6:30am and 9:30am. Notwithstanding that, there is no evidence of any rudeness, swearing or insulting behaviour directed by him toward site management. At its highest, Mr Element gave evidence that Mr Treadaway appeared to have been aggressive. However, for reasons addressed earlier in discussing the first complaint, that observation is not sufficient to establish rude or offensive behaviour that would constitute improper behaviour. There is no evidence from any witness that Mr Treadaway engaged in any conduct that could be described as being rude or offensive, or that he swore or insulted any of the management staff on the site. This complaint highlights the significance of the absence of an averment concerning common purpose. Its absence in this instance cannot be overlooked as a mere technicality. Mr Treadaway was not cross-examined on the matter of common intention, nor did he adduce any evidence by way of defence or explanation to any suggestion of common intention. It follows that he cannot have the conduct of another thrust upon him simply because they were together in the manner the applicant now seeks. This complaint must fail.
7. That at or about 6:30am on 11 February 2010, the Third Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by not genuinely addressing any reasonably held belief of an imminent risk to the health and safety of any worker at the site.
As observed above, at the time Messrs Pearson and Treadaway entered the site they had a prima facie basis for entry. It was not challenged that about two weeks before 11 February 2010 organisers from the respondents had attended the site to address safety concerns. On the day in question Mr Treadaway purported to attend the site to follow up on those earlier complaints. In his evidence he stated that upon entering the site Mr Element requested that he produce his right of entry and workplace health and safety card, which he did. There is no dispute about that matter. Subsequently, an exchange occurred between Messrs Pearson and Element which is the subject of the first complaint. Furthermore, it is not in dispute that, as Mr Pearson says, prior to his entry members had complained to the fourth respondent about a risk to their health and safety at the site. Mr Treadaway says it was because of those matters that he too attended the site on the 11 February. Although I have generally determined Mr Treadaway to be an unreliable witness, I have no reasonable basis to reject his evidence on this matter. That is particularly because it is objectively supportable by the previous recent history of site visits for safety reasons. As I have noted above, the test to be applied in the context of a contravention application under the Briginshaw rule requires more rigorous consideration than that which would apply by reference to the common civil standards of proof on the balance of probabilities. Ordinarily that would require proof of matters to the reasonable satisfaction of the court. However, in such matters “‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect references.”[35] That is what the applicant seeks to do. It seeks to draw vague parallels between Mr Treadaway’s state of mind when entering the site and later events. The applicant’s evidence was not rigorous enough to elevate it beyond a case based upon indirect inferences. This complaint fails.
8. That at our about 8.00am on 11 February 2010, the Third Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that was aimed either at causing disruption to the work scheduled to take place at the site or soliciting business or both by soliciting for union dues from Mr Chris Nieland.
[35] Briginshawv Briginshaw per Dixon J at 362.
In this instance the case advanced by the applicant is that during the course of the site inspection Mr Treadaway was engaged in soliciting business by soliciting union fees from Mr Nieland at that time. Arguably, that activity caused disruption to the work which was then scheduled to take place by disturbing Mr Nieland in the performance of his duties at that time as the alleged solicitation occurred during work hours and not at a time when he was, for instance, at rest in the crib hut.
I have addressed the factual contest concerning this matter earlier. I am satisfied that Mr Treadaway did engage in solicitation. It is not to the point that fees may not have been payable immediately. The fact that Mr Treadaway approached Mr Nieland on the site and requested union dues constituted active promotion of the union’s business and was not safety related. That activity took place at a time when Mr Nieland was engaged in his employment and thus served to distract him from his duties, thereby hindering or obstructing him. In my view in context such conduct constituted an appreciable distraction and was not trivial. The applicant has established this contravention.
9. That at our about 8.35am on 11 February 2010, the Third Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that did in fact contribute in a substantial way to the disruptions on the site by imploring workers to down tools.
This complaint provides another illustration of the difficulty arising from the manner in which the applicant prosecuted its case. There is no direct evidence of any event in which it can be demonstrated that Mr Treadaway himself generally sought to disrupt the site in a substantial manner. Much of the evidence is directed to the conduct of Mr Pearson. Whist Mr Pearson makes reference to the presence of Mr Treadaway, no averment was made that Mr Treadaway aided or abetted Mr Pearson in his contraventions or was involved in them within the meaning of s.550 FW Act. In the absence of such an averment I do not consider it just in the circumstances to rely upon the evidence of Mr Pearson’s conduct in considering this complaint against Mr Treadaway. I also note the applicant’s failure to put Mr Treadaway’s counsel on notice to address this issue and its failure to cross-examine on this point. This complaint fails.
10. That between about 6:30am and 9:00am on 11 February 2010, the Third Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that did hinder and obstruct the occupier of the site by interfering with a concrete pour which had been organised for 9:00am that day.
I have addressed the concrete pour which did not proceed above. For reasons given in respect of the second respondent, the applicant’s complaint in respect of the third respondent must also fail. The applicant has not adduced any evidence to demonstrate a causal link between the cancellation of the concrete pour and Mr Treadaway’s conduct. While I am satisfied that a concrete pour was organised and was subsequently cancelled, there was no evidence before the Court to establish that causal link. On that basis the complaint must fail.
Factual Background to Complaints against the First Respondent
It is not in dispute that at about 9:15am on 11 February 2010 Mr Myles entered the site and that he did so without giving notice of the exercise of a right of entry to the site. Upon entering the site he wrote his name and made an entry of “90I” (being a reference to s.90I WH&S Act) in the site visitors logbook. It was observed that he did not comply with the reasonable requirements of the site occupier which were dictated in clearly visible signage requiring persons to be wearing minimum PPE including eye protection, full length sleeves and gloves. Further, he was not escorted on the site at all times and he made his way unescorted to the eastern jump.
Mr Element says that at around 9:30am he received information that Mr Myles was on site, and within minutes of that call saw that Mr Myles was “up on the top deck.” He says that he noticed that Mr Myles did not have gloves, eye protection or a high visibility vest and long sleeves on. He says he approached Mr Myles and asked, “Joe where’s your right of entry and have you signed in to the site and where’s your PPE gear?” Mr Element says that Mr Myles simply responded to his inquiry by stating, “I don’t have to answer you, you fucking little grub.”
Mr Myles disagrees with this version. He says that when he reached the eastern jump Mr Element stated to him words to the effect, “Can you show me your right of entry authorisation and tell me why you are on this site?” Mr Myles stated that he responded by providing Mr Element with his right of entry authorisation and said words to the effect of, “I’m here under section 90I to investigate risks of safety.” He says he was not asked by Mr Element about how he had obtained entry, why he was unescorted or why he was not wearing PPE. He says that after having this discussion with Mr Element he then had a discussion with the police when he says Mr Element attempted to interrupt those discussions. He says he responded with words to the effect “I don’t have to answer you, you fucking little grub.”
Mr Element agrees that upon the offensive words being spoken he turned then to a police officer who was standing next to him and asked “Do I have to put up with that?” He says the officer, directing his comments to Mr Myles, stated, “There’s no need for that sort of language, he’s only doing his job.”
Mr Elliott, who had also joined the parties on the eastern jump by this time, has a similar recollection of these events and the words used by Mr Myles as Mr Element.
Mr Myles expressly denied that he was present to hold discussions pursuant to s.484 FW Act (Entry to hold discussions), but says he entered the site to inspect it because he reasonably suspected there had been a contravention of the WH&S Act. Accordingly, he contends that he was within his rights to be on the site, that he did comply with all reasonable requests and in any event he did not act in an improper manner or, in the alternative, he did not so intentionally.
Although they are nuanced, there are significant differences between the answer Mr Element says was given and the answer Mr Myles said he gave. The basis for enquiry and the answers given in my view assist in determining which version is more reliable.
It is not in contest that there were minimum PPE requirements on the construction site, nor is it in issue, although not admitted, that there was signage at the point of entry to the site indicating the minimum safety equipment required (eye protection, full length sleeves and gloves). As the General Foreman, Mr Element would undoubtedly been aware of these requirements. It was, he said, with those matters in mind that he asked the questions “… where’s your PPE gear?” In his evidence, Mr Myles admitted that he could not recall whether or not he was wearing a long or short sleeved shirt, but admitted that he was not wearing gloves. Putting aside the issue of whether or not he was wearing high visibility clothing and protective eyewear (matters he contests), there is no contest that he at least lacked some element of the necessary PPE. It follows that there was a proper basis for Mr Element to ask the question “… where’s your PPE gear?” I accept that this statement was made. Given that finding, it is evident that Mr Myles’ purported response to Mr Element’s question is deficient, at least in his failure to recall having made that statement.
It does not stop there. Mr Element was informed of Mr Myles’ attendance on site a short time earlier by a traffic controller. As he stated in his evidence, a short time after he received that information Mr Myles was present on the top deck. He was also informed by the traffic controller that Mr Myles had “barged” his way onto the site. While the traffic controller’s evidence on this point is not admissible as to its truth, that information would have been sufficient to inform the basis for Mr Element’s first question, namely “… where’s your right of entry and have you signed in to the site …” Given Mr Element’s position as General Foreman, he would have been aware of the right of entry obligations and the worksite requirement for all visitors to sign in. Mr Myles’ admission that he had not provided a notice of exercise of right of entry to the site, but simply written his name and made an entry “90I,” subsequently arriving on the deck a short time later, lends support to a suspicion that Mr Myles had not necessarily complied with the strict requirements provided for under the legislation to produce a notice of entry to the appropriate officer, leading to the enquiry “… where’s your right of entry …” rather than the request “… show me your right of entry…” a matter which ought to have been dealt with prior to Mr Myles’ progression from the entrance onto the site proper. In the circumstances I consider Mr Element’s version of events to be more reliable than those of Mr Myles, and I prefer Mr Element’s version to that of Mr Myles where their evidence differs.
At this point the police requested that Messrs Pearson, Treadaway and Myles leave the site. Mr Pearson was accompanied by police from the site.
Mr Elliott proceeded from the eastern jump to the site office and in doing so passed the crib hut area. There he observed that approximately 60 workers had failed to return to work after their ‘smoko’ break. He noticed that Mr Myles, who had not left the site as directed, was conversing with the workers assembled in the area of the crib hut. Mr Elliott approached those workers and heard Mr Myles address those present stating, “They’ve just thrown one of the boys off site who was doing a safety inspection. You are not going back to work until it’s sorted.”
Mr Elliott stated that there were four cribs in this locality and that he then proceeded to each of the cribs while Mr Myles was in one of the others and made statements to the effect of, “I know a lot of you blokes have some allegiance to the union because of what happened with Wideform, but if a stoppage isn’t lawful you won’t get paid. I think that this stoppage is unlawful, and you won’t be getting paid unless that man there [indicating Mr Myles, who by that time was present] can tell you it’s lawful. I want you blokes to go back to work.” Mr Elliott says he followed Mr Myles around the cribs, where these statements were repeated. That is, Mr Myles told the workers that the site was unsafe and Mr Elliott told the workers to return to work as the stoppage was unlawful and they would not be paid. Mr Elliott says he recalls stating to one of the groups that, “If he can prove that this is lawful, then you will [be] paid. If he can’t, then you won’t be paid.” He says when he called upon Mr Myles to respond he said, “It’s not about the money boys.”
Mr Elliott says that by about 10:00am they had done the rounds and the workers had commenced to return to work, at which time Mr Myles said, “One in all in, we’re not going back to work.” Mr Element says that by about 10:00am he had also returned to the area where the cribs were located and states that he said to the gathered workers, “Guys go back to work. What you are doing is illegal. You are not going to be paid.” He said Mr Myles called out in response, “fucking liar … fucking idiot …” and said to the workers, “It’s not about the money. Don’t go back to work. It’s about supporting the union and sticking together.”
It is alleged that Mr Elliot then asked the workers assembled in the area to return to work, at which time Mr Myles called out to the workers that Mr Elliot and Mr Element were “dickheads” and were ripping people off. He says that Mr Myles then said “We’re all sitting down. No one’s going to work. Anyone who works is a scab.”
It is alleged that Mr Elliot then said to the assembled workers “Guys be sure why you’re sitting down. Don’t just sit down because this bloke tells you to. You are not getting paid. What you’re doing may be illegal.” Mr Elliot then asked Mr Myles “Is what I’m saying correct?” to which Mr Myles responded “Yeah but it’s not about the money.”
Mr Myles denies the allegations, contending that he was not directed to leave the site. He claimed that he conversed with workers present and assembled in the ground level crib hut area about safety issues on the site, including missing handrails on the eastern jump, failures to rectify access to the working platforms on the eastern jump and the absence of evacuation procedures on the eastern jump. He says that he did so when the workers present were on their smoko break. Mr Myles admits that Mr Element said to the workers words to the effect of “Guys, go back to work. What you are doing is illegal. You are not going to be paid,” but denies the context in which the words “fucking liar” and “fucking idiot” were used. He contends that he said words to the effect of “You’re a fucking liar, it’s not illegal. Don’t be a fucking idiot.”
In respect of the conversation alleged against him by Mr Element, he says that he said to the workers, “No one is going back to work until the job is safe. Don’t go back on the job until you have the commitment from Laing O’Rourke that all the safety issues we have identified will be rectified.” He contended that in response Mr Element then said “This is illegal. No one is going to be getting paid.” In response he claims to have said “It’s not about the money. Don’t go back to work boys. This is about sticking together to get the safety issues fixed once and for all.” He denies calling out to the workers that Messrs Elliot and Element were “dickheads” and were ripping people off. He says he used words to the effect of “We’re all sitting down, no one is going back to work while the job is not safe.” He says in response to that Mr Elliot said, “Don’t just listen to these blokes. They are here for other reasons, it’s not to do with safety. If you guys don’t go back to work then you are not going to get paid because what you are doing is illegal.” He said Mr Element then said, “Guys you need to get back to work. If the union keeps stopping this job then some of you might have to lose your jobs. The union doesn’t pay your wages.” Mr Myles says that in response to that he stated, “Yeah, but we keep them safe, we keep them alive.” He contended that in response Mr Elliot said, “You won’t be paid if you don’t go back to work. Isn’t that right Joe [Myles]?” Mr Myles stated, “Yes that is right but it is not about money, it’s about safety.”
Although there are differences in expression, there is significant commonality between the recollections of the witnesses in this passage of events. The inconsistencies that exist between the competing versions of Messrs Element and Elliott are readily explained by the fact that they were each addressing differing groups of workers at the same time in the vicinity of the cribs, and that in doing so they were moving from crib to crib, crossing paths.
The complaints alleged to arise against the first respondent from these events are:
11. That at our about 9:30am on 11 February 2010, the First Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he acted in an improper manner by being rude and offensive, including by swearing at and insulting Mr Element in the performance of his duty by saying to him “I don’t have to answer you, you fucking little grub” following Mr Element enquiring of the first respondent’s failure to have correct PPE.
The evidence concerning this complaint is addressed above. As I have found, at about 9:30am Mr Myles engaged in an exchange with Mr Element on the site, when he was legitimately queried by Mr Element about the PPE he was wearing. Mr Myles’ response, “I don’t have to answer you, you fucking little grub” was entirely inappropriate and constituted an act of speech in an improper manner. It was clearly subjectively intended to be offensive and insulting to Mr Element, and indeed was so.
For the first respondent it was submitted that his swearing was “carried out in the context of the safety issues, which had been previously identified on the Site, not being rectified and remaining outstanding on that day.”[36] That submission cannot be supported by the facts as I have found them. These remarks were made at the time of initial entry to the jump and before he had commenced to undertake any WH&S Act activity.
[36] Respondents’ submissions at paragraph 59.
In considering the complaint against the second respondent, I addressed the submissions made concerning the need for intention and will not repeat my findings, which apply with equal force here. I am satisfied that this complaint is established.
12. That at or about 9:30am on 11 February 2010, the First Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by not genuinely addressing any reasonably held belief of an imminent risk to the health and safety of any worker at the site.
As observed in my earlier findings addressing the entry of Messrs Pearson and Treadaway, I am satisfied that the organisers of the fourth, fifth and sixth respondents had a prima facie basis for entry. As noted earlier, it was not challenged that about two weeks before 11 February organisers from the respondents had attended the site to address concerns, particularly involving the eastern jump. On the day in question Mr Myles, among others, attended the site to follow up on those earlier complaints. In his evidence he says that he stated to Mr Elliot that he was there “under section 90I to investigate risks of safety.” That is not in significant dispute. Furthermore, it is not in dispute that, as Mr Pearson says, prior to his entry members had complained to the fourth respondent about a risk to their health and safety at the site. Mr Myles says that it was because of those matters he attended the site on 11 February. Given the relationship between each of the respondents I am satisfied that Mr Myles too sought to exercise his right of entry on the same basis as that purported by Messrs Pearson and Treadaway. Although I have generally determined Mr Myles to be an unreliable witness, I have no reasonable basis to reject his evidence on this matter. It is objectively supportable by the previous recent history of site visits for safety reasons. As I have noted above, the test to be applied in the context of a contravention application under the Briginshaw rule requires more rigorous consideration than that which would apply by reference to the common civil standard of proof on the balance of probabilities. Ordinarily that would require proof of matters to the reasonable satisfaction of the court. However, in such matters as these “‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect references.”[37] That is what the applicant seeks to do. It seeks to draw vague parallels between Mr Myles’ state of mind in entering the site and later events. The applicant’s evidence was not rigorous enough to elevate it beyond a case based upon indirect inferences. This complaint fails.
13. That on 11 February 2010, the First Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that was aimed either at causing disruption to the work scheduled to take place at the site or soliciting business or both.
[37] Briginshaw v Briginshaw per Dixon J at 362.
The complaint alleged here was one which was principally directed to the activities of Messers Pearson and Treadaway. There is no evidence to suggest that Mr Myles was in any way involved in the disruption of work by calling upon workers to pay their union dues. Mr Myles’ involvement was restricted to a period from about 9:30am to shortly after 10:00am. Aside from Mr Myles’ attendance on the deck, the balance of his activity involved conduct by him in the work cribs. It is not in dispute that between about 9:30am and 10:00am many of the workers were in the cribs on their morning smoko break. Mr Myles’ conduct during that time could not have hindered or obstructed any of those workers in these circumstances. Conduct pertaining to events at and following 10:00am is the subject of a discrete complaint. No other conduct is alleged against Mr Myles and, accordingly, this complaint must fail.
14. That at our about 10:00am on 11 February 2010, the First Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he intentionally hindered, obstructed or otherwise acted in an improper manner by engaging in conduct that did in fact contribute in a substantial way to the disruption on the site by addressing the workers and calling upon them not to return to work thereby delaying their return to work following the smoko break.
On the evidence I am satisfied that the regular smoko break was due to come to an end at about 10:00am. At that time Mr Myles was in the vicinity of the recreation cribs where the workers had congregated for morning smoko. He had been there for some time, going between the cribs to inform the workers that the site was unsafe. At the same time, Mr Elliot had been addressing the workers to the contrary. At about 10:00am Mr Myles said “One in all in, we’re not going back to work,” a statement directed to the workers urging them not to continue with their duties. Mr Elliot continued to maintain however that Mr Myles was wrong in directing them to return to work and he advised them that what they were proposing was illegal. In response Mr Myles called out “fucking liar … fucking idiot.” Those words were directed to the workers about Mr Elliot. In my view that conduct was clearly intentionally undertaken by Mr Myles with a view to hindering or obstructing the workers from their return to work. These events took place at the conclusion of the smoko break and delayed the return to work of the workers. I am satisfied that in the circumstances this conduct was disruptive of works on the site. As with the first complaint, the respondent has not adduced any evidence concerning Mr Myles’ state of mind at the time of these events. Accordingly, if he had genuine exculpatory explanation it was not in evidence. I am satisfied that this contravention has been established.
15. That between 6:30am and 9:00am on 11 February 2010, the First Respondent, a permit holder for the purposes of the FW Act, did enter upon the site seeking to exercise rights in accordance with Part 3 FW Act and upon doing so contravened s.500 FW Act in that he hindered, obstructed or otherwise acted in an inappropriate manner by engaging in conduct that did hinder and obstruct the occupier of the site by interfering with a concrete pour which had been organised for 9:00am on that day.
I have addressed above the concrete pour which did not proceed. For reasons given in respect of the second and third respondents, the applicant’s complaint in respect of the first respondent must also fail. The applicant has not adduced any evidence to demonstrate any causal link between the cancellation of the concrete pour and Mr Myles’ conduct. Furthermore, the complaint concerning the first respondent on this matter is compounded by the fact, not in dispute, that he did not arrive on site until after the pour was due, a matter he addressed in his statement. While I am satisfied that a concrete pour was organised and subsequently cancelled, there was no evidence before the Court to establish that causal link. On that basis the complaint must fail.
Fourth, Fifth and Sixth Respondents
I turn now to the application as against the fourth, fifth and sixth respondents. It is admitted that the first, second and third respondents were engaged as agents/organisers of the respective unions at the relevant time. The first and second respondents were organisers for the fourth and/or fifth respondents (BLF/CFMEU) and the third respondent was an organiser for the fifth and sixth respondents (CFMEU/CFMEU (QLD)). Nor is it in issue that those personal respondents were at all times acting in their capacity as agents/organisers when the events material to this application took place. Accordingly, the question to be resolved is whether the unions are bound by the conduct of the agents/organisers themselves. Relevantly, s.793 FW Act provides:
“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.”
Given my findings and the admission that each of the personal respondents were officials of the various corporate respondents, and that their conduct was within the scope of their actual or apparent authority, by operation of s.793 FW Act the conduct of the personal respondents is taken to be that of the respective corporate respondents. There should be declarations to that effect.
ORDERS
That the matter be listed for mention at 9:30am on 19 February 2014.
That the matter be listed for penalty hearing at 10:00am on 28 February 2014.
I certify that the preceding one hundred and fifty two (152) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 20 December 2013
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