Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2019] FCCA 2160
•7 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS | [2019] FCCA 2160 |
| Catchwords: INDUSTRIAL LAW – Adverse action against independent contractor – coercion – breach of enterprise agreement – unlawful industrial action – right of entry. |
| Legislation: Fair Work Act 2009, ss.12, 19, 50, 51, 52, 306, 340, 341, 342, 343, 348, 361, 363, 417, 481, 484, 487, 500, 503, 512, 539, 546, 793 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss.4, 49 Fair Work (Registered Organisation) Act 2009, s.27 Crimes Act 1914, ss.4AA |
| Jones v Dunkel (1959) 101 CLR 298 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition & Consumer Commission (2007) 162 FCR 466 Adler v Australian Securities & Investments Commission (2003) 179 FLR 1 Schellenberg v Tunnel Holdings Pty Ltd (200) 200 CLR 121 Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 Dowling v Fairfax Media Publications Pty Ltd (2008) 172 FCR 96 Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470 Jones v Queensland tertiary Admissions Centre Ltd (2010) 186 FCR 22 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 254 IR 200 Australian Building & Construction Commissioner v Upton (2017) 270 IR 190 Construction, Forestry, Mining and Energy Union v Alfred (2011) 203 IR 78 National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 Esso Australia Pty Ltd v Australian Workers’ Union (2017) 92 ALJR 106 Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 Laing v Construction, Forestry, Mining and Energy Union (No 2) (2006) 155 IR 244 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 Director of Public Prosecutions v Smith [1961] AC 290 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 473 Australian Building and Construction Commissioner v Harris [2017] FCA 733 Australian Building and Construction Commissioner v McDermott (No 2) (2017) FCR 393 Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470 Australian Building and Construction Commissioner v Collier [2019] FCCA 650 Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140 |
| Applicant: | DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| First Respondent: | CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
| Second Respondent: | TONY SLOANE |
| Third Respondent: | LUKE COLLIER |
| File Number: | SYG 1132 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 4 – 7 July 2016 |
| Date of Last Submission: | 26 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Y. Shariff |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| Counsel for the Respondents: | Mr J.H. Pearce |
| Solicitors for the Respondents: | Taylor & Scott |
DECLARATIONS
On 24 March 2014 at a building site on Wattle Street, Ultimo, the first respondent contravened s.50 of the Fair Work Act 2009 by failing to follow the dispute resolution mechanism in cl.26 of the Reds Global (NSW) Pty Ltd/ CFMEU Collective Agreement 2012-2016 after a dispute arose in relation to a work-related matter.
On 24 March 2014 at a building site on Wattle Street, Ultimo, the second respondent, and by the operation of s.363 of the Fair Work Act 2009 the first respondent, contravened s.340 of the Fair Work Act 2009 by taking adverse action against Reds Global (NSW) Pty Ltd because it proposed not to exercise a workplace right.
On 24 March 2014 at a building site on Wattle Street, Ultimo, the second respondent, and by the operation of s.363 of the Fair Work Act 2009 the first respondent, contravened s.343 of the Fair Work Act 2009 by taking action against Reds Global (NSW) Pty Ltd with the intention of coercing Reds Global (NSW) Pty Ltd to exercise a workplace right or to exercise a workplace right in a particular way.
On 24 March 2014 at a building site on Wattle Street, Ultimo, the second respondent, and by the operation of s.793 of the Fair Work Act 2009 the first respondent, contravened s.417 of the Fair Work Act 2009 by organising industrial action after the Reds Global (NSW) Pty Ltd/ CFMEU Collective Agreement 2012-2016 was approved and before its nominal expiry date.
On 24 March 2014 at a building site on Wattle Street, Ultimo, the second respondent contravened s.500 of the Fair Work Act 2009 by, when exercising his rights under pt.3-4 of the Fair Work Act 2009, he hindered and obstructed Icon Construction Australia (NSW) Pty Ltd, Reds Global (NSW) Pty Ltd and the Reds Global (NSW) Pty Ltd employees present at that site and acted in an improper manner.
On 24 March 2014 at a building site on Coulson Street, Erskineville, the first respondent contravened s.50 of the Fair Work Act 2009 by failing to follow the dispute resolution mechanism in the Reds Global (NSW) Pty Ltd/ CFMEU Collective Agreement 2012-2016 after a dispute arose in relation to a work-related matter.
On 24 March 2014 at a building site on Coulson Street, Erskineville the third respondent, and by the operation of s.363 of the Fair Work Act 2009 the first respondent, contravened s.340 of the Fair Work Act 2009 by taking adverse action against Reds Global (NSW) Pty Ltd because it proposed not to exercise a workplace right.
On 24 March 2014 at a building site on Coulson Street, Erskineville the third respondent, and by the operation of s.363 of the Fair Work Act 2009 the first respondent, contravened s.343 of the Fair Work Act 2009 by taking action against Reds Global (NSW) Pty Ltd with the intention of coercing Reds Global (NSW) Pty Ltd to exercise a workplace right or to exercise a workplace right in a particular way.
On 24 March 2014 at a building site at the Hornsby Ku-ring-gai Hospital, Hornsby, the second respondent contravened s.500 of the Fair Work Act 2009 by, when exercising his rights under pt.3-4 of the Fair Work Act 2009, he acted in an improper manner.
ORDERS
The matter be listed for further directions on 30 August 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1132 of 2015
| DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
First Respondent
| TONY SLOANE |
Second Respondent
| LUKE COLLIER |
Third Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Reds Global (NSW) Pty Ltd (“Reds Global”) is a company which supplies tower cranes for hire and crane personnel to the construction and mining industries in Queensland, New South Wales, Victoria and the Australian Capital Territory. On 24 March 2014 the second respondent, Mr Sloane, and the third respondent, Mr Collier, both employees and organisers with the first respondent Construction, Forestry, Mining and Energy Union (“CFMEU”), visited three construction sites at which Reds Global was contracted to provide crane services. It is alleged that they directed the Reds Global employees at those sites to stop work because of certain alleged safety concerns. On 24 April 2015 the applicant (“Director”) commenced this proceeding alleging that Messrs Sloane and Collier had contravened certain provisions of the Fair Work Act 2009 (“FW Act”) by attending those sites purporting to be concerned about safety when their real motivation had been to respond to Reds Global’s proposed termination of one of its employees who was also a CFMEU delegate. The Director alleged that because Mr Sloane and Mr Collier were officers of the CFMEU, the CFMEU was liable for their conduct and, by virtue of ss.363 and 793 of the FW Act, was also taken to have contravened the FW Act.
The Director seeks declarations that the respondents contravened the FW Act and the imposition of pecuniary penalties for those alleged contraventions.
ALLEGATIONS
The Director’s allegations against the respondents were contained in a statement of claim filed on 24 April 2015 and are relevantly summarised below.
Background
The Director alleged that Reds Global and the CFMEU were parties to an enterprise agreement known as the Reds Global (NSW) Pty Ltd / CFMEU Collective Agreement 2012/2016 (“Enterprise Agreement”) which was approved on 8 November 2012 and had a nominal expiry date of 31 March 2016. Clause 26 of the Enterprise Agreement provided for a dispute resolution procedure for disputes concerning any work-related matters.
As at 24 March 2014 Reds Global was engaged as an independent contractor to provide cranes and associated personnel to:
a)Icon Construction Australia (NSW) Pty Ltd (“Icon”) in relation to a project to construct student accommodation at a site in Wattle Street, Ultimo (“Ultimo site”); and
b)Richard Crookes Constructions Pty Ltd (“RCC”) in relation to a project to construct residential apartments at a site in Coulson Street, Erskineville (“Erskineville site”) and in relation to a project to re-develop the Hornsby Ku-ring-gai Hospital in Hornsby (“Hornsby site”).
At all relevant times Michael Cambourn was an employee of Reds Global and a CFMEU delegate. On 21 March 2014 Jason Redman, Reds Global’s director and principal, handed Mr Cambourn a letter which, amongst other things, advised him that Reds Global was considering terminating his employment because it was no longer able to provide him with work which was suitable work taking into account his previous workplace injuries. The Director alleged that Reds Global’s role or responsibility to provide Mr Cambourn with suitable work under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”) was a “workplace right” within the meaning of s.341(1)(a) of the FW Act. It was alleged that by its letter dated 21 March 2014 Reds Global indicated that it proposed to not exercise its “workplace right” to provide suitable work to Mr Cambourn. The Director also alleged that the letter gave rise to a dispute about a work-related matter within the meaning of cl.26 of the Enterprise Agreement.
Ultimo and Erskineville sites
The Director alleged that on 24 March 2014 six Reds Global employees were scheduled to commence work at the Ultimo site at 7.30am. It was alleged that at approximately 6.30am Mr Sloane attended the site and told the Reds Global employees that they would not be working that day. Mr Sloane said that Mr Cambourn’s employment had been terminated and also made reference to the Reds Global employees not having completed a manual handling course. The Director alleged that as a result of Mr Sloane’s conduct the Reds Global employees at the Ultimo site did not start work until approximately 11am.
The Director further alleged that on 24 March 2014 six Reds Global employees were scheduled to commence work at the Erskineville site at 7.30am. He alleged that at approximately 7am Mr Collier attended the site and told the RCC Site Manager, Frank Crino, that the Reds Global cranes on the site could not operate because of a purported safety issue. The propounded safety issue was that the site was required to, but did not, have a “Gotcha Kit”, a type of aided-rescue kit used to rescue persons from a height. The Director alleged that Mr Collier also spoke to Norbert Totzenberger, the Reds Global Workplace Health and Safety Officer, and said that the Gotcha Kits were a legal requirement and that the cranes would not be operating without them. The Director alleged that as a result of Mr Collier’s conduct the Reds Global employees at the Erskineville site did not commenced work until approximately 1.30pm.
The Director alleged that Mr Sloane’s conduct at the Ultimo site and Mr Collier’s conduct at the Erskineville site:
a)directly or indirectly prejudiced Reds Global in relation to its contracts with Icon and RCC, in that Reds Global was unable to provide cranes or crane personnel to Icon and RCC, and was therefore adverse action within the meaning of s.342 of the FW Act;
b)led to the Reds Global employees failing or refusing to attend work with the consequence that they took industrial action within the meaning of s.19(1)(c) of the FW Act;
c)was undertaken as an exercise of their rights of entry under pt.3-4 of the FW Act and while exercising those rights Mr Sloane and Mr Collier intentionally hindered or obstructed Icon, RCC, Reds Global and the Reds Global employees. The Director alleged that Mr Sloane and Mr Collier also acted in an improper manner by indicating that the Reds Global cranes and employees could not operate when they had no authority to do so and by purporting to act because of safety concerns when their real motivation was to respond to Reds Global’s letter to Mr Cambourn; and
d)was undertaken with the intention of giving the impression that they were authorised by pt.3-4 of the FW Act to prevent the Reds Global employees from commencing work when they were not so authorised. The Director alleged in the alternative that they were reckless as to whether that impression was given.
The Director alleged that the conduct in which Messrs Sloane and Collier engaged was undertaken on behalf of the CFMEU and was within their actual or apparent authority as CFMEU officials. He alleged that by operation of s.793 of the FW Act the conduct was therefore also taken to have been engaged in by the CFMEU.
Alleged contraventions
The Director alleged that:
a)by operation of s.793 of the FW Act, the actions of Messrs Sloane and Collier, taken as they were without having followed the dispute resolution procedure provided by cl.26 of the Enterprise Agreement, amounted to a breach by the CFMEU of that clause and of s.50 of the FW Act;
b)Messrs Sloane and Collier and, by operation of s.363 of the FW Act the CFMEU, had contravened s.340 of the FW Act by taking adverse action against Reds Global because it had refused to exercise a workplace right;
c)Messrs Sloane and Collier and, by operation of s.363 of the FW Act the CFMEU, had contravened s.343 of the FW Act by taking action against Reds Global with the intention of coercing it to exercise a workplace right or to exercise a workplace right in a particular way, namely, by continuing to find suitable employment for Mr Cambourn and/or continuing to pay his compensation;
d)Messrs Sloane and Collier and, by operation of s.793 of the FW Act, the CFMEU had contravened s.417 of the FW Act by organising industrial action after the Enterprise Agreement was approved and before its nominal expiry date; and
e)Messrs Sloane and Collier and, by operation of s.793 of the FW Act, the CFMEU had contravened s.500 of the FW Act by Messrs Sloane and Collier’s actions in hindering or obstructing Icon and RCC and/or Reds Global and/or the Reds Global employees present at the Ultimo and Erskineville sites and/or by acting in an improper manner, in directing that the cranes not operate although they were not empowered to give that direction and by misrepresenting the reasons for their actions, when exercising or seeking to exercise their rights under pt.3-4 of the FW Act.
Additional allegations that Messrs Sloane and Collier and the CFMEU had contravened s.503 of the FW Act were not pressed.
Hornsby site
The Director alleged that on 24 March 2014 three Reds Global employees were assigned to the Hornsby site. He alleged that at approximately 11am Mr Sloane attended the site. At that time it had started to rain and all the workers, including the Reds Global employees, were coming off the site because of the rain. The Director alleged that Mr Sloane spoke to the Reds Global employees and to the RCC Project Manager at the site, Simon Karkkainen, and said that it was not safe to work until the Reds Global employees had had manual handling training and had Gotcha Kits on the crane.
Alleged contraventions
The Director alleged that Mr Sloane and, by the operation of s.793 of the FW Act, the CFMEU had contravened s.500 of the FW Act because when exercising or seeking to exercise his rights under pt.3-4 of the FW Act at the Hornsby site Mr Sloane had acted in an improper manner in directing that the cranes not operate although he was not empowered to give that direction, and by misrepresenting the reasons for his actions.
A further allegation that Mr Sloane and the CFMEU had contravened s.503 of the FW Act was also not pressed.
RESPONSE
The respondents denied or did not admit the allegations made by the Director regarding the events in question. Mr Collier also claimed privilege against self-exposure to penalty.
RELEVANT LEGISLATION
Liability
Section 12 of the FW Act provides that an officer of an industrial association means an official or a delegate or other representative of the association. The CFMEU is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (“FWRO Act”) and, by reason of that registration, is an “organisation” for the purposes of the FWRO Act. By reason of s.27 of the FWRO Act, it is a body corporate capable of being sued. Section 793 of the FW Act relevantly provides:
793Liability 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
...
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.
...
Enterprise Agreement
The relevant clauses of the Enterprise Agreement provided:
3. PARTIES AND PERSONS BOUND AND COVERED
a)The Company in respect of all of its Employees (hereinafter referred to as “Employees”) of the kind referred to in (c) herein, engaged on work in New South Wales (NSW).
b)The Construction, Forestry, Mining and Energy Union.
c)Employees of the Company who are eligible to be members of the Construction, Forestry, Mining and Energy Union.
d)This Agreement applies in New South Wales only.
…
5. DURATION OF THE AGREEMENT
This Agreement shall apply from seven days after approval by Fair Work Australia. The Agreement shall remain in force until 31 March 2016.
...
26. DISPUTE RESOLUTION PROCEDURE
a)If a dispute arises about any matter under or in any way related to this Agreement, the National Employment Standards (including subsections 65(5) or 76(4) of the Fair Work Act), or any other work-related matter (including a dispute about whether a workplace right has been breached), the parties to the dispute will attempt to resolve the dispute at the workplace level. Where such discussions do not resolve the dispute the parties will attempt to resolve the dispute by further discussion with more senior levels of management.
Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement.
Workplace Injury Act
The Workplace Injury Act relevantly provides:
4 Definitions
…
employer includes:
(a)the legal personal representative of a deceased employer, or
(b) a government employer, or
(c) a former employer.
Without limiting the meaning of the expression, an employer can be an individual, a corporation, a firm, an unincorporated body of persons, a government agency or the Crown.
…
49 Employer must provide suitable work
(1)If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker.
…
(3)This section does not apply if:
(a)it is not reasonably practicable to provide employment in accordance with this section, or
…
Workplace rights
Part 3-1 of chapter 3 of the FW Act provides for general protections. Division 3 of pt.3-1 provides for the protection of workplace rights and the exercise of those rights. Sections 340 to 343 of the FW Act are found in div.3 of pt.3-1 and relevantly provide:
340 Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person. …
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; …
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...
Column 2
if ...
... ... ... 7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association:
(a) organises or takes industrial action against the person; or
(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or
(c) if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or
(d) if the person is a member of the association—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).
…
343Coercion
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b)exercise, or propose to exercise, a workplace right in a particular way.
The Director contended that Reds Global had a workplace right as defined by s.341(1) of the FW Act because it had a role or responsibility under the s.49 of the Workplace Injury Act. Section 49 of the Workplace Injury Act provides:
49 Employer must provide suitable work
(1)If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker.
Maximum penalty: 50 penalty units.
(2)The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury.
(3) This section does not apply if:
(a)it is not reasonably practicable to provide employment in accordance with this section, or
…
Section 361 of the FW Act is concerned with proof of the reason for action alleged to be contrary to a provision of pt.3-1 of the FW Act. It provides:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
...
Section 360 provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 363 provides:
363Actions of industrial associations
(1)For the purposes of this Part, each of the following is taken to be action of an industrial association:
...
(b)action taken by an officer or agent of the industrial association acting in that capacity; ...
...
Industrial action
Section 19 of the FW Act relevantly provides:
19 Meaning of industrial action
(1)Industrial action means action of any of the following kinds:
...
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
...
(2) However, industrial action does not include the following:
...
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
..
Section 417 relevantly provides:
417Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action
(1)A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a)an enterprise agreement is approved by the FWC until its nominal expiry date has passed; ...
...
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
(2) The persons are:
(a)an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b)an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
Right of entry
Officials of industrial organisations may be issued entry permits under s.512 of the FW Act and under s.134 of the Work Health and Safety Act 2011(NSW) (“Work Health and Safety Act”). Part 3-4 of ch.3 of the FW Act sets out permit holders’ rights of entry. Sections 481, 484, 500 and 503 are found in that part and relevantly provide:
481Entry 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.
…
(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.
484Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a)who perform work on the premises; and
(b)whose industrial interests the permit holder’s organisation is entitled to represent; and
(c)who wish to participate in those discussions.
…
500Permit 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.
…
503Misrepresentations about things authorised by this Part
(1) A person must not take action:
(a) with the intention of giving the impression; or
(b) reckless as to whether the impression is given;
that the doing of a thing is authorised by this Part if it is not so authorised.
…
(2)Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.
Penalties
Sections 50, 340(1), 343(1), 417(1), 500 and 503(1) are civil remedy provisions: s.539 of the FW Act. In combination ss.539(2) and 546(2) provide that the maximum pecuniary penalty for the contravention of those civil remedy provisions is 60 penalty units for an individual and 300 penalty units for a body corporate. As at 24 March 2014 a penalty unit was worth $170: ss.4AA Crimes Act 1914.
EVIDENCE
Director
Jason Redman
Mr Redman is the director of Reds Global. Reds Global employs fifty-two people, including crane drivers/operators and dogmen. A dogman is a person who works on the ground and is responsible for assisting the crane operator to lift loads by communicating with the operator when the operator is lifting and depositing a load. Mr Redman deposed that each crane supplied by Reds Global was operated by one crane driver and two dogmen.
Mr Cambourn 1
Mr Redman deposed that Mr Cambourn commenced work with Reds Global as a crane driver/dogman in March 2012. He deposed that on five separate occasions between May and December 2013 Mr Cambourn suffered injuries to his knees and legs while at work and lodged a workers compensation claim. Mr Redman deposed that as a result of Mr Cambourn’s injuries, Reds Global provided him with “suitable duties” from around early January 2014. He deposed that on 21 March 2014 Reds Global decided that it could no longer provide suitable duties. He deposed that Reds Global was concerned that Mr Cambourn’s knee injuries posed a safety risk and that if he continued to work he would injure himself further. As a result on 21 March 2014 Mr Redman, along with Harry Vertos, a consultant for Reds Global, handed Mr Cambourn a letter stating:
…
As a result of your injury on 28 November 2013, the company created a suitable duties position for you solely to assist you with your rehabilitation back to your normal duties. The suitable duties position that was created was not a permanent position. The medical evidence now available indicates that the continued provision of the suitable duties position will not assist in your rehabilitation back to your normal duties.
The company is unable to continue to provide those duties to you, as it would create an unreasonable financial hardship on the company and other employees whose role is to carry out the duties that were assigned to you in the suitable duties position. As the company no longer has a role for you, you will not be required to attend the workplace from today.
Reds Global has an ongoing obligation under the Work Health and Safety Act, 2011 (Cth) to ensure yours and other employees health and safety at work. As such, to return you to your duties for which you were employed would expose you and other employees to a risk to their health and safety.
…
Unfortunately the company has not been able to identify any [alternative] position. As a consequence of the above and in light of the fact you are unable to return to the inherent duties of the position for which you were employed the company is considering terminating your employment unless you are able to provide the company with satisfactory evidence from a qualified medical practitioner in 5 days from the date of this letter that:
(i)you will be fit to undertake the inherent duties of your position without risk injury to yourself or other employees; and
(ii)you will be fit to undertake those duties within 2-3 months from now.
We confirm you are directed not to attend the workplace effective today.
Please provide Reds Global with the medical evidence by close of business on Wednesday the 26th March, if it becomes available so Reds Global can consider it.
This letter directed Mr Cambourn to communicate with “EML” in relation to his “weekly benefit entitlements”. The evidence indicates that EML was Reds Global’s insurer and that Reds Global proposed that it take over payments to Mr Cambourn.
Events on 24 March 2014
Mr Redman deposed that on 24 March 2014 Reds Global was operating at a number of sites, including the Ultimo, Erskineville and Hornsby sites. Reds Global operated two cranes at the Ultimo and Erskineville sites and one at the Hornsby site.
Mr Redman deposed that at approximately 7.30am on 24 March 2014 he received a telephone call from Ian Grant, the Icon Site Manager at the Ultimo site, telling him that the union were on the site and were raising manual handling as a safety issue. Mr Redman deposed that between 10am and 10.30am he attended the Ultimo site and found a group of Reds Global employees standing on the street. They had the following exchange:
Mr Redman: What’s the issue?
Employees: Manual handling
Mr Redman: Are we performing any manual handling today?
Employees: No
Mr Redman: Are there any other safety issues?
Employees: No
Mr Redman: Then it would appear safe to go back to work.
Mr Redman deposed that the Reds Global employees then returned to work. Mr Redman deposed that he then spoke to Mr Grant who said that Mr Cambourn had been on the site and that the CFMEU had said that Reds Global did not have all the proper documentation in relation to manual handling. He deposed that in response he said that unless he was given a specific reason for his employees stopping work, then they had to return to work. Mr Redman deposed that after his conversation with Mr Grant he telephoned Mr Kera and asked him to identify the safety issue on the site. He deposed that Mr Kera said that he was unsure and he would get back to him. Mr Redman deposed that when Mr Kera eventually telephoned him back they agreed to meet at, presumably, 6am the next day. He deposed that he had also attempted to telephone Mr Cambourn without success.
Mr Redman deposed that he visited the Erskineville site between 11.30am and 12pm.
Mr Redman deposed that neither before nor after 24 March 2014 had Reds Global received a complaint from the CFMEU about manual handling or Gotcha Kits.
Mr Cambourn 2
Mr Redman deposed that on 26 March 2014 he met with Mr Sloane and Rob Kera, the Assistant Secretary of the CFMEU, to discuss Mr Cambourn’s situation. In a letter to Mr Cambourn dated 26 March 2014 Mr Redman noted that Mr Cambourn had advised that he was due to undergo surgery. Mr Redman advised Mr Cambourn that Reds Global did not have any suitable duties for him, that he would not undertake any work for Reds Global until he was fit to and that he would continue to be paid his wages. Mr Redman stated that those arrangements would be reviewed once Mr Cambourn had had time to recover from his surgery. In its reply of 27 March 2014 the CFMEU confirmed that Mr Cambourn had been performing suitable duties since January 2014.
Mr Redman deposed that following further correspondence between Reds Global and the CFMEU Mr Cambourn’s employment with Reds Global came to an end by agreement on 7 July 2014.
Norbert Totzenberger
From September 2012 to April 2014 Mr Totzenberger was Reds Global’s Work Health and Safety Manager for New South Wales and the Australian Capital Territory. In that role he reported to Mr Redman and was based at Reds Global’s head office.
Manual handling training
Mr Totzenberger deposed that on 16 March 2014 Reds Global conducted a training day for its employees. The schedule for that day attached to Mr Totzenberger’s affidavit read:
Training Day Schedule
·Sunday 16 March 2014. All personnel other than those who are working for Reds Global on the day must attend. Part 1 of the VOC (verification of competency) will be carried out.
·Those who do not attend will be required to complete part 1 prior to resuming work for Reds Global.
7.00am - 9.00am Manual Handling / Loading and Unloading of trucks safely – Easy HR, Barry Edwards
9.00am - 9.15am Morning tea.
9.15am - 11.15am Fire Extinguisher Training – Chubb Fire, Russell Webber
9.15am - 11.15am WHS Responsibilities for supervisors & Managers – Courtenell, Jack Alugan
10.30am - 11.00am Tickets to be collected and photo copied in colour.
11.15am - 12.00pm VOC questionnaire – Koolat safety, Craig Eiszele
Laurie Lawson & Jason Redman to close out
12.00pm - BBQ
...
All lifting - handouts will be given.
Safety Handbook will be handed out. For those who do not have them.
The attendance register of the training day attached to Mr Totzenberger’s affidavit indicated that twenty-four of the Reds Global employees attended, including David Wilson, Anthony Barrett and Mr Cambourn. It also indicated that a number of external training providers attended to provide the training.
Mr Totzenberger also deposed that all persons employed in the construction industry, including Reds Global employees, were required to hold a “white card” and that in order to do so they had to attend a general construction induction training course run by a registered training organisation. Mr Totzenberger deposed that he had undertaken the training on three occasions and it had involved manual handling training.
Mr Totzenberger deposed that it had been his practice at Reds Global to issue Safe Work Method Statements (“SWMSs”) on safe manual handling. He deposed that following a change to the construction work code of practice which limited the issue of SWMSs to high risk work, he stopped issuing SWMSs in relation to manual handling as it was not deemed high risk work. Mr Totzenberger deposed that thereafter safe manual handling was referred to in work instructions provided to employees and which they were required to sign after reading. He deposed that signs on manual handling were also posted around the site.
Crane operation
Mr Totzenberger deposed that crane rescue kits can either be self-rescue kits or aided-rescue kits. He deposed that a “Gotcha Kit” is a brand name for an aided-rescue kit and, in his experience, was only used in erecting or dismantling cranes at sites, a task which usually takes a day. Mr Totzenberger deposed that crane operators are required to obtain a CT ticket (tower crane ticket) and a dogman ticket. For each ticket, a crane operator must undergo a week of training and assessment with a registered training organisation. Mr Totzenberger deposed that the use of self-rescue kits did not form part of the training for CT or dogman tickets. He deposed that training on the use of self-rescue kits was generally offered in training for a “working at heights” ticket or a “rescue at heights” ticket, with the latter only being needed by riggers and not general crane operators.
Erskineville site
Mr Totzenberger deposed that at about 7am on 24 March 2014 he received a telephone call from Max Walsh, RCC’s Safety Officer on the Erskineville site. He said that Mr Walsh said that the CFMEU were on site and wanted to know why the Reds Global cranes did not have rescue kits which referred to the Rescue at Heights SWMS. Mr Totzenberger deposed that Mr Walsh then passed on the phone to Mr Collier and they had the following conversation:
Mr Totzenberger: The SWMS that Max was referring to was only for the erection and dismantling of crane.
Mr Collier:You have to have rescue kits in each crane as they do in Queensland because of what happened with the diesel crane fire in Sydney.
Mr Totzenberger: Our cranes are electrical. There’s no requirement for electric cranes to have safety kits. We rely on emergency services for responding to incapacitated operators.
Mr Collier:The law has changed as per section 60 of the Work Health and Safety Regulation.
Mr Totzenberger: I am unaware of any such change. We are happy to comply is the law has changed.
Mr Totzenberger deposed that after that conversation he checked the regulation referred to by Mr Collier but found that it referred to managing the risks of musculoskeletal disorder and not to rescue kits for cranes. He deposed that after advising Mr Redman of his research into the regulations, the latter told him to look into obtaining the rescue kits so that the crane operators could return to work. Mr Totzenberger deposed that he contacted a supplier of Gotcha Kits who told them that it would take three days for them to be delivered. Mr Totzenberger deposed that he also contacted WorkCover. He deposed that after the advice he received from WorkCover he did not make any further enquiries about obtaining Gotcha Kits and did not order any.
Ultimo site
Mr Totzenberger deposed that at approximately 7.30am he received a telephone call from David Wilson, a Reds Global employee who was working at the Ultimo site. He deposed that Mr Wilson said to him:
The union is on site - Mick Cambourn and Tony Sloane. Fair Work Australia are also on site. We have been asked to stay in the sheds because the union is saying that there is no proof of manual handling training or certification. The cranes are not operating. It seems to be because of something that happened to Mick. I am not happy about it. The union didn’t contact me they came into the site and told me to sit.
Hornsby site
Mr Totzenberger deposed that shortly after 12pm he had a conversation with Lee Thrush, the RCC Site Manager at the Hornsby site, who said that he was stopping the Reds Global employees from working because they did not have proof that they had undertaken manual handling training. Mr Totzenberger deposed that he searched for and found a trainer who was willing to provide the training and also provide certificates to the participants. He deposed that after obtaining Mr Redman’s approval he arranged for the training to occur on 28 March 2014. He deposed that the Reds Global employees had already received manual handling training but he nonetheless organised the additional training in order to obtain the certificates and to appease the union. Mr Totzenberger deposed that the CFMEU had not made any further enquiries about the manual handling training or taken steps to confirm that it had occurred. He deposed that they had also not requested that the Reds Global employees at the Ultimo and Erskineville sites undertake the training and no additional training was arranged for the Reds Global employees who had been working at those sites.
Gotcha Kits and manual handling training
Mr Totzenberger deposed that Reds Global had not provided Gotcha Kits because it had not been required to do so. He deposed that on 4 December 2012 he attended a meeting which was also attended by representatives from the CFMEU, the Master Builders Association, WorkCover and crane companies. Mr Totzenberger deposed that the meeting was held in response to an incident during which a diesel crane had caught fire on a site in Sydney. He deposed that it was agreed at that meeting that Gotcha Kits were required for diesel cranes. Mr Totzenberger deposed that Reds Global only operated electric cranes and so had not been required to provide Gotcha Kits.
Mr Totzenberger deposed that, apart from the incidents on 24 March 2014, during his employment with Reds Global the CFMEU had never raised issues concerning manual handling training or safety concerns which had required the immediate stoppage of work.
David Wilson
Mr Wilson commenced work with Reds Global as a crane driver/dogman in late 2010 or early 2011. In September or October 2013 he was assigned to the Ultimo site. Mr Wilson deposed that two electric cranes and six Reds Global employees were assigned to the Ultimo site.
Mr Wilson deposed that while at the Ultimo site he usually arrived at work at 6am. He started work at 7am when the team commenced safety checks on the cranes and the cranes started operating at 7.30am. He deposed that at some time between 6.30am and 6.45am on 24 March 2014 he was standing on a footpath which was just off the Ultimo site with another Reds Global employee, Anthony Barrett, when Mr Sloane approached them and said:
Boys, you guys won’t be working today. Your delegate has been sacked. You will be sitting in the shed.
Mr Wilson deposed that he understood Mr Sloane’s reference to “delegate” as a reference to Mr Cambourn. He deposed that at about 7am he and Mr Barrett were still standing on the footpath when Mr Cambourn walked by and said to them “You know I’ve been sacked.”
Mr Wilson deposed that a short time later when he walked into the Reds Global site shed with Mr Barrett, Mr Sloane and Mr Cambourn were in there with the other four Reds Global workers assigned to the site. He deposed that Mr Sloane said:
Mick has been sacked for being on compo and for safety concerns. They let him go on Friday. You won’t be working today.
Mr Wilson deposed that at some point the Icon site foreman walked into the shed but he could not recall if he heard Mr Sloane’s words or said anything before walking out.
Mr Wilson deposed that after Mr Sloane’s instructions, he and the other Reds Global workers did not start work. He deposed that he had wanted to work but had felt that he had no choice so he went out to the street to have a cigarette with the other Reds Global workers. He deposed that he could not have worked by himself as each crane required three people to operate it.
Mr Wilson deposed that at about 10.45am he was standing with another Reds Global employee on the footpath when they were approached by Mr Redman. He deposed that the other Reds Global employee told Mr Redman that the union had told them to stop working because Mr Cambourn’s employment had been terminated. Mr Wilson deposed that after walking away and making a telephone call, Mr Redman returned to them and told them to return to work. Mr Wilson deposed that they started work at about 11am and continued until about 2.30pm or 3pm when it started to rain.
Mr Wilson deposed that approximately two weeks later he attended manual handling training. He deposed that he had also attended manual handling training about two weeks before 24 March 2014.
Also tendered, subject to a ruling on relevance, was portions of a transcript of an interview with officers of the Director’s office in which Mr Wilson participated on 6 August 2014. That transcript records Mr Wilson’s then-recollection of statements made by Mr Sloane and Mr Cambourn during a discussion they held with the Reds Global workers during their visit to the site. In particular, he recalled that in the shed, Messrs Sloane and Cambourn told the men that Mr Cambourn “had been sacked and that we won’t be working”.
Ian Grant
From November 2013 to October 2014 Mr Grant was employed by Icon as the Site Manager of the Ultimo site. He was responsible for the day-to-day running of the site and for planning, co-ordinating and liaising with the sub-contractors on the site, one of whom was Reds Global.
Mr Grant deposed that at some time between 7am and 7.30am on 24 March 2014 he attended the Ultimo site first aid office where Mr Sloane and Yu Lei Zhou, another CFMEU organiser, were waiting for him. He deposed that Mr Sloane told him that Red Globe’s employees had not had hazardous manual tasks training and that they were going to sit in their shed until the issue was resolved. He recalled Mr Sloane having said that Red Global’s employees ought not work until the question of hazardous material handling training was resolved. He said that he had not directed the Reds Global employees not to work and they had made that decision themselves. He did not direct them to return to work either.
Mr Grant deposed that he then left the first aid office and telephoned Mr Redman. He deposed that he told Mr Redman that he believed that some of the workers had been trained and asked him if he was in the process of organising further training. In response, Mr Redman said that he would find out and would visit the site later that day. Mr Grant deposed that when he returned to the first aid office to tell Mr Sloane that he had contacted Mr Redman, Mr Sloane said “Reds have terminated one of our people”.
Mr Grant deposed that the Reds Global employees did not commence work as scheduled at 7.30am and remained in their shed. He deposed that at approximately 8am Mr Sloane and Mr Zhou left the site. Mr Grant deposed that at approximately 10.30am he saw Mr Redman enter the site and speak to his employees and at 11am the Reds Global employees started work.
Mr Grant deposed that the incident on 24 March 2014 was the only time the CFMEU had ever raised hazardous manual tasks training as a safety issue during the forty years he had worked in the building and construction industry.
Frank Crino
Mr Crino was RCC’s Site Manager at the Erskineville site where Reds Global were working having been contracted by the RCC to do all the craneage work on the project. He deposed that sometime before 7.30am on 24 March 2014 he met Mr Collier in the car park downstairs from the project office which was approximately 10 – 20 metres from the project site and the latter questioned him about the site’s emergency recovery system for crane operators. He knew Mr Collier from previous dealings as a CFMEU organiser. Mr Crino deposed that when he told Mr Collier that they relied on police rescue, Mr Collier said:
No, no, no there is a requirement for Gotcha Kits on all projects and all crane companies know about it and it should be in place.
It is a safety issue and it’s a requirement that every crane can’t start work without it.
Mr Crino deposed that the Reds Global site shed was on the grounds of the project office. He believed a number of workers witnessed his conversation with Mr Collier because about five to eight workers were standing there. However, he could not say whether they heard what he and Mr Collier were saying.
Mr Crino deposed that the CFMEU had never previously raised the issue of Gotcha Kits and at the time he had the conversation with Mr Collier he did not know what a Gotcha Kit was. He decided to undertake further enquiries into whether it was required. He deposed that he also made the decision to not allow the cranes to commence work until he was clear on whether the Gotcha Kits were a requirement. Mr Crino deposed that at 7.30am he walked to the site shed and advised the site workers of his decision. He said that he stood the workers down because of information provided to him by Mr Collier that Reds Global’s work method statement did not reflect a safe retrieval system for the crane in relation to Gotcha Kits.
Mr Crino deposed that thereafter he telephoned Mr Totzenberger, Mr Redman and Reds Global’s Operations Manager and told them of the issue. He deposed that one of them told him that a Gotcha Kit was not required and that the Reds Global employees could start work. Mr Crino deposed that he told Mr Redman that he was not going to tell the Red Global employees to start work until he was sure that a Gotcha Kit was not required but that Mr Redman could tell them to start work if he chose to. Mr Crino deposed that he assumed that from the fact that they remained in the shed Mr Redman did not tell his employees to start work.
Mr Crino deposed that at about 1.30pm he had the following telephone conversation with Mr Redman:
Mr Redman:Everything is alright. It’s not a requirement. Send the boys back out to work.
Mr Crino:Are you sure?
Mr Redman:Yeah I spoke to one of the organisers. Everything is alright, send them out.
Mr Crino:Is it a requirement?
Mr Crino deposed that he could not remember if Mr Redman answered his last question. He deposed that at 1.30pm he directed the Reds Global employees to start work and they started working sometime between 1.30pm and 2pm.
Mr Crino deposed that at 7:30am on 25 March 2014 the Reds Global employees commenced work without Gotcha Kits. He deposed that he received a telephone call from Mr Collier who said that the cranes could work. Mr Crino deposed that prior to 24 March 2014 the CFMEU had not raised the issue of Gotcha Kits on the site.
Andrew Thackray
Mr Thackray was the RCC Senior Project Manager at the Erskineville site on 24 March 2014. Mr Thackray did not give oral evidence. He provided a statement during the Director’s investigation, which became an exhibit.
Mr Thackray stated that at 7am on 24 March 2014 he was informed that Mr Collier was on the site and had issues with the Reds Global cranes. Mr Collier alleged that the Reds Global cranes did not have a Gotcha Kit and that the Reds Global SWMS did not reflect the “safe retrieval system” of the crane. Mr Thackray stated that as a result, Mr Crino decided to stand down the Reds Global employees until he had further information from WorkCover or another authority concerning the requirement for a Gotcha Kit. He stated that following various enquiries by RCC employees it was determined that a Gotcha Kit was not a legal requirement and so one was not purchased. Mr Thackray stated that on 25 March 2014 the Reds Global employees commenced work at 7.30am. He stated that Mr Collier had not returned to the site to follow up on the Gotcha Kits.
Simon Karkkainen
Mr Karkkainen deposed that from October 2013 to April 2015 he was RCC’s Project Manager for the Hornsby site project. Reds Global had been contacted by RCC to perform tower craneage on the project.
At 8.08am on 24 March 2014 Mr Karkkainen received an email from Cameron Waller, one of RCC’s Construction Managers, saying that the CFMEU had visited a number of sites that morning and had stopped cranes working at sites without Gotcha Kits. Mr Karkkainen deposed that he spoke to Joel Mitchell, a Reds Global dogman who was also a rigger, who said that he had had training on using a Gotcha Kit.
Mr Karkkainen deposed that at approximately 10am he was standing with Mr Crookes and Mr Thrush when two CFMEU organisers and an Electrical Trades Union organiser approached and introduced one of their number saying that they were just “calling past”. Mr Karkkainen deposed that there did not appear to be an agenda for the visit and the three men left the site after fifteen minutes.
Mr Karkkainen deposed that at approximately 11am it began to rain and all the workers started coming off the site. He deposed that he was standing with Mr Thrush and Corey Safe, a Reds Global dogman, when Mr Sloane approached him and showed him his entry permit. Mr Sloane asked if the site had manual handling training verification of competency for the task of moving bins to which Mr Safe responded that the bins on site had wheels. He deposed that at that point they were joined by Glen Pears, a Reds Global crane driver, and Mr Sloane asked if he had a Gotcha Kit. Mr Pears responded that he did not.
Mr Karkkainen deposed that he, Mr Pears, Mr Thrush and Mr Sloane had a meeting at which Mr Sloane said that it was unsafe to work until the manual handling and Gotcha Kit issues were resolved. He deposed that Mr Pears telephoned Mr Totzenberger and advised that Reds Global had organised for its employees to undertake refresher manual handling training. Although that issue was resolved, that concerning the Gotcha Kits was not and whether they were required had not been determined during the meeting. Mr Karkkainen deposed that Mr Sloane remained on the site until about 12.30pm at which time he left to have a coffee with Mr Pears and when he left he did not indicate that he would return to ensure that the issues he had raised had been rectified.
Mr Karkkainen deposed that at about 2.30pm Mr Pears told him that manual handling training had been scheduled for a day to be advised.
Mr Karkkainen deposed that on his instructions Michael Wylie, an RCC project manager, contacted WorkCover and reported that he had been advised that a Gotcha Kit was not a requirement on the site. Mr Karkkainen deposed that Mr Waller decided to allow the Reds Global employees to resume work the following day because manual handling training had been scheduled and Gotcha Kits were no longer an issue. He deposed that on 25 March 2014 work commenced without incident and the site did not receive any further visit from the CFMEU regarding manual handling or Gotcha Kits.
Mr Karkkainen said that neither before nor after 24 March 2014 did the CFMEU raise material handling as an issue in relation to Reds Global workers at the Hornsby site.
Respondents
Tony Sloane
Mr Sloane is a CFMEU organiser and holds entry permits issued under the FW Act and the Work Health & Safety Act. Mr Sloane deposed that prior to his employment with the CFMEU he worked in the construction industry for thirty-seven years and held licences for performing scaffolding, rigging and crane work. He deposed that due to his experience, when he visited sites he often examined cranes and scaffolding to determine whether they met the relevant requirements.
Mr Sloane said that on Friday 21 March 2014 he telephoned Mr Cambourn who told him about his meeting with Mr Redman and about the letter he had been handed. He said that Mr Cambourn told him that Reds Global were sacking him and from that he knew that Reds Global was proposing to no longer offer Mr Cambourn suitable duties. Mr Sloane said that during their conversation they agreed to meet in the city on Monday 24 March 2014.
Attendance at Ultimo site on 24 March 2014
Mr Sloane said that before speaking to Mr Cambourn on the Friday afternoon he had not had a commitment to attend the Ultimo site and that the purpose of meeting Mr Cambourn on 24 March was so they could attend the Ultimo site. Later he said that they had not had an arrangement to go to the site and it was only after speaking to Mr Cambourn on the Monday morning that he decided to go to there.
Mr Sloane said that he met Mr Cambourn over coffee in the city at 6am on 24 March 2014 who showed him the letter he had received from Reds Global. Mr Sloane said that he told Mr Cambourn to refer the letter to the CFMEU’s legal team.
Mr Sloane said that when he met Mr Cambourn in the city they talked about whether the Reds Global employees had undertaken material handling courses. Mr Sloane said that after that, he decided to go to the Ultimo site to speak to management and to the safety officer. Mr Sloane deposed that on 24 March 2014 he attended the Ultimo site at approximately 7am to check on whether Reds Global’s employees had undertaken a manual material handling course. This was because he was concerned about a series of injuries amongst the Reds Global employees, including injuries to Mr Cambourn and another employee at a site in North Sydney.
Mr Sloane deposed that when he arrived at the site, work had not commenced. He deposed that he saw Mr Wilson and Mr Barrett standing outside the site and they advised him that they had not undertaken the manual material handing course recently. Mr Sloane deposed that he then went to the site first aid office, which was just inside the site fence but not where construction work was being performed, and spoke to the CFMEU site delegate, Elvis Coelho. He deposed that he told Mr Coelho that he needed to see if the Reds Global employees had undertaken the manual handling course. Mr Sloane deposed that Mr Coelho arranged for Mr Grant to attend the first aid office and that he said to Mr Grant:
I am concerned that Reds Global is not following the OHS manual and giving their employees Manual Material Handling Course training. They are having too many injuries and lost time on Icon jobs. We had a Reds Global employee injured on an Icon site at North Sydney who broke his wrist unloading a steel truck. And if you work for Reds Global and finish up on light duties in the yard, you end up getting threatened with the sack.
and
The Reds Global employees should not work until the question of Manual Material Handling Course training is resolved. It is unsafe to continue to work if no Manual Material Handling Course training has occurred or is arranged.
Mr Sloane deposed that Mr Grant said that he did not know if the Reds Global employees had had the training but would make enquiries.
The respondents submitted that the statement of claim was deficient because it did not plead that Mr Collier entered the premises at Erskineville with a relevant purpose but, as with Mr Sloan, I consider the pleaded particulars of the relevant allegation, found in para.79 of the statement of claim and which contended that “Mr Collier was exercising or seeking to exercise rights pursuant to s 481 or alternatively s 484 of the FW Act”, were sufficient to achieve that end.
It is sufficiently clear that Mr Collier entered the premises in order to speak to, at least, Mr Crino but there is no evidence that he attempted to, or did, speak to the Reds Global workers who were at the Erskineville site or attempted to, or did, investigate any suspected contravention of the FW Act, or term of a fair work instrument that related to or affected a member of the CFMEU. I am therefore not persuaded that the necessary purpose required for the engagement of ss.481 or 484 has been demonstrated, even if Mr Collier had been shown to have held the relevant FW Act entry permit. Consequently, as explained in the Laverton North and Cheltenham Premises Case at 136 [56], no s.484 right of entry, and by analogy no s.481 right of entry, arose in the circumstances.
Breach
Mr Collier
As it has not been proved that Mr Collier held a FW Act entry permit on 24 March 2014, the alleged breach by him of s.500 of the FW Act has not been proved
CFMEU
In the circumstances, no question of derivative s.500 liability on the part of the CFMEU arises in connection with the actions of Mr Collier.
Hornsby site
Contravention of s.500 of the FW Act
The Director alleged that at the Hornsby site on 24 March 2014 Mr Sloane exercised or sought to exercise rights under pt.3-4 of the FW Act, in particular under s.484, and acted in contravention of s.500 of the FW Act. The Director alleged that Mr Sloane had acted in an improper manner by indicating that the Reds Global cranes and crane crews could not operate when he had no authority to and by purporting to act because of concerns about safety when his real motivation was to make a response to the letter that Reds Global had given to Mr Cambourn on 21 March 2014.
The Director also alleged that by operation of s.793 of the FW Act, the CFMEU is taken to have contravened s.500 in the same manner as Mr Sloane was alleged to have contravened it at the Hornsby site.
Permit holder
Mr Sloane was a permit holder under the FW Act.
Entry on premises and purpose of entry
I find that Mr Sloane entered the premises represented by the Hornsby site and that, as he did in fact speak to Glen Pears as part of his discussions with Mr Karkkainen, and then subsequently spoke to him separately, that at least one of his purposes in attending was to hold discussions with members of the union working there as he said in his evidence. I find that in entering those premises Mr Sloane did so in the exercise of a right under s.484 of the FW Act.
Breach
Mr Sloane
For the reasons already given, I find that Mr Sloane’s stated concerns about manual handling training at the Hornsby site were a contrivance and that he had no genuine belief in his assertions that Reds Global’s cranes had to have Gotcha Kits.
Consequently, I find that Mr Sloane had no proper basis to tell Mr Karkkainen that it was unsafe for the Reds Global cranes to work until the manual handing training and the availability of Gotcha Kit issues were resolved. Doing so in those circumstances amounted to acting in an improper manner contrary to s.500 of the FW Act.
CFMEU
For the reasons also given earlier in relation to the Ultimo site I find that the Director has not made out the allegation that the CFMEU is to be taken to have breached s.500 in the same manner as Mr Sloane did at the Hornsby site.
MODEL LITIGANT
The respondents also submitted that in the discharge of his duties as a model litigant the Director should have called more witnesses than he did. The respondents pointed to the fact that the witnesses in this proceeding had mentioned various other individuals as being present at and having witnessed various things which might have been relevant to the case. However, the respondents did not identify why whatever rules or guidelines may apply to Commonwealth Government litigants, which were not introduced into evidence, or other obligations of whatever sort, which were not identified other than in a very general way, would have required the Director to take the steps for which they contended. It was not suggested that evidence held by the Director was not provided to the respondents. It was simply argued that his investigation should have been more intensive.
The traditional obligation on a government party to not be an oppressive litigation opponent, abusing its power and wealth, does not prevent such a party from exercising reasonable judgment and to limit case preparation to what is necessary to make out a case or defence. Importantly in this case, the respondents were aware of the potential witnesses to whom they referred. They could have interviewed and called them if they had wished. In the circumstances there has been no unfairness.
CONCLUSION
As a consequence of the findings which have been made, there will be declarations that:
a)on 24 March 2014 at the Ultimo Site: the CFMEU contravened s.50 of the FW Act by failing to follow the dispute resolution mechanism in cl.26 of the Enterprise Agreement after a dispute arose in relation to a work-related matter.
b)on 24 March 2014 at the Ultimo Site Mr Sloane, and by the operation of s.363 of the FW Act the CFMEU, contravened s.340 of the FW Act by taking adverse action against Reds Global because it proposed not to exercise a workplace right.
c)on 24 March 2014 at the Ultimo Site Mr Sloane, and by the operation of s.363 of the FW Act the CFMEU, contravened s.343 of the FW Act by taking action against Reds Global with the intention of coercing Reds Global to exercise a workplace right or to exercise a workplace right in a particular way.
d)on 24 March 2014 at the Ultimo Site Mr Sloane, and by the operation of s.793 of the FW Act the CFMEU, contravened s.417 of the FW Act by organising industrial action after the Enterprise Agreement was approved and before its nominal expiry date.
e)on 24 March 2014 at the Ultimo Site Mr Sloane contravened s.500 of the FW Act by, when exercising his rights under pt.3-4 of the FW Act, he hindered and obstructed Icon, Reds Global and the Reds Global employees present at the Ultimo Site and acted in an improper manner.
f)on 24 March 2014 at the Erskineville Site the CFMEU contravened s.50 of the FW Act by failing to follow the dispute resolution mechanism in the Enterprise Agreement after a dispute arose in relation to a work-related matter.
g)on 24 March 2014 at the Erskineville Site Mr Collier, and by the operation of s.363 of the FW Act the CFMEU, contravened s.340 of the FW Act by taking adverse action against Reds Global because it proposed not to exercise a workplace right.
h)on 24 March 2014 at the Erskineville Site Mr Collier, and by the operation of s.363 of the FW Act the CFMEU, contravened s.343 of the FW Act by taking action against Reds Global with the intention of coercing Reds Global to exercise a workplace right or to exercise a workplace right in a particular way.
i)on 24 March 2014 at the Hornsby Site Mr Sloane contravened s.500 of the FW Act by, when exercising his rights under pt.3-4 of the FW Act, he acted in an improper manner.
The matter will be listed for further directions on 30 August 2019.
I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 7 August 2019
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