DP World Pty Ltd v Rogers and the Electrical Trades Union of Employees Queensland
[2015] QIRC 190
•10 November 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | DP World Pty Ltd v Rogers and the Electrical Trades Union of Employees Queensland [2015] QIRC 190 |
PARTIES: | DP World Brisbane Pty Limited v Garry John Rogers and The Electrical Trades Union of Employees Queensland |
CASE NO: | WHS/2013/24 |
PROCEEDING: | Application to revoke WHS entry permit |
DELIVERED ON: | 10 November 2015 |
HEARING DATES: | 17 June 2013 (Mention) 3 October (Submissions in Reply) 18 November 2014 (Decision-matter referred for rehearing) |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Swan |
| ORDERS | 1. Application dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW - REVOCATION OF WHS ENTRY PERMITS - suspicion of asbestos on worksite - alleged breaches of WHS Act - allegations dismissed - no finding against union official. |
| CASES: | Work Health and Safety Act 2011 (Qld) |
| APPEARANCES: | Mr D. Pratt, Counsel instructed by K & L Gates, for the Applicant. |
Decision
DP World Brisbane Pty Ltd (the Applicant/DP World) seeks the following Orders, pursuant to section 138 of the Work Health and Safety Act 2011 (Qld) (WHS Act) against Mr Rogers (the First Respondent) as follows:
(a) "Revoking the First Respondent's right of entry permit; or
(b) Imposing conditions, including suspension, on the WHS entry permit holder to prevent further contravention, or improper exercise of the WHS entry permit holder's entitlements."
The primary allegation made by the Applicant is that on 23 January 2013, Mr Rogers, acting in his capacity:
(a) as an official of the Electrical Trades Union of Employees Queensland ("Union") that employed him;
(b) as a WHS entry permit holder within the meaning of the WHS Act;
entered the Applicant's premises at the Port of Brisbane in a manner that:
(c) contravened the conditions of the WHS entry permit; or
(d) constituted an improper exercise of the rights under the WHS Act; and
(e) intentionally hindered or obstructed:
(i)the Applicant in conducting its business; or
(ii)workers at a workplace.
Background to the Applicant's claim
On 18 November 2014, after hearing the substantial matter, it became evident that a preliminary step required under the Act had not been taken, before the matter was allocated to the Commission as constituted for hearing.
The matter was ultimately referred back to another member of the Commission for hearing relating to the issue of a Show Cause Notice required under s 139 of the WHS Act. That requirement having been completed, the matter returned to the Commission as constituted to determine the Application.
The Applicant's claim as to Matters to be Determined
The Applicant submitted that the "Issues to be determined" from its perspective were as follows:
"The Applicant contends that the First Respondent contravened the conditions of the WHS Entry Permit by:
(a) failing to meet the Applicant's reasonable sign-in process at the Applicant's Administration Centre which is a work health and safety requirement that applied to the premises [s 128 of the WHS Act];
(b) contravened the conditions of the WHS Entry Permit to comply with the Applicant's reasonable work health and safety requirements by failing to handle what Mr Rogers was claiming might be asbestos, and thus exposing himself and another worker to possible asbestos in the skip bin, by rummaging in the skip bin without:
(i)notifying the Applicant of such an activity;
(ii)notifying the Applicant or others nearby of such a hazard; or
(iii)wearing the appropriate personal protective equipment;
(c) entering the premises contrary to "(another) legislated requirement that applied to that type of workplace" - specifically, the relevant security zone provisions stipulated in the Maritime Transport and Offshore Facilities Security Act 2003 (Cth) (Maritime Security Act);
(d) failing to notify the Applicant:
(i)before entering the site (since it is submitted that the evidence leads to the conclusion that the First Respondent did not and could not have had a reasonable suspicion of a contravention of the WHS Act);
(ii)of the[sic] his presence on site as required by section 119 of the WHS Act at the earliest reasonable opportunity (if it is concluded that he did have the reasonable suspicion);
(e) failing to have reasonable suspicion that warranted entry onto the site without notifying the Applicant;
(f) failing to give notice of the proposed entry to the Applicant at least 24 hours before the entry when entering to consult on work health and safety matters with, and provide advice on those matters to the HSR worker; and
(g) conducting himself in an 'improper way' in the circumstances by:
(i)speaking aggressively and threateningly to members of the Applicant's management staff; and
(ii)telling workers to stop work."
Relevant Law
The WHS Act states:
WHS Act Division 2 Entry to inquire into suspended contraventions
117 Entry to inquire into suspected contraventions
(1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.
(2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.
119 Notice of Entry
(1) Before entering a workplace under this division, a WHS entry permit holder must give notice of the proposed entry and the suspected contravention to-
(a)the relevant person conducting a business or undertaking; and
(b)the person with management or control of the workplace.
(2) The notice must comply with a regulation made for this section.
(3) The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry.
Division 3 Entry to consult and advise workers
121 Entry to consult and advise workers
(1) A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, 1 or more relevant workers who wish to participate in the discussions.
(2) A WHS entry permit holder may, after entering a workplace under this division, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard of that risk.
122 Notice of entry
(1) before entering a workplace under this division, a WHS entry permit holder must give notice of the proposed entry to -
(a)the relevant person conducting a business or undertaking; and
(b)the person with management or control of the workplace.
(2) The notice must comply with a regulation made for this section.
(3) The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days before the entry.
Division 4 Requirements for WHS entry permit holders
123 Contravening WHS entry permit conditions
A WHS entry permit holder must not contravene a condition imposed on the WHS entry permit.
WHS civil penalty provision.
Maximum penalty—200 penalty units.
124 WHS entry permit holder must also hold permit under other law
A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or an industrial officer authority.
WHS civil penalty provision.
Maximum penalty—100 penalty units.
125 WHS entry permit to be available for inspection
A WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry under division 2 or 3, have his or her WHS entry permit and photographic identification available for inspection by any person on request.
WHS civil penalty provision.
Maximum penalty—100 penalty units.
126 When right may be exercised
A WHS entry permit holder may exercise a right under division 2 or 3 only during the usual working hours at the workplace.
WHS civil penalty provision.
Maximum penalty—100 penalty units.
127 Where the right may be exercised
A WHS entry permit holder may exercise a right of entry to a workplace only in relation to—
(a) the area of the workplace where the relevant workers work; or
(b) any other work area that directly affects the health or safety of those workers.
128 Work health and safety requirements
A WHS entry permit holder must not exercise a right of entry to a workplace under division 2 or 3 unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with—
(a) any work health and safety requirement that applies to the workplace; and
(b) any other legislated requirement that applies to that type of workplace.
WHS civil penalty provision.
Maximum penalty—100 penalty units.
129 Residential premises
A WHS entry permit holder must not enter any part of a workplace that is used only for residential purposes.
WHS civil penalty provision.
Maximum penalty—100 penalty units.
130 WHS entry permit holder not required to disclose names of workers
(1)A WHS entry permit holder is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace.
(2)A WHS entry permit holder who wishes to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker may only do so with the consent of the worker.
Division 5 WHS entry permits
138 Application to revoke WHS entry permit
(1) The following persons may apply to the commission for a WHS entry permit held by a person to be revoked—
(a) the regulator;
(b) the relevant person conducting a business or undertaking;
(c)any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under this part;
(d)any other person affected by the exercise or purported exercise of a right under this part by a WHS entry permit holder.
(2) The grounds for an application for revocation of a WHS entry permit are—
(a)that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth or for an industrial officer authority; or
(b)that the permit holder has contravened any condition of the WHS entry permit;
(c)that the permit holder has acted or purported to act in an improper way in the exercise of any right under this Act; or
(d)in exercising or purporting to exercise a right under this part, that the permit holder has intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace.
(3) The applicant must give written notice of the application, setting out the grounds for the application, to the person who holds the WHS entry permit and the union concerned.
(4) The person who holds the WHS entry permit and the union that the WHS entry permit holder represents are parties to the application.
140 Determination of application
(1) If the commission is satisfied on the balance of probabilities about any of the matters in section 138(2), it may make 1 or more of the following orders—
(a) an order imposing conditions on the WHS entry permit;
(b) an order suspending the WHS entry permit;
(c) an order revoking the WHS entry permit;
(d)an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked;
(e)an order imposing any alternative action the commission considers appropriate.
(2) In deciding what action to take under subsection (1), in relation to a person, the commission must take into account—
(a)the seriousness of any findings of the commission having regard to the object of this Act; and
(b)any other matters the commission considers relevant.
(3) A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 1999, chapter 9.
Division 7 Prohibitions
146WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace
A WHS entry permit holder exercising, or seeking to exercise, rights under this part must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper way.
WHS civil penalty provision.
Maximum penalty—100 penalty units.
Applicant witnesses
The Applicant called the following persons, all of whom work for DP World, to give evidence:
· Mr Mark Hulme (Director and General Manager - DP World);
· Mr Wayne Whitaker (Maintenance Manager - DP World);
· Ms McNamara (Safety and Environment Manager - DP World);
· Mr Gregory Muscat (Human Resources Manager - DP World).
Respondent Witnesses
The Respondent called the following persons to give evidence:
· Mr Garry Rogers (Organiser, ETU);
· Mr Shane Blair (Health & Safety Representative/employee at DP World).
The Applicant's Allegations
Because of the number of allegations, they will be considered under the following descriptions:
Allegation 1.
Mr Rogers not having a "reasonable suspicion" to warrant entry onto the site as occurred - [Section 117 (1) WHS Act "Entry to inquire into suspected contraventions"];Allegation 2.
Telephone Records - ["Telephone Records"];
Allegation 3.
Mr Rogers not notifying the Applicant of his intent to visit the site - [Section 122 (1)(a)(b) WHS Act; "Notice of Entry to be given to relevant person and management"];
Allegation 4.
The "sign-in" process undertaken by Mr Rogers - [Section 128 WHS Act, "Work health and safety requirements"];
Allegation 5.
The Maritime Transport and Offshore Facilities Security Act 2003 requirements
[Section 128 WHS Act, "Work health and safety requirements"];
Allegation 6.
Mr Rogers not giving DP World Management notice that he was on the site - [Section 122 WHS Act, "Notice of Entry"];
Allegation 7.
Mr Rogers and Mr Blair going near the skip in which Mr Roger's suspected
might contain asbestos ["Going near the suspect skip"];
Allegation 8.
PPE (Personal Protective Equipment) requirements - [Section 122 WHS Act, "Notice of Entry"];
Allegation 9.
Mr Rogers' alleged improper behaviour while on site:
·Speaking aggressively to Management;
·Telling workers to stop work - [Section 146 WHS Act, "Application to revoke WHS entry permit WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace"].
Background information concerning the progression of this matter.
As can be seen from the hearing dates mentioned in this decision, the matter spanned a considerable period of time. Issues including an administrative error where it was shown that the appropriate Show Cause process had not been undertaken prior to the matter being allocated and heard by the Commission as constituted required attention, as well as the production by the Applicant of telephone records from Telstra relating to Mr Roger's mobile phone. The matter proceeded with Mr Rogers given leave to respond to the Applicant's claims concerning the telephone records. To that end, Mr Rogers produced two Affidavits [Exhibit 8, 16].
The Asbestos Register
DP World held an Asbestos Register. This was because there is on site Asbestos Containing Material (ACM). An attachment to Exhibit 6 [Asbestos Resurvey Report for DP World Terminal Port Drive, Port of Brisbane, Queensland] highlights areas where asbestos is present on the site. A number of areas are identified as 'Posing low risk to health' where other areas state that there is low risk to health if left undisturbed [Exhibit 6 - pages iii and iv]. This Report was last updated in February 2010. The Register of ACM included the following areas:
·Terminal 4 Office Building;
·Terminal 5 Office Building;
·Terminal Wharf Toilet (adjacent to substation 4);
·Terminal Wharf Toilet (adjacent to substation 3);
·Terminal 5 Workshop;
·Wharf Water Pipe;
·Substation 1;
·Substations 2, 3, 4, 5, 6, 9;
·Substation 10;
·Toilet to north east side of substation 4.
Point 3.3 of the abovementioned Report states, inter alia, that:
"No inspection can be guaranteed to locate all asbestos"
"In practice it is generally impossible to locate all asbestos in the course of an inspection.
This is because of factors such as:
Restrictions of access to lifts, lift shafts and rooms, air conditioning duct work and airways and internal construction components;
Minimising inconvenience when premises or plant are in use whilst an inspection is being conducted;
The availability of building/plant construction plans."
The Report, under section 3.6 "Reliance on an asbestos inspection" states:
"The client must not rely upon an inspection or report as indicating that a site or building is "asbestos free". All that the report can be relied upon to show is that no asbestos was found (or that only such asbestos was found as was reported to have been found) in the course of the inspection. The findings of the report must be considered together with the specific scope and limitations of the type of inspection undertaken."
Also at point 3.5 "Asbestos is commonplace" includes inter alia that:
"From the early 1900s until the early 1970, asbestos was widely used in industry…
While major uses of asbestos were sometimes recorded on engineering drawings, there are few records of the ad hoc use of asbestos containing products and materials. To give examples from the building industry, plumbers frequently used asbestos fibre in caulking compounds and builders often used asbestos cement sheeting as packing under floor boards.
In short, asbestos could be almost anywhere in a building or plant constructed before the 1980's".
As a consequence of this and other matters raised in the Report, DP World was required to keep an updated Asbestos Register which it says was available for all employees to inspect.
In the course of her evidence, Ms McNamara said that the Asbestos Register was always kept current, with the exception of some inaccuracies which required an update of the Register. Ms McNamara said she was obtaining quotes for that purpose.
Background information concerning Mr Rogers
Mr Rogers is employed by The Electrical Trades Union of Employees ("ETU") in the position of Organiser. As of 2013, he had worked as a Union official/organiser for 14 years and has worked for the ETU for the past 10 years.
Mr Rogers is also an employee of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "CEPU").
Mr Rogers is responsible for coordinating the General Trade section of which DP World is a part.
Mr Rogers holds the following entry permits:
· Entry Permit to Enter Premises, issued under s 512 of the Fair Work Act 2009;
· WHS Entry Permit, issued under The Work Health and Safety Act 2011 (Federal WHS Entry Permit];
· Authority issued pursuant to s 364 of the Industrial Relations Act 1999;
· WHS Entry Permit, issued under the Work Health and Safety Act 2011 (Qld State WHS Entry Permit).
Mr Rogers states that he has never had any complaint/action taken against him during those years with regard to his use of any of the abovementioned Permits in any workplace Mr Rogers covers. He has no 'conditions' [s 123] attached to any of these Permits.
He also states that there had been no issue with entry into DP World over the three and a half to four years he had been visiting the site. This point is corroborated by DP World's site Manager, Mr Hulme.
Mr Rogers had made approximately 15-20 visits to the site over that time without incident.
In the course of his work as a Union official/organiser, Mr Rogers covered industries such as the airline industry, ports, food, oil, telecommunications and manufacturing. [Mr Rogers' affidavit - dated 13-03-2015 which was produced for the purpose of the 'Show Cause' notice and to which the Applicant raised no objection to the Commission considering for the purposes of this decision].
During the course of these proceedings, which have spanned some years, Mr Rogers had completed an "Entry Permit Holders Prescribed Training" course through the "Safe Work College" which, in accordance with Regulation 25 of the WHS Regulations, provides that entry permit training approved by the Regulator includes the following matters:
a. The right of entry requirements under Part 7 of the Act;
b. The issue resolution requirements under the WHS Act and Regulations;
c. The duties under, and the framework of, the WHS Act and Regulations;
d. The requirements for the management of risks under section 17 of the WHS Act;
e. The meaning of reasonably practicable as set out in section 18 of the WHS Act;
f. The relationship between the WHS Act and the WHS Regulations and the Fair Work Act 2009 of the Commonwealth (or any relevant State or Territory industrial laws).
[Completed on 12 December 2013]
Allegation 1 ["Entry to inquire into suspected contraventions"]
The Applicant did not accept that Mr Rogers had a reasonable suspicion that there might be asbestos in one of its skips at DP World - [S117 (1)]
Mr Whitaker believed that Mr Rogers and Mr Blair did not have a genuine safety concern, but had used the occasion of Mr Roger's visit to the site for an "ulterior purpose" [Exhibit 3 paragraph 35]. What exhibited the "ulterior purpose", from the Applicant's perspective, was the way in which Mr Rogers had come onto the site, together with his alleged behaviour while on site and this, in its view, was done for the purpose of "engage[ing] in a Union demonstration for the workers rather than for legitimate work health and safety purposes."
Mr Rogers claimed that he held a reasonable suspicion that there might be asbestos in a skip at DP World as a consequence of a number of phone calls made to him by workers from DP World on 23 January 2013.
Under the WHS Act at s 130, Mr Rogers is not required to identify the names of persons who had called him on that day. However, reference was made to communications he had with Mr Blair who was on site at DP World on 23 January 2013.
Under the heading of "Telephone Records", a record of calls made to and from Mr Rogers' mobile telephone on that day have been itemized. The records do not include calls made to and from Mr Rogers which are claimed to have been made from his land line telephone at his workplace on that day.
The Applicant has questioned whether Mr Rogers did receive telephone calls on his mobile at times nominated by him in the first part of the hearing. What had not been considered, as it had not arisen in the first part of the hearing, was that Mr Rogers' evidence was that, in conjunction with using his mobile phone on 23 January 2013, he had also utilized his land line work phone when he had gone into the ETU office on 23 January 2013. There had been no request made by the Applicant to investigate Mr Rogers' land line use on that day.
Concerning whether Mr Rogers held a "reasonable suspicion" as to the possible presence of asbestos in the skip at the DP World site, the following cases have been considered:
Kitto J, considered the meaning of 'reasonable suspicion' as:
"A suspicion that something exists is more than a mere idle wondering whether it exists or not: it is a positive feeling of actual apprehension or mistrust, mounting to "a slight opinion, but without sufficient evidence", as Chamber's Dictionary expresses. Consequently, a reason to suspect that a fact exists is "more than a reason to consider or look into the possibility of its existence."[1]
In George v Rockett[2] it is stated:
"It does not require proof on the "balance of probabilities". It is an inclination of the mind towards assenting to, rather than rejecting, a proposition."
[1] Queensland Bacon Pty Ltd v Rees [1966] HCA 115.
[2] George v Rockett (1990) 170 CLR 104; 93 ALR 483; [1990] HCA 26.
In Tucs v Manley[3] it is stated:
[3] Tucs v Manley (1985) 62 ALR 460.
"To say that a suspicion is reasonable does not necessarily imply that it is well
founded or that the grounds for suspicion must be factually correct."
I have accepted Mr Rogers' evidence that he had received telephone calls from concerned employees at DP World and his concern was more than a "mere idle wondering" whether or not 'something exists' or not. I have accepted that the issue of asbestos is a very emotive issue in the workplace and one, if suspected, one would think requires immediate investigation.
Mr Rogers, at the time, was also aware of "one or more communications alleging that supervisors and management were not acting on the concerns".
I accept that Mr Rogers satisfied the requirement of s 117(1) WHS Act that he "must reasonably suspect before entering the workplace that the contravention has occurred or is occurring."
This finding is also underpinned by the reasons for the decision considered under "Telephone Records".
Allegation 2 - ["Telephone Records"]
Before considering the question of the Telstra telephone records, s 130 of the WHS Act requires consideration:
130 WHS entry permit holder not required to disclose names of workers
(1)A WHS entry permit holder is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace.
(2)A WHS entry permit holder who wishes to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker may only do so with the consent of the worker.
Mr Rogers, after giving his initial evidence at the commencement of the hearing, was permitted to respond to evidence produced by the Applicant later in the hearing concerning telephone records. The content of that evidence is contained in Exhibit 16.
The Applicant claimed that Mr Rogers' later evidence had altered to some degree from the evidence he had first given to the Commission.
Mr Rogers, in his first Affidavit, says that he was first made aware of safety issues at the DP World site on the morning of 23 January 2013 through the receipt of telephone calls from workers.
Mr Rogers stated that these calls were made from workers at that site to him on or about the following times on his mobile phone: 10.45am; 11.35am; 12.15pm (message); 12.40pm (message); 12.45am; a call from Mr Rogers to Mr Blair and message left; 1.55pm (discussion between Mr Rogers and Mr Blair). Mr Rogers had also said that he had received a call from a DP World worker around 9.20am on 23 January 2013.
Mr Rogers' evidence was that when he had decided to visit the DP World site, he intended calling both Mr Hulme and Mr Muscat, but as he was away from his office he did not have their direct numbers. However, he had a discussion with one worker who was asked to see if management could be contacted and the matter could be resolved on site and he also thought he had asked Mr Blair to do likewise.
Concerning the call between Mr Rogers and Mr Blair on or around 1.55pm on 23 January 2013, Mr Rogers advised him that workers at the site had expressed concerns about asbestos in the skip. Mr Blair said that he was unaware of what asbestos looked like and in his HSR role he had asked the Safety Manager for the Asbestos Register and it had not been given to him.
The Applicant said that later evidence given by Mr Rogers in his Supplementary Affidavit and further evidence (dated 23 July 2014) contradicted the evidence he had first given to the Commission as to times etc. of various phone calls he alleged to have received or made.
As a consequence of evidence given concerning Mr Rogers' mobile telephone the following was stated by the Applicant:
· That Mr Rogers' mobile phone did not record a call made at 9.20am.
· That Mr Rogers' mobile phone had not recorded a call at or around 10.45am or a message.
· That at 1.08pm a call was diverted to Mr Rogers' message bank from an unknown number. There was no call recorded at 11.35am.
· That an SMS message was received on Mr Rogers' mobile phone prior to 11.35am, from a call recorded having been made at 7.57am.
With regard to conversations Mr Rogers had with Mr Blair on that day, Mr Rogers' records show that he had left a message on Mr Blair's phone. No time period had been nominated by Mr Rogers as to when this call occurred on that day. The Telstra records show that Mr Rogers spoke to Mr Blair for about 10 minutes at that time. There was no message from Mr Blair which had been diverted to Mr Rogers' mobile phone on that day.
Mr Rogers had said that he had phoned Mr Blair at around 12.45pm, but the records show that calls were made to Mr Blair at 11.48am (for ten minutes); at 12.31pm (two minutes) and 1.29pm (one minute).
Mr Rogers said he had a call (message bank) around 12.40pm from a DP World worker. The Telstra records show that Mr Rogers' message bank recorded the call at 1.08pm and that Mr Rogers accessed his message bank at 10.26am and 10.30am and 1.09pm.
Mr Rogers' evidence in his Supplementary Affidavit is to the effect that:
· He uses both a landline from his office and his mobile phone in the course of doing his work.
· Within a limited time frame, his landline phone diverts calls from the landline to his mobile phone.
· Mr Rogers has been able to look at his incoming and outgoing calls as per the Telstra records (as it relates to his mobile phone).
· When he had prepared his original statement on 23 January 2013, he had relied upon notes which represented a rough summary of times and events based upon recollections from 23 January 2013. He no longer has those notes in his possession.
· His first phone call on 23 January 2013 was made to him by a person who is a member of the MUA. He explained that his original recollection of that call was inaccurate for which he apologized.
Mr Rogers restated that to the best of his knowledge the calls referenced by him occurred, and the times nominated were to the best of his recollection. The calls were either made and/or received on his mobile phone or his landline work telephone.
The Telstra records do however show that a number of calls did occur between workers at DP World and Mr Rogers on 23 January 2013.
On the basis of the content of these calls, he suspected that there had been a contravention of the Work Health and Safety Act2011 by DP World.
Mr Rogers created a schedule of calls that are relevant to this Application made to and from his mobile phone based upon the telephone records provided by Telstra [Exhibit 16].
The admission of Exhibit 16 into evidence was not challenged by the Applicant.
That record shows that in all approximately 22 calls were made or received by Mr Rogers on 23 January 2013 from persons at DP World or from him to DP World between the times of 11.48am and 4.68pm. These were calls relating to his mobile phone only and not calls which were received or sent from his landline telephone. This is a significant number of calls and is significant evidence that Mr Rogers had been notified concerning something of some moment on site at DP World. To suggest that the calls may have been about matters other than the suspicion of asbestos on site is not credible given that the events of the day show that Mr Rogers did attend the site to inspect the skip which may have contained asbestos.
After considering all of this evidence, and being conscious of the fact that this matter has been heard over a lengthy period of time, there is no doubt that there were telephone communications to Mr Rogers from persons at DP World and also from Mr Rogers to DP World. The fact that the times identified from Telstra records were not always the times nominated by Mr Rogers does not surprise me. In forming that view, I have accepted, on the balance of probabilities, that Mr Rogers during the course of the day on 23 January 2013 received and made calls on his work landline.
It is also clear that, when Mr Rogers was provided with the mobile telephone records from Telstra, prior to giving his later evidence, he had difficulty understanding how the records were collated. While Mr Rogers had only a short period of time to consider the Telstra mobile telephone records, he would have had no way of knowing that the times for calls were recorded using New South Wales time (i.e. during daylight saving) and the calls were one hour different to what would have been recorded in Queensland. As well, a suite of identical numbers were grouped together on the records and the reason for this required clarification. This clarification was only provided during the course of hearing from Telstra and Mr Rogers was required to respond to this very shortly thereafter. It was not a document which was easily understood and this was acknowledged by the Applicant and the Commission. That does not detract from the fact that they were Telstra records, but in relation to Mr Rogers' response to questions posed around some of those records, the margin for error could not be disregarded.
I have accepted that the type of work performed by Mr Rogers required him to be either making or receiving telephone calls during the course of the day and evening. I also accept that the type of work performed required him to be in and out of his workplace on a reasonably regular basis.
In forming this view, I have also taken into account that on the morning of 23 January 2013, Mr Rogers was involved in dealing with a serious electrical incident together with conversing with the affected member's wife together with his other duties. It is accepted that he would have been concentrating on those issues as well as the issues raised by workers at DP World on that day.
Allegation 3 - ["Appropriate notice to DP World Management"] - [s 119]
Mr Rogers' evidence was that he had received phone calls on 23 January 2013 in the morning from various persons raising concerns about the possibility of asbestos being in the skip at the DP World site.
Mr Rogers said that he had advised one of these earlier callers to notify Mr Blair or the Site Manager and to request to see a copy of the site Asbestos Register. As previously cited, he also advised the caller if the matter couldn't be sorted out on site, then the Site Manager Mr Hulme should be contacted
I have accepted that as Mr Rogers was outside his office and did not have the telephone numbers of relevant management persons at DP World with him, he made this request to the caller and it is reasonable to accept Mr Rogers' claim that his advice would have been followed. Even if it wasn't adhered to by the worker, it doesn't follow, of necessity, that Mr Rogers' evidence on that point should be rejected.
Mr Blair was aware that Mr Rogers was coming to the site and he had told this to his supervisor, Mr Galvin [T4-49].
In the circumstances of this matter, I have found that Mr Rogers did as much as he could to notify DP World of his pending visit. I accept that requests from him to complainants initially was for them to raise the issues with Management and see if the matter could be sorted out on site. Apparently, this did not occur, but Mr Blair advised his Supervisor, Mr Galvin that Mr Rogers was attending the site and that he and Mr Rogers would be dealing with WHS matters on site. Given the discussions between Mr Rogers and Mr Blair during that day, Mr Rogers believed that the nature and timing of his visit would have been explained by Mr Blair to management as Mr Blair was the HSR representative on site. By the time Mr Rogers had arrived at the site, he was aware that Mr Galvin and presumably management knew he was on site but he was unaware that his advice to complainants had not been heeded.
Allegation 4 - ["Sign-in process"] s 122 - "Notice of Entry"
Mr Rogers denies that he failed to sign-in to the worksite properly. The Respondent's submissions state that "as he was being escorted onto the site by the site HSR whom he believed to be trained in the entry and sign in process, he did not read the full entry made by the HSR on the sheet, but just signed where the HSR indicated."
Mr Rogers was issued with the pre-requisite swipe card which permitted his access to the workshop area of the site.
Mr Rogers had never undergone any induction process concerning his entry onto this specific site, despite the Applicant stating that there would have been an initial induction process followed by 12 monthly refresher courses (Mr Whitaker's evidence).
Mr Rogers was generally aware of the Maritime Transport and Offshore Facilities Security Act 2003 and its applicability to this site, however, DP World had never required any specific procedure relating to that Legislation in terms of entering the property. He was unaware that he was required to have a MSIC card or other security clearance as this had not been required on all of the prior occasions when he had entered the site and the issue had never been raised with him on those occasions.
Mr Rogers' entry onto the site on 23 January 2013 was consistent with the process by which he had previously been admitted to the site via the Maintenance Workshop Security Gate - he had visited the site around 15 - 20 times previously and on at least 8 ‑ 9 of those occasions he had been admitted via that Workshop entrance without complaint from DP World. He states that he was always escorted onto the site by either Mr Blair (the HSR representative) or Mr Muscat. Nothing about this entry differed from others.
In considering this allegation, I have taken into account a number of factors. One factor was Mr Hulme's evidence that Mr Rogers had always signed in appropriately on prior visits. Mr Rogers' evidence is that he followed the same process as before for signing in on the occasion in consideration. The fact that Mr Rogers did not read the full entry signed by the HSR on the sign-in sheet, but simply signed the form himself must, in my view, be considered within the context of him signing-in, in the presence of the HSR. He unsurprisingly, in my view, considered that the HSR continued to know what he was doing. Further, Mr Rogers' said the process adopted by him on that day was no different to any other day when he visited DP World.
Mr Rogers accepts that he did not read the full entry on the sign-in sheet but signed where indicated. I have accepted that he had relied upon Mr Blair to put the appropriate commentary on the form. That is not an unreasonable expectation given that there is no evidence at all to suggest that he had ever entered the site without going through the appropriate procedures previously.
Ms McNamara then explained the processes undertaken by DP World in its induction programs with regard to incident reporting, hazard awareness, safety regulations and internal policies and procedures. As it related to conducting the same induction process for visitors to the site, Ms McNamara she thought it would have happened, but she did not say that she had done this herself.
Given that the Applicant had never had any prior issues with Mr Rogers' entry into the site (at the sign-in point), I have been unable to find that anything follows from the allegation- i.e. that Mr Rogers failed to comply with the Applicant's sign-in process on this occasion.
Allegation 5 - ["Maritime Act Requirements"]
This matter has been considered under heading "Allegation 4".
Allegation 6 - ["On-site Notice"]
The Applicant has stated that Mr Rogers was on the site for around 35 minutes prior to it gaining any knowledge of this.
Mr Rogers' and Mr Blair's evidence was that Mr Rogers had been on site for around 5 minutes and at most 10 minutes.
When Mr Rogers arrived at the DP World site, Mr Blair said that he had told Mr Galvin, his Supervisor, that he was going to perform some HSR duties and that the Union official was going to assist him. Mr Galvin was not called to give evidence by the Applicant. However, the Applicant's evidence is that it was Mr Galvin who had advised Mr Whitaker that Mr Rogers was on the site. It can be accepted that Mr Galvin was aware that Mr Rogers was on site and that he had not prohibited Mr Blair from going to see him [T4‑49].
Given the type of activity undertaken by Mr Rogers and Mr Blair at that time, I have accepted that they were on site for a short period of time before Mr Galvin advised Mr Whitaker of Mr Rogers' presence.
Considering this evidence, it seems clear that the usual notification was not given by Mr Rogers personally to DP World Management of his presence on site, but I accept that Mr Rogers held the belief that Mr Blair had not only advised Mr Galvin but also management.
Given that I have accepted, on balance, that Mr Rogers had advised one of his callers and Mr Blair to contact management concerning this issue of a suspicion of asbestos at the site, it is not unreasonable to accept that Mr Rogers, being told by Mr Blair that Mr Galvin was aware of his presence, had reason to also retain the belief that management had been advised of his presence on site by a complainant.
Allegation 7 - ["Going near the suspect skip"] and
Allegation 8 - ["PPE Equipment"]
Mr Rogers had worn the following PPE when he visited the DP World site on 23 January 2013. He wore a high visibility vest, hard hat and safety glasses.
The Applicant questioned Mr Rogers' claim that he had held a genuine suspicion that there was asbestos in the skip because he was not completely attired in PPE when he climbed up a ladder to investigate what was inside of the skip. The Applicant also claimed that Mr Rogers had exposed Mr Blair to possible hazardous waste in the skip.
Mr Rogers visited the site because of complaints made by some employees of DP World. The employees wished him to visit the site because of the possibility of asbestos being placed in a skip at the worksite which had been there for some weeks.
Mr Rogers' evidence was he had significant training in asbestos in a workplace, but on that day he requested that one of the phone callers from DP World raise the matter with management and attempt to have the matter resolved on site. This did not occur, hence his arrival at the workplace. I have accepted that evidence.
Tucs states that for a suspicion to be reasonable, it does not necessarily imply that it is 'well founded' or that 'the grounds for suspicion must be factually correct.'
With Mr Rogers' knowledge and training concerning asbestos in the workplace, I am of the view that he understood the nature of the cursory examination he undertook. He looked at the inside of the skip (from a ladder) and thought that one piece of material on the top of the skip could be investigated.
Until a finding could be made, Mr Rogers advised two contractors nearby of his suspicions and they moved away from the skip where they continued to do their work.
In Mr Blair's case, his view was that he and other workers had already been exposed to the skip for some three weeks and standing near the skip was no different to what he had done when he walked past the skip on many occasions previously. Mr Blair had relied on Mr Rogers' knowledge of asbestos as he submitted that he didn't know much about asbestos. That was Mr Blair's decision to make.
I have taken into consideration the circumstances surrounding Mr Rogers' arrival at the site on that day. The visit was made in circumstances where he had been otherwise busy dealing with an injured electrician on another site; he thought an employee he had spoken to earlier had advised management; his expertise in asbestos related matters and the fact that he no proof that there was asbestos was in the skip and the fact that he had a suspicion, not "well founded", which required investigation. The investigation involved a cursory look at the skip.
In these circumstances, I have not found that he breached any on-site Policies or procedures.
Allegation 9 ["Improper behaviour"]
· Telling workers to stop work ["Improper Behaviour] s 146
At around 2.30pm on 23 January 2013, Mr Hulme was advised by Mr Whitaker that Mr Rogers had been on the site for 35 minutes and had said that there was asbestos in the skip and that he had cleared the workshop.
Mr Rogers' evidence was that when he approached the skip he had seen two contractors working near the skip. He advised them of the reason for his visit and they moved away from the skip and continued their work within the maintenance shed.
Mr Rogers then said that he and Mr Blair had gone into the workshop and advised workers of their concerns and said that until the matter was clarified one way or the other, they should talk to their supervisors. He states that he did not tell employees to stop work or leave the site. I have accepted that evidence.
The evidence later given by Mr Hulme shows that to be the case. Mr Hulme attended the workshop and the following approach was agreed upon:
· Isolate the area as far as possible and move employees from the area until the material had been tested. Clearly the workers had not moved from the area.
· Barricade the area around the bin and mark with danger tags.
· Turnstiles were to be blocked to keep people away from the area.
· Arrangements to be made for the testing of the material.
I have not found anything untoward in the course of action taken by Mr Rogers at the time. He did what was required of him in the circumstances and I have accepted that at no time did he tell employees to stop work. The Applicant has produced no evidence to show that this occurred and the actions taken by Mr Hulme show that not to be the case.
· Speaking aggressively to Management ["Improper Behaviour"] s 146
Mr Whitaker was advised on 23 January 2013 by Mr Ross Galvin (a supervisor) that Mr Rogers was on site and that "he was rummaging in the skip bin".
Mr Whitaker was aware of the skip bin and that it had been on site for around 2 to 3 weeks and it contained scrap material from renovations that had been undertaken in the workshop.
He was aware that the previous renovations had only occurred some 4 years earlier.
Mr Whitaker approached Mr Rogers and asked him what he was doing and he said Mr Rogers replied "there's asbestos in this bin".
[100]Mr Whitaker, Mr Rogers and Mr Blair had a discussion where Mr Whitaker again asked Mr Rogers what he was doing on site to which he says Mr Rogers replied "I have been requested to attend by some of the workshop employees because they suspect there is asbestos in the bin".
[101]Mr Whitaker said he told Mr Rogers that he should have come to see him first. He claims that Mr Rogers told him to get out of his way as he was obstructing him and that he would have him arrested by the Federal Police. Mr Whitaker agreed that he had told Mr Rogers to "fuck off out of my workshop".
[102]Mr Whitaker said a verbal altercation ensued. By this time Mr Hulme had arrived at the location.
[103]Mr Whitaker said he told Mr Rogers that he had no problem with Mr Rogers being on the site, but that he should have undertaken the appropriate procedures.
[104]Around this time, it was apparent that an asbestos inspector was on the site and he looked into the skip and said he was 99% sure that there was no asbestos in the skip but did take one piece of the material away for testing. At a later stage, the asbestos contractor had spoken to Mr Whitaker and told him that there was no asbestos in the sample he had taken.
[105]Mr Rogers' evidence was that he provided on request his WHS entry permits to Mr Whitaker.
[106]He said that Mr Whitaker became agitated and said that Mr Rogers had broken the law by coming onto the site and that he would 'make him pay' for so doing. Mr Whitaker also told Mr Blair that he would make him pay and that he would "have" Mr Blair's job.
[107]Mr Rogers then stated that Mr Whitaker came to within 50mm from his face and said "You have no right to be here there is no asbestos on this site or in that bin!" While Mr Whitaker was speaking Mr Rogers said that "he was spitting saliva onto my face and I could see that he was very red in the face and was perspiring heavily and couldn't maintain eye contact." Mr Whitaker said "you have broken every rule in the book!" . "He then started pacing back and forward and I took a step backwards. Mr Whitaker began pacing again and muttering words to the effect of it's my job to fix this and they can't do this to me" [Exhibit 8 - point 21].
[108]Mr Rogers' further evidence was that Mr Whitaker stepped towards him and clashed the brim of his hard hat with Mr Roger's and said "There is no asbestos on this site you will pay for this". Mr Rogers added "As Mr Whitaker spoke he was again spitting saliva on to my face. I said "fuck off" and turned my head. As I wiped his saliva from around my mouth and nose I said "Shit" [Exhibit 8 - point 22].
[109]Mr Whitaker demanded that Mr Rogers leave the site. Mr Rogers said that Mr Whitaker was very agitated and he noticed that as Mr Whitaker moved to the right of him, his hand was clenched in a fist and Mr Rogers believed that Mr Whitaker was going to hit him. Mr Rogers said "You do not have my permission to touch me". Mr Rogers added "If you want I will ring the police and have them deal with this Wayne" [Exhibit ‑ point 23].
[110]Ms McNamara said Mr Rogers said words to the effect "DP World has breached the Act by exposing workers to asbestos. I've been called in to shut this place down." Ms McNamara stated that Mr Rogers had spoken in an aggressive manner.
[111]Mr Rogers agreed that when Mr Whitaker became aggressive he reacted in a 'forceful' manner. Mr Blair's evidence corroborated that of Mr Rogers in relation to Mr Whitaker's anger and demeanor on that day. I have preferred the evidence of Mr Rogers and Mr Blair over that of Mr Whitaker. I have accepted that Mr Rogers also used inappropriate language at the time, but that he was severely provoked at the time by Mr Whitaker standing hat to hat with him and with Mr Rogers having to wipe saliva off his face.
[112]Mr Hulme, at around 2.30pm on 23 January 2013, was advised by Mr Whitaker that "There is an issue on site involving the ETU. Garry Rogers is on site and has been for about 35 minutes, Garry Rogers says we have asbestos in a skip and he's cleared the workshop." That advice given by Mr Whitaker concerning the clearing of the workshop by Mr Rogers was clearly wrong. The decision to clear the workshop was only ever made and expressed to employees by Mr Hulme.
[113]Mr Hulme caught up with Mr Rogers and asked him what he was doing on site. Mr Rogers told him that he had been called by Mr Shane Blair regarding the possibility of asbestos on the site and that he would be issuing the business with an improvement notice.
[114]A discussion ensued between Mr Hulme and Mr Rogers concerning Mr Rogers' authority to be on the site and Mr Rogers provided his Permit Entry documents. Mr Hulme said Mr Rogers' behaviour was both challenging and aggressive at the time. Ms McNamara's evidence was that Mr Rogers behaved in an aggressive manner. She claimed that he had told her that "If you don't do something quickly, I will issue you with an improvement notice." Neither Ms McNamara nor Mr Hulme were present at the time of the altercation between Mr Rogers and Mr Whitaker.
[115]Mr Rogers said that he had not conducted himself in an improper way, but given the response from Mr Whitaker, he was concerned "and would have expressed himself forcefully".
[116]It was only upon Mr Hulme's arrival at the area where Mr Rogers and others were standing that the debate became less agitated and more realistic in relation to the circumstances at hand.
[117]An agreement was reached between Mr Rogers and Mr Hulme as to what steps should be taken in the circumstances.
[118]Mr Rogers had stated that he had not been on the site for 35 minutes until 'discovered' by management. His evidence and that of Mr Blair estimated the time period to be no more than 5-10 minutes which I accept.
[119]Mr Hulme said a discussion occurred between Ms McNamara and Mr Whitaker as to what steps should be taken to make the area safe, if there was in fact any risk of asbestos being in the skip. Mr Hulme said that employees working in and around the workshop were given alternative duties away from the workshop.
[120]Mr Hulme said once the steps were identified he arranged for a meeting in the Administration Office [Exhibit 2].
[121]A meeting was held and those present were Mr Whitaker, Ms McNamara, Mr Rogers, Mr Blair and Mr Hulme. Mr Hulme advised that he respected the right for the Union's entry concerning any possible breach on site, but that he had not been advised until some 35 minutes after Mr Rogers had come on site.
[122]The meeting reached what Mr Hulme and Mr Rogers viewed as an 'agreed position' and Mr Hulme's notes were as follows:
"do we all agree that the area has been roped off;
do we all agree that we have contacted someone who will come and test the material and this is a satisfactory step;
the matter will become the subject of a toolbox talk on subsequent shifts;
the contractors who are doing the renovations will be asked to stop work until testing is done on the material;
we will stop access to the area;
we will consider signage to advise people about the possibility of asbestos".
To those propositions, all present at the meeting agreed.
[123]Reference was made by Mr Hulme to the existence of the site Asbestos Register. Mr Rogers questioned whether the Register was up to date. Initially, Ms McNamara said it was only required to be updated every few years and therefore the register was still compliant. In later evidence, Ms McNamara said there were some inaccuracies with the Register and that she was going to get quotes to update it.
[124]Mr Hulme was clear that he respected the Union's right to visit the site and that on prior occasions when Mr Rogers had visited the site he had adhered to all of the protocols and requirements in terms of going to the administration building, signing the visitors' book and had been accompanied into the secure area by a person authorized by management. He reminded Mr Rogers that if he visited the site again, he should continue with his past practices of adhering to protocols and requirements. Mr Rogers said that Mr Hulme had told him once the agreed processes were over that was the end of the matter as far as he was concerned.
[125]I have not found that Mr Rogers behaved in an improper manner towards management. I accept that the discussion between Mr Rogers and Mr Whitaker was heated, but I have preferred the evidence of both Mr Rogers and Mr Blair over that of Mr Whitaker.
Consideration of the evidence and conclusion
[126]Over such a period of time there have been many submissions made and documentary material provided to the Commission. That material, while not necessarily cited in this decision, has been duly considered.
[127]Notwithstanding the "stop/start" nature of these proceedings, other than the request by the Union to hear further evidence from Mr Rogers pertaining to the telephone records matter, there was no other request from either party to recall any other witness for the purpose of clarification or rebuttal of evidence given over this period of time.
[128]Findings have been made at the conclusion of each allegation. I have not been persuaded that the penalties sought to be imposed against Mr Rogers are warranted in the circumstances of this case.
[129]In forming this view, I have taken into account a number of factors.
[130]Amongst the raft of Legislative provisions of the WHS Act which have been cited in this decision, it is relevant to consider the "Object" of the WHS Act which includes the following:
"3 Object
(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by -
(a)protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and
(b)providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and
(c)encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and
(d)promoting the provision of advice, information, education and training in relation to work health and safety; and
(e)securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
(f)(ensuring appropriate scrutiny and review of actions by persons exercising powers and performing functions under this Act; and
(g)providing a framework for continuous improvement and progressively higher standards of work health and safety; and
(h)maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in Queensland.
(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable.
[131]Factors also taken into consideration in determining this matter include:
· Mr Rogers' has been a Union Official for many years. He has never had a 'condition' placed on any of his Entry Permits notwithstanding the range of national industries which he covers [Section 123 WHS Act "Contravening WHS entry permit conditions"].
· Mr Rogers has visited the DP World worksite between 15 to 20 times over a four year period with no complaint made by him or management with regard to the performance of his work or DP World's obligations over that period of time.
· Mr Rogers has undertaken continued training with regard to Legislative Right of Entry provisions and Health and Safety training (particularly concerning asbestos) over that time period - the last course undertaken at the end of 2013.
[132]I have accepted that Mr Rogers held a genuine 'suspicion' of asbestos at DP World site on 23 January 2013 sufficient to satisfy s 117 of the WHS Act.
[133]It is accepted that there were a significant number of telephone calls being made either by Mr Rogers or to Mr Rogers from DP World employees on 23 January 2013 either on his mobile phone or his land line phone at his workplace. That evidence has been accepted by the Commission of being supportive of Mr Rogers' claims concerning his entry onto the site on 23 January 2013.
[134]I have accepted that, as Mr Rogers was involved in other urgent Union business on that day that he had advised callers and Mr Blair to contact Management to see if the matter could be resolved on site. Mr Rogers was aware that he was required to call Management, but as he could not quickly locate the telephone numbers for particular management personnel, he had spoken to callers advising them to do so, but he was not aware that those employees had not done this until he was on the site. Mr Galvin, having been advised by Mr Blair, was aware of Mr Rogers' presence on site on 23 January 2013 [Section 119 WHS Act "Notice of Entry"].
[135]It is accepted that in the course of that day Mr Rogers had attempted to acquire whatever information he could from DP World employees in relation to their concerns. While he personally had not contacted management (but believed that others had) he would appear prima facie to be in breach of s 119 of the Act. I have formed the view that there were mitigating circumstances, to which reference has been made, that require consideration. Within the context of those circumstances, the alleged "breach" would not warrant the revocation of Mr Rogers' Right of Entry Permit or the imposition of "conditions" on that permit.
[136]I have accepted that Mr Rogers undertook the same procedures that he had always done when he entered DP World site on 23 January 2013 [Section 119 WHS Act "Notice of Entry"].
[137]I have not accepted that Mr Rogers entered the DP World site on 23 January 2013 for an "ulterior purpose" as alleged by the Applicant. The only reference to an "ulterior purpose" was made by Mr Whitaker who believed that Mr Rogers' entry onto the site on 23 January 2013 related to a "demonstration" being undertaken by him for the benefit of the workers and not for a genuine reason. There is no validity to that claim in my view.
[138]Mr Rogers' entry onto the site that day is set against the background of the DP World site containing an Asbestos Register, the significance of which has been described in paragraphs [12 - 16] of this decision.
[139]It is common knowledge that 'asbestos' is an emotive word in an environment where asbestos is known to exist notwithstanding the prescriptive requirements on the owners of the site to manage and monitor what is known to exist.
[140]It is not accepted that Mr Rogers told employees at the site to stop work. It is accepted that he told workers of his suspicion and that they were to speak to their Supervisors concerning the continuation of their duties. With regard to the contractors working near to the skip, Mr Rogers rightly advised them of the suspicion and they determined to continue to perform their work away from the skip. While Mr Rogers may have spoken to management about employees discontinuing their work in the workshop that is an entirely different matter to telling workers they were to stop work. It was Mr Hulme's decision to implement the following procedures:
(a) isolate the area and move employees away until the material had been tested;
(b) barricade the area around the bin and mark with danger tags;
(c) block the turnstiles to keep people away from the area: and
(d) arrange for the material to be tested.
[Section 146 Act, "WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace"].
[141]It is accepted that Mr Rogers was on the site from between 5 to 10 minutes before speaking to Mr Whitaker and not 35 minutes as claimed by the Applicant. This time frame is agreed with by Mr Blair.
[142]It is accepted that Mr Rogers was involved in an altercation with Mr Whitaker. I also accept the evidence of Mr Rogers and Mr Blair to that of Mr Whitaker. Mr Whitaker confirmed that he had told Mr Rogers to "fuck off out of his workshop" and the evidence of both Mr Rogers and Mr Blair is accepted in that Mr Whitaker reacted angrily and aggressively to the suggestion that there might be a suspicion of asbestos in the skip [Section 146 WHS Act, " WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace"].
[143]It is also accepted that when Mr Hulme and Ms McNamara arrived at the location where Mr Rogers, Mr Blair and Mr Whitaker were, Mr Rogers remained in an agitated state as a consequence of Mr Whitaker's actions towards him. Both Ms McNamara and Mr Hulme, who attended the area after the altercation, claimed that Mr Rogers was behaving in an aggressive manner and, while such behavior may not be appropriate under normal circumstances, it was, in my view, understandable under these abnormal circumstances [Section 146 WHS Act, "WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace"].
[144]I have accepted that Mr Rogers gave an accurate and truthful account of events on 23 January 2013. I accept that evidence given in later hearings in 2015 relating to events which occurred in early 2013 could not be precisely recollected. However, all documentary and oral evidence has been duly considered.
[145]It is accepted that when Mr Hulme, Mr Rogers and others, addressed the issues at a meeting instigated by Mr Hulme, a collaborative and satisfactory result was recorded by attendees.
[146]The Applicant has been unable to establish that Mr Rogers failed to comply with his obligations pursuant to the WHS Act to the extent that his Right of Entry Permit should be revoked or that "conditions" should be imposed upon Mr Rogers with regard to that Right of Entry Permit.
[147]The application is dismissed.
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