Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (M1 Yatala Exit 41 Case) - [2024] FedCFamC2G 340

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (M1 Yatala Exit 41 Case) [2024] FedCFamC2G 340

File number(s): BRG 135 of 2022

Judgment of: JUDGE VASTA

Date of judgment: 18 April 2024

Catchwords: INDUSTRIAL LAW –contraventions – five-day trial – written submissions – change of pleadings – assessment of pecuniary penalty

Legislation:
Fair Work Act 2009 (Cth): s 500, s 793

Work Health and Safety Act 2011 (Qld): s 117

Cases cited:
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 46

Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7

Division: Division 2 General Federal Law

Number of paragraphs: 182

Date of last submission/s: 22 March 2024

Date of hearing: 8,9, 10 11 May, 17 August, 20 November 2023 and 22 March 2024

Place: Brisbane

Counsel for the Applicant: Mr Felman KC and Mr McKechnie

Solicitor for the Applicant: Clayton Utz

Counsel for the Respondents: Ms Doust

Solicitor for the Respondents: Hall Payne Lawyers
ORDERS

BRG 135 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION

First Respondent

DEAN RIELLY

Second Respondent

MATTHEW VONHOFF (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE VASTA

DATE OF ORDER:

18 APRIL 2024

THE COURT DECLARES THAT:
1.The Second Respondent, Mr Dean Rielly, contravened section 500 of the Fair Work Act 2009 (Cth) ('FW Act') on 25 October 2021 by failing to sign the visitor register at a construction site for the Pacific Motorway (M1) Yatala South Interchange project (the Project) while seeking to exercise entry rights as a permit holder despite being requested to do so by the occupier.
2.The Third Respondent, Mr Matthew Vonhoff, contravened section 500 of the Fair Work Act 2009 (Cth) ('FW Act') on 25 October 2021 by failing to sign the visitor register at the Project while seeking to exercise entry rights as a permit holder despite being requested to do so by the occupier.
3.Pursuant to section 793 of the FW Act, the First Respondent, the Construction, Forestry and Maritime Employees Union ('CFMEU'), contravened section 500 of the FW Act on 25 October 2021 by the conduct of the Second Respondent the subject of Declaration 1.
4.Pursuant to section 793 of the FW Act, the First Respondent, the Construction, Forestry and Maritime Employees Union ('CFMEU'), contravened section 500 of the FW Act on 25 October 2021 by the conduct of the Third Respondent the subject of Declaration 2.
5.The Second Respondent, Mr Dean Rielly, contravened section 500 of the Fair Work Act 2009 (Cth) ('FW Act') on 27 October 2021 by failing to sign the visitor register at the Project while seeking to exercise entry rights as a permit holder despite being requested to do so by the occupier.
6.The Fourth Respondent, Mr Margues Pare, contravened section 500 of the Fair Work Act 2009 (Cth) ('FW Act') on 27 October 2021 by failing to sign the visitor register at the Project while seeking to exercise entry rights as a permit holder despite being requested to do so by the occupier.
7.Pursuant to section 793 of the FW Act, the First Respondent, the Construction, Forestry and Maritime Employees Union ('CFMEU'), contravened section 500 of the FW Act on 27 October 2021 by the conduct of the Second Respondent the subject of Declaration 5; and
8.Pursuant to section 793 of the FW Act, the First Respondent, the Construction, Forestry and Maritime Employees Union ('CFMEU'), contravened section 500 of the FW Act on 27 October 2021 by the conduct of the Fourth Respondent the subject of Declaration 6.

THE COURT ORDERS THAT:
1.In respect of Declarations 1 and 5 above, the Second Respondent pay a pecuniary penalty of $15,000 to the Consolidated Revenue Fund of the Commonwealth within 30 days.
2.In respect of Declaration 2 above, the Third Respondent pay a pecuniary penalty of $3750 to the Consolidated Revenue Fund of the Commonwealth within 30 days.
3.In respect of Declaration 6 above, the Fourth Respondent pay a pecuniary penalty of $2550 to the Consolidated Revenue Fund of the Commonwealth within 30 days.
4.In respect of Declarations 3, 4, 7 and 8 the First Respondent pay a pecuniary penalty of $113,886 to the Consolidated Revenue Fund of the Commonwealth within 30 days.
5.There be no orders as to costs.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
FOREWORD

This matter began in the predictably orthodox manner of any fair work proceeding seeking declarations and pecuniary penalties. But it has ended in a rather bizarre fashion. What launched as a hotly contested proceeding requiring five hearing days which included robust cross examination followed by full written submissions, ended quite suddenly with a compromise between the Applicant and the Respondents.
Because of the unusual nature of these proceedings and the amount of “court time” that was utilised, I am of the view that it is in the public interest that I detail the evidence that was presented to the Court over the course of the hearing.
Chronology - Part One
On 30 March 2022, the Applicant (then known as the Australian Building and Construction Commissioner or “ABCC”) filed an application asking the Court to make declarations, that the four Respondents had contravened the Fair Work Act 2009 (Cth) (“the FW Act”), and, upon those declarations being made, that the Court impose pecuniary penalties.
The matter was programmed to come before me as a first hearing date, but the parties presented draft orders to me in Chambers. Between 3 May 2022 and 30 November 2022, I made various orders regarding the filing of material and extensions of time for such filings to occur. During these months, the parties also unsuccessfully participated in mediation.
On 12 December 2022, I made an order in Chambers substituting the Fair Work Ombudsman (“FWO”) as the Applicant given the passage of legislation that had, in effect, abolished the ABCC.
The trial ultimately commenced on 8 May 2023 and continued on 9, 10 and 11 May 2023 until the evidence called by the FWO concluded.
Counsel for the Respondents then informed the Court that the First and Second Respondents would wish to file amended defences and that the Second Respondent would file an affidavit. Counsel also informed the Court that the Third and Fourth Respondents would not be making any amendments to their pleadings, nor would they be giving evidence.
On 11 May 2023, I adjourned the trial to allow for the filing of amended defences and the affidavit of the Second Respondent. I adjourned the trial until 17 August 2023. The First and Second Respondents duly filed their material.
On 17 August 2023, the trial resumed with the Second Respondent undergoing cross-examination. When that exercise concluded, the entire evidence had therefore all been led and appraised by the Court. The parties then requested an adjournment to file written closing submissions. They asked to be able to return to the Court to make some brief oral submissions to supplement the closing submissions.
I will continue with this chronology later in these Reasons, but it is appropriate, at this point, that I recount the substance of the evidence that was led before the Court over the five days of the hearing. In doing so, I will make some comments on that evidence, but I will explain the rationale later in these Reasons.
Introduction
The Pacific Motorway (or M1) is an eight-lane highway which connects Brisbane to the Gold Coast. Notwithstanding the sheer size of this highway, the growth in population in this corridor has necessitated upgrades as well as other solutions to the problem of traffic between Brisbane and the Gold Coast.
In recent times, the concept of a “second M1” has gained some traction and construction has either begun or is about to begin. It has been colloquially known as the “Coomera Connector” and is a major infrastructure project.
The town of Yatala is essentially bisected by the present eight lane highway. Motorists, who wish to go to Yatala, take exit 41 (whether the direction of travel is northbound or southbound), and proceed to a raised roundabout where they can use an overpass to proceed to the other side of the township.
In July 2021, Georgiou Group Pty Ltd (“the Contractor”) began work on the Yatala South Interchange Upgrade Project. This project was to upgrade exit 41 on the Gold Coast Highway or Pacific Motorway (M1) so that there would be a second overpass on the highway to accommodate the increased traffic in the Yatala area.
On 25 October 2021, Dean Rielly (“the Second Respondent”) and Matthew Vonhoff (“the Third Respondent:), who were organisers of the First Respondent, Construction, Forestry, Mining, Maritime and Energy Union (“the CFMMEU”), arrived at the worksite. They refused to sign the visitors register.
On 27 October 2021, Dean Rielly and Margues Pare (“the Fourth Respondent”), who was also an organiser of the First Respondent, attended the worksite. They refused to sign the visitors register. The Second Respondent also said words that could be interpreted as a threat. The Second Respondent also made an allegation of corrupt conduct by the contractor.
The Applicant, Fair Work Ombudsman (“the FWO”) brought the present proceeding and claimed that the actions of the Respondents amount to a contravention of s 500 of the FW Act because the Second, Third and Fourth Respondents (and through them the First Respondent) have acted in an improper manner.
The Contractor
The Contractor employed Mr Darren Kelly as its Health and Safety Advisor. He was the person who had the ultimate responsibility for safety on the site. As such, Mr Kelly oversaw the inductions, and the dissemination of safety information, to visitors, employees, and contractors. He also reviewed Safe Work Method Statements (“SWMS”), registers, safety data sheets, incidents and alerts and hazard analysis.
The contractor also employed Joseph Barker as its Senior Project Manager at this worksite. Mr Barker had the overall responsibility for the project.
The contractor also employed Mr Ben Treagus as a Senior Project Engineer at this worksite. He would oversee other engineers on the project and assist them with the coordination of works and the resolution of issues.
The worksite is a very large area, but it is punctuated by quite a deal of public road. Aerial photos at CB 98 and CB 126 clarify the large nature of this worksite.
Because construction was being undertaken in different areas of the worksite, which was divided by public roads, the contractor held daily safety briefings so that each worker understood what was happening in their particular work area, as well as what was happening overall on the worksite and how it may impact any other particular work area.
Each morning, all workers were required to sign a meeting attendance form to signify that they have understood what was happening in their area and what the safety concerns for that area may be. If a worker arrived late and missed the “pre-start meeting”, it was their obligation to ensure that they read all the materials from that meeting and to also sign the attendance form.
Examples of the signed attendance form are found at CB 116 and at other places in the Court Book. Examples of the discussions that were had at the pre-start meetings (and the documentation that would have to be read by any worker who was going to the worksite but had not attended the pre-start meeting) are found at CB 297 to CB 300.
Visitors to the site
The worksite did have capacity for “visitors” to attend the worksite. All visitors were required to attend the site office and to announce themselves to a representative of the contractor. There were signs to this effect throughout the worksite. The site office was at the western end of the worksite and is accessed by utilising the public road known as Cuthbert Drive.
Visitors were requested to sign the visitor register. Their name, phone number, company, and position, would all be recorded as would the declaration of the visitor as to any pre-existing condition or injury that would prohibit entry to the worksite. The signature of the visitor, time in and time out of the visitor, as well as the name of the escort from the contractor and the signature of the escort, would also all be recorded.
Visitors were then given an “induction” by the contractor where they were made aware of precautions that must be undertaken, any particular safety issues in the area in which they were visiting, emergency procedures and “what to do if the visitor becomes separated from their escort” as well as other pertinent matters. By signing the visitors register, visitors were acknowledging that they have been told of all the safety aspects pertinent to their visit to the worksite and have understood that information.
Such a form is found at CB 100.
The reason for implementing such a regime for visitors is self-evident. Obviously, it would be a gross dereliction of duty for the contractor to allow persons to enter the worksite who were not informed of the risks to their safety (and the measures to be taken to minimise those risks) and who had not acknowledged the same by signing the visitor register.
If a visitor entered any particular area in the worksite, their escort would read the “task card” to them or give them the task card to read themselves. The task card described what works were happening that particular day, in that particular area, and listed any additional hazards that may be encountered on site during the shift. The card also described what risks were associated with those hazards (and the works that are being done) and the control measures that were being implemented. In this way, all visitors were then made aware of the risks and could act accordingly. The reason for implementing this regime is also self-evident.
25 October 2021
On 25 October 2021, the Second Respondent had apparently received a complaint about safety on this worksite. He arranged for the Third Respondent to meet him at the location. The Second Respondent arrived at the site office of the contractor at about 9:45 AM.
Mr Kelly went to the break in the fencing and met with the Second Respondent. The Second Respondent said that he was from the Union and that he was just waiting for his “brother”, which Mr Kelly took to be another official from the Union.
Mr Kelly said to the Second Respondent, “when he gets here, can you please come to the front, and we will go through the process of signing in”. Mr Kelly waited at the break of the fence. Another vehicle arrived which contained the Third Respondent. The Second Respondent again approached Mr Kelly.
This encounter was videotaped by the Second Respondent who was wearing a “body worn camera”. This video became Exhibit 1 in these proceedings.
The Second Respondent gave evidence that, on an almost daily basis, he attended worksites as an official of the First Respondent. He said that he always wore a body camera because it was essential to record any interactions he had on worksite. He said that if he had any other official with him, it was also desirable for that person to also record interactions with their own body worn camera. This, in fact, did occur on 25 October 2021 with both the Second Respondent and the Third Respondent recording the interactions with the contractor and their officials.
What is depicted on the video is the Second Respondent handing his notice (under s 117 of the Work Health and Safety Act 2011 (Qld) (“Queensland WHS Act”)) to Mr Kelly. As Mr Kelly was reading the notice, he then asked the Second Respondent “What are you guys here for today?” to which the Second Respondent answered, “Have you got a high risk construction SWMS for adjacent traffic?” Mr Kelly answered that he did and asked the Second Respondent (and Third Respondent) to come into the office, sign in and that they could look at the SWMS.
When Mr Kelly requested the Second Respondent to “come in and sign in as a visitor”, the Second Respondent retorted, in an emphatic manner, “I won’t be signing in”. There was a back-and-forth discussion where Mr Kelly was telling the Second Respondent that he had a requirement to sign in and receive a safety briefing and the Second Respondent insisting that there was no requirement for him to do so and that he would not be signing in.
Mr Kelly then left the break in the fence and walked towards the site office telling the Second Respondent that he needed to wait there while Mr Kelly spoke to “the PM” (a reference to the project manager, Mr Barker). As Mr Kelly was walking away, the Second Respondent can be heard chuckling.
Mr Kelly entered the site office and spoke to Mr Barker, informing him that the issue for the Union officials was “SWMS and working on the roads”. Mr Kelly and Mr Barker then left the site office and went to the break in the fence and took up with the Second Respondent and the Third Respondent.
The Third Respondent was also video recording the encounter on his own body worn camera. This recording became Exhibit 2. Mr Barker and the Second Respondent began discussing workers crossing Cuthbert Drive to get from one part of the worksite to the other. Interestingly, the Third Respondent received a phone call at this time and can be heard telling the caller that he was “doing the dance” and that he (the Third Respondent) was “about to go into war mode”.
It is apparent, when watching the video recording, that the Second Respondent was not going to go into the site office but was insistent upon venturing from the car park area to the places he wished to inspect.
Notwithstanding the impasse about whether the Second Respondent and Third Respondent had to sign the visitors register, Mr Barker instructed Mr Kelly to retrieve the SWMS from the site office and to bring that document back to where he and the Second Respondent were.
When Mr Kelly went back to the site office, he saw that there were three inspectors employed by Work Health Safety Queensland (“WHSQ”) sitting in the site office. Mr Kelly and the inspectors had a conversation about the Union officials where Mr Kelly explained that they had not been threatening in any way, and he was not refusing them entry, but they were simply refusing to follow the process and sign in. He told the inspectors that he was retrieving the SWMS for the Union officials to inspect.
One of the inspectors suggested that they all go into one room so that they could all talk. Mr Kelly returned to the Second Respondent and Third Respondent and passed on the suggestion of the inspectors. The Second and Third Respondents were happy to accompany Mr Kelly and Mr Barker to that area. Once inside that room, the request was again made for the Second Respondent and Third Respondent to sign the visitor register. Again, both the Second Respondent and the Third Respondent refused.

The Third Respondent produced his Federal permit and his State permit and placed them on top of the register and said words to the effect that he and the Second Respondent had gone above and beyond what they were required to do for the contractor to allow them onto the site.
Mr Kelly retrieved the visitor register and the Third Respondent then placed the two s 117 notices (which had the signatures of each of the Second Respondent and the Third Respondent) on top of that register saying that “as far as they were concerned (the contractor) can keep those notices with the register as that would prove that the two respondents complied with all of the requirements”. Unsurprisingly, Mr Kelly insisted upon them signing the actual register. He is heard sighing “I don’t understand why it is so hard”.
Site Inspection and Aftermath
Ultimately, despite the stalemate over the sign in, the Second Respondent asked questions about the worksite and explanations were given to him by Mr Barker. Questions were also asked by the WHSQ inspectors. The discussion, that is recorded in Exhibit 2, was civil and appropriate.
Eventually, the WHSQ inspectors, the Second Respondent, the Third Respondent, Mr Kelly, Mr Barker and Mr Treagus walked to various areas in the worksite and discussed issues pertaining to those areas. (I do note that neither the two Respondents not the WHSQ inspectors ended up signing the register) Those issues included the Elevated Working Platforms (“EWP”) that were situated on both sides of the highway.
At the end of the site inspection, the WHSQ inspectors informed Mr Barker that they would be issuing an improvement notice which related to only one of the issues discussed. In effect, this conversation summarised that, out of all the issues discussed, including the sites where an EWP was utilised, the WHSQ inspectors had no concerns except for the issue the subject of the notice. This notice was sent by email to Mr Barker later that day. According to that improvement notice, the provision, that was found to have been contravened, occurred because: -
Workers are walking across roadways to enter the construction site, worker was observed and photographed carrying length of pipe from the (contractor) site shared/lunchroom area and site compound across the service road and accessing the construction site across the road, I was advised by Joe Barker that the procedure was to gain access to the site via the roundabout when access was viewed by going to the roundabout the site was barricaded off and workers would have to go under the barricade. Other workers who may access the work area next to the Southeast freeway on foot had to cross the on-ramp to the freeway.
The directions given as to the measures to be taken to remedy or to prevent the contravention, or likely contravention, were that the contractor was to: -
Develop implement and train workers on procedures for workers on foot that access the worksite.
This matter was discussed with all workers at the pre-start meeting that occurred the next day and the notice was affixed in a prominent position for all workers to view.
Issues raised in cross-examination – 25 October 2021
The evidence did show that the register was in an appalling state. Whilst there is a note of the visitors, and their phone numbers, very rarely is the date of the visit, the company and position or the name of the escort recorded on the register. In a similar vein, whilst the sign in time is noted, the signature and sign out time is infrequently completed. Furthermore, the page numbers were rarely sequential.
The Respondents argued, through the cross-examination, that the requests to sign the register were unreasonable for a number of reasons.
It was argued that the poor record-keeping of the register illustrated that the contractor was simply paying “lip service” to the necessity of keeping such a register and that any request to sign the register was therefore not reasonable. In his evidence, Mr Kelly acknowledged the poor state of the record. He did not excuse this state of affairs and admitted that the maintaining of the visitor register was his responsibility. He also said that, as of October 2021, the project was still in its infancy and that the record-keeping improved as time went on.
It was also argued that, by insisting that the Second and Third Respondents sign the visitor register, the contractor was deliberately trying to slow down the process and to frustrate the Second and Third Respondents in the performance of their lawful duties. The argument was that this made the request to sign in “unreasonable”.
Whilst the Second Respondent conceded that he was obliged to obey site rules, he reasoned that this was conditional on the site rules being “reasonable” and that he didn’t believe that the request for him to sign in was a reasonable rule.
It was also argued that there was no need for any form of safety briefing because both officials were experienced Union organisers who consider themselves “officials” and who understood safety on a worksite; hence, there was no need for a safety induction. This also made the request to sign the register “unreasonable”.
In his evidence, the Second Respondent further claimed that he had previously been told by WHSQ inspectors that he did not have to sign such a register, although he later admitted that this information was not part of his Fair Work Act training. However, the question remains, if he genuinely believed that this advice was correct, why did the Second Respondent not clarify this with the WHSQ inspectors who were present at the time.
27 October 2021
The Second Respondent said that ordinarily, if he had visited a site and found some safety problems, he would then follow up to see whether the problems had been rectified. He said that he decided to go to the project on 27 October 2021. He was with the Fourth Respondent. He approached the project from the north coming to the south.
He said that on this occasion, as he was approaching the project, he saw an EWP operating in an area adjacent to the northbound lane of the motorway. The EWP was up on an embankment which caused the Second Respondent to be concerned about the reinforcement of that level. His concern was that if the EWP overbalanced, it could injure the operator or even roll onto oncoming motorway traffic.
When he came off the overpass to the motorway, he could have proceeded straight to the site office (where he had been two days earlier), however he said he was concerned about the risk associated with the EWP and considered it urgent, so he drove directly into the area and parked there. This area is adjacent to the western entry onto the overpass, and it is the area outlined in blue in the photograph depicted at CB126. The Second Respondent said that he spoke to one of the subcontractors who told him that he would get someone in authority to attend.
The Second Respondent took photos of the area while he was waiting for someone to attend and wrote out his s 117 certificate which listed three concerns.
At this time, Mr Barker was in the site office and was informed that there were Union officials at the western abutment of BRO2. Mr Barker and Mr Treagus drove to that area of the worksite while Mr Kelly remained in the site office. Whilst the area of BRO2 is surrounded by fencing, there is an entry point near the beginning of the on-ramp to the motorway heading north. There is an exit point further along that on-ramp.
On the fence at the entry point to BRO2, there is a sign which is depicted in photographs that are exhibits 4, 5 and 20. The sign displays the following information: -
•authorised personnel only (written in white on a red background)
•all visitors must report to site office/supervisor
•all visitors must complete a site induction
•report any incidents or hazards to site staff
•the name and phone number of the site contact
•the name and phone number of the after hours contact
•the site office location
As they drove into the area, Mr Barker saw that two persons came out of a utility vehicle. Mr Barker recognised the vehicle as one that had been at the site office parking area two days earlier. Despite there not being any areas for non-authorised vehicles to park, a “visitor parking” sign had been mistakenly left on the temporary fencing and this utility was parked near that sign.
The Second Respondent and the Fourth Respondent were the two persons who alighted from the vehicle. Mr Barker approached the Second Respondent and asked, “why did you not go to the site office?” The Second Respondent answered that “we are parking in the designated visitor area”. Mr Barker said that they had to report to the site office and sign onto the visitor register to which the Second Respondent replied “No, I don’t”.
Mr Barker pointed out the signage at the entrance where it clearly stated that only authorised personnel were to enter this area and that all visitors had to report to the site office. The Second Respondent said, “I am an authorised Union representative; therefore, I am authorised to be on site”.
Mr Barker said that this wasn’t the case and that the Second Respondent and Fourth Respondent needed to report to the site office first.
The Second Respondent asked why he had to go to the site office and Mr Barker replied that he needed to be told what risks were in the area before entering. Mr Barker pointed out that the Second Respondent had just driven into a live work area without being made aware of the works occurring, the risks associated with those works, and the control measures in place.
The Second Respondent and the Fourth Respondent did not read the task card and it was fortunate for them that, at the time they entered the work area, the workers were on a break and there was no construction activity occurring at that time.
The Second and Fourth Respondents then produced their Federal and State permits and handed to Mr Barker his notice of entry pursuant to s 117 of the Queensland WHS Act.
The Second Respondent asked to see the SWMS because there were “issues on site” and that he was concerned about the workers “working on the EWP in here”. The issues raised by the Second Respondent related to the emergency response training for the EWP users and edge protection for the EWP working at the base of the wall that had the mesh in place ready for concreting (this area is clearly seen in Exhibit 12).
Mr Barker, having come to the view that neither the Second Respondent nor the Fourth Respondent were going to sign in, arranged for someone at the site office to bring the SWMS to BRO2. He showed the document to the Second Respondent and answered questions.
Mr Barker explained to the Second Respondent that there were star pickets along the edge of the boundary with two lines of orange flagging (clearly seen in Exhibit 12) and that, for any person using the EWP, this was sufficient to ensure that they stayed with in the area and did not veer off the edge of the base. The Second Respondent argued that this was insufficient.
Mr Barker finally explained that this was the same issue that had been discussed with the WHSQ inspectors two days previously and that they had no concerns. The Second Respondent said that “I don’t think they were happy; do you want me to ring them?” Mr Barker replied “yes, ring them”.
An almost comic scenario then ensued. While the Second Respondent was on the phone to one of the WHSQ inspectors (Mr Crow) that had been there on 25 October 2021, another of those inspectors (Mr Garaty) coincidentally phoned Mr Barker. This meant that both the Second Respondent and Mr Barker were simultaneously speaking to WHSQ inspectors about the same issue.
Mr Barker said that Mr Garaty told him that a complaint had been made concerning the EWP and that he might receive a visit on site about it. When Mr Barker replied that the Union was already on site, Mr Garaty told him that he would come to the site immediately.
The Second Respondent then told Mr Barker that Mr Crow wanted to speak with him and handed him the phone. Mr Crow told Mr Barker that the Second Respondent had claimed that AK Civil (the subcontractor performing works at BRO2) had not taken any steps to do an emergency drill in relation to the EWP but that he (Mr Crow) had informed the Second Respondent that AK Civil had actually completed an emergency drill but that it had not been documented.
After the various phone conversations concluded, the Second Respondent resumed conversing with Mr Barker, but the topic had moved away from the EWP and on to other matters.
THE CONVERSATION
Mr Barker claims that the conversation proceeded in the following manner:-
SR: What is your procurement process? How do you select subcontractors? Because you are going to the bottom of the barrel and then going lower
B: Are you talking about Rix?
SR: Rix are the bottom of the barrel. You are going below that to use AK Civil for steel fixing
B: (no response)
SR: Is Courtney Scott involved in the procurement process? I’m not happy with her, she upset me recently
B: (no answer)
SR: Are you paying workers on an ABN?
B: What? No. We have to do everything in accordance with the Building Code
SR: You are lying about paying workers on ABN, you are paying people on 457 visas
B: I don’t know what you’re talking about. Everything we do is in accordance with the Building Code
SR: You are lying. How do you know it’s done in accordance with the Building Code?
B: Because it’s audited by the ABCC
SR: (talking to Mr Treagus) Your boss is a liar
SR: (talking to Mr Barker) You’re not even reacting to me when I am calling you a liar
B: (no response)
SR: Who does your procurement process? Who does the selection of subbies?
B: Why?
SR: Is someone checking if people had a right to work? There are illegal immigrants on site
B: What are you talking about?
SR: The Irish, Silverstrand and Baden
B: I had not heard anyone comment about Baden before. What do you mean?
SR: He underpaid his people. He is a bad person. You need to start using my subcontractors. We wouldn’t have issues if you had our guys.
B: Who are your guys?
SR: You tell me who you need and I will tell you their names. If you don’t start doing what I tell you, I will go to my car, grab my bat and start swinging it around
B: Are you saying you are going to hit me? Are you threatening me?
SR: I never said I’m going to hit you. I might just start swinging it around the car park
B: I am in the car park, so are you still threatening me?
SR: No, I would just swing it around the car park
B: (no response)
SR: How much are you paying WHSQ to avoid getting notices?
B: (no response)
SR: Georgiou thought they were in prime position for a Coomera Connector, but I might see what I can do to knock them off
Mr Barker said that after this conversation, the Second Respondent and the Fourth Respondent began to walk towards their vehicle. At this time the Second Respondent raised two fingers and said, “That’s two nil to me”.
As they began to depart the worksite, Mr Barker pointed out to them that they needed to leave via the exit and not the entry (because this could have caused a collision with oncoming traffic that was rounding the roundabout). The Second Respondent said, “I wouldn’t have known that” to which Mr Barker replied, “That is why you need to go to the site office when you first arrive”.
The evidence of Mr Treagus differed from that of Mr Barker in some minor respects but not in any material way that would affect credibility. By and large, the evidence of Mr Treagus was completely corroborative of the evidence of Mr Barker.
Issues raised in cross-examination – 27 October 2021
The suggestion was made that the conversation involving the “bat”, the bribing of the WHSQ inspectors and the “Coomera Connector” did not occur.
It was suggested to Mr Barker that the Second Respondent had exposed safety deficits under Mr Barker’s watch and thereby embarrassed him. It was suggested that this embarrassment caused Mr Barker to concoct these three allegations as a form of revenge against the Second Respondent.
It was suggested to Mr Treagus that he felt compelled to go along with the tale told by Mr Barker because of his position in the company. It was suggested to Mr Treagus that he wanted to preserve his position with the contractor and so acquiesced to the pressure that had been put upon him.
It was suggested to Mr Barker that, if the Second Respondent had made these threatening statements, that he, Mr Barker would have told other people. Mr Barker agreed that he did not tell his immediate supervisor, but he did tell another person, Mr Donald, within hours of the conversation, about what had been said. Mr Donald is, apparently, the second in charge of the contractor behind Mr Georgiou himself.
A number of emails that had been sent by Mr Barker were put into evidence and there was much cross examination about them. All these exhibits were tendered to suggest to the Court that both Mr Barker and Mr Treagus had made previous inconsistent statements. The clear suggestion by the Respondents was that in making previous inconsistent statements, the Court should find that this undermines the credibility of those two witnesses to the point that the Court could not accept what they say, about conversations had with the Second Respondent, as being truthful or accurate.
Evidence of the Second Respondent
The Second Respondent gave some general evidence as to his experience before becoming an employee of the First Respondent. He said that, as an organiser for the First Respondent, he would go to sites just about every day. He explained that the occupier of the worksite has a duty to maintain safety at the worksite, and that this duty is not one that is transferable.
The Second Respondent said that every worksite is different and that a person cannot apply the safety standards that have been employed on one site and just transfer them to another site. Every safety plan must be one that is specific for that particular workplace.
The Second Respondent spoke of the importance of pre-start meetings and why it was essential that all workers know what is happening on a particular day at a worksite. For the same reason, the Second Respondent said that emergency drills are “absolutely necessary”, and that SWMS must be updated periodically.
The Second Respondent said that when he visits a worksite, he does not consider himself to be “a visitor”. The Second Respondent said that he considers himself to be “an official”. He said that he believes that there is no requirement for him to be given an induction at any worksite when he attends. This evidence was somewhat incongruous with the evidence he gave regarding safety.
The conversation on 27 October 2021 as alleged by the Second Respondent
The Second Respondent said that Mr Barker asked him what the contractor could do for there to be no more problems and the Second Respondent replied that the contractor should stop using “bottom of the barrel contractors”. The Second Respondent said that he knew that the subcontractors on-site had a history of using 457 workers and ABN workers. The Second Respondent said Mr Barker denied using such workers.
The Second Respondent said that he and Mr Barker had a conversation about subcontractors and that the Second Respondent offered to give him some names of subcontractors who were good and safe. The Second Respondent said that he was going to leave, and that Mr Barker pointed out the correct exit to use and he then left the site.
The Second Respondent denied ever threatening Mr Barker or making any reference to using a bat or claiming that Mr Barker corruptly influenced the WHSQ inspectors.
Lack of body worn camera footage
The most curious aspect of his evidence was that the Second Respondent did not utilise a body worn camera on this occasion. After giving evidence as to the necessity to use such a device, it is illogical that he would simply not utilise such a device particularly when the whole purpose for his visit to the site was to check on what progress the contractor had made on the issues identified two days previously.

When asked as to why he didn’t have his recording equipment, the Second Respondent said that he didn’t know. He said that the cameras have a very short battery life and so they have to download them and recharge them on a regular basis. He said that he believed that he just forgot to grab it, but he couldn’t be sure. It was put to him, by senior counsel for the Applicant, that a reason could have been that he didn’t want to record what was going to happen that day. The Second Respondent denied that suggestion.
It seemed very strange that, coincidentally, the Fourth Respondent also did not have his body worn camera with him that day. The Second Respondent said that he did not know why the Fourth Respondent did not have his camera.
It is very difficult to accept the explanations given by the Second Respondent as to why there is no body worn camera footage of this incident. It defies common sense, especially given the evidence that the Second Respondent gave as to the importance of the body worn camera. The suggestion, made by senior counsel for the Applicant, seems a far more likely explanation, though it was not outside the realms of possibility that there actually was body worn camera footage which was simply not disclosed to the Court.
This is compounded by the fact that the Second Respondent said that the reason for him going to the worksite was to check on what, if any, progress the contractor had made with the issues that had been raised two days earlier. However, the Second Respondent left the worksite without doing anything to check that progress. He could not satisfactorily explain why it is that he went there to do one thing and left without doing it.
On his version of what had happened, there was absolutely no reason for him not to have accomplished the task that he set out to do. However, if he had behaved in the manner, in which Mr Barker and Mr Treagus have testified, it would be no surprise that the Second Respondent left the worksite as quickly as he could (to the extent that he tried to leave through the entry which was extremely dangerous).
Credibility
The Second Respondent admitted that he refused to sign in on 25 October 2021 and also on 27 October 2021. The Second Respondent maintained that there was no requirement for him to do so on either occasion. The Second Respondent denied that he had the conversation that both Mr Barker and Mr Treagus have said that he had with them on 27 October 2021.
Obviously, this aspect of the latter matter could only be resolved by an assessment of the credibility and reliability of the three witnesses involved. I watched each of the witnesses very closely and to studied how it was that they answered the questions. I was also able to assess the manner in which they behaved in the video taken on 25 October 2021.
Mr Barker impressed me as a straight shooter. His demeanour in the witness box matched his demeanour in the videos. He was respectful to all parties. His answers had an internal logic to them. He was cross-examined extensively about the making of the complaint as to the behaviour of the Second Respondent on 27 October 2021 and made appropriate concessions. His credibility remained unscathed.
Mr Treagus also impressed me as a witness of truth. He made appropriate concessions and was unconcerned as to what would be made of his evidence. He simply told the truth. I found him to be a reliable witness.
I watched the Second Respondent very closely and it seemed to me that he had rehearsed a particular story in his head so often that he had convinced himself of its truthfulness. However, when that story was properly probed, it started to come apart at the seams. It was internally inconsistent and contradictory and, in some parts, quite preposterous.
The submissions
As previously noted, it was common ground that the Second Respondent and the Third Respondent failed to sign in on 25 October 2021 and that the Second Respondent and the Fourth Respondent failed to sign in on 27 October 2021. The question was whether the refusal to sign the register constituted “acting in an improper manner”.
With respect to the final allegation of contravening s 500 of the FW Act, the question was whether the conversation, as described by Mr Barker and Mr Treagus, actually occurred.
The submissions of the Applicant
The Applicant filed their written closing submissions on 4 October 2023. The submissions were very forceful and quite fulsome. The submissions asked the Court to accept that the request by the contractor for the Second Respondent and the Third Respondent to sign in on 25 October 2021, and for the Second Respondent and the Fourth Respondent to sign in on 27 October 2021, were reasonable requests and that the Court should reject any submission that the requests were unreasonable. As the requests were reasonable, the refusal to sign in meant that the Second Respondent, the Third Respondent and the Fourth Respondent had all acted in an improper manner.
With respect to the allegation about the conversation between Mr Barker and the Second Respondent on 27 October 2021, the Applicant made very forceful submissions that Mr Barker was a witness of truth and that his evidence withstood cross examination on all points.
The Applicant submitted that the evidence of the Second Respondent generally should not be accepted due to his credibility issues and the illogicality of his evidence on specific issues.
The Applicant further submitted that the Court should logically infer that on 27 October 2021, the Second Respondent was frustrated by questions of safety, he was frustrated that the WHSQ inspectors had not taken action on all of the matters he thought were important, he was frustrated that the contractor was not using “union contractors”, and he was frustrated that the subcontractors (that the contractor was using) may well have been employing workers on 457 visas instead of local workers. The Applicant submitted that all of these matters were important to the Second Respondent and this frustration manifested in the Second Respondent making the threats and comments that he did.
The submissions of the Respondents
The Respondents filed their submissions on 1 November 2023. They also made very forceful submissions. The Respondents’ argument was that the Second Respondent and Third Respondent were not exercising their rights under Part 3-4 of the FW Act on 25 October 2021 and, therefore, there could not have been any contravention of s 500 of the FW Act.
As an alternative, the Respondents argued that there was no request of the Third Respondent when he was in the car park and, that when he was in the crib room with the WHSQ inspectors, he was not exercising those rights.
As a further alternative, the Respondents submitted that there was nothing improper in declining to sign the visitor register.
As to the events on 27 October 2021, the Respondents submitted that there was nothing improper in failing to sign the register by the Second Respondent and the Fourth Respondent.
With respect to the conversation, the submission was that there was such gravity to this allegation that findings of a contravention having occurred should not be made lightly. The submission was that the conversation alleged was one that defied common sense. I will deal with the specific reasons upon which that submission was based when I talk of the submissions of the Applicant in reply.
The Respondents submitted that the Court should find that the contraventions have not been made out.
The submissions of the Applicant in reply
The Applicant filed their reply submissions on 15 November 2023. With respect to the submissions, that had been made by the Respondents, as to why the Court would reject the allegation that the Second Respondent had threatened Mr Barker, the Applicant made these submissions.
Firstly, it was not contrary to common sense for reference to be made to a “bat” rather than a further descriptor such as a “baseball bat” or a “cricket bat”. This is no reason to doubt what Mr Barker had said.
Secondly, the analogy used in the submissions of the Respondents was not an apt one. The conversation was, even on the evidence of the Second Respondent, a robust one and took place in the context of the consistent and stubborn refusals by the Second Respondent to sign in and involved matters which the Second Respondent considered important and that he took seriously. To compare this conversation with the conversation that might occur in a coffee shop between the customer and a barista is not apposite.
Thirdly, simply because the Second Respondent did not lose his temper or explode when he gave evidence before the Court, could not be the basis for a finding as to how he acted on 27 October 2021.
Fourthly, the fact that Mr Barker did not call the police is not relevant, and this is not probative of whether or not the event happened.
Fifthly, an examination of what Mr Barker had said to persons could not lead to an inference that the “bat” conversation did not occur. In fact, the evidence was that Mr Barker mentioned the “bat” allegation to his manager on the afternoon of 27 October 2021.
Lastly, the contention that the evidence of Mr Treagus was not corroborative but rather a mere adoption of the evidence of Mr Barker was misconceived. Such a contention would require the Court to accept that Mr Treagus was somehow beholden to Mr Barker or motivated by the same factors which the Respondents rely upon to assert that Mr Barker has concocted this story. There was no evidence to support either contention. Mr Treagus was an engineer and did not report to Mr Barker. He did not have the same interests as Mr Barker regarding safety and management of the worksite. He was removed from the interactions between Mr Barker and the Second Respondent and there was no basis to infer that his evidence was somehow manufactured.
Chronology - Part Two
As can be seen from the submissions of the parties, the matter was hotly contested, especially the evidence involving the most serious allegation regarding the conversation between the Second Respondent and Mr Barker.
Upon the filing of all the material, I had read and digested the submissions. Whilst I had not heard the final oral submissions of the parties, they were not going to add anything new to the mix.
In giving my recitation of the evidence that had been placed before me, any commentary by me was not “pre-judgement” but the result of considered deliberation having heard all of the facts and taken into account the very forceful and fulsome submissions of both parties.
By Friday, 17 November 2023, I had well and truly begun to compile my written judgment and was now only awaiting the final oral submissions (which would be made on the following Monday) that would complement the submissions that had already been made.
At 1:24 PM on Friday, 17 November 2023, my Chambers received the following email from a representative of the solicitors for the Applicant. The email read as follows: -
Dear Associate,
We refer to the above proceeding and the hearing on Monday, 20 November 2023.
The parties have electronically filed the attached updated joint list of authorities.
Could you please let us know if His Honour would like a hard copy bundle of authorities? If so, the parties will prepare a copy to hand up on Monday.
The respondents’ solicitor has consented and is copied into this correspondence.
Yours sincerely,
My staff replied at 5:09 PM that I did not require a hard copy of that bundle. My staff then left Chambers at close of business (approximately 5.15 PM) on Friday, 17 November 2023.
At 5:57 PM that day, another representative of the solicitors for the Applicant sent a further email to my Chambers. It read as follows: -
Dear Associate,
We refer to the above matter.
The parties have reached agreement on the matter of liability. The parties will be providing proposed consent orders for His Honour to this effect as soon as possible, and will be seeking orders to program the matter to a penalty hearing.
However, in the interests of time, the parties wish to inform His Honour now and respectfully request that the hearing on Monday be vacated.
The respondents’ solicitor is copied and has consented to the Applicant approaching the Court on this basis.
Kind regards
Given the time of day that the email was sent, there was no one in Chambers to receive that email. It was not until early on the Monday morning that my staff saw the email. I asked the parties to appear before me later on Monday, 20 November 2023 so as I could understand what had happened.
I was informed by junior counsel for the Applicant that the parties had agreed that the Respondents would accept the allegations that they had contravened s 500 of the FW Act on 25 October 2021 and 27 October 2021, in that they had acted improperly by failing to sign in when attending the worksite.
I was informed that the allegation regarding the conversation between the Second Respondent and Mr Barker would no longer be pursued. I then enquired whether the FWO now considered that Mr Barker and/or Mr Treagus were not witnesses of truth. Junior counsel rebuffed that suggestion immediately and said that the FWO considered both of them to be witnesses of truth. Junior counsel explained that, like any litigant, the FWO are permitted to compromise their litigation in any way that they see fit.
I asked whether the FWO had informed either Mr Barker or Mr Treagus of this decision and, whilst not confirming that they had not, the kerfuffle at the bar table gave me the distinct impression that it had not even crossed anyone’s mind to tell either of those two “witnesses of truth” what the FWO was now doing.
I adjourned the matter to the next morning. At this hearing, I set a timetable for new pleadings, and other sundry material, to be filed. The penalty hearing was set for 22 March 2024. I noted in the orders I made that if I had concerns about the material, I would call the parties back to Court. After this date, I made a number of orders in Chambers extending the filing dates.
On 15 February 2024, I mentioned the matter as the parties had now filed a statement of agreed facts. I pointed out that there were factual aspects missing from that statement. Both Counsel submitted that, for the purpose of determining penalty, I had to now ignore any evidence that I had heard if it was not contained in the new agreed statement of facts. I told senior counsel for the applicant that I had some concerns about perceptions regarding the Applicant’s role as model litigant, especially with descriptions of the functions of the Applicant made on the FWO website. I said that I would appreciate some submissions on that topic.
The matter remained listed for resolution on 22 March 2024. When the submissions were ultimately filed in March 2024, the Court learned that the Applicant and Respondents had now agreed to the exact penalty for the First Respondent and to penalty ranges for the other three Respondents.
Model litigant
Whilst the FWO is a “model litigant”, it is in a different position to occasions where the Commonwealth, or other government department, simply happened to be one of the participants. This is because the FWO is both investigator and prosecutor where the outcome sought is a civil penalty or a pecuniary penalty.
The FWO is, in effect, the gatekeeper for ensuring that the provisions of the FW Act are upheld. As is boldly trumpeted on the FWO website, the mission of the FWO is:-
We help everyone in Australia follow the laws that make all workplaces equal and fair
It is therefore incumbent upon the FWO to ensure that they have the trust of the community, given the importance of the role that they have. This means that the FWO must help everyone to follow the laws, and in this case, the FW Act. It also means that they must treat everyone equally, whether they be the victim of a person, or entities, who have contravened the FW Act, or whether they be the perpetrators of such a contravention.
For the FWO to be effective, it must have the trust and confidence of the public. In doing this, it must live up to its purpose, as outlined on its website, which is:-
to promote harmonious, productive, cooperative and compliant workplace relations in Australia
What has occurred in the present matter?
There were, in effect, three claims before the Court. Two of the claims involved allegations of “acting in an improper manner in failing to sign in when exercising a right of entry”. The third claim was the most serious claim.
It was a claim that a representative of an employer was threatened physically and accused of corruptly paying Queensland Government officials and that the employer itself was threatened financially. All of those actions were claimed to have been committed by a person acting on behalf of a Union. The claim was based upon the evidence of two “witnesses of truth”.
To abandon such a claim, especially at the eleventh hour, is something that one would think would not occur lightly.
In this case, the attitude of the Applicant was consistent from 30 March 2022 to 17 November 2023 with the filing of the application through to the filing of affidavits, the calling of witnesses who were cross-examined, the cross examination of a Union witness who gave contrary evidence, the making of very strong submissions in support of the claim and the making of very strong submissions in reply.
Yet, a little over 4 hours after finalising all the preparations for the last act in this long running saga (which was to occur on the following business day), the FWO abandoned the claim, notwithstanding that it still proclaimed Mr Barker and Mr Treagus as being “witnesses of truth”.
What concerned me is that there may be a perception that the FWO had not complied with their obligations as a model litigant. Those obligations include such concepts as acting as transparently as possible and acting consistently.
The FWO “prosecutes” many matters before this Court, predominantly contraventions of s 716 of the FW Act where employers have failed to comply with compliance notices. The FWO prosecutes those matters fairly but very firmly. For public confidence to be maintained in the FWO, the same attitude, that is present in those matters, must, not only be present in all matters handled by the FWO, but be seen to be present in all matters handled by the FWO.
In this matter, the perception may very well be that the FWO has, by its own actions, not lived up to its purpose. Whilst it must treat all victims equally and all perpetrators equally, the perception here may very well be an Orwellian one; that is, that some victims, and some perpetrators, are more equal than others.
When I pointed these matters out to senior counsel for the FWO, he submitted that if any person had a perception that the FWO had not acted appropriately, such a perception would be an incorrect one.
He submitted to me that, when there is contested litigation, there is always a risk of failure. The FWO had a duty to ensure that the public monies, that they were expending, were being appropriately applied to litigation.
Senior counsel submitted that in this matter, there were three main allegations of contraventions of s 500 of the FW Act. If the matter had proceeded on 20 November 2023, the time of the Court would have been further expended upon the deliberation and ultimate delivery of a judgment. There was always a chance that the Court would find that none of those contraventions were proved. He submitted that even if any of those allegations had been proved, there was the ever-present spectre of appeal (which would also require the expending of precious funds). He said that this may mean that the final resolution of this matter may have been up to 2 years after 20 November 2023.
Senior counsel submitted that the compromise made by the FWO has resulted in two of the three allegations being admitted which means that the liability aspect did not have to trouble the Court any further. The parties have agreed to an exact penalty for the First Respondent and have agreed to ranges of penalties for the Second, Third and Fourth Respondents. He argued that this has also saved the Court time and energy. He also submitted that such a result means that there will not be any appeal and that, when the Court imposes a penalty, the matter will be at an end.

Senior counsel submitted that the detail of negotiations must, for obvious reasons, be somewhat opaque but the result of the negotiations, and the benefits to the community as a whole, are quite transparent.
It was proper for counsel to put those matters on the record because of the somewhat bizarre history of this litigation. Whether those matters are sufficient to dispel the perception, about how this litigation has been conducted, is not for me to say. It is not my confidence and trust in the FWO that needs to be maintained; rather, it is that of the community at large.
The propriety of the actions of the FWO is not for me to determine; however, it is my responsibility to put matters on the record (if only to explain what the Court had been undertaking for five whole sitting days) and for others to make of these facts as they will.
In this case, my task is quite clear. The parties have now filed amended pleadings. In doing so, they have set new goalposts for how this litigation needs to be resolved. It is not for a judge to query why this has been done because such answers are totally irrelevant to what the judicial function in this matter has now become.
Agreed Statement of Facts
As has been previously noted, the parties informed the Court formally on 20 November 2023 that liability was no longer an issue in this matter. The parties have agreed to a statement that encapsulates all of the factual matters that ought be taken into consideration by the Court. The rather bland factual matrix upon which the Court must assess liability is as follows: -
…
10. At all material times, it was a requirement, imposed by [the contractor], that all visitors to the Site report to the Site office and sign the visitor register. This requirement was for the purpose of allowing [the contractor] to identify who was on the Site and make visitors aware of the risks on the Site and any control measures that had been implemented.
11.At all material times, [the contractor] had erected signs which were displayed at each entry to the Site which contained the words - "Authorised personnel only". "All visitors must report to the site office/supervisor" and "All visitors must complete a site induction".
…
The Events of 25 October 2021
16.      On 25 October 2021:
(a)       [the Second Respondent] arrived at the Site at around 9:45am; and
(b)later in the morning, [the Second Respondent] and [the Third Respondent] (arriving on Site shortly after [the Second Respondent]) issued a notice of entry (NOE) under section 117 of the WHS Act to Mr Kelly, each detailing reasonably suspected contraventions of the WHS Act.
17.On approach to the Site, [the Second Respondent] had safety concerns relating to work being performed on the Site.
18.[the Second Respondent] arrived at the car park adjacent to the Site office compound area, which was accessible from the adjacent public roadway. [the Second Respondent] waited in the car park area.
19.While at the Site on 25 October 2021, each of [the Second Respondent] and [the Third Respondent] were exercising rights in accordance with Part.3-4 of the FW Act.
20.At about 9.45am, Mr Kelly observed [the Second Respondent] standing at the gate to the Site which was located on Cuthbert Drive, next to the Site office.
21.Mr Kelly and [the Second Respondent] proceeded to have a conversation (with words used to the following effect):
(a)       Mr Kelly said: "G'day mate, can I help you?".
(b)[the Second Respondent] said: "I'm from the union, just waiting for my brother."
(c)       Mr Kelly said: "What are you here for?"
(d)       [the Second Respondent] said: "I'm just waiting for my brother."
(e)Mr Kelly said: "When he gets here, can you please come to the front and we will go through the process of signing in"; and
(f)       [the Second Respondent] did ·not respond further at this stage.
22.      About 10 minutes later, [the Third Respondent] arrived on the Site.
23.Upon [the Third Respondent’s] arrival, [the Second Respondent] and [the Third Respondent] approached Mr Kelly and had a conversation during which:
(a)[the Second Respondent] produced an entry notice under the WHS Act and his Federal and State permits to Mr Kelly;
(b)[the Third Respondent] produced an entry notice under the WHS Act to Mr Kelly;
(c)[the Second Respondent] asked to see the Safe Work Method Statements (SWMS);
(d)Mr Kelly told [the Second Respondent] he could view the SWMS, but first needed to follow the Site protocols including signing into the visitor register, completing the visitor-induction and announcing himself to the Project Manager for the Site;
(e)[the Second Respondent] refused to follow these requests, including to sign the visitor register, and kept asking to view the SWMS;
(f)Mr Kelly realised [the Second Respondent] was not going to comply with the requests and so asked both officials to stand at the gate while he got the Project Manager for the Site.
24.Mr Barker and Mr Kelly then both approached [the Second Respondent] and [the Third Respondent] in the Site car park. The group had a conversation during which:
(a)[the Second Respondent] stated that he wanted to see the SWMS immediately and was concerned about the emergency procedures with using the elevated work platform;
(b)       Mr Barker then asked Mr Kelly to fetch the SWMS.
25.As Mr Kelly was fetching the SWMS from the Site office, three Work Health and Safety Queensland (WHSQ) Inspectors (Neale Garaty, Damian Crow and Geoff Collis) were in the Site office. Mr Kelly then returned to the gate and said words to the effect "we've got industrial relations here fellas, we've got a meeting room in here if you want to come in." The Inspectors did not sign the visitor register on 25 October 2021.
26.Mr Kelly, Mr Barker, [the Second Respondent] and [the Third Respondent] then proceeded to the crib room. Mr Kelly again asked the officials to sign into the visitor register and both [the Second Respondent] and [the Third Respondent] refused to do so.
27[the Second Respondent], [the Third Respondent], the WHSQ Inspectors, Mr Barker and Mr Kelly then held a meeting · and discussed [the Second Respondent’s] concerns. During the meeting, Mr Kelly repeatedly asked [the Second Respondent] and [the Third Respondent] to sign into the visitor register, but both continued to refuse to do so. During this conversation in the crib room, [the Third Respondent] showed his State and Federal entry permits to Mr Kelly and offered to keep them in the visitor register.
28[the Second Respondent] and [the Third Respondent] then accompanied Mr Barker and the WHSQ Inspectors on an inspection of the Site.
29.[the Second Respondent] and [the Third Respondent] left the Site at about 12.15pm.
30.At no stage on 25 October 2021 did [the Second Respondent] or [the Third Respondent] report to the Site office and sign the visitor register.
The Events of 27 October 2021
31.On 27 October 2021, each of [the Second Respondent] and [the Fourth Respondent]:
(a)       arrived at the Site at or around 10.00am; and
(b) later in the morning, issued a NOE under section· 117 of the WHS Act to Mr Barker,· each detailing reasonably suspected contraventions of the WHS Act.
32.On approach to the Site, [the Second Respondent] was concerned about an elevated work platform on a sloping verge adjacent to the Motorway.
33.[the Second Respondent] and [the Fourth Respondent] parked in the work area, at a location designated with the sign "visitor parking".
34.At or around 10.00am on 27 October 2021, Mr Barker was made aware by someone working in the Site office that CFMEU officials were on the Site at the location which was known as the Western Abutment of BR02 near the W3 gate.
35.Mr Barker and Mr Treagus both drove over to the BR02 area where they saw [the Second Respondent] and [the Fourth Respondent].
36.[the Second Respondent] and [the Fourth Respondent] waited in the work area for someone from Georgiou to arrive and at about 10.05am saw Mr Barker and another man arrive and park near to [the Second Respondent’s] vehicle.
37.While at the Site on 27 October 2021, each of [the Second Respondent] and [the Fourth Respondent] were exercising rights in accordance with Part 3-4 of the FW Act.
38.Mr Treagus and Mr Barker approached [the Second Respondent] and [the Fourth Respondent] and had a conversation during which they said words to the following effect:
(a)Mr Barker asked why [the Second Respondent] and [the Fourth Respondent] did not report to the Site office first, sign onto the visitor register and discuss their reasons for attending the Site;
(b)Mr Barker asked [the Second Respondent] and [the Fourth Respondent]to report to the Site office and sign the visitor register;
(c)Mr Barker pointed to the signage on the entry gate and said words to the effect “the signs say authorised personnel only and all visitors must report to the Site office.”;
(d)[the Second Respondent] denied they had to do these things, and said that he was an authorised union representative and therefore authorised to be on the Site;
(e)[the Second Respondent] asked why he needed to go to the Site office to which Mr Barker responded that he needed to be told what the risks in the area were before entering and that what he had done was unsafe;
(f)[the Second Respondent] handed Mr Barker an entry notice stating he was accessing the Site under section 117 of the WHS Act. He also produced his State and Federal entry permits. [The Fourth Respondent] then handed his entry notice to Mr Barker; and
(g) as Mr Barker read the notices, [the Second Respondent] kept asking to see the SWMS.
39.[the Fourth Respondent] told Mr Barker, in response to a question from Mr Barker, that he was up from South Australia for a week. Otherwise, he did not say anything to Mr Treagus or Mr Barker whilst he was on the Site.
40.At about 11.10am, [the Second Respondent] and [the Fourth Respondent] left the Site.
41.At no stage on 27 October 2021 did [the Second Respondent] or [the Fourth Respondent] report to the Site office and sign the visitor register.
This means that the Second Respondent has contravened the FW Act on two occasions whilst the Third Respondent and the Fourth Respondent have contravened the FW Act on one occasion. Because the First Respondent is involved in each of the contraventions, technically this means that the First Respondent has contravened the FW Act four times.
However, it is obvious that there were only two actual occasions where the FW Act was contravened and, for the purposes of fixing the maximum penalty, the Court should only view the liability of the First Respondent in that manner. The maximum penalties are, therefore, $126,000 for the First Respondent, $25,200 for the Second Respondent and $12,600 for the Third Respondent and the Fourth Respondent.
Pecuniary penalties
The law in relation to assessment of pecuniary penalties has really been laid down quite comprehensively. The High Court, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, said, at paragraph 116 of that judgment:
As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition.
The High Court reaffirmed that principle very recently in the matter of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13. The High Court said, at paragraph 46:
[46]It is important to recall that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. …
[47]The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors … where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.
[48]It is not necessary to multiply examples further. It is sufficient to say that a court empowered by section 546 to impose an “appropriate” penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act.
In Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7, which is known as the Pangaea case, the Court went through, in effect, a number of factors the Court should be mindful of when imposing pecuniary penalties. One must be careful, though, in looking at the Pangaea case (Supra), that one does not simply look at those matters as some form of checklist to see whether or not the facts of the case with the particular factors either aggravate or mitigate the penalty. As such, the list compiled in Pangaea (Supra) is extremely useful, but it should not be a formula used by the Court to slavishly come up with some sort of almost mathematical guide for the imposition of penalties.
Notwithstanding what has been said in Pattinson (Supra), the principles in Pangea (Supra) are still apposite when looking at the circumstances of the contravention as well as the circumstances of the contravenor.
Agreed penalties
My task, in assessing pecuniary penalties, has been made very easy because the parties have come to an agreement as to what the penalties should be. In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 46 (The Agreed Penalties Case), the High Court said at paragraph 57: -
More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate.
At paragraph 58, the High Court said: -
Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant's compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement.
It seems to me that, unless I am of the view that there is something unacceptable about the penalties arrived at by the parties, I should accept that the penalties are appropriate.
Are the penalties appropriate?
On the agreed statement of facts, the actions of the Second Respondent and the Third Respondent, on 25 October 2021, could only be described as belligerent. There is simply no excuse for acting in this improper manner. The actions of the Second Respondent, on 27 October 2021, doubled down on that belligerence. It seems to me that the Fourth Respondent was more of a bystander who simply followed the lead of the Second Respondent.
There are a number of factors that need to be taken into account.
The Second Respondent ceased his employment with the First Respondent in September 2022. He no longer has an entry permit under the FW Act but still has a WHS entry permit under the Queensland WHS Act. That permit expires on 21 December 2026.
The Third Respondent had only been an organiser for 10 months previous to 25 October 2021. He still holds an entry permit under the FW Act as well as an entry permit under the Queensland WHS Act. Both those permits expire around the beginning of 2027.
The Fourth Respondent no longer holds an entry permit under the FW Act.
But most significantly, given the appalling record of the First Respondent, is the fact that the First Respondent has organised that training be given to its officers. That training has been undertaken by Brian Lacy AO who was the Senior Deputy President of the Australian Industrial Relations Commission from 2001 to 2009. It is difficult to see that there could have been a more qualified person to impart their knowledge to officers of the First Respondent.
This training was undertaken in September 2022. It is a very concrete example that the First Respondent has developed insight into the illegal and antisocial behaviour of its officers. It is a proper illustration of remorse and one that justifies the amelioration of the penalty to be awarded to the First Respondent.
The agreed penalty for the First Respondent is $113,886. I am of the view that this is the appropriate penalty in all of the circumstances. Such a penalty is befitting of the need to deter the First Respondent specifically and other like-minded entities generally.
The agreed range of penalty for the Second Respondent is between $12,654 and $15,184. I am of the view that this is the appropriate range of penalty. As a result of the need for deterrence (in this case, more general deterrence than specific deterrence, given that the Second Respondent no longer holds a permit), it seems to me that the appropriate penalty for the Second Respondent is a penalty of $15,000. This penalty strikes the balance between the need for deterrence and the avoidance of oppression.
The agreed range of penalty for the Third Respondent is between $2530 and $3796. I am of the view that this is the appropriate range of penalty. The belligerence shown by the Third Respondent matched that of the Second Respondent on 25 October 2021. In my view, the appropriate penalty for the Third Respondent is a penalty of $3750.
The agreed range of penalty for the Fourth Respondent is between $2530 and $3796. I am of the view that this is the appropriate range of penalty. As previously noted, the Fourth Respondent was more of a bystander (being led by the Second Respondent) rather than an active participant. In my view the appropriate range for the Fourth Respondent is a penalty of $2550.

I am of the view that the penalties for the Third Respondent and the Fourth Respondent also strike the balance between the need for deterrence and the avoidance of oppression.
Having come to those conclusions, I will make the orders as proposed by the parties.

I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.
Dated: 18 April 2024
SCHEDULE OF PARTIES

BRG 135 of 2022

Respondents

Fourth Respondent:

MARGUES PARE

File number(s):	BRG 135 of 2022
Judgment of:	JUDGE VASTA
Date of judgment:	18 April 2024
Catchwords:	INDUSTRIAL LAW –contraventions – five-day trial – written submissions – change of pleadings – assessment of pecuniary penalty
Legislation:	Fair Work Act 2009 (Cth): s 500, s 793 Work Health and Safety Act 2011 (Qld): s 117
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 46 Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7
Division:	Division 2 General Federal Law
Number of paragraphs:	182
Date of last submission/s:	22 March 2024
Date of hearing:	8,9, 10 11 May, 17 August, 20 November 2023 and 22 March 2024
Place:	Brisbane
Counsel for the Applicant:	Mr Felman KC and Mr McKechnie
Solicitor for the Applicant:	Clayton Utz
Counsel for the Respondents:	Ms Doust
Solicitor for the Respondents:	Hall Payne Lawyers

BRG 135 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION First Respondent DEAN RIELLY Second Respondent MATTHEW VONHOFF (and another named in the Schedule) Third Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	18 APRIL 2024

BRG 135 of 2022
Respondents
Fourth Respondent:	MARGUES PARE