Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union
[2023] FedCFamC2G 101
•21 February 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 101
File number: BRG 81 of 2022 Judgment of: JUDGE EGAN Date of judgment: 21 February 2023 Catchwords: INDUSTRIAL LAW – Whether provisions of s. 499 of the FWA contravened – whether provisions of s. 500 of the FWA contravened – where entry upon site by union official in contravention of reasonable requirements given prior to entry – contraventions established - where union accessorily liable – claim granted Legislation: Fair Work Act 2021 (Cth) ss. 497, 499 and 500
Work Health and Safety Regulation 2011 (Qld) Chapter 6 and s. 119.
Cases cited: R v Byrnes (1994 – 1995) 183 CLR 501 Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submissions: 24 January 2023 Date of hearing: 24 January 2023 Place: Brisbane Counsel for the Applicant: Mr A Smith Solicitor for the Applicant: K&L Gates Counsel for the Respondents: Mr H Clift Solicitor for the Respondents: Hall Payne Lawyers ORDERS
BRG 81 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
DEAN LESLEY RIELLY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
21 FEBRUARY 2023
IT IS DECLARED THAT:
A.In contravention of section 499 of the Fair Work Act 2009 (Cth) (the FWA), on 1 July 2021 at Lot 3, 142 Albert Street, Brisbane (the Site), Mr Rielly failed to comply with reasonable requests made by representatives of the CBGU JV, the occupier of the Site, to comply with occupational health and safety requirements that applied to the Site, while exercising a State or Territory OHS right, namely to:
(a)sign the Visitor Register;
(b)complete a visitor induction;
(c)not enter the tower crane pad;
(d)leave the tower crane pad;
(e)not enter a restricted area; and
(f)having entered a restricted area, refusing to leave it when requested to do so.
B.In contravention of section 500 of the FWA, on 1 July 2021 at the Site, Mr Rielly acted in an improper manner while exercising or seeking to exercise a right of entry, by:
(g)failing to comply with the Visitor Entry Requirements other than the requirement to make a Covid-19 Mandatory Health Declaration, namely by:
(i)failing to sign the Visitor Register;
(ii)failing to complete a Visitor induction.
(h)failing to comply with the Visitor Conduct Requirements, namely by:
(i)failing to be accompanied by an escort from CBGU JV;
(ii)failing to read and obey all safety signs on the Site; and
(iii)not entering any areas on Site to which access was restricted.
C.By reason of the operation of sections 793 and 550(2)(c) of the FWA, the CFMMEU was directly or indirectly, knowingly concerned in or party to the contraventions set out at paragraphs A and B above and, as a result, the CFMMEU contravened sections 499 and 500 of the FWA.
AND IT IS ORDERED THAT:
1.Pecuniary penalties be imposed upon Mr Rielly pursuant to the provisions of s. 546(1) of the FWA as a result of his contraventions of the provisions of s. 499 and s. 500 of the FWA as set out in paragraphs A and B of the declaratory orders made herein.
2.Pecuniary penalties be imposed upon the CFMMEU pursuant to the provisions of s. 546(1) of the FWA as a result of its contraventions of the provisions of s. 499 and s. 500 of the FWA as set out in paragraphs A and B of the declaratory orders made herein.
3.The date for the hearing of any application for the imposition of pecuniary penalties be adjourned to a date to be fixed.
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 Egan
Introduction
The applicant commenced proceedings against the first respondent (CFMMEU) and the second respondent (Rielly) as a result of events which occurred on 1 July 2021 on and about land being Lot 3, 142 Albert Street Brisbane CBD. The land formed part of the Cross River Rail construction project site.
The Construction Work was being conducted by CBGU Joint Venture, an unincorporated joint venture comprised of:
(a)CPB Contractors Pty Ltd (CPB);
(b)BAM International Australia Pty Ltd (BAM);
(c)Ghella Pty Ltd (Ghella); and
(d)UGL Engineering Pty Ltd,
(collectively CBGU JV).
The Court finds that CPB had been appointed principal contractor for the purposes of Chapter 6 of the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation), and that as such it had management and control of the site, including duties in relation to the health and safety of all people on site. [1]
[1] Duties under Part 2, Divisions 2 and 3 of the Work Health and Safety Act 2011 (Qld) (WHS Act) and under Chapter 6 of the WHS Regulation.
The Court further finds that each of the CBGU JV participants, as co-occupiers of the site, held duties in relation to the health and safety of persons on the site. [2]
[2] Duties under Part 2, Divisions 2 and 3 of the WHS Act
Rielly was employed by the first respondent in the position of a State Organiser, and was accordingly an officer and official of the CFMMEU. He arrived at Lot 3 at or about 2.30 pm on 1 July 2021, and produced to employees of the CBGU JV (namely Messrs, Hinrichsen, Bekkers and Maher) a Notice of Entry to the site in his capacity as a permit holder within the meaning of ss. 497 and 500 of the Fair Work Act 2021 (Cth) (FWA). [3] The Notice of Entry was given pursuant to the provisions of s. 119 of the WHS Act, and relevantly provided as follows:
[3] See Exhibit 1 Notice of Entry document.
“I reasonably suspect that the PCBU has not complied with s. 19(3)(A,B,C,D,E,F,G)
- Primary Duty of Care
- Risk Assessment in regards to working in inclement weather.”
The applicant’s pleaded case as to the occupation health and safety requirements which needed to be complied with for persons visiting the site was as set out in [12] of the Amended Statement of Claim (ASOC) filed on 18 October 2022 as follows:
“[12]The following requirements were imposed on persons visiting the Site to protect their health and safety (OHS Requirements):
(a) a requirement to do the following prior to entering the Site:
(i) sign the Visitor Register;
(ii) complete a visitor induction; and
(iii) make a COVID-19 Mandatory Health Declaration
(Visitor Entry Requirements);
(b) a requirement to do the following at all times while on the Site:
(i) be accompanied by an escort from CBGU JV;
(ii) read and obey all safety signs on the Site; and
(iii) not enter any areas on the Site to which access was restricted
(Visitor Conduct Requirements);
(c)to comply with the demarcation between areas of the Site that are suitable for visitors and areas that have restricted or no access; and
(d)to comply with the various signage containing health and safety warnings and directions to persons on the Site.
Particulars
Those requirements were recorded in a suite of documents including: WHS Management Plan of 23 September 12 May 2021, COVID-19 Project Management Plan of 31 March 2020 28 June 2021, Security Management Plan of 23 April 2021, COVID-19 Mandatory Health declaration and the Visitor Induction Declaration.”
At trial, Mr Rielly elected to claim privilege against self-incrimination and did not give evidence on his own behalf. No other witness was called on behalf of the respondents.
The evidence in support of the allegations as set out in [12] of the ASOC relating to Visitor Entry Requirements was accepted by the Court to the extent that it represented intended best practice. [4]
[4] Affidavit of Bekkers filed on 12 August 2022 at [25], [26], [27], JLB – 7 and JLB – 8
The evidence in support of the allegations as set out in [12] of the ASOC relating to Visitor Conduct Requirements was also accepted by the Court to the extent that it represented intended best practice. [5]
[5] Affidavit of Maher filed on 12 August 2022 at [43]
It was further pleaded at [13] – [16] inclusive of the ASOC that there was a restricted area on the project site as follows:
“Restricted Area
[13]The southern end of the Site contained a restricted area that was designated for excavation works (Restricted Area).
[14]The excavation works being performed in the Restricted Area:
(a)involved the use of work vehicles and mobile plant and equipment, such as trucks, excavators and drills; and
(b)created a risk of collisions and falls to persons on the Site that may cause serious injury or death.
[15]By reason of the matters pleaded in paragraph 14, the Restricted Area was subject to additional health and safety requirements to manage the risks to health and safety.
[16]The Restricted Area was:
(a)demarcated by fencing to keep persons on the Site separated from the excavation works;
(b)marked by signage at the front;
(c)restricted to workers, unless they:
(i) obtained clearance from a Site Supervisor; and
(ii) informed any machinery operators of their intended entry;
(d)restricted to visitors and other persons on the Site, unless accompanied by an authorised person who followed the procedure pleaded in sub-paragraph (c) above.
At [19] – [43] inclusive of the ASOC, it was pleaded that after his arrival at Lot 3 at or about 2.30 pm on 1 July 2021, Rielly contravened the provisions of ss. 499 and 500 of the FWA as follows:
“Notice of Entry
[19]At or about 2:30pm on 1 July 2021, Mr Rielly had a conversation with the following people on Albert Street, outside of Lot 3:
(a) Mr Hinrichsen;
(b) Mr Bekkers; and
(c) Mr Maher.
[20] During that conversation, Mr Rielly:
(a)gave written notice of entry to the Site to Mr Bekkers and Mr Maher as required by section 119 of the WHS Act (Entry Notice); and
(b)produced his WHS entry permit and FW Act entry permit for inspection by Mr Bekkers and Mr Maher.
[21]The Entry Notice provided that Mr Rielly reasonably suspected a contravention of section 19 of the WHS Act occurred.
Entry by Mr Rielly
[22]After Mr Rielly provided the Entry Notice, an exchange to the following effect occurred between him and Mr Maher:
Maher: "Could we please head over to the Lot 1 compound so that we can sign you in, complete a Covid-19 declaration and undertake a visitor induction?
Rielly: "I don't need to do that, I want to go onto site".
[23]Following that exchange, Mr Maher and Mr Bekkers each made further requests to Mr Rielly to attend the Lot 1 compound to complete the Visitor Entry Requirements with Mr Taylor.
[24]Mr Rielly instead walked around Mr Maher and Mr Bekkers and moved towards Gate 1 at the main entrance to the Site (Gate).
[25]A traffic controller engaged by Altus Traffic Pty Ltd on the Project was working at the Gate and upon seeing Mr Rielly, the traffic controller:
(a)pointed to a sign on the fence that said "All visitors must report to the site office; and
(b)said to Mr Rielly "Read the sign mate", or words to that effect.
[26]Mr Bekkers then said to Mr Rielly: "Don't go in there, we need to wait for Mark".
[27]Mr Rielly then entered the Site through the Gate without undertaking any of the Visitor Entry Requirements.
[28]At no point did Mr Rielly undertake any of the Visitor Entry Requirements prior to leaving the Site on 1 July 2021.
[29]By reason of the matters pleaded in paragraphs 3 and 19 to 27 on 1 July 2021, Mr Rielly entered the Site while exercising, or seeking to exercise:
(a)a "State or Territory OHS right” for the purposes of section 499 of the FW Act; and
(b)rights in accordance with Part 3-4 of the FW Act for the purposes of section 500 of the FW Act.
Conduct on Entry
[30]Shortly after entering Lot 3 of the Site, Mr Rielly walked up a set of scaffold stairs onto a tower crane pad.
[31]While Mr Rielly was walking up the scaffolding stairs to the tower crane pad Mr Bekkers said words to the following effect to him: "Don't go up there, come back down, you're not authorised to go up there".
[32] Mr Rielly did not comply with Mr Bekker's request.
[33] When Mr Rielly was on the tower crane pad:
(a)Mr Bekkers repeated his request for Mr Rielly to come down from the tower crane pad on at least one further occasion; and
(b)Mr Rielly did not comply with Mr Bekker's repeated request.
[34]Mr Rielly remained on the tower crane pad for two to three minutes before coming down from it.
[35] Mr Rielly then walked towards the Restricted Area.
[36]Mr Bekkers said to Mr Rielly words to the effect of: "Where are you going? How is this relevant to your section 117 notice?"
[37] Mr Rielly did not respond and instead entered the Restricted Area.
[38] While Mr Rielly was in the Restricted Area:
(a)Mr Bekkers said to Mr Rielly words to the effect of "You are in a restricted area, you need to leave for your own safety";
(b)Mr Bekkers then walked over to the Restricted Area and said to Mr Rielly words to the effect of: "For your own safety we need you out of here, it's a restricted area";
(c)Mr Rielly proceeded to walk into the swing radius of an excavator within the Restricted Area;
(d)Mr Bekkers said to Mr Rielly words to the effect of: "You need to get out of there, you're in a poz comms zone. This is outside of your 117 notice"; and
(e)Mr Rielly did not respond to Mr Bekkers at any time.
[39] Mr Taylor then entered the Restricted Area and spoke with Mr Rielly.
[40]At or around 3.10pm, Mr Rielly subsequently left the Restricted Area and the Site.
Contraventions of Dean Rielly
[41]By reason of the matters pleaded in paragraphs 22 to 40, Mr Rielly contravened section 499 of the FW Act by:
(a)entering the Site having refused reasonable requests to comply with the Visitor Sign In Requirements.
(b)further or alternatively, refusing a reasonable request
(i) not to enter the tower crane pad; and/or
(ii) to leave the tower crane pad; and/or
(iii) not to enter the Restricted Area; and/or
(iv) to leave the Restricted Area.
[42]Each of the requests to Mr Rielly pleaded in paragraphs 41(a) and 41(b) above was a reasonable request made by the occupier of the Site to comply with the OHS Requirements that applied to the Site.
[43]By reason of the matters pleaded in paragraphs 22 to 40, Mr Rielly contravened section 500 of the FW Act by behaving in an improper manner on the Site, by:
(a) failing to comply with the Visitor Entry Requirements;
(b)further or alternatively, failing to comply with the Visitor Conduct Requirements;
(c)further or alternatively, accessing areas of the Site unrelated to his purpose for entry, namely:
(i) the tower crane pad; and
(ii) the Restricted Area;
(d)further or alternatively, demonstrating a lack of regard for the OHS Requirements for the Site, by the matters pleaded at sub-paragraphs (a) to (c) above; and
(e)further or alternatively, engaging in unsafe behaviour on the Site, by the matters pleaded at sub-paragraphs (a) to (c) above.”
Sections 499 and 500 of the FWA relevantly provided as follows:
“499 Occupational health and safety requirements
A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1))
500 Permit holder must not hinder or obstruct
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
Note 1: This section is a civil remedy provision
Note 2: a permit holder, or the organisation which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.
Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).”
At [8] – [36] inclusive of the affidavit of Maher, Mr Maher set out what relevantly transpired after he met Mr Rielly outside Lot 3 at about 2.30 pm on 1 July 2021. His affidavit was as follows:
“Joint Venture Project
[8]BAM is part of a joint venture with other companies (CPB Contractors Pty Ltd, Ghella Pty Ltd, and UGL Engineering Pty Ltd) that have formed the CBGU Joint Venture (CBGU). CBGU was established for the purposes of servicing the tunnels, stations, and development works on the Cross River Rail Project (Project) in Brisbane. CPB is the joint venture entity that has been appointed as the Principal Contractor on the Project. However, CBGU is a seamless joint venture and the employees of each entity work together co-operatively to deliver the Project together.
[9]During my employment with BAM, I have worked at various Project sites, including Boggo Road, the Gabba, and Albert Street. I was responsible for managing the construction teams that are developing the new Albert Street Station as at 1 July 2021. This component of the Project commenced in August 2019 and is scheduled for completion at the end of 2023. The Albert Street Station works on the Project are carried out over three lots:
(a)Lot one is the main site office, located at 96 Albert Street, Brisbane City;
(b)Lot two is where the underground cavern excavation is being performed by the tunnelling team. I am not involved in this arm of the project; and
(c)Lot three is where excavation works are taking place, located at 142 Albert Street, Brisbane City.
[10]Lots one and three will serve as the southern and northern entrances (respectively) to the new Albert Street station once the construction works have been completed.
[11]CGBU occupies lots one, two and three under the contractual arrangements for the Project. CGBU is therefore responsible for all aspects of health and safety relating to the Project, including ensuring the safety of all persons on the sites, such as workers and visitors.
Site safety requirements
[12]There are inherent safety risks in construction projects. For excavation and retention works, these risks include collision with heavy machinery, falls from heights, and becoming trapped.
[13]Everyone is responsible for safety, including visitors to the site. This means that everyone should take reasonable care for their own safety and ensure that their conduct does not create risks to the safety of other people on the site.
[14]As the occupier of the site, CBGU has a number of control measures in place to eliminate or minimise safety risks on the Project. These control measures include:
(a)delineated access ways for heavy vehicle movements;
(b)entry gates to prevent members of the public from accessing the site; and
(c)pre-start meetings each day where works and major site risks are discussed with workers that are engaged on the site that day.
[15]There are additional safety requirements for visitors to the Project. This is because visitors are exposed to greater safety risks because they are not familiar with the Project, works being undertaken, features of the site, communication protocols on site, or the access and egress routes, including in the event of an emergency.
[16]The main site safety requirements for visitors at Albert Street Station on 1 July 2021 were as follows:
(a)when a visitor arrives, they are required to report to the sign-in area at lot one and undertake a visitor induction. The induction sets out the main risks and rules that apply to the Project, including not to enter any restricted areas on their own;
(b)the visitor must then complete the mandatory visitor COVID-19 declaration, which confirms whether they are experiencing COVID-19 symptoms or have potentially been exposed to COVID-19; and
(c)after the induction and COVID-19 safety requirements are completed, the visitor must be escorted by a representative of CBGU at all times while they are on the Project, comply with any directions given to them, and follow safety signage on the Site.
[17]I am authorised to give directions to workers that report to me and visitors to the Project on behalf of the CBGU, including in relation to the occupational health and safety matters, such as the site safety requirements.
Site conditions on 1 July 2021
[18]On 1 July 2021, CBGU and Queensland Pre-Stressing Pty Ltd (QPS) were undertaking formwork activities on lot three. These activities involved excavation and retention work as part of the construction of an underground shaft, which will form the base of the Albert Street station. There are 5-meter-high fences surrounding the site to keep members of the public out and to prevent unauthorised access.
[19]There had been intermittent showers in the morning. CBGU does not require people to work in the rain and many activities cannot be conducted in the rain, for example with power tools or electric leads. Where workers insist on continuing to work and can safely do so, additional safety measures are able to be put in place.
[20]Some workers were working between the periods of rain. The traffic controllers continued to work in the rain, but they had options for shelter as the buildings next to the road had awnings. The traffic controllers were dressed in wet weather gear, including raincoats, long pants, and gumboots that were supplied by their employer. I was satisfied that the measures in place for the traffic controllers were suitable for the conditions.
[21]Inside lot 3, there was a communal area for workers next to the entrance gate. Behind this area was an excavator and a tower crane base. The tower crane base was accessible by a set of scaffold stairs, but was not in use at the time. The excavator was not in use at the time that I was on the site.
[22]Due to the excavation works, a restricted area was set up with a gravel road for heavy vehicles to transport materials in and out of lot three (Restricted Area). The Restricted Area was marked with hard barricading and delineated walkways that ran parallel on either side of the Restricted Area. The barricading was made up of yellow tripod barriers and orange bollards. There was also signage posted on the barricading that identified the area as a restricted access zone and directed persons not to enter.
[23]Only certain persons were authorised by CBGU to enter the Restricted Area. A person must be specifically trained to be in a restricted area and have signed on to the safety start card to be allowed inside the Restricted Area. These requirements apply even if work is not in progress in the Restricted Area.
First CFMMEU visit
[24]On 1 July 2021 at around 5:30am, I arrived at the site office. I attended a pre-start meeting there before walking to lot three and undertaking a further pre-start meeting. Dewatering works were planned to take place as there had been rain that week. There were also excavation and retention activities taking place.
[25]At around 9:00am, lot one was visited by two officials from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). I am unable to recall the full names of these officials, however, one was named Beau and the other was Andy. I had previously dealt with Andy on the Project.
[26]Jonathan Bekkers, Industrial Relations Advisor for CBGU led the discussions with Beau and Andy and escorted them through lots one and three. I was also present for the discussions along with Mark Taylor, the site safety lead for CBGU.
[27]Beau and Andy complied with directions from CBGU personnel in relation to the site safety requirements. They completed the visitor induction and complied with the site safety rules while they were on site, including by remaining escorted at all times.
[28]Beau and Andy inspected access and egress and remained on site for approximately 90 minutes. At the end of the visit, they left the site.
Second CFMMEU visit
[29]At around 2:30pm, I was in in the main site office when I received a call from Lyndon Hinrichsen, Project Supervisor. Mr Hinrichsen said to me: "There is another union official on site, this one is on his own." I understood that this meant that a union official was on lot three as Mr Hinrichsen supervises the works there.
[30]I immediately walked down from the office and began walking up Albert Street towards lot three. I met Mr Bekkers at the junction of Albert Street and Charlotte Street, approximately 50 metres from lot three. Mr Bekkers was also making his way to lot three. I reached the footpath area just outside the northern corner of lot three where I saw Mr Hinrichsen standing with his arms folded.
[31]Mr Hinrichsen was standing with a man called Dean, whose name I learned through conversations during the day. I do not recall his last name. Dean had a fair complexion, was around 6'1" in height and had a broad build and light-coloured beard. Dean was wearing a black hardhat that was covered in stickers with "CFMEU', dark tinted sunglasses and was carrying a black folder which was also covered in union stickers. I understood that Dean was a union official from the CFMMEU.
[32]Mr Bekkers and I arrived outside lot three. Dean began speaking with Mr Bekkers regarding persons working in wet weather, access and egress, and post-rain events. I had the following conversation with Dean:
Me: "We need to take you the induction area at the lot one entry so that we can check you in and walk through the visitor induction process with the safety lead."
Dean"I don't want to go back to the office, I want to go on site."
Me:"Our procedures require all visitors to report to the main site office."
[33]At around this time I briefly stepped away to contact Mr Taylor by phone. I said to Mr Taylor: "There's a member of the CFMEU down here quizzing us around working around de-watering and post-rain activities." I am unable to recall what Mr Taylor said he was doing, however I do recall him saying: "I'm just wrapping up, I will be down there as soon as possible."
[34]After I had finished speaking with Mr Taylor, I again asked Dean to complete the sign in process for visitors:
Me:“What is this visit regarding?”
Dean:“I have a few concerns regarding workers in the rain, also I want to take a look at your access and egress.”
Me:“We’re happy for you to continue onto site, but first we need to get you to come back to lot one and sign in.”
Dean:“I don’t need to do that, I want to go onto site.”
Me:Our procedures require this of all out visitors. If you can wait here, Mark Taylor is out safety guy, he’s on his way down here and can work through the process with us.”
[35] We remained at the front of the lot three site for about 10 - 15 minutes. During this time Mr Bekkers and I repeated our request that Dean return to the office to sign in and complete the visitor induction. During this time, I also sighted Dean's entry notice and entry permits.
Entry to Lot Three
[36] After being outside of lot three for 10 - 15 minutes, a subcontractor worker entered through an entry gate for workers. Dean pushed his way in behind the worker. As Dean was doing this, Mr Bekkers said: "You can't go in there, you don't have permission, you need to go back to lot one and sign in." Dean did not respond to this direction.”
The affidavit evidence of Mr Maher was supported by the evidence of Mr Bekkers, [6] Mr Hinrichsen, [7] and Mr Taylor. [8] The Court accepts the evidence of the witnesses called on behalf of the applicant insofar as that evidence went to visitor entry and visitor conduct requests and requirements not having been complied with by Mr Rielly. Each of the applicant’s witnesses were forthright, appeared honest, and gave evidence to the best of their ability bearing in mind the passage of a significant period of time.
[6] Affidavit of Bekkers filed on 12 August 2022 at [8] – [74]
[7] Affidavit of Hinrichsen filed on 12 August 2022 at [11] – [38]
[8] Affidavit of Taylor filed on 12 August 2022 at [9] – [27]
At [8] – [74] inclusive of the affidavit of Bekkers, Mr Bekkers set out what relevantly transpired after he met Mr Rielly outside Lot 3 at about 2.30 pm on 1 July 2021. His affidavit was as follows:
“Joint Venture
[8]I perform work for the joint venture between CPS Contractors Pty Ltd, BAM International Australia Pty Ltd, Ghella Pty Ltd, and UGL Engineering Pty Ltd (CBGU JV)
[9]The CBGU JV was formed to undertake the CRR TSO Project. Annexed and marked "JLB1" are true and correct copies of relevant extracts of clauses 14.1(b) and 17 of the O&C Subcontract Agreement for the CRR TSO Project between CBGU and Pulse Partnerships Pty Ltd, which outline that CBGU JV has a non-exclusive sublicense to use the land and is responsible for work, health and safety obligations on the CRR TSO Project.
[10]CBGU JV does not directly employ any persons to work on the Project. The companies that form part of the CBGU JV engage workers to perform work for the benefit of the CBGU JV.
Construction project
[11]The CRR TSO Project involves the construction of an underground railway line from Roma Street to Dutton Park with four new underground stations being constructed at:
(a) Roma Street;
(b) Woolloongabba;
(c) Boggo Road; and
(d) Albert Street.
[12]The CRR TSO Project commenced on 30 September 2019. The total cost of the CRR TSO Project is approximately $4 billion, with the new Albert Street Station costing approximately $650 million.
[13]I am currently allocated to the Albert Street site of the CRR TSO Project, where I am the only industrial relations advisor who is working at that site.
[14]The Albert Street component of the CRR TSO Project involves the construction of a new underground railway station on Albert Street in the Brisbane CBO. This station will have two entrances located at 96 Albert Street and 142 Albert Street with capacity to build residential and retail facilities above the station entrances.
[15] The Albert Street compound comprises three lots:
a)Lot one is located at 96 Albert Street Lot one houses a site office and is the main mustering point for all workers on site. It is a site requirement that all visitors to the Albert Street Station attend lot one to complete the visitor induction. Annexed and marked "JLB2" is a true and correct copy of the Albert Street lot one map as it was on 1 July 2021.
b)Lot two is located at 98 Albert Street, Brisbane City and is adjacent to lot one. Lot two is the primary lot for the tunnelling arm of the project.
c)Lot three is located at 142 Albert Street, Brisbane City, and has been set up for demolition and excavation activities in order to clear the lot and construct the northern entrance to the future Albert Street Station.
Lot Three
[16]Lot three is surrounded by buildings on three sides. The front of the block faces Albert Street. Annexed and marked "JLB3" is a true and correct copy of the Albert Street lot 3 map as it was on 1 July 2021. with an evacuation diagram that marks the exits and emergency muster points.
[17] Lot three had the following physical features as of 1 July 2021:
a)two separate access gates for authorised persons and authorised vehicles to enter;
b) steel fencing at the front of the block;
c)a blue gazebo over a communal area for workers, which contained a water cooler, bins, permits, and spare personal protective equipment;
d)scaffold stairs to the right of the communal area led to a platform that was a tower crane erection pad, which overlooked an excavation area; and
e)an excavation area where excavation works were taking place, part of which was marked and fenced as a restricted area (Restricted Area).
[18]Annexed and marked "JLB4" - "JLB5" are true copies of photographs of the above taken on or around 1 July 2021.
[19]Lot three also had three major pieces of plant located there on ·1 July 2021, being:
a)a five-tonne excavator, which was parked at the George Street end of an Exclusion Zone, outside of the Restricted Area;
b)a drill rig, which was behind the excavator; and
c)another five-tonne excavator, which was operating in the north-western corner of the site.
Site Safety Measures
[20]There are a number of requirements that persons on site must comply with to ensure CBGU JV meets its obligations and responsibilities under work health and safety legislation.
[21]These site safety requirements include:
a)access to the site is restricted to persons authorised by the CBGU JV and persons with a statutory right of entry; and
b)a requirement that any person on the site must not enter a restricted area unless they’re authorised to do so or receive clearance from a supervisor and establish communication with any machinery operators in the area to inform them that they are entering the restricted area (referred to as positive communications or Plant Operating Zone Communications (POZ comms)).
[22]Signs, which are placed on the outside of the fencing, are visible to any persons outside of the site, including a sign that states: "DANGER - CONSTRUCTION SITE DO NOT ENTER'
[23]Annexed and marked "JLB6" is a true and correct copy of a photograph of the signage on steel fencing as it was visible to the public from Albert Street.
[24]There are also specific site safety requirements for persons who are visiting the site.
[25]All visitors to the site must complete a site induction before entering a work area (such as lot 3). The site induction sets out the major hazards oh the site, the PPE required to be worn, and the safety rules applicable to visitors. Annexed and marked "JLB7" is a true and correct copy of the visitor Induction questionnaire for the Albert Street station site.
[26]Visitors are also required to sign in and sign out when entering and leaving the site. This ensures that CBGU JV has a record of who is onsite in the event of an emergency.
[27]In addition to the visitor site induction, site visitors were also required to check into the site via the CBGU JV COVID-19 check-in declaration. This check-in required visitors to make a declaration regarding a number of matters, including whether they were experiencing symptoms of COVID-19. This questionnaire wc1s a requirement under CBGU JV's COVID-19 Project Management Plan and must be completed by all persons on-site daily.
[28]Annexed and marked "JLBB" 1s a true a17d correct copy of the COVID-19 check-in declaration questionnaire.
Restricted Area
[29]A Restricted Area for excavation works was in place at the Albert Street Station s1te on lot three on 1 July 2021. The Restricted Area had been established in accordance with CBGU JV's standard practice.
[30]The Restricted Area was a corridor of approximately 10 metres x 4 metres to the left of the communal area at the southern end of the site. The Restricted Area did not change day-to-day because it also had moving plant and vehicles regularly using it to move between the excavation area and the nearby gate.
[31]The Restricted Area had been established to ensure that persons on site do not walk within the operating zones of the mobile plant and vehicles, where there is a risk of collision, which may cause a fatality or serious injury. Annexed and marked "JLB9" is a true and correct copy of a diagram of lot 3 with my handwritten markings indicating the dimensions of the exclusion zone. The initials "GE'1 show the location of the gates and "PS" indicates the location of the communal area.
[32]The Restricted Area was surrounded by steel barriers that were approximately one metre high. The Restricted Area was marked with four signs that were posted on the steel barriers, which stated:
a) “KEEP CLEAR OF MOVING MACHINERY”
b) “NO PEDESTRIAN ACCESS”,
c)“RESTRICTED ACCESS AUTHORISED PERSONNEL ONLY”; and
d) “POSITION OF SAFETY
STAND BEHIND BARRIER
KEEP CLEAR OF PLANT SWING RANGE
KEEP CLEAR OF PLANT TRAVEL PATH”
[33]Annexed and marked "JLB10" - "JLB11" are true copies of photographs of the signs referred to above.
Union entry
[34]I manage the engagements with union officials for the Albert Street compound on the CRR TSO Project. My day-to-day duties involve liaising with union officials in relation to industrial relations matters and facilitating their lawful rights of entry.
[35]I provide support and assistance to the safety and site management team, who are responsible for ensuring union officials comply with the CBGU JV's site safety requirements and are safe on the site. I have authority to give directions and instructions to union officials on behalf of the CBGU JV.
[36]If a union official wishes to enter the site, my role is to confirm that they hold a right of entry to do so and are exercising it lawfully. This generally involves me:
a) verifying their right of entry documentation and entry permits;
b)ensuring that union officials have completed the sign-in procedures to safely enter the site;
c)escorting union officials while they are on s1te to ensure their safety; and
d)giving directions to union officials, where necessary, to ensure both their safety and the safety of workers around them.
[37]I have facilitated numerous union officials to enter the Albert Street work sites, including union officials from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).
First CFMMEU visit - morning of 1 July 2021
[38]On 1 July 2021 at approximately 6:25am, I arrived at the lot one site office and attended the lot two pre-start at 6:30am, which went for 10-15 minutes. I did not attend the lot one or lot three pre-starts that morning.
[39]At approximately 9:20am, I was walking towards lot one when I saw that Beau Sieffert (Mr Sieffert) and Andrew Blakeley (Mr Blakeley) from the CFMMEU were there. I recognised them both from my previous dealings with them at the CRR TSO Project sites. These officials produced their entry permits and a notice of entry under section 119 of the Work Health' and Safety Act 2011 (Qld) (WHS Act). To the best of my recollection, Mark Taylor provided them with a verbal visitor induction and they were taken through the questions in the COVIO-19 declaration but refused to sign either document. After this discussion, they inspected two staircases and the access and egress to the excavation works on lot one until 9:55am.
[40]Mark Taylor (Senior Safety Advisor) (Mr Taylor), James Maher (Site Manager) (Mr Maher), and I escorted Mr Sieffert and Mr Blakeley while they were on lot three. They left lot three at about 10:28am.
[41]After Mr Sieffert and Mr Blakeley left, I did not see them for the remainder of the day.
Second CFMMEU visit - afternoon of 1 July 2021
[42]At approximately 2:30pm, I was sitting at my desk in the lot one site office when Lyndon Hinrichsen, a Supervisor working for the CBGU JV (Mr Hinrichsen), advised me that there was "another black hat standing out front lot three ... a Dean".
[43]I understood that Mr Hinrichsen was referring to Dean Rielly (Mr Rielly) of the CFMMEU as he has often visited the CRR TSD Project and is the only official named Dean that I have dealt with on this site. I said to Mr Hinrichsen: 'it's probably Dean Rielly."
[44]I immediately left lot one and walked to lot three. While walking to lot three, I contacted Mr Maher to alert him to Mr Rielly's presence. Mr Maher responded: "No worries, I'll be there soon." I said to Mr Maher: ''Also, give Mark (Mr Taylor) the heads up because we might need him down here."
Wet weather work
[45]I recognised Mr Rielly outside of the lot three site gate under the awning of "JD Sports", a shop adjacent to lot three. I approached Mr Rielly and had the following conversation with him:
Me: “Hi Mate, how are you going”
Mr Rielly: “who is in charge here?”
(pointing to labourer from Austructure Pty Ltd) “Is that person in charge?”
Me:“No, James Maher is the site’s superintendent and Lyndon (Mr Hinrichsen) is the sites supervisor. They’re both on their way now.”
[46]Around this time, I saw Mr Hinrichsen walking towards us and said to Mr Rielly "Here's the supervisor coming over now.''
[47]When Mr Hinrichsen arrived, Mr Rielly enquired about the traffic controllers working outside the site (who were engaged by a subcontractor on the CRR TSO Project, called Altus Pty Ltd (Altus)):
Mr Rielly: “Why are these traffic workers standing out in the rain?”
Mr Hinrichsen: “They’ve been told to get undercover but they have chosen not to.”
[48]That discussion continued for approximately two minutes until Mr Maher arrived. Mr Rielly continued the conversation about the traffic controllers with Mr Maher:
Mr Rielly:"Are you the man in charge of everything here? They tell me you're the man in charge."
Mr Maher: "Who said that? I am the site's Superintendent ''
Mr Rielly:"Why do you have traffic controllers working in the rain? I've been standing here for 45 minutes ... I haven't seen anyone tell them to head off."
Mr Maher: "We use radios to communicate with our TCs (traffic controllers), and I was walking around just 30 minutes ago speaking to them."
Mr Rielly:"Why are there no undercover areas for them to stand under, other than the buildings' awnings you are luckily enough to have around you."
Mr Hinrichsen: "We've told them they don't have to work in the rain and directed them to go undercover, but they want to remain at their posts.”
[49]While it was raining, the weather was not severe. I did not consider it unsafe for the traffic controllers to continue to work if they wished to. I also informed Mr Rielly that wet weather work may be regulated by an industry award for those workers and they may be entitled to additional pay or benefits for performing that work, such as a wet weather allowance.
Notice of Entry
[50]The conversation with Mr Rielly about the traffic controllers continued, back and forth, for another minute or two. I said to Mr Hinrichsen and Mr Maher: "We don't need to stand here and keep debating this with him ... unless Dean reasonably suspects a safety contravention and wants to issue us with an s117 notice of entry, then let's let him be."
[51]Mr Maher, Mr Hinrichsen and I began to walk away from Mr Rielly. I then heard Mr Rielly call out: "hold up, here's my notice." I turned around and saw him reach into his satchel and pull out a Notice of Entry.
[52]Annexed and marked "JLB12" is a true and correct copy of the Notice of Entry that Mr Rielly provided on 1 July 2021.
[53]I sighted Mr Rielly's State and Federal right of entry permits. These were valid and in date.
[54]The discussions under the awning of JD Sports went on for approximately five to eight minutes. During this time, Mr Maher and I had the following discussion with Mr Rielly:
Me: "As this is a safety entry, I will organise for our Senior Safety Advisor to come down to discuss these suspected contraventions with you."
Mr Rielly: "Who's that?"
Me: "His name is Mark Taylor."
Mr Rielly:"Mark Taylor? He used to be a great cricketer back in the day."
Me:"Can you quickly talk me through the suspected contraventions you've listed here? What do you mean by risk assessments?"
Mr Rielly:"It's pretty self-explanatory mate, you mustn’t speak English very well."
Me:"Perhaps not, maybe you could assist me then so we can better understand what you are after?"
Mr Rielly: "Alrighty ... I want to see all your documents and procedures relating to wet weather and I want to make copies of them."
Me:"We will not be handing over documents until our Senior Safety Advisor has discussed your concerns and ascertained if and what documents are relevant to your suspected safety concerns."
Mr Rielly: ''Well, when is he getting here?"
Me:"He is on his way and will be here shortly."
Mr Maher:"Could we please head over to the lot one compound so we can sign you in, complete a COVID-19 declaration and undertake a visitor induction?"
Mr Rielly: "I won't be doing any of that as I am not required to."
[55]Both Mr Maher and I asked Mr Rielly two to three times to come with us to the lot one compound so we could carry out the sign in, COVID-19 declaration and induction for his entry to the site in accordance with the site safety requirements.
Unauthorised entry to Lot Three
[56]Mr Rielly then proceeded to walk around the front of the site to the gate entrance. The traffic controller at the site entrance pointed to a sign on the fence which stated: "ALL VISITORS MUST REPORT TO SITE OFFICE". The traffic controller said to Mr Rielly: "Read the sign, mate." I said to the traffic controller: "Don't get involved."
[57]I said to Mr Rielly: "Don't go in there, we need to wait for Mark (Taylor)." Mr Rielly did not respond fa my direction and opened the front pedestrian gate and walked into lot three.
[58]Once Mr Rielly entered the gate, he walked to a yellow lectern which was being used as a stand for the gate sign-in, hand sanitiser, and sunscreen. Mr Rielly then began looking through the sign-in sheet and started rummaging through the lectern. Mr Rielly did not say why he was doing this. Annexed and marked "JLB13" is a true and correct copy of a photograph of the lectern which was standing in lot three inside the entry gate.
[59]As this was occurring, I had the following conversation with Mr Rielly:
Me: "What are you looking for?"
Mr Rielly: “Where are the SWMS kept for this area?"
Me:“You'll have to talk to Mark about that, I think they're kept in the main office on Lot one."
[60]Our discussion continued as Mr Taylor arrived at lot three.
Me: "This is Mark Taylor. He is the site safety manager."
Mr Rielly: "Are you a good cricketer?"
[61]After about two minutes, Mr Rielly stopped looking through the lectern and walked through the communal area up the scaffold stairs and onto the tower crane pad. I witnessed Mr Rielly walk up the stairs and said: "Don't go up there, come back down, you're not authorised to go up there."
[62]Mr Rielly did not respond to this and continued to look around the tower crane pad and into the excavation box. I repeated my direction for Mr Rielly to come down another one or two times. Mr Rielly did not respond to either request. While Mr Rielly was on the tower crane pad, Mr Taylor, Mr Maher, Mr Hinrichsen and I remained at the communal area, however, we ensured that Mr Rielly was always within our line of sight. After approximately two minutes, Mr Rielly walked back down the scaffold stairs and into the communal area.
[63]While Mr Rielly was on the scaffold stairs; Mr Maher said: "Please come down from there, we need to discuss your 117 notice." Mr Maher repeated this direction again at least two times during the time Mr Rielly was on the tower crane pad.
Unauthorised entry into Restricted Area
[64]Mr Rielly walked down off the scaffold stairs and through the communal area towards the Restricted Area. I said to Mr Rielly: "Where are you going? How is this relevant to your 117 notice?" Mr Rielly did not respond to me and proceeded to walk to the other side of lot three towards the Restricted Area.
[65]Mr Rielly walked up to the Restricted Area and walked in between the fencing that had been placed around the area. I am unable to recall whether Mr Rielly physically shifted the fencing or simply touched the fencing as he walked into the Restricted Area.
[66]I said to Mr Rielly "You are in a restricted area; you need to leave for your own safety." Mr Rielly did not respond to this. Mr Maher also said to Mr Rielly: "You can't go in there. It's a restricted area," Mr Maher repeated this direction approximately two times.
[67]Once Mr Rielly was in the Restricted Area, he walked down towards the excavator parked at the western boundary of the Restricted Area.
[68]I walked towards Mr Rielly, keeping .abreast with him, using the designated walkway adjacent to the Restricted Area. I said to Mr Rielly: "For your own safety we need you out of here, it's a restricted area."
[69]Mr Rielly did not respond to this and continued to walk around in the Restricted Area. He walked into the swing radius of the excavator, which was stationary at the time and not in use. Mr Rielly also walked around the excavator, which was also not in use at the time. I said to Mr Rielly: "You need to get out of there, you're in a poz comms zone. This is outside your 117 notice."
[70]It was around this time that I walked out of the walkway and towards the Albert Street end of the site. I stood near the vehicle entrance and spoke with Mr Hinrichsen, Mr Taylor and Mr Maher. Mr Taylor said: "I'll go down there and try to get him out.'' Mr Taylor walked down towards the excavator in the Restricted Area and spoke to Mr Rielly. I was unable to hear the conversation between Mr Taylor and Mr Rielly, but it continued for two to three minutes.
Departure
[71]Mr Taylor and Mr Rielly left the Restricted Area and moved onto the walkway that runs along the Charlotte Street side of lot three. After Mr Rielly and Mr Taylor finished their conversation, Mr Rielly began walking towards the site exit. As Mr Rielly was leaving, I heard Mr Taylor say to Mr Rielly; "If you ever have any concerns about people¹s safety on this site, give me a call" and "my number is on the sign there." I do not recall if Mr Rielly took down Mr Taylor's number.
[72]Mr Rielly left the site at approximately 3:10pm and began walking towards Charlotte Street I did not hear from Mr Rielly for the remainder of the day or anytime afterwards.
[73]At 3:14pm I reported Mr Rielly's entry to Mr Forde.
[74]On the following day, I prepared a note of my recollections of what had occurred with Mr Rielly. The purpose of these notes was to maintain a record of the entry for internal reporting purposes. Annexed and marked "JLB14" is a true and correct copy of those notes. The notes remain true and correct to the extent of my knowledge and belief, except where I have corrected or added to them in this affidavit.”
Arguments Advanced on Behalf of Respondents in Respect of Entry On To Site
As to the claim that Mr Rielly contravened the provisions of s. 499 of the FWA, it was submitted on behalf of the respondents that directions given to Mr Rielly were not uniformly enforced, or had been waived, and that, accordingly, the visitor entry requirements did not have the character of, and did not constitute, an occupational health and safety requirement as provided for under the section. It was submitted that the Court ought to find:
(a)That the visitor entry requirements were nothing more than the occupier’s preference, or desired state of affairs; and
(b)That such preferences were not uniformly enforced.
(c)That the applicant was therefore unable to establish a breach of the section insofar as it was claimed that there had been non-compliance with the visitor entry requirements.
Alternatively, it was submitted that if it be found that the visitor entry requirements were in fact requirements for the purposes of s. 499 of the FWA, Mr Rielly could not have contravened the provisions of the Act because the evidence established that such requirements were not uniformly enforced, and that therefore any request to comply with them could not be reasonable insofar as he was concerned.
Turning first to the question as to whether the visitor entry requirements were “requirements” under the Act or not, it is of note that two CFMMEU Union Officials who first attended at Lot 3 on the morning of 1 July 2021 agreed to requests duly made of them to comply with visitor entry requirements then given to them by representatives of the JV before entering onto the site. It can be inferred that by complying with the requests and requirements made of them, they acknowledged that there were valid requirements which had to be complied with by each of them prior to their attending on-site. The different approaches adopted on the first site visit by the two union officials who attended at that time, as opposed to the second site visit by Mr Rielly, were starkly at odds as set out at [24] – [46] of the affidavit of Mr Maher.
The word “requirement” connotes “The act of requesting or demanding; a request, a demand; a summons, a requisition.” [9]
[9] Oxford English Dictionary
Non-compliance with a requirement duly given does not mean that such requirement ceased to have the quality of a valid request or demand. Even if a representative of an occupier of a site might have differentiated between different people in terms of the making of a requirement, or even if, for whatever reason, compliance by visitors with written requirements was waived by such representatives or were otherwise not enforced in respect of certain people entering upon the site, that does not detract from the fact that, as in the instant case, compliance with the relevant visitor entry requirements was requested and demanded in respect of Mr Rielly. The making of such requirements were requests and demands required to be complied with under the provisions of s. 499 of the FWA. No hard and fast rule ought to apply as to the nature of enforceable and valid requirements able to be made at any one point in time. Much will of course depend upon the prevailing circumstances in that regard.
Visitor Entry Requirement Requests and Demands
The Court finds that Mr Rielly failed to comply with the visitor entry requirements duly given to him on 1 July 2021. It is of no moment that the two union officials who attended onsite for the first visit were given an oral onsite induction, as well as being orally signed in and given a requirement to make oral COVID declarations. The requirement for compliance with basic entry requirements was recognised by such union officials and complied with, albeit that the mode of compliance differed from the normal visitor written sign-in entry requirement procedures contained in the written procedures manual. As a matter of construction, a valid requirement may be made or given under s. 499 of the FWA, notwithstanding that the actual requirement which was given differed from earlier requirements given to other different visitors earlier on the same day.
The necessity for occupational health and safety requirements to be complied with prior to the entry onsite of visitors was obvious, as explained by Mr Maher, particularly in circumstances such as the present where Mr Reilly’s lack of familiarity with the conditions on site from day to day could have led him to suffer an injury. The lack of familiarity arose simply by reason of the fact that conditions were different on 1 July 2021 from the conditions which pertained at the time of his previous visit.
Save for the making of a COVID declaration requirement which the Court finds was unnecessary - the Court has taken judicial notice of the fact that at the relevant time on 1 July 2021, no such requirement existed for an open air setting such as Lot 3 [10] - the Court finds that it was reasonable for the other visitor entry requirements to be imposed and complied with.
[10] See Chief Health officer Direction of 28 June 2021 provided to Judge’s Chambers by the lawyers for the respondents which has been marked Exhibit 19.
It was submitted on behalf of the respondents that there was evidence of non-compliance by employees of the CBGU JV with the sign in requirement, [11] the site induction requirement, [12] and the COVID-19 declaration requirement. [13] Those submissions at [35] – [37] inclusive of the respondents’ written submissions going to the alleged lack of uniform enforcement of entry requirements were as follows:
[11] [35] of Respondents’ Written Submissions.
[12] [36] of Respondents’ Written Submissions.
[13] [37] of Respondents’ Written Submissions.
“[35]In respect of the sign-in requirement
(a)Mr Maher said that he often did not sign in or sign out from site; [14]
[14] Transcript (T) p. 59.21 - .27
(b)Mr Hinrichsen said that the requirement was enforced, but not much; [15]
[15] T – p. 99.20-.21; and note T – p. 113.07-.11
(c)Mr Taylor said that the requirement was enforced for visitors, but not necessarily for staff [16] and that he had to practice of signing people in orally; [17] and
(d)Mr Bekkers said that there were times he did not routinely follow the requirement. [18]
[36] in respect of site induction requirement:
(a)Mr Maher agreed that he could have given Mr Rielly an oral induction himself, although it would be a deviation from process; [19]
(b)Mr Hinrichsen agreed and said that there was no safety reason why Mr Rielly could not have been orally signed in and do the induction and declaration that way; [20]
(c)Mr Taylor’s evidence was that his usual process was to give visitors an oral induction if they refused to sign in; [21] and
(d)Mr Bekkers said that oral sign in and induction processes had occurred previously and that there was a practice of performing oral sign ins and inductions on site. [22]
[37] In respect of the COVID-19 declaration requirement
[16] T – p. 137.24 - .34
[17] T – p. 140.07
[18] T – p. 156.10 - .14
[19] T – p. 76.25 - .34
[20] T – p. 119.33 - .43
[21] T – p. 140.07
[22] T – p. 162.31 - .46
(a)Mr Hinrichsen said that the declaration requirement was enforced in respect of visitors but mainly not the workers/salary staff; [23]
(b)Mr Taylor’s evidence was that it was not consistently enforced: [24]
That policy of people having to make a COVID declaration was also not uniformly enforced, was it?---It was encouraged, promoted.
But not enforced? --- There was an expectation that it would happen.
There wasn’t a requirement that it happen, though, was there?--- Was a requirement that it would happen, yes.
[23] T – pp. 115.42 – 116.02
[24] T – p. 138.23 - .31
HIS HONOUR: Well, did it happen?---Realistically, consistently, no.
(c)Mr Taylor also confirmed that health directives issued by the Queensland Government at the time did not require people visiting construction sites to make a Covid declaration; [25] and
(d)Mr Bekkers said that it was only enforced by giving reminders to people at pre-starts and other forums. [26]”
[25] T – p. 137.40
[26] T – p. 158.14 - .21
What is of note, however, was that in respect of the sign-in requirement, Mr Taylor’s unchallenged evidence was that though not necessarily enforced for staff, a sign-in requirement was enforced for visitors. It cannot be said that Messrs Maher, Hinrichsen, Taylor or Bekkers – each of them being employees of the JV partners which occupied the site – were visitors who were required to comply with the visitor entry requirements. The same applies to other employees of the JV partner employees.
The Court finds that to the extent that the evidence established that employees of the joint venture did not routinely, or at all, comply with the visitor entry requirements, such evidence did not absolve Mr Rielly, in his capacity as a visitor, from complying with the request and demand given to him for the purpose of his entering onto Lot 3 on the day in question.
It was alternatively submitted on behalf of the respondents that Mr Rielly could have been given the opportunity of orally complying with the visitor entry requirements, but that he was given no chance to do so. The Court finds that the fact that he wasn’t given that opportunity was, in the circumstances, of no significance. Mr Rielly had been directed to comply with the requirements but steadfastly refused to do so. The Court finds that even if he had been given the opportunity to orally undertake visitor entry requirements, he would have been unlikely to have agreed. Requests and requirements given to him were treated with disdain and ignored.
The intransigent stance taken by Mr Rielly when first approached by representatives of the occupiers of the site clearly indicated his intention to be obstructionist and non-compliant from the outset. In such circumstances, and having regard to the relatively short period of time between when Mr Rielly arrived at the site and when he entered the site over the objections of the JV representatives then present, the Court finds that the representatives of the JV occupiers on site didn’t unreasonably fail to canvas with Mr Rielly whether he would, or would not, undertake visitor site entry requirements orally.
The Court finds that in respect of the visitor entry requirements, the requests made by representatives of the occupiers of the site were reasonable, and that there was relevantly a contravention by Mr Rielly of the provisions of s. 499 of the FWA.
Mr Rielly’s Conduct after He Entered upon the Site
At [37] – [46] inclusive of the affidavit of Maher, Mr Maher set out what the Court finds relevantly transpired after Mr Rielly made his way onto Lot 3. His affidavit was as follows:
“[37]Dean walked straight to a lectern in the common area, which contained the pre-start sheet for workers and some safety documents, permits, and emergency equipment. As Dean looked through the documents, we had the following discussion:
Dean:"Where are the risk assessments for the area?"
Me:"They are stored at lot one, that's where we want you to go."
Dean: "I need to have a look at the risk assessments and the SWMS."
Mr Bekkers: "We keep them at lot one, we need you to go over there to go through the sign in process."
[38]Dean did not respond to Mr Bekkers' request and continued to look through the lectern for 2 - 3 minutes.
Access to the tower crane base
[39]Dean then walked around the side of the common area and up the staircase leading to the tower crane base. Dean walked to the edge of the tower crane base and looked down over the site.
[40]Neither Mr Bekkers nor I followed Dean and I did not repeat Mr Bekkers' directions to follow the correct induction process or make any comments to him as I felt it would be futile to attempt to change his behaviour. There was also no significant risk to Dean's safety as the tower crane was not in use. However, I ensured that Dean remained within my view so I was able to monitor him without escalating the situation. There was still some risk in Dean's actions as there are always risks on a construction site if people do not follow the correct procedures, for example, if Dean had entered an unstable area.
[41]Dean remained on the tower crane base for two to three minutes. During this time, he was just looking around. While Dean was in this area, he did not physically obstruct any workers, but his conduct distracted the remaining workers on site who saw him moving around.
Entry to the Restricted Area
[42]Dean then walked around to the other side of the site, where the Restricted Area had been set up. Mr Bekkers said to Dean: "Where are you going? We need you to come back to the office and sign in." Dean did not respond to this direction and continued to walk to towards the Restricted Area. Mr Bekkers said: "You are entering a work area, you have not been inducted." Again, Dean did not respond to this direction.
[43]Dean walked around the barriers that marked the Restricted Area and into the Restricted Area. Dean walked around inside the Restricted Area for 3 - 4 minutes. As Dean was walking around the Restricted Area, Mr Bekkers said: "You need to get outof there, you have come through the gate, you have not completed a sign on." It was not clear to me what Dean was doing as there was no work occurring in the Restricted Area for him to observe.
[44]While Dean was in the Restricted Area, Mr Taylor arrived at the site. I said to Mr Taylor: "We have tried to get him to go back to the office but he won't listen." Mr Taylor then walked down towards Dean. Both Dean and Mr Taylor then left the Restricted Area and had a conversation on the walkway.
[45] I was unable to hear the conversation between Mr Taylor and Dean. After about 2 minutes, Dean and Mr Taylor began to walk back towards the site gate entrance where Mr Bekkers, Mr Hinrichsen and I were standing. Dean walked past us and left the site.
[46]I did not see or hear from Dean for the remainder of the day. There was no further action taken by Dean with respect to the visit. Mr Bekkers informed me that he would document and report the incident.”
As to Mr Rielly’s conduct after he entered upon the site, the evidence clearly established that he disobeyed instructions and requests given to him by JV representatives not to move around the site, namely by refusing reasonable requests:
(i)not to enter upon the tower crane pad; [27] and
(ii)to leave the tower crane pad; [28] and
(iii)not to enter the Restricted Area; [29] and
(iv)to leave the Restricted Area. [30]
[27] Bekker’s affidavit at [56] – [63] and at T p. 162.16
[28] Bekker’s affidavit at [61] – [63]
[29] Bekker’s affidavit at [64] – [67]
[30] Bekker’s affidavit at [68] – [70]
It was not put to Mr Bekkers during cross-examination that there had not been a demand for Mr Rielly:
(a)to not enter upon the site.
(b)to leave the tower crane pad.
(c)to not enter the restricted area.
(d)to leave the restricted area.
Again, the reason for the giving of the said instructions, and the making of the requests, was for the purpose of ensuring that Mr Rielly did not suffer an injury on-site. One can well imagine the legal ramifications which could have flowed had Mr Rielly suffered any such injury. Mr Bekkers in cross-examination pointed out that though the excavators were not working at the time, vehicles were frequently traversing the site, and that the walking areas had become quite uneven along those access points, such that Mr Rielly could have slipped and fallen into such a rut or uneven piece of ground. [31]
[31] T p. 167.8 - .15
Submissions advanced on behalf of the respondents were to the effect that there could have been no contravention of the provisions of s. 499 of the FWA after Mr Rielly entered upon the site because:
(a)he was escorted;
(b)there was no safety risk from excavators;
(c)there was no danger to Mr Rielly when he was in the restricted area.
Dealing with each of those submissions, the evidence establishes that at no time during Mr Rielly’s site visit was any close presence to Mr Rielly of any of the occupiers’ representatives consensual from Mr Rielly’s perspective. From the outset, Mr Rielly was told not to go on site but he ignored such reasonable requests, unilaterally deciding to enter upon Lot 3 when an opportunity first presented itself. As to the excavators, though they were not operative at the time, the engines were nevertheless in unfamiliar surroundings to Mr Rielly, and he could have slipped on uneven ground and come into contact with one. As to Mr Rielly being in the restricted area, Mr Bekkers drew a distinction between traffic controllers being able to control the risk of injury from traversing vehicles, and to there being no risk at all as a result of the presence of such traffic controllers. [32] It is one thing for a traffic controller to control traffic, but quite another thing for a traffic controller to prevent injury to an unauthorised visitor who is found to be on-site. Mr Hinrichsen gave supportive evidence that aggregate had been placed in and about the site, and that that could also have been the source of danger to Mr Rielly due to his unfamiliarity with the site when walking around when on it. [33] Mr Hinrichsen confirmed that Mr Rielly entered onto the site unescorted, but that Messrs Taylor, Maher and Bekkers followed him. The Court finds that the only likely way that Mr Rielly would have been effectively discouraged from entering upon the site, or otherwise going where he wanted to when he had entered upon the site, would have been for him to have been physically restrained. Employees in the position of those present on the day shouldn’t be put in that position of possible physical harm to themselves when they have already given reasonable instructions relating to visitor entry requirements, and had made other requests, for Mr Rielly to leave the site once he had entered upon it.
[32] T p. 166.35 – 167.15
[33] T p. 123.20 - .37
The Court finds that Mr Rielly’s failures to:
(a)comply with reasonable requests for him to not enter upon the site unaccompanied;
(b)read and obey all safety signs on the site;
(c)not enter any restricted area on the site;
(d)confine himself when upon the site to areas suitable to visitors as opposed to areas within a restricted area;
were unreasonable and constituted contraventions of s. 499 of the FWA.
The Court finds that had Mr Rielly complied with the reasonable requests made of him, both before and after the time of his unauthorised entry upon the site, Mr Rielly would not have been unduly delayed or frustrated in the carrying out of his workplace health and safety site inspection which he was qualified to undertake. The Court does not accept the respondent’s submissions to the contrary.
Whether Mr Rielly Contravened Section 500 of the FWA
The Court has found that the allegations in [41] of the ASOC have been made out. The failure by Mr Rielly to take heed of, and comply with, what was asked of him after he had entered upon the site was improper in all of the circumstances. No reason was advanced by or on behalf of Mr Rielly as to why he was not required to comply with the requests and demands legitimately made of him by representatives of the occupiers. He simply stated that he didn’t have to comply. No evidence was advanced to the effect that Mr Rielly had any time constraints upon him, or that he could not have duly carried out an inspection of the site after he had complied with the requests and demands made of him. Mr Rielly placed the employees in an invidious position by his unwavering refusal to act reasonably.
The Court adopts what was held by Brennan CJ, Deane, Toohey and Gaudron JJ in R v Byrnes (1994 – 1995) 183 CLR 501 at [25] on the question of what constituted improper conduct, where it was said:
“Impropriety does not depend on an alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important (14): the alleged offender's knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.”
The Court finds that in the face of reasonable requests being made of him, Mr Rielly knew or ought to have known that he had no valid reason for failing to comply with the reasonable visitor entry requirements made of him, or requests made to him not to enter upon the site.
The Court finds, as a consequence, that Mr Rielly acted in an improper manner in contravention of the provisions of s. 500 of the FWA.
By reason of this Court’s findings that Mr Rielly has contravened the provisions of ss. 499 and 500 of the FWA, the CFMMEU is thereby taken to have also engaged in such contraventions.
As a consequence of the Court’s findings, it is appropriate that pecuniary penalties be imposed upon each of Mr Rielly and the CFMMEU because of their respective contraventions of the provisions of s. 499 and s. 500 of the FWA.
The Court will hear further submissions from the parties as to the timing of further hearings in the proceeding.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 21 February 2023
Affidavit of Hinrichsen filed on 12 August 2022 at [18]
Affidavit of Taylor filed on 12 August 2022 at MDT – 1 and MDT – 2
Exhibit 2
Affidavit of Bekkers filed on 12 August 2022 at [21], [22], [29] – [33], [36] and JLB – 7
Affidavit of Hinrichsen filed on 12 August 2022 at [16] – [17]
Affidavit of Taylor filed on 12 August 2022 at [16]
Exhibit 2
1
0
2