Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) (No 2)
[2023] FCA 1302
•30 October 2023
FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) (No 2) [2023] FCA 1302
File number: QUD 235 of 2020 Judgment of: RANGIAH J Date of judgment: 30 October 2023 Catchwords: INDUSTRIAL LAW – s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 – whether respondents organised unlawful industrial action – whether directions to cease work under s 85 Work Health and Safety Act 2011 (Qld) were validly made –– whether employees are required to comply with invalid directions – whether directions to cease work were validly made under cl 9.9 of the Enterprise Agreements – where no consultation with employers – whether stoppages of work were excluded industrial action – where stoppages were industrial action
INDUSTRIAL LAW – s 52 of the Building and Construction Industry (Improving Productivity) Act 2016 – whether respondents intended to coerce another person to not allocate duties or responsibilities to a building employee – where threat of not returning to work was unlawful or illegitimate
INDUSTRIAL LAW – whether Union liable for contraventions of respondents – Union liable
ADMINISTRATIVE LAW – whether challenge to validity of directives is an impermissible collateral challenge – whether direction under s 85 of Work Health and Safety Act 2011 (Qld) is administrative – where health and safety representative holds a statutory office – where applicant has no standing to challenge direction under Judicial Review Act 1991 (Qld) – collateral challenge permitted
Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 7, 21, 38, 46, 50, 52, 81, 92 and 95
Evidence Act 1995 (Cth) s 140
Fair Work Act 2009 (Cth) s 789FC
Federal Safety Commissioner Act 2022 (Cth)
Acts Interpretation Act 1954 (Qld) s 32CA
Judicial Review Act 1991 (Qld) Pt 5
Work Health and Safety Act 2011 (Qld) ss 3, 19, 50–67, 67A–67F, 68, 72 ,75–79, 84, 85, 86, 87
102A, 102B, 102C, 102G, 267, Pt 5, Div 4
Cases cited: Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257; (2017) 351 ALR 379
Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268
Australasian Meat Industry Employees Union v Australian Meat Holdings (1999) 93 IR 308
Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (2009) 189 IR 165
Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) [2017] FCA 167
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) [2020] FCA 1147
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (2020) 297 IR 151
Australian Building and Construction Commissioner v Construction, Forestry, Mining, and Energy Union (2017) 267 IR 130
Australian Building and Construction Commissioner v Huddy [2017] FCA 739
Australian Building and Construction Commissioner v O’Halloran [2021] FCAFC 185
Australian Building and Construction Commissioner v Parker (2017) 266 IR 340
Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470
Blomfield v Bechtel Construction (Australia) Pty Ltd [2012] FCA 1494
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393
Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v QR Ltd (2010) 198 IR 382
Esso Australia Pty Ltd v The Australian Workers’ Union (2015) 253 IR 304
Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582
Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16
Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512
IMM v The Queen (2016) 257 CLR 300
Jacobs v One Steel Manufacturing Pty Ltd (2006) 93 SASR 568
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Montreal Street Railway Company v Normandin [1917] AC 170 at 175; Accident Compensation Commission v Murphy [1988] VR 444
O’Reilly v Mackman [1983] 2 AC 237
Ousley v The Queen (1997) 192 CLR 69
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Queensland Services, Industrial Union of Employees v Moreton Bay Regional Council [2022] ICQ 23
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
Rookes v Barnard [1963] 1 QB 623
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378
Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172
Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 467 Date of last submissions: 1 December 2022 (Respondents)
15 December 2022 (Applicant)Date of hearing: 6–10 June 2022
28–29 September 2022Counsel for the Applicant: Mr Y Sharrif SC with Mr AJ Smith Solicitor for the Applicant: Ashurst Australia Counsel for the Respondents 6-10 June 2022: Mr WL Friend QC with Mr CA Massy Counsel for the Respondents 28-29 September 2022: Mr WL Friend KC with Mr CA Massy Solicitor for the Respondents: Hall Payne Lawyers ORDERS
QUD 235 of 2020 BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
ANDREW BLAKELEY
Second Respondent
DEAN MATTAS
Third Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
30 OCTOBER 2023
THE COURT ORDERS THAT:
1.The matter be listed for a hearing on a date to be fixed to determine the appropriate relief for the first and third respondents’ contraventions of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and the first, second and third respondents’ contraventions of s 52 of that Act.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The facts
[8]
Background and witnesses
[9]
Events on 21 July 2020
[21]
Events on 22 July 2020
[75]
Events on 23 July 2020
[85]
Events of 24 July 2020
[86]
Events on 27 July 2020
[90]
Events on 28 July 2020
[100]
Events from 29 July to 4 August 2020
[103]
The history of Mr Millan’s conduct
[108]
Relevant provisions of the BCI Act and the Evidence Act
[154]
Relevant provisions of the WHSQ Act and the Enterprise Agreements
[168]
The allegations, the responses and the remaining issues
[173]
The meaning of “industrial action” in s 7 of the BCI Act
[183]
The application of s 85 of the WHSQ Act
[192]
Whether the applicant’s challenge to the directives is an impermissible collateral challenge
[195]
A reasonable concern of serious risk from immediate or imminent exposure to a hazard
[217]
The 21 July Direction
[234]
The 27 July to 4 August Directions
[262]
Whether Mr Mattas was validly appointed as Site-wide HSR
[298]
Whether the Employees were required to comply with the Directions once they were given even if they were invalid
[330]
The application of cl 9.9 of the Enterprise Agreements
[386]
Whether the stoppages are excluded from “industrial action” under s 7(2)(c) of the BCI Act
[398]
Conclusions concerning “industrial action”
[402]
Whether Mr Mattas contravened s 46 of the BCI Act
[408]
Whether Mr Blakeley contravened s 46 of the BCI Act
[412]
Whether Mr Mattas and Mr Blakeley contravened s 52 of the BCI Act
[427]
The Union’s liability
[452]
Summary
[462]
RANGIAH J:
In 2020, Broad Construction Pty Ltd (Broad) was the principal contractor for the construction of the Inner City South State Secondary College at Dutton Park in Queensland (the Project). Broad engaged a number of subcontractors, which in turn employed construction workers, to carry out the construction work.
On nine days in July and August 2020, a number of the subcontractors’ employees ceased working at the Project. The first stoppage, on 21 and 22 July 2020, took place because of concerns about the operability of a fire hydrant. The subsequent stoppages, commencing on 27 July 2020, took place because of concerns that one of Broad’s employees might bully or intimidate the employees.
The applicant, the Fair Work Ombudsman, alleges that the stoppages involved contraventions by the respondents of ss 46 and 52 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCI Act). On 6 February 2023, the BCI Act was renamed the Federal Safety Commissioner Act 2022 (Cth) and a number of its provisions, including s 7, 46 and 52, were repealed. The repeals do not operate retrospectively and do not affect the present case. It is convenient to refer to the legislation under its former name.
The applicant alleges that:
(a)the employees’ engaged in “unlawful industrial action” by their failure or refusal to perform work in contravention of s 46 of the BCI Act;
(b)the unlawful industrial action was organised by the second respondent (Andrew Blakeley) and the third respondent (Dean Mattas), or they were knowingly involved in such action, and they thereby contravened s 46 of the BCI Act;
(c)Mr Blakeley and Mr Mattas unlawfully coerced Broad to cease to employ Mr Millan or not allocate him duties at the site, in contravention of s 52 of the BCI Act;
(d)the conduct of Mr Mattas and Mr Blakeley is attributed to the first respondent (the Union) pursuant to s 95 of the BCI Act, and that the Union thereby contravened ss 46 and 52 of the BCI Act.
The Commissioner seeks declarations that the respondents contravened ss 46 and 52 of the BCI Act and penalties for the contravention of those provisions.
The respondents defend the proceeding on the basis that:
(a)the stoppages were not “industrial action” within s 7 of the BCI Act because:
(i)the employees were under no legal obligation to work after directions to cease work had been given to them in accordance with the terms of relevant enterprise agreements and s 85 of the Work Health and Safety Act 2011 (Qld) (the WHSQ Act);
(ii)the stoppages were excluded from the definition of “industrial action” under s 7(2)(c) of the BCI Act.
(b)Mr Blakeley did not “organise” any industrial action;
(c)The conduct of Mr Blakeley and Mr Mattas did not amount to coercion under s 52 of the Act.
(d)Mr Mattas’ conduct is not attributable to the Union under s 95 of the BCI Act.
I will proceed by considering the facts of the case and then identifying the issues before addressing the issues.
The facts
In this section, I will determine some basic facts of the case by reference to admissions and agreed facts and by making findings of fact. It will be necessary to make further factual findings elsewhere in these reasons.
Background and witnesses
The Project involved construction of the Inner City South State Secondary College. It was a large project, which involved constructing four buildings over an area of approximately two hectares. The school was intended to have a capacity of approximately 1,500 students.
Broad was contracted by the State of Queensland to construct the Project. Broad engaged specialist subcontractors to undertake the construction work on the Project.
To oversee the construction work, Broad employed a team of managers at the site including Cameron Kirkwood (the Senior Project Manager) and Phillip Millan (a Project Manager).
Mr Kirkwood was called by the applicant to give evidence at the hearing. Mr Millan was not. Mr Millan’s absence was unexplained. Mr Millan’s absence leaves evidence given by the respondents’ witnesses about his behaviour uncontradicted. I also draw the inference that his evidence would not have helped the applicant’s case.
Broad’s employees had managerial roles in respect of the Project. The manual construction work was performed by employees of the subcontractors.
A Health and Safety Committee (HS Committee) for the Project had been established under Part 5, Division 4 of the WHSQ Act. The HS Committee was comprised of approximately nine health and safety representatives (HSRs) appointed for the larger subcontractors and seven representatives of Broad.
An issue in dispute is that Mr Mattas claims that he was appointed as a “Site-wide HSR”, representing all construction workers on the Project, whereas the applicant denies that he was so appointed. Since that issue is in dispute, when I refer to the HSRs, I will generally exclude Mr Mattas from that description.
It is unclear whether Mr Millan was a member of the HS Committee. However, he was heavily involved in engaging with the HSRs about health and safety issues at the Project.
Mr Blakeley was employed by the Union as an organiser with responsibility for the Project.
Mr Mattas and Mr Blakeley gave evidence. The respondents also called four HSRs to give evidence. Those HSRs and their respective employers were:
(a)Geordie Sheldrick (Rovera Scaffolding);
(b)Jason Bushnell (Action Formwork);
(c)Robert (“Bobby”) Reid (Lindores);
(d)Todd Uren (Placecorp).
There were five other HSRs who were not called to give evidence. They were David Burrows (Blue Star Pacific), Josh Hegelstein (Beavis and Bartels), Ray Kren (Statewide Steelfixing), Mark Robin (SRG Global) and Adam Barnes (L&D Contracting).
The case is concerned with the lawfulness of stoppages of work by the subcontractors’ employees and the conduct of Mr Mattas and Mr Blakeley. There is little dispute about what happened and why it happened. The largest area of factual dispute concerns the reasonableness of directions to cease work that were given by Mr Mattas and the HSRs. In the absence of evidence from Mr Millan, few issues arise concerning the credibility, or even reliability, of witnesses. The applicant does not dispute, for example, that Mr Millan engaged in the behaviour described by the witnesses, or that the HSRs did not have concerns that Mr Millan’s behaviour created a risk to the health and safety of employees. While there are differences in the recollections of the witnesses about what was said at various meetings, it is unsurprising that there are differences and they are generally of little ultimate consequence.
Events on 21 July 2020
At the relevant dates (21 July to 4 August 2020), the construction program involved formwork and sub-surfacing works (eg underground piping and electrical systems). This required concreting, installation of pre-cast concrete, steel fixing and installation of plumbing and electrical systems.
The normal working hours of the Project were Monday to Friday, generally within the hours of 6.00 am and 4.30 pm. There was also a nightshift, but the nightshift was not disrupted by any stoppages and has little relevance for this case.
On Tuesday, 21 July 2020, approximately 132 construction workers employed by the subcontractors attended the Project site at the commencement of the shift. These subcontractors and the approximate number of their employees who attended the site were:
(a)Action Formwork (formwork), 39 employees;
(b)Statewide Steelfixing (steel fixing), 13 employees;
(c)SRG Global (post tensioning), 7 employees;
(d)Placecorp Concrete (supply and place concrete), 16 employees;
(e)Euro Precast Vertical (supply and install precast concrete), 5 employees;
(f)Beavis and Bartels (plumbing), 4 employees;
(g)Blue Star Pacific Electricians (electrical works), 5 employees;
(h)Rovera Scaffolding (install scaffolding), 14 employees;
(i)L&D Contracting (civil works), 5 employees;
(j)Liebherr Cranes (“wet” crane hire), 5 employees;
(k)Lindores Personnel (general labouring and traffic control), 11 employees;
(l)Priest & Co (blockwork), 2 employees;
(m)Ministaff (surveying), 1 employee;
(n)Auscoast Fire (install fire and emergency systems), 2 employees; and
(o)Venmist (install air conditioning and heating systems), 2 employees.
I will refer to these subcontractors collectively as the Subcontractors, and to their employees as the Employees.
The respondents admit that the Employees were scheduled and required to undertake work on the Project on 21 July 2020 and that the numbers of them scheduled and required to work on each relevant day would have been similar.
All except five of the Subcontractors had entered enterprise agreements with the Union covering employees who were members or eligible to be members of the Union (the Enterprise Agreements). The Enterprise Agreements contained an identical clause 9.9 which allowed health and safety representatives to direct that employees cease work without consultation in some circumstances where there was an immediate threat to the health or safety of any person.
The five subcontractors who did not have enterprise agreements with the Union were Beavis and Bartels, Blue Star Pacific Electricians, Ministaff, Auscoast Fire and Venmist. That appears to be because they did not employ persons in trades covered by the Union.
Before 7 am, Mr Mattas received a call from an unidentified employee indicating there was a problem with a “booster assembly”. Some witnesses used the term “booster assembly” interchangeably with “hydrant”. Other evidence suggests there may be some difference, but it is unclear what the difference is. In any event, it appears that firefighters could connect their hoses to the booster assembly to obtain access to water in the event of a fire.
Mr Mattas’ evidence was that the issue reported to him concerned building materials placed in front of the booster assembly. The evidence of some HSRs suggests the issue concerned whether the booster assembly was properly connected or had adequate pressure.
Mr Mattas, Mr Sheldrick, Mr Uren, Mr Bushnell and Mr Reid as HSRs attended the booster assembly, which was in front of a building under construction known as “Building B”. Since Mr Mattas deposes that, “the HSRs for the Project conducted an inspection of the booster assembly”, I infer that Mr Burrows, Mr Hegelstin, Mr Kren, Mr Robin, and Mr Barnes also attended.
During the inspection, Mr Mattas identified that firefighters’ access to the booster assembly was affected by scaffolding that had been placed nearby. In addition, he identified that there were no hose reels.
Mr Mattas and Mr Reid deposed that access to the booster assembly was “blocked”. It is unclear from their affidavits whether they mean completely blocked or partially blocked. In his oral evidence, Mr Mattas accepted that access was “restricted”. I accept Mr Mattas’ evidence and find that access was restricted rather than completely blocked.
Mr Mattas contacted Mr Millan by phone and told him there was an issue with the booster assembly and asked him to come down and look at it. Mr Mattas also raised “concerns about the training for responders”. He asked Mr Millan to bring a copy of the emergency evacuation plan. Mr Millan said he was on-site and would be down in 30–45 minutes.
Mr Mattas responded by saying that these were serious concerns and asking him to come down now. Mr Millan repeated he would be there in 30–45 minutes. Mr Mattas said they would wait there for 10 minutes.
When no one from Broad arrived at the booster assembly within 10 minutes, Mr Mattas together with the HSRs decided that all work on the site would cease. Mr Bushnell’s evidence was that Mr Mattas said, “We need to direct a cessation of work on the site”.
The view of Mr Mattas and the HSRs was that if a fire were to break out, the Employees would be at risk. They considered that the risk was a “whole of site” risk.
The HSRs dispersed and gathered their respective work groups. By about 7.20 am, the Employees started walking back to the site sheds. The respondents’ Amended Defence admits that Mr Mattas and other HSRs issued a direction to the Employees to cease work.
The reasons given by Mr Mattas and the HSRs for giving the direction varied.
Mr Reid’s initial concern was that he was told there was an issue with the water pressure, although he does not seem to have been made aware of what that issue was. Having inspected the booster assembly, he told his work group that the reason for the direction was that firefighters would not be able to access the booster assembly because it was blocked.
Mr Bushnell’s reasoning was that he could not be satisfied that any of the hydrants could get water to them. This appears to be a concern about whether the booster assembly was properly connected or had adequate water pressure.
Mr Sheldrick was told by an unnamed person there was an issue with the booster assembly, being that the person was “not sure” if the booster assembly was properly connected. Even before inspecting the booster assembly, he had told the Rovera workers to stay in the sheds until the issue was resolved.
Mr Uren states that when he attended the booster assembly, he noticed the pressure was low. It is unclear how he could ascertain that the pressure was low when Mr Sheldrick’s evidence, which I accept, was that no pressure gauge had been installed. It seems probable that Mr Uren suspected that the pressure was low. He states that the HSRs decided to stop work due to an imminent safety risk arising from the fact that, “there were apparent defects with the emergency procedure on the site”. He told the Placecorp employees he was “aware of a safety issue with the booster hydrant”. Mr Uren’s direction was based on the perceived inadequacy of the water pressure in the booster assembly. Although he later referred in his discussion with Placecorp employees to “booster access”, that does not seem to have formed part of his reason for giving the direction to cease work.
Mr Mattas’ reasoning appeared to be the restriction of access to the booster assembly and absence of fire reels, which he considered contravened clause E1.9 of the Building Code of Australia (Volume 1, National Construction Code) (the Building Code), as well as the emergency evacuation plan. His evidence was to the effect that the obstruction would not prevent access by firefighters, but make it more difficult. He accepted that cl E1.9 of the National Construction Code applied only to Buildings A and B, and not to other parts of the site.
Mr Mattas also accepted that at the time the directions to cease work were given he did not know whether there were persons on the site with outdated first-aid qualifications. Although he had told Mr Millan he had, “concerns about the training for responders”, I do not understand him to suggest that those concerns were part of the reason for giving the cease work directions.
Mr Mattas and the HSRs did not consult with Broad or the employers of the subcontracted employees before giving the directions to cease work.
After Mr Reid met with his work group, Mr Millan came up to him and asked, “What the fuck are you doing in the sheds?”
Mr Reid responded by saying he was there to address his work group about the safety issues on site. Mr Millan said:
What you’re doing is illegal. It’s fucking illegal.
Mr Reid responded that it was not illegal and he was acting within his rights as a HSR to provide directions to his work group. Mr Millan then said:
I’ll fucking have you deregistered as a HSR, and you’ll lose your accreditation. You’ll lose your job and you won’t be able to work as a HSR.
About 15 minutes after the HSRs dispersed and directed the cessation of work, Mr Mattas spoke to Mr Kirkwood, and told him that, “We’re exercising the right to stop unsafe work under s 85 of the Work Health and Safety Act, and under the EBA”. Mr Mattas said that the issues related to the emergency evacuation plan.
At about 7.30 am, the HS Committee met with a plumber at the hydrant booster. The plumber inspected the hydrant system and stated that it was compliant. Mr Kirkwood acknowledged the issue concerning the restriction of access and said that he would organise the obstacle to be removed.
Later, at about 8.30 am, Robbie Gould, an organiser with the union covering plumbers, stated that Broad needed to conduct a live test to show correct flows. I understand this to have been required because some adjustments had been made to the booster assembly to allow the testing to be carried out by the plumber.
The meeting moved inside to a meeting room. Broad was represented by Mr Kirkwood, Mr McAway, Mr Millan and two others. Mr Mattas and the HSRs were present. Also present were Mr Blakeley, an official from the Electrical Trades Union and an official from the Plumbers’ Union.
At the meeting, Mr Mattas stated that there was no access to the hydrants and no fire reels, and this contravened the Building Code, as well as the emergency evacuation plan. Mr Kirkwood advised that Broad would get people out to deal with the booster assembly and to remove the frames and scaffolds that were hindering access to the hydrants.
Mr Mattas asked for evidence of training of the fire wardens and first aiders. That evidence could not be provided immediately so the meeting was adjourned. When the meeting reconvened at about 10.30 am or 11.00 am, Mr McAway provided the training records. On review of the training records, it was identified that the training for some of the nominated first aiders were out of date. Their certificates, including their CPR training certificates, had expired.
Mr Mattas made a comment about a failure of Broad Construction’s Safety Management Plan. In response, Mr Millan stood up quickly and shouted:
Fuck off. Dean! What a load of fucking rubbish!
Some of those present told Mr Millan to calm down and said he could not speak to people like that. Mr Mattas told Mr Millan that if he was not going to participate, he should leave the room.
Mr Millan then yelled, “You’re all a bunch of fucking idiots”, directing his comment towards the HSRs. He then looked at Mr Blakeley and said, “Youse can all fuck off”. Mr Blakeley responded, “No, you can fuck off”.
Mr Millan then turned and left the meeting room. As he was leaving he yelled, “Fucking idiots”. Mr Millan continued to yell as he walked down the corridor.
After Mr Millan had left, Mr Mattas told Mr Kirkwood that Mr Millan’s behaviour was not acceptable, and Mr Kirkwood agreed.
Mr Reid then relayed his interaction with Mr Millan earlier that morning. Mr Reid said that Mr Millan had been yelling and standing over him. Mr Reid said he found Mr Millan’s body language intimidating and that he was shaking after he left. He said that Mr Millan was a bully. I accept that Mr Reid’s voice was shaky and he was visibly upset.
Mr Reid went on to say he had previously spoken to Jessica Craigie, Broad’s Human Resources Manager, about Mr Millan’s behaviour, and she said she would speak to Mr Kirkwood about it. Mr Kirkwood responded by saying that Ms Craigie had never spoken to him about Mr Millan’s behaviour. Mr Reid was visibly upset at Mr Kirkwood’s response.
I interpolate to say that the minutes of a HS Committee meeting on 11 June 2020 include a reference to Mr Reid identifying that, “subcontractors have fears and stress about future employment if they speak out about feeling unsafe to complete a task”, and that Mr Reid, “had a difference of opinion with Phil regarding the definition of light vehicle”. The minutes of the HS Committee meeting on 18 June 2020 record Mr Mattas as saying that Mr Reid had, “made a request for Jess to speak to Cam about Phil’s behavior”.
Mr Mattas states that in the meeting on 21 July 2020, he told Mr Kirkwood, “We have to do something about this guy. He is a safety risk”. Mr Kirkwood responded that he was going to have a talk to Mr Millan.
Mr Kirkwood’s evidence is that it was Mr Blakeley who said, "Mate, we’re not going anywhere till he’s removed", which caused him to respond that he was going to talk to Mr Millan. I prefer Mr Mattas’ version, which is more consistent with the evidence of Mr Blakeley and Mr Bushnell.
Mr Reid then said that Mr Kirkwood was meant to have spoken to Mr Millan before and nothing had changed. Mr Mattas said:
You need to remove this guy from site. He is out of control, he is a risk.
Mr Kirkwood said he would have chat to Mr Millan about getting him into the office and giving him a desk job. The meeting then adjourned and Mr Kirkwood spoke to Mr Millan.
The meeting reconvened about 20 minutes later. Mr Kirkwood said that Mr Millan was going to be sitting in the office for the rest of the day.
Mr Blakeley said that work would not continue until “the risk” was removed from site. The “risk” he was referring to was Mr Millan.
Mr Kirkwood said that he did not have the authority to remove Mr Millan from site. He said that if their position was that Mr Millan needed to be removed from site, he would have to contact Workplace Health and Safety Queensland (WHSQ). Mr Kirkwood said that Mr Millan had removed himself from the situation and that they could progress the meeting.
Mr Blakeley described Mr Millan as having engaged in bullying. Mr Kirkwood replied that Mr Millan was clearly frustrated, but that his conduct at the meeting was not bullying. Mr Blakeley then said workers felt threatened and would not start work until Mr Millan was removed from the site. It seems that the meeting ended at that point.
After the HS Committee meeting, Mr Sheldrick told the Rovera Employees that they were going to stay in the sheds until there was a solution to the issue with first aiders. He does not suggest he consulted with Rovera prior to issuing that direction. None of the other HSRs gave evidence that they gave any further directions to their work groups after the meeting.
I find that Mr Mattas, together with the HSRs, decided that work on the site would cease. As a result, the Employees were directed to cease work or not commence work by the HSRs at about 7.15 am on 21 July 2020. The Employees complied with that direction and did not perform any work for the rest of that day. I find that there was no consultation by the HSRs with their employers or with Broad concerning any asserted health and safety issues before they gave directions to stop work.
I find that Mr Sheldrick gave the Rovera employees a further direction not to work following the HS Committee meeting. I accept that he can be taken to have consulted Broad about the numbers of first aiders on site during the HS Committee meeting. However, he did not consult Rovera before giving the direction.
Mr Kirkwood contacted WHSQ and their representatives arrived at the site at about 2.30 pm. By then, the Employees had left the site.
Events on 22 July 2020
On Wednesday, 22 July 2020, about 111 Employees attended work at the Project, but did not commence working at the normal start time.
A HS Committee meeting was to commence at 6.30 am. The HSRs, other than Mr Reid, Mr Mattas, Mr Blakeley, Mr Kirkwood and various Broad managers, were present. Mr Millan was not at the site that day.
Mr Mattas was concerned about Mr Reid’s wellbeing because of his observations of him the previous day. Mr Mattas was eventually able to speak with Mr Reid. Mr Reid said he was staying home for at least a couple of days, he had a doctor’s appointment and the thought of having another run in with Mr Millan was really stressing him out.
Mr Blakeley stated that the meeting would not start until WHSQ attended. Inspectors from WHSQ attended the site at about 7.30 am and met privately with Mr Mattas, the HSRs and Mr Blakeley, without Broad. In that meeting, there was some discussion about obtaining statements from employees who had been bullied by Mr Millan. Mr Mattas confirms that the concerns about access to the booster assembly and hose reels were resolved at the meeting with WHSQ, but it is not apparent anything remained to be resolved about those matters before that meeting or how any discussion with WHSQ could have resolved those matters.
Broad had organised new first aid officers and had booked training in a few days’ time to have various employees’ certificates renewed. The evidence of Mr Mattas and the HS Committee does not suggest that there was any issue remaining about the number of qualified first aid personnel on site.
From about 7.30 am, the only outstanding issue concerned the conduct of Mr Millan.
The employees then participated in a toolbox talk about the emergency evacuation plan, before resuming work at about 12.30 pm.
At approximately 1 pm, another HS Committee meeting was held concerning Mr Millan. Mr Kirkwood explained that Broad had to follow its complaints procedure. Mr Mattas stated that he wanted a commitment that Mr Millan would not come back to the job. Mr Kirkwood said that he had seen no grounds for that, but would investigate any complaints received.
Mr Kirkwood also indicated that he would notify the HS Committee before Mr Millan came back to the site.
There is no evidence that Mr Mattas or any of the HSRs gave any direction on 22 July 2020 that work was not to commence at the normal start time. I infer that the Employees did not commence on time because of the directions given by the HSRs the previous day.
Events on 23 July 2020
On Thursday, 23 July 2020, Mr Millan did not attend the site and work was undertaken as normal.
Events of 24 July 2020
On Friday, 24 July 2020, about 130 Employees attended the site, but no work was performed due to inclement weather. The applicant’s case is not concerned with non-performance of work on that day.
A HS Committee meeting was held at 7.30 am. Afterwards, Mr Kirkwood asked to discuss the position in relation to Mr Millan, to which Mr Mattas replied that there was nothing to discuss as Mr Millan was a safety risk.
Mr Kirkwood said that Broad accepted that if any workers had genuine concerns about imminent risks to work health and safety, they had the right to not work, but Broad’s view was that there was no such risk. He said Broad would continue to send letters to the Subcontractors to tell them that Broad viewed the stoppages as unlawful.
Mr Mattas asked what was going to be done about Mr Millan. Mr Kirkwood said that he had contacted Lindores (Mr Reid’s employer) and they were carrying out their own process, but Broad’s position was that until they had any formal complaints, there was nothing to investigate. He said that Mr Millan would be returning that day.
Events on 27 July 2020
On Monday, 27 July 2020, about 85 Employees attended the site, but did not perform any work.
A HS Committee meeting was held at about 6.25 am. It became quite heated, with the HSRs expressing their concerns that Broad was not taking any action against Mr Millan and Mr Kirkwood saying that they should take the issue up with their employers. Mr Mattas said that they would not go through their employers because they were concerned about their jobs, and added that Mr Millan was Broad’s employee. Mr Kirkwood said that their concerns were not going to be investigated because there was no complaint to investigate. Mr Mattas told Mr Kirkwood that the Employees would not go back to work because Mr Millan was on site.
Mr Kirkwood then received a call from Mr Blakeley stating that the Employees would not be performing work until the bullying complaints against Mr Millan had been addressed.
Mr Mattas’ evidence, which I accept, was that he and the HSRs then reported back to their work groups, as follows:
(a)Mr Uren and Mr Mattas both spoke to the Placecorp Concrete employees;
(b)Mr Bushnell and Mr Mattas both spoke to Action Formwork and Statewide Steelfixing employees together;
(c)Mr Mattas spoke to the Liebherr Cranes, Rovera Scaffolding and SRG Global workers, who were in the same room;
(d)Mr Mattas spoke to Lindores Personnel and L&D Contracting workers together;
(e)Mr Mattas spoke to miscellaneous employees who did not have a designated work group.
Although Mr Kren was the HSR for Statewide, he did not speak to the Statewide workers. That was because he had not undergone the requisite HSR training. Accordingly, it was Mr Mattas who gave the direction to cease work to the Statewide workers. I infer that this was also the case on 21 July 2020.
Each HSR made reference to s 85 of the WHSQ Act and provisions of the various enterprise agreements providing for cessation of work for workplace health and safety reasons. Mr Mattas considered that the risk was identified as “imminent” because Mr Millan was back on site. Mr Mattas told each of the work groups words to the effect:
This guy is out of control. You saw what happened with Bobby, he’s now on stress leave. More and more workers from different work groups, that aren’t on the safety committee, are coming forward and saying that they have also been subject to Phil’s abuse and Phil’s threats. It’s only a matter of time until another worker goes off sick, so we have to act now. We all work in construction, we know how many suicides there are, and this kind of bullying leads to depression and, worse, suicide.
The HSRs told their work groups that Mr Millan was back on site and that Broad’s position in relation to his attendance was non-negotiable.
The Employees then stayed in the sheds all day and did not perform any work.
The HSRs did not consult the Subcontractors prior to giving directions to stop work. To the extent they had discussions with their employer after giving the directions, they communicated their position that work would not resume until Mr Millan was removed, and did not present any other option. I find this was not consultation.
Mr Blakeley telephoned Camillo Masci, Broad’s General Manager at about 1.30 pm on 27 July 2020. Mr Blakeley stated that Broad had a problem with their Project Manager. A discussion followed about the absence of complaints having been made, and assertions by Mr Blakeley that he held statements from employees. Mr Blakeley then concluded the conversation by stating that the Employees would not go back to work until the imminent risk was resolved.
Events on 28 July 2020
On Tuesday, 28 July 2020, about 130 Employees were scheduled to be at the site, but only 37 employees attended. Mr Millan was present at the site.
Mr Mattas and the HSRs told the Employees who were present that there had been no change to Broad’s position and that “the psychosocial hazard” had not been removed from the worksite. The Employees were given a direction to cease work under s 85 of the WHSQ Act and cl 9.9 of the Enterprise Agreements.
The Employees who had attended did not perform any work that day.
Events from 29 July to 4 August 2020
From Wednesday, 29 July to 4 August 2020, Mr Millan was at the site.
Although about 130 Employees were scheduled to work, only the following numbers attended the site:
(a)on 29 July, 26;
(b)on 30 July, 20;
(c)on 31 July, 17;
(d)on 3 August, 16;
(e)on 4 August, 17.
On each day, Mr Mattas and the HSRs reported to the Employees who were present that Mr Millan was on site and directed them not to work. They did not work on each of those days.
On 4 August 2020, Logan J granted an interlocutory injunction restraining Mr Mattas, Mr Blakeley and the Union from organising, encouraging, procuring or inducing any persons employed to perform work at the Project to engage in unlawful industrial action: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) [2020] FCA 1147.
The subcontractors’ employees then returned to work on 5 August 2020.
The history of Mr Millan’s conduct
The concerns held by Mr Mattas and the HSRs about Mr Millan’s conduct on 21 July 2020 must be seen in the context of his behaviour on a number of prior occasions.
Mr Millan commenced as a Project Manager at the site in July 2020.
The respondents’ witnesses gave evidence about conduct by Mr Millan that they characterise as bullying and intimidatory behaviour. Mr Mattas regarded Mr Millan as particularly hostile towards HSRs. He states that Mr Millan had a very loud voice and would not hesitate to shout or yell in order to convey his point. Mr Millan had an attitude that Mr Mattas describes as “my way or the highway”. Mr Millan had an imposing physical presence, being approximately 6ft 4in in height and having a solid build.
Mr Mattas’ evidence was that he was shouted at by Mr Millan at least twice each week. He gives a number of examples of Mr Millan’s intimidating behaviour.
In about February 2020, Mr Mattas needed to speak to Mr Millan about the gradient of the ramp he considered to be too steep and for which there were no steps or handrails and no edge protection. Mr Millan did not accept there was a problem and when Mr Mattas maintained that legal requirements had not been complied with, Mr Millan said:
Don’t try and tell me that I’m acting illegally, you’re acting fucking illegally. You need to get back to work. If you don’t, you will be in trouble.
In February 2020, a poster in the crib room about safety at work had been ripped down and on the paper that remained on the wall were written, words to the effect of, “Bring back the ABCC”. Mr Mattas approached Mr Millan and asked him not to pull down posters in the crib room. Mr Millan said they had to remove the poster because it did comply with the new Building Code. Mr Mattas continued to put up posters but anything that had the Union’s name or the Eureka flag would be ripped down.
In about March 2020, Mr Millan approached the Employees who were taking shelter in the sheds, and said:
What the fuck are you doing? Get out there. This is unlawful. This is unlawful industrial action. You guys are breaking the fucking law. We’re here to build a school for the fucking kids. I’m not fucking copping it.
Mr Millan’s face was red and he was shouting. Mr Mattas told Mr Millan he could not talk to people like that and asked him to restrain himself. Mr Millan said:
I’ll talk to people however the fuck I want to talk to them. This is my job site!
Mr Millan then stormed out of the room, slamming the door.
One day in about April 2020, the traffic controllers had worked in excess of their eight hours and were approaching their tenth hour. The traffic controllers told Mr Mattas they were fatigued, and they wanted to shut the gates so they could go home.
Mr Millan approached Mr Mattas and said, “You’re not shutting the fucking gates”. He added:
If you leave, you’re getting the fucking boot. I’ll get CPB’s lawyers onto you, and they’ll fucking do you.
Mr Millan then told Mr Mattas, “You’ll be fucking gone before I’m gone”. He also threatened to have two traffic controllers replaced. Mr Millan then placed himself behind the gates and physically prevented the traffic controllers from shutting the gates. He also said:
If you abandon the gates, that’s a breach of the TGS, and if you do this I’ll be contacting another labour hire company and Lindores will be off the job.
In May 2020, the traffic controllers wanted to go home after they had completed their contracted hours. Mr Mattas told Mr Millan that they had been doing massive hours, and could go home if they wanted.
Mr Millan told Mr Mattas words to the effect of:
If you tell them to leave, you will be breaking the law. I will get CPB’s lawyers on to you. You’re going to be gone before you know it. The ABCC will hear about this. You’ll be fined.
Mr Millan continued to yell at Mr Mattas for about 10 minutes. Mr Millan positioned his body so as to prevent the traffic controllers from locking the gates. When Mr Mattas said that they were going, Mr Millan said to Mr Mattas words to the effect of:
Bullshit! You’re fucking abandoning your post.
On 30 June 2020, there was an incident relating to a safety issue that had arisen as a result of Broad’s decision to replace barriers that separated the trucks that were entering the site from the workers, with bike racks. Mr Mattas considered them to be flimsy and inadequate and tried to temporarily stop that part of the work so that the issue could be rectified.
Mr Millan did not agree with what Mr Mattas was doing and began yelling at him. Mr Millan said:
You’re acting illegally. I’m going to get CPB’s solicitors involved. CPB solicitors are the best - they are that good, they got the Dreamworld bosses off the industrial manslaughter.
The conversation was so heated that Mr Bushnell started recording it. Mr Millan was yelling, “You’re acting illegally, you’re acting illegally”.
On 9 July 2020, Mr Mattas was involved in an incident with Mr Millan during the course of a wet weather walk. Whenever Mr Mattas raised a safety issue, Mr Millan would say words like, “That’s bullshit, you are taking the piss”, or, “You are fucking kidding”, or, “If you don’t start work because of that, you will be breaking the law”.
Mr Mattas states that Mr Millan would also call him names at least once a week, such as “Union thug”, “dickhead”, “fucking troublemaker”, “fucking Union pest”, and “fucking cunt”.
Mr Mattas states that Mr Millan would take out his phone and start filming or taking photos of him if they were engaged in a contentious conversation. Mr Millan would say things like, “I’m going to report you to the Police”, or, “I’ll be contacting the ABCC and reporting you”.
Mr Mattas states that Mr Millan’s threats to report him to the police and the Australian Building and Construction Commission made him feel intimidated, increased his anxiety and caused him concern about his ability to effectively perform his HSR role.
Mr Reid’s evidence is that Mr Millan would speak to him in an overbearing, intimidating and rude manner which indicated that he had little regard for the work Mr Reid was doing as a HSR or as a traffic controller.
Mr Reid gives evidence that in February 2020, Mr Millan tried to have him removed from his position at the Project. Mr Reid’s evidence concerning the incident does not establish that it was Mr Millan who sought to have him removed, but that was certainly his belief.
Mr Reid raised concerns in the HS Committee meetings about Mr Millan’s conduct towards him and other workers. For example, Mr Reid said if he challenged or questioned Mr Millan’s directions, his response was to scream and yell and tell Mr Reid he was acting illegally. Mr Reid referred to an incident where Mr Millan asked what Mr Blakeley’s vehicle was doing on site and said that private vehicles were not allowed on site. Mr Reid said it was his decision to make, that Mr Blakeley was there to talk to Broad and that if he had an issue, he should tell Mr Reid’s employer and have his employer direct him not to let private vehicles on site.
In response, Mr Millan said, in a loud and threatening way, words to the effect of:
You’re acting illegally; I have the rights - you don’t have the rights. If you don’t obey me, I’II talk to your employer and I’ll have you removed. You’ll be down the road faster than you know what’s happening.
On 21 July 2020, Mr Millan had the confrontation with Mr Reid previously described. When Mr Kirkwood indicated no complaints about Mr Millan’s behaviour had been brought to his attention by Ms Craigie, Mr Reid felt shattered because it seemed that Mr Kirkwood was telling him that the workers would just have to deal with Mr Millan’s behaviour for the foreseeable future because it wasn’t going to change and Broad did not consider it to be an issue worth addressing.
Mr Reid felt scared for his employment at the Project and was concerned about his mental health because Mr Millan’s threats had really rattled him and he knew that nothing was going to change. After work that day, he went to a doctor and obtained a medical certificate diagnosing him with stress and an adjustment disorder arising from the bullying he experienced at work. He applied for workers’ compensation because he felt unable to return to work at the Project. He did not return to work until October 2020.
Mr Sheldrick’s interactions with Mr Millan were limited to his involvement on the HS Committee. He was aware that concerns about Mr Millan’s behaviour had been expressed by Mr Mattas and Mr Reid.
Mr Uren relays an incident where, shortly after being elected to the position of HSR, he was called into a meeting with Mr Kirkwood and Mr Millan. Mr Millan then asked him questions about why Placecorp had determined not to use “kibbles” on the Project. Mr Uren felt intimidated.
Mr Uren relays another incident on 9 July 2020 when the HS Committee was conducting a wet weather walk. Mr Uren noticed that there were a few steel fixers and other miscellaneous trades that were working in an area not yet reopened by the HS Committee. The workers said that Broad had told them the area had been opened and they were to get to work. Mr Uren told Mr Millan that they shouldn’t be working there as the area had not been opened by the HS Committee. Mr Millan told Mr Uren:
You’re a fucking idiot, they can all work over here if they want to. There’s no fucking issue here.
Mr Uren responded:
You do not speak to me like that. We can step outside, if you are going to speak to me like that.
Mr Uren walked away because he was angry and shaken by the way Mr Millan had spoken to him. Mr Uren says his reaction to Mr Millan’s abusive and aggressive behaviour came about because he had past anger issues that he had worked hard to overcome.
Mr Bushnell states that in June 2020, Broad had removed the water barriers that were acting as a physical barrier between workers and the moving plant and replaced them with bike racks. He considered the bike racks to be an inadequate physical barrier. Mr Mattas and Mr Bushnell told Mr Millan they thought that the bike racks were unsafe and work needed to stop while proper physical barriers are arranged. Mr Millan said:
No, you’re not doing this. You’re not stopping work. If you stop work you’ll be acting illegally.
Mr Bushnell told the Action Formwork employees they were going to work somewhere else as it was not safe there due to the lack of physical barriers. Mr Millan said:
You are all a bunch of dumb cunts. You all need to know who the king is around here. I’ll give you a clue, it’s the one with the money and that is not you.
On about 23 July 2020, Mr Blakeley, Mr Mattas and the HSRs began collecting statements of employees about Mr Millan’s behaviour to support a complaint to WHSQ. These statements were not provided to Broad. Mr Blakeley asserts that was because of fears that the Employees may be subject to reprisals.
There were 24 statements of employees provided to WHSQ. Copies of the statements with the names of the persons making the statements redacted were placed in evidence. Some are substantially indecipherable. Most appear to be statements of HSRs concerning Mr Millan’s abusive comments during disagreements about health and safety issues. These include a number of the events that have been described above and the event in the HS Committee meeting on 21 July 2020.
There are two statements of workers describing Mr Millan’s interaction with Mr Reid in the shed on 21 July 2020.
One worker recounts getting into trouble with Mr Millan for not wearing safety gloves and goggles. One worker describes getting into trouble for opening the gate before 7.00 am contrary to Mr Millan’s instruction. Another worker describes an incident on 21 July 2020 when Mr Millan yelled at him and two others, “I’m fucking over with working with you fuckwits”.
One of the statements appears to be from a Broad employee who said that Mr Millan would ask her to do his ironing and engage in sexist behaviour. Another appears to be from a former Broad employee who indicates that he resigned as a site supervisor because of Mr Millan’s bullying and undermining behaviour.
As I have said, Mr Millan was not called to give evidence and the evidence of the witnesses about his behaviour is uncontradicted.
I find that at the Project, Mr Millan would regularly engage in conduct that was aggressive, abusive and intimidating. That behaviour can be characterised as bullying. I find that Broad was aware of complaints concerning Mr Millan’s behaviour prior to 21 July 2020, but did nothing about it.
It is necessary, however, to give some context to Mr Millan’s behaviour. First, most of Mr Millan’s bullying conduct was in the context of genuine disputes about health and safety issues. For example, in a number of incidents where HSRs considered that work should not proceed, Mr Millan evidently considered that stopping work would be unlawful. In April and May 2020, Mr Mattas and Mr Reid took it upon themselves to close the gates despite Broad being responsible for controlling the site’s opening and closing times, leading to a heated discussion about who was or was not responsible for shutting gates and directing workers to go home. In respect of the bike racks incident, Mr Mattas said that he was going to close a part of the site and proceeded to move the barriers himself when he had no apparent right to move Broad’s equipment. After Mr Millan asked Mr Reid why he had permitted Mr Blakeley to drive a private vehicle onto the site, Mr Reid’s robust answer was that it was his decision to make, missing the point that it was Broad which occupied the property and had the right to make that decision. Mr Millan’s fault was to attempt to resolve these disputes through abusive and intimidatory behaviour.
Second, while the HSRs gave rather sanitised versions of the conflicts, suggesting that their words and actions were mild and tempered and contrasting Mr Millan’s behaviour, it was not all a one-way street. For example, it came out in evidence that Mr Mattas also swore at and accused Mr Millan of acting illegally, the very type of behaviour he complains of when engaged in by Mr Millan. In respect of the bike racks incident, it was Mr Mattas who first swore at Mr Millan and then instructed Mr Bushnell to film the encounter. In contrast, Mr Mattas complains of Mr Millan filming him at other times. Mr Mattas accepted that his conduct in making allegations that Mr Millan and Broad’s representatives were acting illegally was not productive of cordial relationships. I formed the impression that the HSRs were robust people who were not prepared to tolerate perceived safety problems on site and generally gave as good as they got, although perhaps not using quite the same level of abusive language and intimidating behaviour. None of the HSRs nor Mr Mattas, apart from Mr Reid, was so concerned about Mr Millan’s behaviour as to make any formal complaint to their employers or Broad about Mr Millan’s conduct prior to the events of 21 July 2020.
Third, in the context of conflicts about health and safety issues, Mr Millan’s bullying conduct was generally directed at the HSRs, not the other Employees. The statements gathered by Mr Blakeley and Mr Millan show that were very few Employees other than HSRs who alleged that Mr Millan had bullied them.
This analysis does not excuse Mr Millan’s behaviour – it was disgraceful. However, it is necessary to place his behaviour in context for the purposes of considering the reasonableness of the HSRs’ directions for all the Employees to cease work.
Relevant provisions of the BCI Act and the Evidence Act
The applicant alleges that the respondents contravened ss 46 and 52 of the BCI Act.
Section 46 of the BCI Act provided, “A person must not organise or engage in unlawful industrial action”.
Under s 5 of the BCI Act, there is “unlawful industrial action” if the action is “industrial action” and is not “protected industrial action”. There is no suggestion that any action was “protected industrial action”.
Section 7 defined “industrial action” as follows:
7 Meaning of industrial action
(1) Industrial action is action of any of the following kinds:
(a)the performance of building work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of building work by an employee or on the acceptance of or offering for building work by an employee;
(c)a failure or refusal:
(i)by employees to attend work, where that work is building work; or
(ii)to perform any building work at all by employees who attend work, where that work is building work;
(d)the lockout of employees from their work by their employer, where that work is building work.
Note:In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a)action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees;
(b)action by an employer that is authorised or agreed to, in advance and in writing, by, or on behalf of, employees of the employer;
(c)action by an employee if:
(i)the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
…
Section 6(1) of the BCI Act defined “building work” to mean, relevantly, the construction of structures that form, or are to form, part of land, and any operation that is part of, or preparatory to, such work. It is not in dispute that the work done, or to be done, by the Employees at the Project was “building work”.
Section 52 of the BCI Act provided:
52 Coercion relating to allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)employ, or not employ, a particular person as a building employee; or
(b)engage, or not engage, a particular independent contractor as a building contractor; or
(c)allocate, or not allocate, particular duties or responsibilities to a building employee or building contractor; or
(d)designate a building employee or building contractor as having, or not having, particular duties or responsibilities.
Note 1: See also Division 2 (reason for action and coercion).
Note 2: Grade A civil penalty.
Section 92 of the BCI Act provided:
92 Ancillary contravention of civil remedy provisions
(1) A person must not:
(a)attempt to contravene a civil remedy provision; or
(b)aid, abet, counsel or procure a contravention of a civil remedy provision; or
(c)induce (by threats, promises or otherwise) a contravention of a civil remedy provision; or
(d)be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil remedy provision; or
(e)conspire with others to effect a contravention of a civil remedy provision.
Civil penalty
(2)A person who contravenes subsection (1) in relation to a civil remedy provision is taken to have contravened the provision.
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
The relevant matters to be taken into account for the purposes of s 140 of the Evidence Act include the gravity of the allegations made. It is important that ss 46 and 52 of the BCI Act were “Grade A civil penalty” provisions, contravention of which exposes the respondents to the imposition of pecuniary penalties under ss 81(1) and (2).
In Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268, the Full Court held at [96] and [97] that the applicant bears the onus of proof in respect of establishing the facts alleged to constitute “industrial action”.
In this case, the respondents positively assert that the Employees’ failures or refusals to work are excluded from the definition of “industrial action” in s 7(1) of the BCI Act because the circumstances were such that they were under no legal obligation to work. They also assert that the circumstances brought the Employees within the exception in s 7(2)(c).
It is well-established that the respondents bear an evidential onus for raising any facts which might suggest the application of the matters set out in s 7(2) of the BCI Act. To discharge that onus, the respondents must adduce sufficient evidence from which the Court could (not would) infer the matters of a defence asserted by the respondents: Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257; (2017) 351 ALR 379 at [110]. However, the legal onus remains on the applicant.
This was confirmed in Australian Building and Construction Commissioner v O’Halloran [2021] FCAFC 185, where Kerr and Wigney JJ held at [80]:
The Commissioner initially argued that, if the respondents relied on s 7(2) of the BCIIP Act and s 19(2) of the FW Act as establishing that any conduct engaged in by them did not constitute “industrial action” as defined in those Acts, they bore the onus of establishing that their conduct fell within one or more of the paragraphs in those subsections. Ultimately, however, the Commissioner appeared to concede that, while the respondents may have an evidential burden or onus in respect of s 7(2) of the BCIIP Act and s 19(2) of the FW Act, he as the applicant ultimately bore the legal onus of proving that the conduct engaged by the respondent employees was “industrial action” as defined. It followed that, if the respondents were able to point to any evidence which suggested that their conduct fell within any of the paragraphs of s 7(2) of the BCIIP Act or s 19(2) of the FW Act, the Commissioner bore the onus of proving that the conduct did not fall within any of those paragraphs. That concession, if made, was correct and consistent with prior decisions of this Court.
(Citations omitted.)
Accordingly, the applicant bears the legal onus of proving the elements of s 7(1) of the BCI Act. If the respondents have raised evidence of any matter suggesting that an element of s 7(1) has not been proved, the applicant must negative those matters. If the respondents have raised evidence of the application of any of the matters identified in s 7(2), the applicant must negative those matters.
Relevant provisions of the WHSQ Act and the Enterprise Agreements
Mr Mattas and the HSRs claimed to have given the Employees directions to cease work under s 85 of the WHSQ Act.
Section 85 of the WHSQ Act provides, relevantly:
(1)A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.
(2)However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after—
(a) consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work; and
(b) attempting to resolve the matter as an issue under division 5.
(3)The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under division 5 if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.
(4)The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).
(5)The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section.
(6)A health and safety representative can not give a direction under this section unless the representative has—
(a)completed initial training prescribed by regulation under section 72(1); or
(b)previously completed that training when acting as a health and safety representative for another work group; or
(c)completed training equivalent to that training under a corresponding WHS law.
The expression “hazard” is not defined. The Macquarie Dictionary defines “hazard” as, relevantly, “1. a risk; exposure to danger or harm. 2. the cause of such a risk; a potential source of harm, injury, difficulty, etc…”.
The expression “health and safety representative” is defined in Schedule 5 as, “the health and safety representative elected under part 5 for the work group of which the worker is a member”.
Section 5(1) defines a “person conducting a business or undertaking” (PCBU) as someone who does so either alone or with others, whether or not the business or undertaking is conducted for profit or gain.
The allegations, the responses and the remaining issues
The Employees failed to perform their scheduled work on the Project on 21 July and part of 22 July 2020. They again failed to perform their scheduled work between 27–31 July and 3–4 August 2020. The applicant alleges that the Employees, or at least some of them, thereby engaged in “unlawful industrial action” in contravention of s 46 of the BCI Act.
Mr Mattas admits that he gave directions to the Employees to cease work. He claims to have done so in his capacity as the elected “site-wide HSR”, a position in which he claims to have represented all the Employees. The HSRs also gave such directions to cease work to the particular work groups they represented.
The applicant contends that Mr Blakeley and Mr Mattas organised the unlawful industrial action engaged in by the Employees or some of them. The applicant also contends that Mr Blakeley and Mr Mattas are taken under s 92(2) to have contravened s 46, and that the Union is taken under s 95(1) to have taken action that contravened that provision.
The applicant also alleges that Mr Blakeley and Mr Mattas contravened s 52 of the BCI Act by organising the stoppages that occurred between 27–31 July and 3–4 August 2020 with intent to coerce Broad to cease to employ Mr Millan or not allocate him duties at the site, and that the Union is also taken to have taken action that contravened that section. The applicant makes a further allegation that Mr Blakeley contravened s 52 by making a threat that the Employees would not resume work until Mr Millan was removed from the site.
In respect of the allegations of contravention of s 46 of the BCI Act, the applicant contends that the stoppages were “industrial action” within s 7(1) of the BCI Act as a ban on the performance of building work by employees (s 7(1)(b)); and a failure or refusal to perform building work at all by employees who attended work (s 7(1)(c)).
The applicant’s allegations that Mr Mattas and Mr Blakeley contravened s 46 of the BCI Act requires the applicant to prove that the Employees, or at least some of them, took “industrial action” within the meaning of s 7(1). The respondents’ arguments in response are that:
(a)The Employees did not engage in “industrial action” by stopping work because they were under no legal obligation to perform work after they were given directions to cease work under s 85 of the WHSQ Act and cl 9.9 of Enterprise Agreement.
(b)The stoppages were authorised or agreed to by the employer under cl 9.9 of the Enterprise Agreement and excluded from the definition of “industrial action” under s 7(2)(a).
(c)The stoppages were based on the reasonable concerns of employees about an imminent risk to their health or safety and were thereby excluded from the definition of “industrial action” under s 7(2)(c).
The respondents also argue that:
(d)Mr Blakeley did not organise any industrial action and was not knowingly involved in any industrial action.
(e)The conduct alleged against Mr Blakeley and Mr Mattas, even if proven, does not amount to a contravention of s 52 of the BCI Act.
(f)Mr Mattas’ actions are not attributable to the Union under s 95(1) of the BCI Act.
Apart from disputing a number of factual premises underlying the respondents’ arguments, the applicant submits in response that:
(a)A direction which is not validly made in accordance with s 85 of the WHSQ Act is ineffective to relieve an employee from their legal obligation to work. The directions here were not validly made and were of no effect because:
(i)Mr Mattas and the HSRs did not have a reasonable concern that carrying out the work would expose the Employees to a serious risk to their health or safety, emanating from an immediate or imminent exposure to a hazard; nor was the risk so serious and immediate or imminent that it was not reasonable to consult before giving the direction.
(ii)Mr Mattas was not validly appointed as Site-wide HSR in accordance with the requirements of the WHSQ Act and was not entitled to give any direction to cease work.
(b)A direction which is not validly made under cl 9.9 of the Enterprise Agreements does not relieve the Employees from their legal obligation to work. The directions were not validly made because there was no immediate threat to the health or safety of the Employees and the HSRs could not give the directions without consultation.
As to these matters, the respondents respond that:
(a)The applicant is seeking to engage in a collateral challenge of the directions given under s 85(1) of the WHSQ which should not be permitted.
(b)In any event, the conditions required for the giving of directions under s 85(1) and (3) of the WHSQ and cl 9.9 of the Enterprise Agreements were satisfied and the directions were valid.
(c)Even if the conditions were not satisfied, once the directions were given, the Employees were required to comply with them and, accordingly, they were under no legal obligation to perform work, and their cessation of work was not “industrial action”.
(d)Mr Mattas was validly appointed as HSR under s 51 of the WHSQ Act.
I have not sought to comprehensively describe all the issues that remain, but these are the principal ones.
The meaning of “industrial action” in s 7 of the BCI Act
For there to be “unlawful industrial action” within s 47 of the BCI Act, there must be “industrial action” within s 7 of that Act. I will start by considering the meaning of “industrial action”.
The applicant relies upon the definition of “industrial action” in paras (b) and (c) of s 7(1) of the BCI Act. Paragraph (b) refers to, “a ban, limitation or restriction on the performance of building work by an employee or on the acceptance of or offering for building work by an employee”. Paragraph (c) refers, relevantly, to, “a failure or refusal…to perform any building work at all by employees who attend work, where that work is building work”.
In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (2020) 297 IR 151 at [129], I held that there is no “failure or refusal” to “attend work” or “perform any building work at all” within s 7(1)(c)(ii) of the BCI Act where there is no legal obligation on relevant employees to attend or perform work: see also Australian Building and Construction Commissioner v Parker (2017) 266 IR 340 at [376]. The applicant does not challenge that holding.
In the North Queensland Stadium Case, I held at [119] in respect of s 7(1)(b):
Section 7(1)(b) does not operate where an employee merely fails or refuses to perform or accept or offer for building work on a particular occasion. Something more is needed. That something is the imposition or placing of a “ban, limitation or restriction” on the performing, or accepting, or offering building work.
The applicant alleges that the Employees participated in a ban on the performance of building work. The respondents submit that there is no evidence from which the Court could infer that the cessation of work involved the imposition of a ban. They submit that complying with a direction which has been given by persons authorised to do so under statute and the Enterprise Agreements is not a ban. They also argue there can be no ban within s 7(1)(b) where there is no obligation on an employee to perform work.
In the North Queensland Stadium Case, I held at [120] that:
…s 7(1)(b) is capable of applying to a ban, limitation or restriction on the performance, acceptance of, or offering for, building work even where there is no legal obligation on an employee to perform, accept or offer work”.
While s 7(1)(b) is capable of applying where there is no legal obligation on an employee to perform, accept or offer work, whether it does apply must depend on the circumstances of the case.
The respondents argue there was no “industrial action” under s 7(1) of the BCI Act because there was no legal obligation upon the Employees to perform any building work after the HSRs issued a direction to cease work under s 85 of the WHSQ Act and cl 9.9 of the Enterprise Agreements. They also argue that by agreeing to cl 9.9, the employers “authorised or agreed to” the cessation of work within s 7(2)(a) of the BCI Act.
I will turn to consider the issue of whether the Employees were obliged and entitled to cease work following the directions given, or purportedly given, under s 85 of the WHSQ Act.
The application of s 85 of the WHSQ Act
As I have indicated, the respondents argue that there was no industrial action” within s 7(1) of the BCI Act because the Employees were obliged to cease work after there were directions to do so under s 85(1) of the WHSQ Act.
The applicant submits the Employees remained legally obliged to work because the directions were, for two reasons, invalid. The first is that Mr Mattas was not a “health and safety representative” within s 85(1) as he was not validly appointed to that position and was not entitled to give any direction. The second is that the conditions under s 85(1) for the giving of directions were not satisfied because there was no “reasonable concern” of exposure to the requisite “serious risk”.
The respondents’ first submission in response is that the applicant is making a collateral challenge to the validity of the directions which should not be permitted. I will start by considering that submission.
Whether the applicant’s challenge to the directives is an impermissible collateral challenge
The respondents submit that it was open to Broad and the Subcontractors to have made an application for judicial review of the directions to cease work pursuant to Pt 5 of the Judicial Review Act 1991 (Qld) (the JR Act). They submit that the applicant should not be permitted to bring a collateral challenge to the directions in this proceeding.
The applicant submits that the issuing of the directions did not involve any administrative decisions that were amenable to judicial review under the JR Act. The applicant also submits that a collateral challenge should, in any event, be permitted.
In Ousley v The Queen (1997) 192 CLR 69, McHugh J characterised a collateral challenge as follows at 98–99:
A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision….However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term “collateral challenge” is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues.
(Footnotes omitted.)
The reference to the “administrative act” in the final sentence is a reference to decisions which are the subject of judicial review, whether by way of statute or a court’s supervisory jurisdiction.
Part 5 of the WHSQ Act is entitled, “Consultation, representation and participation”. Division 3 makes provision for the election of health and safety representatives and the determination of “work groups”.
Section 50 allows a worker to ask the PCBU to facilitate the conduct of an election for one or more HSRs to represent workers who carry out work for the business or undertaking. The expression “work group” is defined in Schedule 5 to mean, “a work group determined under part 5”. If a request is made under s 50, the person conducting the business or undertaking must facilitate the determination of one or more work group of workers: s 51(1).
The WHSQ Act describes the position of HSR as an “office”: s 64(2). The office has a three-year term: s 64(1). There are provisions allowing the HSR to be disqualified from office: s 65.
The HSR has functions and powers to be exercised for the benefit of other persons, namely the welfare of other workers in their work group: s 68. HSRs are granted immunity for actions performed in the course of their duties: s 66.
In accordance with s 102B, a worker, employer or PCBU may notify a dispute about the exercise of the power conferred by s 85 (see the definition of “WHS matter” in s 102A) to the Queensland Industrial Relations Commission (QIRC). In dealing with a dispute, the QIRC may deal with the matter in the way it thinks fit, including by arbitration (s 102C(2)), and make any order it considers appropriate for the prompt settlement of the dispute (s 102C(3)). A person dissatisfied with a decision made by the QIRC may appeal (s 102G).
HSRs occupy an office created under statute and are conferred with statutory power to take actions that affect the legal rights of others. I accept the respondents’ submission that the directions were amenable to review pursuant to Part 5 of the JR Act: cf Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 at [5], [10], [65]-[66], [108], [113], [255]–[256]. It was open to Broad and the Subcontractors to seek judicial review of the directions in the Supreme Court of Queensland. In addition, it was open to Broad and the Subcontractors to notify a dispute to the QIRC under which the validity of the directions could have been determined.
The applicant holds a statutory office under s 21(1) of the BCI Act and is permitted to bring this proceeding under s 81(1). The question of validity of the directions arises because the respondents have pleaded that the directions were given under s 85 of the WHSQ Act such that the Employees were not obliged to perform work. The pleading necessarily implies that the directions were valid and effectual to bring about that legal consequence. It is in response to that assertion that the applicant asserts that the directions were not valid and effectual.
An exercise of the power conferred in a HSR under s 85(1) may cause significant adverse consequences for a PCBU. Section 55(2) and 56(1) require that the PCBU has been given the opportunity to negotiate and agree to, relevantly, the number and composition of work groups to be represented and the businesses or undertakings to which the work groups will apply. The language of s 55(2) (“are to be determined”) is in mandatory form. In this way, a PCBU is given the opportunity to agree or disagree with its workers forming part of a work group covering multiple PCBUs. These provisions recognise the fundamental importance of negotiation and agreement with a PCBU before a work group can be determined. Where a PCBU has not been notified and given the opportunity to negotiate and agree to its workers forming part of a work group covering multiple businesses, the work group cannot have been validly determined.
Section 62(1) provides that a HSR “for a work group is to be elected by members of that work group”. If there has been no valid determination of a work group covering multiple businesses, there cannot be any valid election of a HSR for such a work group. The valid election of a HSR falls within the description in Project Blue Sky at [92] of, “acts done in breach of an essential preliminary to the exercise of a statutory power or authority”.
Section 85(1) confers substantial power upon a HSR for a work group. The WHSQ Act carefully and methodically prescribes requirements for the determination of a work group represented by a HSR. In my opinion, the legislative intention is that where a work group has not been validly determined under s 55(1) and a HSR has not been validly elected under s 62(1) because a relevant PCBU has not been given the opportunity to negotiate and agree the particulars, a direction given by the purported HSR to the workers of that PCBU is invalid and of no legal effect.
I have referred to the potentially adverse consequences for a worker if a direction under s 85(1) is to be regarded as invalid and of no legal effect. I recognise that such a construction would create unfairness for workers who cannot be expected to be unaware of defects in the process leading to the election of a HSR for a work group. In this case, for example, it can be accepted that the employees of Statewide, Euro Precast Vertical, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist were unaware that Mr Mattas was not validly elected as the Site-wide HSR. Nevertheless, to exclude a PCBU from negotiations and to deprive it of the opportunity to disagree with the formation of the proposed work group is so fundamental to the election of a HSR that a subsequent direction under s 85(1) by the purported HSR cannot be regarded as effectual.
The Directions given by Mr Mattas to the employees of Statewide, Euro Precast Vertical, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist were invalid and of no effect. Those purported directions did not require or entitle those Employees to cease work.
Mr Kirkwood’s evidence demonstrates that the following Subcontractors’ employees attended the site on the specified days, but did not work:
·Statewide: 21 (13 employees), 22 (7 employees), 27 (3 employees), 28 (1 employee) and 29 (1 employee) July 2020.
·Euro Precast Vertical: 21 (5 employees) and 27 (4 employees) July 2020.
·Liebherr Cranes: 21 (5 employees), 22 (6 employees), 27 (6 employees), 28 (6 employees), 29 (6 employees), 30 (6 employees), 31 (6 employees) July and 3 (6 employees), 4 (6 employees) August 2020.
·Priest & Co: 21 (2 employees) and 22 (2 employees) July 2020.
·Ministaff: 21 (1 employee) and 22 (1 employee) July 2020.
·Auscoast Fire: 21 (2 employees) and 22 (2 employees) July 2020.
·Venmist: 21 (2 employees), 22 (1 employee), 27 (1 employee), 28 (2 employees), 29 (2 employees) and 30 (1 employee) July 2020.
I find that Mr Mattas gave the respective employees of those Subcontractors directions to cease work on each of these dates but that the directions were ineffective to authorise the employees to cease work. I find that these employees engaged in “industrial action” on the dates indicated.
The application of cl 9.9 of the Enterprise Agreements
The Union is a party to Enterprise Agreements with Action Formwork, Statewide, SRG Global, Placecorp Concrete, Euro Precast, Rovera Scaffolding, L&D Contracting, Liebherr Cranes, Lindores Personnel and Priest & Co. Each of the Enterprise Agreements contains a cl 9.9 in the following terms:
(a)If-
(i)an issue concerning health or safety arises at a workplace or from the conduct of the undertaking of the Employer; and
(ii)the issue concerns work which involves an immediate threat to the health or safety of any person; and
(iii)given the nature of the threat and degree of risk, it is not appropriate to adopt the processes set out in clause 9.7 above-
(b)the Employer and/or the health and safety representative for the designated work group in relation to which the issue has arisen may, after consultation between them, direct that the work is to cease.
The respondents contend that the Employees did not engage in “industrial action” within s 7(1) of the BCI Act because they were under no legal obligation to perform work after they were given directions to cease work under cl 9.9 of the Enterprise Agreement. They also argue that the stoppages resulting from directions under cl 9.9 were authorised or agreed to by the respective employers and thereby excluded from the definition of “industrial action” under s 7(2)(a).
It may be noted that Beavis and Bartels, Blue Pacific, Auscoast Fire, Venmist and Ministaff did not have in place any enterprise agreements with the Union. Accordingly, the arguments concerning cl 9.9 do not apply to the employees of those Subcontractors.
The applicant submits that the circumstances in which cl 9.9 of the Enterprise Agreements permits a HSR to direct that work cease are narrower than under s 85 of the WHSQ Act. It is submitted that an immediate threat to health and safety must be objectively in existence, not merely a reasonable concern. It is also submitted there are no circumstances in which a direction to cease work can be given without having first consulted.
The respondents submit that the directions issued by the HSRs were authorised under cl 9.9 of the respective Enterprise Agreements. They submit that, given the express reference to provisions of the WHSQ Act elsewhere in cl 9, it is unlikely that the parties intended to impose a higher threshold to give a direction than that in s 85 of the WHSQ Act because the power to give a direction under cl 9.9 would be inutile. Further, if there was an immediate threat to the health and safety of workers, there would be no need to confer a right on the HSR to direct that work cease, since any direction that they continue performing work would not be a lawful or reasonable direction and they would be entitled to cease work. The respondents submit that cl 9.9 should be interpreted such that a direction can be issued if the HSR suspects, or is concerned that, there is an immediate threat.
The respondents submit that a failure to consult does not have the effect of invalidating any direction given under cl 9.9. They also submit that the applicant has failed to demonstrate that there was no consultation between the HSRs and the respective employers.
I do not accept that Mr Mattas was a “health and safety representative for the designated work group” within cl 9.9 of the Enterprise Agreements. In my opinion, that expression is intended to take its meaning from Division 3, Part 5 of the WHSQ Act. I have explained why Mr Mattas was not validly appointed as a Site-wide HSR.
I accept that the HSRs for the work groups consisting of the Employees of individual Subcontractors (other than Statewide) with an Enterprise Agreement purported to give a direction to cease work under cl 9.9.
I do not accept the respondents’ submission that cl 9.9 allows HSRs to give a direction to cease work where a HSR suspects, or is concerned that, there is an immediate threat. Such a construction would be inconsistent with the language of cl 9.9 which provides, relevantly, that an issue concerning health or safety must arise which, “involves an immediate threat to the health and safety of any person.” That language indicates that the concern must, as a matter of fact, involve an immediate threat. The provision does not allow room for a mere suspicion or concern by HSR that an immediate threat exists.
In respect of the 21 July Direction, the, “threat to the health or safety of any person”, for the purposes of cl 9.9 must be regarded as the threat of injury in the event of a fire breaking out. Such a threat cannot be described as “immediate”. In respect of the July/August Directions, the “threat to the health and safety of any person” must be regarded as the threat of Employees sustaining psychological harm in the event that Mr Millan engaged in bullying conduct. That threat cannot be described as “immediate”. In each case, the threat was contingent upon another event occurring. In the case of fire, the probability was low. In the case of bullying conduct, even if it occurred, it was unlikely to result in injury.
Clause 9.9(b) of the Enterprise Agreements is clear that there must be consultation between the employer and the HSR before any direction to cease work can be given. As the respondents assert that the directions were given in accordance with cl 9.9 of the Enterprise Agreements and gave the Employees a legal entitlement not to work, it is necessary for the respondents to adduce at least some evidence of consultation. While there is evidence that some of the HSRs informed their employers of the circumstances and that the Employees would not be working while Mr Millan remained on the site, that cannot be described as “consultation”. I find that there was no consultation between any of the HSRs and the relevant Subcontractors before the 21 July Direction and the July/August Directions were given.
I find that to the extent that the Directions were purported to be given to the Employees under cl 9.9 of the Enterprise Agreements, they were not validly given. Unlike s 85 of the WHSQ Act, the context does not indicate that the Employees were entitled not to work where a direction was not valid. The Directions did not operate to entitle the Employees not to work. There was no agreement by the Subcontractors that the Employees were free to not perform work.
Whether the stoppages are excluded from “industrial action” under s 7(2)(c) of the BCI Act
The respondents submit that the Employees’ stoppages are excluded from the definition of “industrial action” under s 7(2)(c) of the BCI Act. That section provides, relevantly:
However, industrial action does not include the following…action by an employee if…the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety…
It is the respondents who assert that the Employees had a reasonable concern about an imminent risk to their health and safety. The respondents are, accordingly, required to adduce some evidence of such a concern. They have failed to do so, except in respect of the HSRs. I do not accept that the HSRs had any “reasonable concern” about an “imminent risk” for their health and safety for reasons I have already explained.
There is no evidence that the other Employees had any concern about the matters described in s 7(2)(c) of the BCI Act. The evidence indicates that after the directions were given, the Employees ceased work. The natural inference is that they ceased work because they were directed to do so by Mr Mattas and the HSRs. The evidence does not support an inference that they ceased work because they had their own reasonable concern about an imminent risk to their health or safety.
I reject the respondents’ argument that the Employees’ stoppages of work are excluded from the definition of “industrial action” under s 7(2)(c) of the BCI Act.
Conclusions concerning “industrial action”
I have found that those Employees who were given the Directions by the HSRs for individual work groups were obliged to cease work and were not under any legal obligation to perform work. These work groups were Action Framework, SRG Global, Placecorp Concrete, Beavis and Bartels, Blue Star Pacific Electricians, Rovera Scaffolding, L&D Contracting and Lindores Personnel. These Employees did not take “industrial action” under s 7(1)(c) of the BCI Act.
I have found that Mr Mattas was not validly appointed as HSR for the Employees of Statewide, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist. The Directions given by Mr Mattas to those Employees to cease work were invalid and of no effect. They were not obliged to comply with those directions and were not excused from their legal obligations to perform work. Those Employees took “industrial action” under s 7(1)(c) of the BCI Act.
I have also found that the Directions purportedly given by the HSRs under cl 9.9 of the relevant Enterprise Agreements did not excuse the Employees to whom those Agreements applied from their legal obligations to perform work.
Further, I have found that the Employees were not excluded from the definition of “industrial action” under s 7(2)(c) of the BCI Act.
I find that employees of Statewide, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist took “industrial action” within the meaning of s 7(1)(c) of the BCI Act on 21–22, 27–31 July and 3–4 August 2020 by failing to perform work. I find that the industrial action was “unlawful industrial action” within s 46 of the BCI Act.
For completeness, I will consider whether the Employees imposed a “ban” on the performance of building work within s 7(1)(b) of the BCI Act. The evidence demonstrates that the Employees complied with the July/August Directions on each day they were given. The evidence does not demonstrate something in the nature of an independent or collective decision by the Employees that they would not work. I am not satisfied that the Employees imposed any ban.
Whether Mr Mattas contravened s 46 of the BCI Act
Mr Mattas directed the Employees, including the employees of Statewide, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist not to work.
In Australian Building and Construction Commissioner v Huddy [2017] FCA 739, White J considered the meaning of “organise” at [147]:
The submissions of the Commissioner depended, to a significant extent, on it being accepted that a person will organise industrial action in the requisite sense if the person “encourages and enables” that action. For the reasons given above, I do not accept that that analysis is appropriate. Instead, I consider that organising involves acts of positive and intentional conduct bringing about or maintaining, or contributing in a material way to the bringing about or maintenance, of industrial action.
It is apparent that by giving the Directions to employees of Statewide, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist, which were complied with by them, Mr Mattas “organised” their industrial action.
Accordingly, I find that Mr Mattas contravened s 46 of the BCI Act by organising the industrial action taken by employees of Statewide, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist on 21–22, 27–31 July and 3–4 August 2020.
Whether Mr Blakeley contravened s 46 of the BCI Act
The applicant submits that Mr Blakeley organised the unlawful industrial action taken by the Employees in contravention of s 46 of the BCI Act.
The applicant submits that Mr Blakeley is taken, by operation of s 92 of the BCI Act, to have contravened s 46 by being knowingly concerned in the organisation of the unlawful industrial action.
At the HS Committee meeting on 21 July 2020, Mr Blakeley said words to the effect, “The guys won’t return to work until the risk is removed from Site”. The “risk” he referred to was Mr Millan.
On 27 July 2020, Mr Blakeley told Mr Kirkwood:
All the workers will be exercising their rights under their industrial agreements until Phil is removed off the job and Broad Construction can show how it has dealt with bullying claims.
On 27 July 2020, Mr Blakeley told Mr Masci that the Employees would not go back to work until the “imminent risk” (Mr Millan) was resolved.
Mr Mattas and the HSRs directed the Employees not to work on the days when Mr Millan was on the site in the period between 21 July and 4 August 2020, and the Employees complied with those directions.
The applicant relies upon Mr Blakeley’s statements to demonstrate his role in bringing about the stoppages.
I am not satisfied on the evidence that Mr Blakeley “organised” the industrial action taken by the Employees. It is certainly the case that on 21 July 2020 he indicated that the workers would not return to work while Mr Millan remained on the site in circumstances where none of them, apart from the HSRs, had witnessed Mr Millan’s behaviour which precipitated that comment. It is also true that the Employees did not in fact return to work while Mr Millan was on site until an injunction was granted.
However, there is very little evidence to connect Mr Blakeley’s statement on 21 July 2020 to the Employees’ failure to work from 27 July 2020. There is, for example, no evidence that Mr Blakeley said anything directly to the Employees to persuade or encourage them to cease work. Apart from making his comment in the HSRs’ presence on 21 July 2020, there is no evidence that Mr Blakeley took steps to persuade or encourage the HSRs to direct the Employees to cease work. There is no evidence that the HSRs and, in particular, Mr Mattas, were in fact influenced by Mr Blakeley’s comment.
Mr Blakeley’s statements to Mr Kirkwood and Mr Masci on 27 July 2020 are consistent with him simply conveying what he understood to be the HSRs’ or the workers’ intentions. Bearing in mind s 140(2) of the Evidence Act, I am not satisfied that the evidence demonstrates that Mr Blakeley brought about or otherwise “organised” the industrial action.
There was very little development of the applicant’s alternative submission that Mr Blakeley was knowingly concerned in the Employees’ contraventions of s 46 of the BCI Act. What must be considered is whether Mr Blakeley was knowingly concerned in the unlawful industrial action taken by the employees of Statewide, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist.
In Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456, White J summarised the principles relevant to the question of whether a party has been knowingly concerned in a contravention. His Honour observed at [227] that a person must have engaged in some conduct which “implicates or involves” him or her in the contravention, so that there is a “practical connection” between the person and the contravention.
The extent of the relevant evidence concerning Mr Blakeley’s involvement has been described earlier. There is no evidence concerning the content of any direct communication between Mr Blakeley and the relevant Employees. The Directions to cease work were given by Mr Mattas. Mr Mattas’ evidence indicates that his decisions to give the Direction were made independently and does not indicate that his actions were influenced by Mr Blakeley. While a suspicion may arise that Mr Blakeley had some influence over Mr Mattas’ decisions, such influence is not adequately demonstrated by the evidence. I do not accept that the applicant has demonstrated a practical connection between Mr Blakeley’s words and the unlawful industrial action.
I find that Mr Blakeley was not knowingly concerned in Mr Mattas’ or the Employees’ contravention of s 46 of the BCI Act.
The applicant also raised the suggestion that Mr Blakeley “procured” the industrial action. However, the assertion was not developed and I have not taken it to add to the submission that Mr Blakeley was knowingly involved.
Whether Mr Mattas and Mr Blakeley contravened s 52 of the BCI Act
Section 52 of the BCI Act provides, relevantly, that:
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person,…to…allocate, or not allocate, particular duties or responsibilities to a building employee and contractor…
The applicant pleads, relevantly, that the conduct of Mr Mattas and Mr Blakeley in organising the stoppages was done with the intent to leave Broad with no practical choice but to remove Mr Millan from the site or terminate his employment. The applicant submits their conduct was unlawful because it was in contravention of s 46 of the BCI Act, and illegitimate because it was unreasonable and disproportionate to the concern and was not done in accordance with other procedures available for resolving the issue. The applicant submits that the actions of Mr Mattas and Mr Blakeley were designed to negate choice because they involved preventing any work from occurring on the site until he was removed.
The respondents submit that “industrial action” can only be taken against an employer, relying upon Auimatagi at [86]–[91]. The respondents submit that therefore Mr Mattas and Mr Blakeley cannot have taken relevant action against Broad. The respondents also submit that in circumstances where Mr Millan was abusing, intimidating and belittling workers on a regular basis, demanding that Mr Millan be transferred away from the Project was not unlawful, illegitimate or unconscionable.
The applicant responds that s 52 of the BCI Act expressly provides that action can be taken against a person to coerce a third person. The applicant submits that in this case, action was taken against the Subcontractors in order to coerce Broad.
The authorities concerning the phrase “intent to coerce” demonstrate that there are two elements:
(1)The action must have been taken with intention to overbear the will or negate the choice of the other person.
(2)The action must be otherwise unlawful, illegitimate or unconscionable.
(See Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16 at [20]-[23]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at [38]-[41]; Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 at [105]; Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 at [12]-[33]; Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at [7], [70]-[72].)
It may be observed that s 52 is concerned with “action”, and not, or not necessarily, “industrial action”.
Section 57 of the BCI Act provides relevantly that where an application in relation to a contravention of s 52 alleges that a person took action with a particular intent, and taking that action with that intent would constitute a contravention, it is presumed that the action was being taken with that intent unless the person proves otherwise.
The “action” the applicant alleges was organised or taken by Mr Mattas and Mr Blakeley was to organise the stoppages and to demand that Broad remove Mr Millan from the site and threaten that the Employees would not return to work unless Mr Millan was removed.
I have found that Mr Mattas organised the stoppages on, relevantly, 27–31 July and 3–4 August 2020. He did so by directing the Employees to cease work. The cessation of work by employees of Statewide Steelfixing, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist was “industrial action”. Mr Mattas’ organisation of that industrial action was unlawful.
I accept the applicant’s characterisation of Mr Mattas’ conduct as being the organisation of action against the Subcontractors, as well as Broad. The cessation of work meant that the Subcontractors were unable to proceed with the scheduled work at the Project which would, in turn, place pressure on Broad, which had to construct the school within a tight timeframe.
I find that Mr Mattas’ action against the Subcontractors was taken with the intention of overbearing the will or negating the choice of Broad as to whether it should allow Mr Millan to work at the site. I find that Mr Mattas organised the industrial action with intent to coerce Broad to remove Mr Millan from the site and thereby not allocate him particular duties or responsibilities.
I will briefly mention that I reject the applicant’s submission that action was taken by Mr Mattas and Mr Blakeley to coerce Broad to terminate Mr Millan’s employment. The evidence simply does not support such an allegation.
I have found that Mr Blakeley did not organise the stoppages and was not knowingly involved in their organisation. Accordingly, to the extent that the applicant relies on the allegation that Mr Blakeley’s conduct was unlawful or illegitimate because he organised or was knowingly involved in the stoppages, that allegation is not established.
I have found that on 21 July 2020, Mr Blakeley told Mr Kirkwood, “The guys won’t return to work until the risk is removed from Site”, referring to Mr Millan. Mr Blakeley’s statement was made before he had any opportunity to consult with the Employees and before the HSRs became aware of Mr Reid’s diagnosis with a psychological condition, so that it was not the case that he could have merely been conveying information relayed by the Employees or the HSRs. Mr Blakeley’s statement was both a demand and a threat.
Although the evidence does not establish that Mr Blakeley’s statement caused the HSRs to issue the Directions, what is of relevance for s 52 of the BCI Act is not the effect of Mr Blakeley’s threat, but his intent in making it. The threat carried the implication that Mr Blakeley, as a Union organiser, was in a position to ensure the Employees did not return to work. Bearing in mind the presumption under s 57, I am satisfied that opinion, his intention was to overbear the will or negate the choice of Broad as to whether to have Mr Millan work at the site by threatening that the Employees would not return to work.
The applicant submits that Mr Blakeley’s action in making the statement was illegitimate.
In Australian Building and Construction Commissioner v Construction, Forestry, Mining, and Energy Union (2017) 267 IR 130, Reeves J held at [152]:
So having regard to all these matters, I consider the disproportionality principle identified in Verve Energy and discussed in Unjust Enrichment provides an answer to the question I have posed above. That is, disproportionality between a lawful threat of action, or the lawful action itself, and the legitimate interest in the demand the threat, or action, supports is the appropriate legal standard to be applied to determine whether the threat of action, or actual action, is illegitimate.
In Williams vConstruction, Forestry, Mining and Energy Union (2009) 179 IR 441, Jessup J held:
109Was it illegitimate for Mr Mates to seek to achieve his purpose of having Kane employ a labourer on the site by organising the workers to have themselves relocated elsewhere, thereby bringing about a stoppage of work on the site itself? … It would, I consider, be rather odd for a court to hold that it was perfectly alright for a stranger to the relationship between the subcontractors and Kane to prevail upon the employees of the former to make a request to their employers that they be taken off site. I express these views not to suggest that they reflect anything like the actual situation on the site on 31 July 2006, but rather to establish a base-line of normality, as it were, by reference to which it should then be regarded as lying upon the respondents to establish that the situation on the site was such as to give legitimacy to Mr Mates’ actions.
110Is implicit in the respondents’ case that the legitimacy of Mr Mates’ actions should be assessed in the context of his concerns about the condition of the site, and of the amenities in particular. However, the question of legitimacy is to be objectively determined. I have held that the situation existing on the site was not such as would have justified a union organiser taking the reasonable view that no work at all should be done, and that the site should effectively be shut down, on health and safety-related grounds. I would hold, therefore, that the concerns which Mr Mates in fact held about those matters were not as such sufficient to legitimise the action which he took.
In Esso Australia Pty Ltd v The Australian Workers’ Union (2015) 253 IR 304, Jessup J held at [175]:
In my view, that application of pressure was illegitimate. In every respect, the bans and stoppages notified on 3 February 2015 involved refusals by the employees concerned to perform some aspects of their required, customary, duties pursuant to their contracts of employment. The obligation to serve lies at the heart of any employment relationship. The conclusion that it is illegitimate for an employee to refuse to serve as a means of extracting beneficial terms from his or her employer is one that will rarely be difficult to draw.
The same reasoning must apply where the pressure involves a threat by a person to cause employees to refuse to carry out their duties.
The respondents submit that as Mr Millan had engaged in intimidating and bullying conduct against workers on a regular basis, demanding that he be transferred away from the Project was not illegitimate. However, Mr Blakeley did more than demand that Mr Millan be removed. He also threatened that if Mr Millan was not removed, the Employees would not return to work.
Mr Blakeley’s threat was made shortly after Mr Millan’s outburst at the HS Committee meeting, before Mr Reid had been diagnosed with a psychological injury and before any statements of workers had been taken. The threat was that none of them would return to work until Mr Millan was removed. Mr Blakeley could not have been in any position to assess the seriousness and extent of any threat posed by Mr Millan. I have found that Mr Millan in fact posed a low risk of psychological harm to the Employees.
As I have discussed, there were a number of alternative, legitimate actions that might have been taken by the Employees, the HSRs or the Union in respect of Mr Millan’s bullying conduct and Broad’s unreasonable refusal to take action in respect of that conduct. These include the HSRs issuing prohibition notices and an application for a “stop bullying” order.
In my opinion, Mr Blakeley’s threat that the Employees would not return to work until Mr Millan was removed from the site was grossly disproportionate to the concerns that Mr Blakeley held about Mr Millan’s conduct. That threat was illegitimate.
I find that by making the threat, Mr Blakeley took action against Broad to coerce Broad into not allocating particular duties or responsibilities to Mr Millan. This was a contravention of s 52 of the BCI Act.
The Union’s liability
The applicant relies upon s 95 of the BCI Act to submit that the Union is liable for the contraventions of Mr Mattas and Mr Blakeley.
The applicant submits that the Union is a “building association” for the purposes of s 95 of the BCI Act and Mr Mattas and Mr Blakeley are both “officials” of that organisation. The applicant has not explained what is meant by “officials” or, at least in Mr Mattas’ case, why he is to be regarded as an “official”.
Section 95 of the BCI Act provides, relevantly:
95 Actions of building associations
(1)For the purposes of this Act, each of the following is taken to be action of a building association:
…
(d)action taken by a member of the building association who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity;
…
The expression “building association” is defined in s 5 to mean, relevantly, an industrial association whose rules allow membership by members of building employees. It is not in dispute that the Union was a building association.
The applicant contends, relevantly, that Mr Mattas’ organisation of the industrial action was in his capacity as a Union member and Union site delegate who performed the function of dealing with employers on behalf of the member and other members of the association.
The respondents also submit that in organising any industrial action, Mr Mattas was acting as a HSR, exercising rights that were personal to him. They submit that in doing so, Mr Mattas was not dealing with an employer on behalf of members of the Union.
The evidence establishes that an election was held at which Mr Mattas was elected both as a Site-wide HSR and as the Union’s site delegate. In cross-examination, he agreed with the proposition that he, “wore both hats at all relevant times from December 2019 to 4 August 2020”. I understand Mr Mattas to accept that when he organised the stoppages, he did so in his capacity as the Union’s site delegate as well as his purported capacity as a Site-wide HSR.
I find that in his position as the Union’s Site-wide delegate, Mr Mattas had the function of dealing with employers on behalf of Union members. Mr Blakeley deposes that the Union did not represent the workers from Beavis and Bartels, Bluestar Pacific, Auscoast Fire, Venmist and Ministaff. I infer from that statement that the Union did represent the workers from the other Subcontractors, including Statewide Steelfixing, Euro Precast, Liebherr Cranes, Priest & Co. I find that Mr Mattas’ organisation of the industrial action taken by these employees and his actions with intent to coerce Broad were taken in his capacity of dealing with an employer on behalf of members of the Union. Mr Mattas was acting in his capacity as the Union’s site-delegate when organising industrial action contrary to s 46 or engaging in coercive action contrary to s 52 of the BCI Act.
However, Mr Mattas did not have a function of the kind described in s 95(1)(d) of the BCI Act in relation to employees of Ministaff, Auscoast Fire and Venmist.
It is not in dispute that the Union is taken to have engaged in the action constituting Mr Blakeley’s contravention of s 52 of the BCI Act.
Summary
I have found that Mr Mattas contravened s 46 of the BCI Act by organising industrial action engaged in by employees of Statewide, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist on 21, 22, 27, 28, 29, 30 and 31 July and 3 and 4 August 2020. The specific dates and numbers of these employees who engaged in industrial action, are set out in para [384].
I have found that Mr Blakeley did not contravene s 46 of the BCI Act.
I have found that Mr Mattas contravened s 52 of the BCI Act by organising the stoppages of work on 27–31 July and 3 and 4 August 2020 against Statewide Steelfixing, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist to coerce Broad into not allocating particular duties or responsibilities to Mr Millan.
I have found that Mr Blakeley contravened s 52 of the BCI Act by making a threat to Broad with intent to coerce Broad into not allocating particular duties or responsibilities to Mr Millan.
I have found that, pursuant to s 95 of the BCI Act, the Union is taken to have engaged in the unlawful conduct of Mr Blakeley; and the conduct of Mr Mattas to the extent that it involved the employees of Statewide Steelfixing, Euro Precast, Liebherr Cranes and Priest & Co.
I propose to list the matter for a further hearing to determine the appropriate relief.
I certify that the preceding four hundred and sixty-seven (467) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate:
Dated: 30 October 2023
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