Ramsay v Menso
[2017] FCCA 1416
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMSAY & ANOR v MENSO & ANOR | [2017] FCCA 1416 |
| Catchwords: INDUSTRIAL LAW – Right of entry – Interplay between WHS Act (Qld) 2011 and FW Act – Compliance with Part 3-4 of FW Act – Provisions of Division 2 of Part 7 of WHS Act – validity of Notice of Entry – Application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.494, 495, 496, 497, 498, 499, 501, 502 Work Health Safety Act 2011 (Qld), ss.116, 117, 118, 119, 120 Work Health Safety Regulation 2011 (Qld), regs.27, 28 Federal Circuit Court Rules 2001, r.9.04 |
| Cases cited: Ramsay & Anor v Sunbuild (2014) 22 FCR 315 |
| First Applicant: | ANDREW RAMSAY |
| Second Applicant: | ANTHONY STOTT |
| First Respondent: | SUSAN MENSO |
| Second Respondent: | Z GROUP PTY LTD |
| File Number: | BRG 327 of 2016 |
| Judgment of: | Judge Vasta |
| Hearing date: | 13,14 and 15 June 2017 |
| Date of Last Submission: | 15 June 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 23 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Massy |
| Solicitors for the Applicant: | HALL PAYNE LAWYERS |
The First Respondent appearing on her own behalf
There being no appearance by or on behalf of the Second Respondent.
ORDERS
The Application filed on 13 April 2016 be dismissed against the First and Second Respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 327 of 2016
| ANDREW WILLIAM JOHN RAMSAY |
First Applicant
| ANTHONY LUCAS STOTT |
Second Applicant
And
| SUSAN MENSO |
First Respondent
| Z GROUP PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 11 December 2015, the Applicants, Andrew William John Ramsay and Anthony Lucas Stott went to 68 Cordelia Street, South Brisbane. This was a construction site and the builder was the Z Group 1 Pty Ltd which was controlled by the First Respondent, Susan Menso. The First Respondent was also the person who controlled the Z Group Pty Ltd which is the Second Respondent.
The Applicants were officials of the Construction, Forestry, Mining and Energy Union (“CFMEU”) and were both holders of entry permits issued by the Fair Work Commission as well as Work Health and Safety (“WHS”) entry permit holders pursuant to State legislation. They sought entry to the construction site because they wished to enquire into a suspected contravention of the Work Health Safety Act (QLD) 2011 (“WHS Act”)
The First Respondent denied the Applicants entry to the premises. A WHS inspector, Mr Ian Williamson, was called to the site. He looked at the documentation and advised the First Respondent that she should allow the Applicants onto the site. She refused. The police were then called. The police advised the First Respondent that she should let the Applicant’s onto the site. She again refused. After further talks with the police, the First Respondent acquiesced and allowed the Applicants entry to the site.
The Applicants claim that the actions of the First Respondent (and the Second Respondent) amount to breaches of s.501 of the Fair Work Act 2009 (Cth) (“FW Act”) or alternatively s.502 of the FW Act.
Background
The evidence before me shows that there has been an unhappy history of clashes between members of the CFMEU and the First Respondent. There have been two prosecutions launched against the First Respondent by WHS officials, seemingly upon complaints made by the CFMEU.
There is no need to go into these matters in any great detail but it is somewhat necessary to know about this background to understand what occurred that day.
The Events of 11 December 2015 – the Facebook message
On the evidence before me, at 8:53am, the First Applicant, Mr Ramsay, was made aware from the employee who administers the Facebook page of the CFMEU that a Facebook message from a member of the CFMEU had been received complaining about safety issues at the construction site at 68 Cordelia Street, South Brisbane. A number of photographs were attached to that message and the First Applicant looked at those photographs.
The First Applicant said he formed the view that there were significant safety breaches at that building site. These related to the scaffolding at the site. He was of the view that such breaches were a danger to life. The First Applicant showed these photographs to the assistant state secretary of the CFMEU and told him that something needed to be done about the situation illustrated by those photographs.
About an hour later, the First Applicant was spoken to by the assistant secretary who informed him that he (the assistant secretary) had made contact with the person who took photographs and there was confirmation that the photographs were current. The assistant secretary then directed the First Applicant and the Second Applicant to attend on the site and investigate the suspected contravention in accordance with the WHS Act.
The Arrival at the Site
The First Applicant testified that upon arrival at about midday, he and the Second Applicant remained in the vehicle while they completed a “notice of entry” pursuant to s.117 and s.119 of the WHS Act.
Both Applicants had copies of the right of entry permits under the FW Act and the WHS entry permits as well as other documentation, including the “notice of entry” when they exited the vehicle. Both Applicants said in their affidavits that as they were approaching the entry to the site, they witnessed officers from the Department of WHS drive off. This conflicted somewhat with the evidence of the First Applicant before me when he said that as they were arriving at the premises in the car, the WHS officials were already driving off.
If there is any significance in this evidence, it is that if I accept what is said in the affidavits, the Applicants had ample opportunity to speak to the WHS officials who were on site. But instead, the Applicants stayed in the car and filled out the “notice of entry” and only then left the car as the WHS officials drove off. If I accept what was said in evidence before me, there was no such opportunity.
The Applicants then approached the entry to the site and were met by the First Respondent.
The Initial Encounter
Despite some of the evidence that was given before me, there is no true contest about what occurred in the interaction between the Applicants and the First Respondent. This is because the Applicants recorded, by video, the exchanges that occurred. Whether this was done because of the previous history between the CFMEU and the First Respondent or whether it was occasioned by the Applicants having the presence of mind to understand that it would be in everyone’s best interests to record the happenings of that day, is not really a matter that I need to resolve.
The conversations on the video were transcribed and it would be the only sensible way to fully indicate what occurred to reproduce the salient conversations. The initial conversation is as follows (AR = First Applicant, TS = Second Applicant, SM = First Respondent)
“AR: What’s that? Reflection? All we can see if you.
TS: Tony Stott and Andrew Ramsay from the CFMEU
SM: Yeah, you got no jurisdiction here boys so…
AR: Yes we have.
SM: No you haven’t, you have to give two days’ notice.
AR: No we don’t!
SM: You do so. You’re not allowed on my site with no reason
AR: No, I’m sorry…
SM: No, you’re not allowed. You’re not coming past.
AR: Yeah?
SM: You are not coming past me.
TS:…Under site (sic) 117
AR: Excuse me.
SM: You are not coming past me.
AR: Look, there’s our permits.
SM: You are not coming past me.
TS: I don’t care what you say
SM: You have to give two days’ notice.
TS: No we don’t, you show me where it says that in the Act.
SM: You do so, it is in the Act. I don’t care…
AR: We want to see all these contraventions right?
SM: You’re not allowed.
AR: Look at this job. Call the police.
SM: Yeah, call the police. No, but I don’t want to take this video off. (At this point, the First Respondent is also filming the Applicants using her phone)
TS: Are you obstructing our rights to enter this site?
AR: You’re obstructing?
SM: Yes I’m instructing…Call the police. You call the police.
AR: No, I didn’t say I was going to call them.
SM: No, I said you call the police. You’re not allowed in. And I know you touch me be in…
TS: You might want to have a look at this documentation here…
AR: I’m not touching you.
SM: Yeah, you try to touch me and…
AR: No, no just read the Act, just cool down.
SM: No, I’m not reading the Act. You’re not allowed on my site.
AR: Cool down. Look, “Person must not refuse to delay work, entry of work health safety permit.
SM: Well I’m refusing.
AR: But you’re not allowed to.
TS: So you’re obstructing.
SM: I’m refusing and I
TS: the entry of an official
SM: I am, I am yes I am instructing
AR: Instructing?
TS: Obstructing?
SM: Instructing. I am instructing you are not allowed on my job.
AR: Oh
SM: You are not allowed on my job.
AR: Lovely.
TS: So…
SM: You can call the police.
AR: I am not calling the police. We don’t use the coppers, that’s your job.
TS: That’s not our job to call the police
SM: Course you do
AR: We don’t use the coppers mate
SM: Nup. Go away. You’re not allowed.
TS: Why would we do that?
SM You’re not allowed.
AR: Well we are, under our permits.
SM: No, you’re not allowed.
AR: Yes we are. We’ve got workers on this site who have called us.
TS: We’ll get the governor adjudicator in.
SM: Yeah. Yeah.
AR: Well where did we get the photos from? Disneyland? This is your job.
TS: We’ve got some…got some official concerns.
SM: Yeah, because you just sent workers…you just sent…You’re a liar. You’re a ..and a liar. You just Workplace Health & Safety in
AR: A loser and a liar? Oh boy!
TS: Oh that’s not nice Sandra being attacked like that
SM: They took the photos. They took the photos and sent them to you.
AR: They didn’t take any photos.
SM: They did so! They did so. Workplace Health & Safety – you got them to come you took, sent. They took the photos…
AR: You have got a funny view of life I’m sorry Ms Menso, but this is your job and the contraventions we want to see.
SM: Yeah I do. Yeah. Yeah
AR: Have you fixed them up? Or is it still people can fall to their deaths on there?
SM: No, the scaffolder is on his way because he was supposed to…
AR: Is the job finished? Like have you stopped it?
SM: There is nobody there. All those places have been blocked.
AR: So you’ve blocked all those areas off?
SM: They have all been blocked off
TS: Who is doing your scaffolding?
SM: None of your business. It’s none of your business. You’ve got no jurisdiction on this site.
TS: No, I’m
AR: Tell us why we’ve got no jurisdiction. I’d like to know.
SM: It’s not a CFMEU site
AR: It doesn’t have to be
SM: It does so!
TS: It’s a construction site.
AR: It does not.
SM: No…
AR: I don’t know where you’re getting your info from but I’m not going to argue with you.
SM: I’ll look at the Workplace Health & Safety but I won’t look at you guys cause you’ve …nothing. You do nothing to my job. And I’m not giving you money in paper bag… the other
TS: We try to make it safe cause it’s actually a…
SM: There’s nothing unsafe about this job
TS: Have a look at the photos
AR: Look at all the photos though
SM: Nobody is going out there. Those things have been taped off because
AR: Taped off?
TS: Ohh that’s fantastic control measures
SM: Well not taped off but barricaded off
AR: Yeah
SM: Oh fuck off. I don’t even have to…
AR: Oh don’t talk like that
TS: Oh now you’re abusing a…
AR: Is this a smoko area too cause there’s a couple of forks there we’re just thinking…
TS: Don’t talk to me like that
SM: There’s not smoko area up there
AR: Well was there someone eating up there like that?
SM: They could have…they’ve thrown…
AR: Haven’t you got a smoko shed?
SM: Oh bullshit!
AR: Well, what’s going on?
SM: You’re making up things…
AR: No I’m not. I just want to see those contraventions
SM: No. You’re not allowed on my sit. Yous are non…
AR: But there’s a camera and police are watching
SM: Yes
AR: Oh Jesus. Yeah ok, well that’s alright, we’ll ring the Department and we’ll get to …um
TS: We’ll ring the adjudicator and get them out here.
SM: You can ring the police. You can ring who you like
AR: We don’t ring the police. We don’t use the police. That’s your job.
TS: That’s your caper.
AR: Yeah you do that. We don’t do that.
TS: We have a legal right to come in.
SM: No, you haven’t.
AR: We do.
TS: We do. I wish you’d just kept [with your job].
AR: Obviously I don’t know where you’re getting your education from.
SM: You can take me to court because you’re not allowed on my job. I don’t care.
TS: We don’t take people to Court.
SM: You can ring every department you want.
TS: We don’t worry about that sort of stuff. You’re just wasting your time I’m afraid.
SM: I really don’t care. You’re wasting your time.
TS: No I’m not. This is my job.
SM: Yeah. You got to union jobs bully them around.
TS: I love saving workers lives’ Andrew, what about you?
AR: Bully?
SM: Yeah. You’re not saving – you just want money in a paper bag. That’s all yous..
AR: I don’t know. That may be the way you operate.
SM: Yeah. No I don’t operate like that. Do I give you money? No way. That’s why you are bullying me.
TS: Certainly not. I wouldn’t take money from anyone.
AR: No one’s bullying you at all.
SM: No way. You do.
TS: You can’t say that.
SM: You do. You’re bullying me.
TS: Well if you’ve got nothing to hid, why don’t you let us in the site?
SM: But you’ve got no jurisdiction here. I’ve got no union workers here.”
There is more that was said in this conversation and I have watched the video recording that is attachment AWJR5 to the affidavit of the First Applicant.
What is clear from that encounter is that the First Respondent was not going to allow the Applicants entry on to the site. The First Applicant said, in evidence, that he had advised the First Respondent that he had completed the “notice of entry”. It is obvious from the video recording that the First Respondent is not looking at the Applicants and is certainly not listening to them.
One of the Applicants made a phone call to an official of WHS and, soon afterwards, Mr Ian Williamson from WHS arrived on site.
The Encounter with Mr Williamson
Mr Williamson arrived with another officer, Steve Reynolds, and there was a conversation between the two Applicants, the First Respondent and Mr Williamson. This conversation was also recorded on video and is attachment AWJR6 to the affidavit of the First Applicant. The salient parts are reproduced below.
“AR: We’ve got Ian Williamson.
SR: Steve Reynolds is my name; I’m an investigator with Workplace Health and Safety.
TS: Tony Stott, how are you, Steve?
SR: Good thanks mate.
IW: All right, who have I got here? I’ve got…
TS: Tony Stott.
AR: Andrew Ramsay.
……………….
IW: Righto, okay, what’s the issue that we’ve got here?
AR: Obstruction and hindrance right of entry.
IW: All right, so what’s going on?
AR: We’ve come under Section 117 to investigate these photos that have been sent to us.
TS: Suspected contravention [over speaking] code of practice.
IW: Hang on, okay so where did you get these from?
SM: Your guys have already been out [over speaking] …
IW: No I’m aware of that so just hold your horses…
AR: Doesn’t matter, doesn’t matter.
IW: Just wait, just wait, all right just hang on. So where did you get these photos from?
AR: These were sent to us.
IW: By someone on this site, obviously?
AR: Yes, someone that’s close to site anyway, yeah they’d have to be onsite to do it.
IW: When were they sent?
AR: That doesn’t matter.
IW: Mate, I’m just asking questions, all right?
AR: You don’t have to get bouncy with me, I’m just saying.
IW: When were they sent to you?
AR: I received them today, so I don’t know when they were taken, some time this morning.
IW: Also you don’t want to disclose who sent those to you…
AR: Well I don’t have to, under the Act, I’m not going to.
IW: I’m just asking…
AR: Because we don’t know who they are.
TS: No, we don’t like…
AR: No we don’t, we don’t disclose people’s names.
SM: I know exactly who it is, so you don’t have to disclose to me.
AR: She reckons it was [Pat Stein] sent them to us.
SM: I never, I said you –I found out now you’ve got a direct link now by ringing him up.
IW: So you want to make entry under 117…
AR: Yes, to make sure this is being fixed.
SM: He has two days’ notice and he hasn’t even given you –he’s only filled it out – it has to be two days’ notice.
IW: No he doesn’t, Susan, he doesn’t…
SM: He does, he does, he does.
AR: He does not.
IW: Susan, he doesn’t.
SM: He does.
AR: No.
SM: Andrew and Noel told me it’s two days…
AR: Noel ?
SM: Yeah.
AR: No, he wouldn’t have told you that.
SM: Yeah he did, well I’m not letting him on. I don’t care, get the police, take me to gaol, book me, whatever you want to do, Ian, they are not coming on. This is a non-union site and they can get lost. I’m sick of this harassment, do whatever you like, they are not coming on. You’re going to have to pull me away and then you’ll get charged for pulling, you’ll get charged for hitting me, because they’re not coming past me, okay?
IW: Susan.
AR: Excitable,[hmm],it’s great.
SM: I don’t care, fine me again. You’ve already taken me to gaol – or court once, again.
AR: Gaol?
SM: Court again, you’ve already taken me to court.
IW: Right, so Susan under 11…
SM: Fine me again, I don’t really care.
IW: Just hang on.
SM: I don’t care, Ian I don’t care.
IW: Well I’m just going to explain a few things to you just so we’re on the same page.
SM: I don’t want to be explained to.
IW: Well I’m going to, I’m going to.
SM: La-la-la-la-la-la-la…
IW: So under 117 they’re allowed to enter the site…
SM: …la-la-la-la-la.
IW:…and it’s an offence for you to not allow them onto the site unless you have a reasonable excuse. So…
SM: Because they bully and harass me and that is my excuse, and it causes me stress.
IW: So that’s your reasonable excuse is it?
SM: Yes, it’s making me ill, my health is getting ill.
AR: Excuse me, Mrs Hoffman, I’ve never been on the site so I don’t bully and harass.
SM: No you’re all part of it [You’re all/your]brothers; you’re all brothers…
AR: So don’t accuse me of doing that, thank you.
SM: You’re brothers,[everything about this] they’re your brothers.
………………………………
IW: …What I suggest you do is contact the Queensland Police. I can’t force the issue; I have no power to actually force you –or to say get out of the way, to do that. So if you need to do that, you need to ring the police. I am satisfied that you’ve (referring to the two Applicants) got a reasonable reason for being here to enter the worksite. I’m not satisfied at this stage that there’s a reasonable excuse for you not to go on that site. But I can’t force that any further. So you’re going to have to ring the Queensland Police and get assistance from them to get on the site. I’m happy to stay, but you’re going to have to do that.
AR: No, we don’t use the coppers.
IW: Well there’s nothing in the Act that gives me the power. I mean, I can enter that site now, and I’m going to myself anyway, to talk to Susan at some point. But I can’t…
Male: Let’s get some direction on [the matter].(This “male” appears to be the husband of the First Respondent)
AR: Yeah, we’ll get direction on it.
IW: I can’t physically – all I can say is that I agree…
AR: I understand that.
IW:…that there is a reasons for you to be onsite, but I can’t push that issue any further.
AR: No, that’s cool.
IW: It’s all changed recently, so there’s going to be a bit of getting heads around this. I’ve read it, I read it before I came here, I understand it and I think you have a right to be onsite. I’m happy with that okay? So to push that issue further I can’t say to – all I can say is Susan, the boys have a right to enter the site, and if you don’t have a reasonable – if you refuse them entry you’re committing an offence. I’m going to explain that to Susan again so she’s quite clear. But I can’t push you blokes onsite.
AR: No that’s all right, we understand. We’ll get direction, we’ll…
Male: [Do you want me to] make the call?
AR: Yep.
Male: Have you any idea whereabouts onsite those photographs were taken?
AR: Can I have that back please, Ian?
IW: Oh yeah mate, sorry.
AR: I can give you the photos if you want them, but you’re going to find it pretty easy…
Male: I’ve seen the photos here.
AR: Five and eight I think they are[unclear].
IW: I’ve seen the photos.
Male: Outside of the [mini ground’ car park next door you’ll see [bracing] missing off [unclear] where they’ve started…
Male: Without even going inside…
IW: [Over speaking] so that’s all right. Are you happy with that?
Male: Yeah.
IW: Okay, so if you want to push the issue of coming on the site any further, I’ve given you that advice and that is all I can do at that stage.
AR: No worries, we’ll get further advice.
IW: You have been excepted (sic) on the site today, and they only left…
AR: Just as we pulled up…
Male: Do you know what those…
IW: Just hang on, just hang on. [Interruption]
Male: Do you know if those inspectors who were onsite if they identified any issues.
………………………………………………………
AR: We won’t be going in, don’t worry about it.
SM: I’m not worried.
AR: Our word’s our bond, we don’t be going anywhere.”
Again it is clear that the First Respondent was not going to allow the Applicants entry to the site. Mr Williamson testified that he felt that his job was to be “an umpire” in this dispute. With all due respect to Mr Williamson, he is not a lawyer and his position with WHS is not one where he has to adjudicate as to the proper interpretation of legislation. Nevertheless, there was something of a “Mexican stand-off” occurring and there was a need of some form of circuit breaker.
Mr Williamson tried valiantly to become that circuit breaker and to have the parties calm down and listen to each other rather than simply talk “at” each other. Alas it was to no avail.
His interpretation of the situation was that if the Applicants did have a reasonable suspicion that there was a contravention occurring at the work site and they had the paperwork in order, then the First Respondent must let them onto the premises unless she had a reasonable excuse not to do so.
It is clear that this is the interpretation that Mr Williamson gave to the First Respondent. As a result of that, she attempted to explain to Mr Williamson what her reasonable excuse was. Mr Williamson, acting as the “umpire”, did not accept that excuse as being reasonable. In reality, it is for the industrial commission to decide whether there is a “reasonable excuse” pursuant to s.144 of the WHS Act.
What can be seen on the video is the First Applicant amending the “notice of entry” after the First Respondent has refused entry following Mr Williamson’s “adjudication”. I conclude from of what I have seen on the video and my inspection of the “notice of entry” (which is annexure AWJR4 to the affidavit of the First Applicant), that the First Applicant is inserting the address of the premises when he is amending the “notice”. The “notice” was in the book of the First Applicant and was separate from his other documentation.
The contraventions that concerned the two Applicants were related to the scaffolding. Mr Williamson confirmed that the WHS officials, who had been at the site earlier, had issued a verbal prohibition order regarding the scaffolding. In other words, there had been an order made by the Department of WHS that no one was to go near the scaffolding except for the scaffolders who were specifically there to rectify the state of the scaffolding and ensure that it was safe.
This information was given by Mr Williamson to the Two Applicants. By this time the two Applicants had actually entered the site and were at the main office which was in shade. The First Respondent had forbidden them to come any further onto the site.
The stand-off continued. Mr Williamson advised that if the matter was to be resolved and that there would be need to be intervention by the police. While such intervention was actually desired by the two Applicants, there was an inexplicable adherence to the notion that the Applicants, as union officials, would never request assistance from the police. It was almost as if they would be forever defiled if they rang the police to assist.
Eventually, the First Respondent or her husband rang the police. They arrived, it seems, about 10 minutes later.
Police Intervention
Sgt Conrad Greenwood attended the premises as did another female police officer. The conversations between the two Applicants, the First Respondent, Mr Williamson, Sgt Greenwood and the female police officer were recorded by video. The transcript reveals the following conversation
“SM: How you going?
CG: Hi, how are you?
AR: G’day buddy.
CG: What’s going on ?
SM: I don’t want them on my job. It’s a non-union site, I’m [unclear] by the developer and I don’t want them on the site because I’m scared of them because they – Justin Steele pushed me and…
…………………………………..
CG: Okay, so you’re the developer.
SM: Yes.
CG: Or you represent the developer. (Turning and talking to the Applicants) She doesn’t want you onsite. Have you got any authority to be here?
AR: Yes we have.
CG: What’s that?
SM: No, they have to give two days’ notice.
CG: You’ve got an entry …
AR: Yeah, we’ve got permits and everything on us, and we’ve got the notice in the book to give to her. (my underling)
SM: No, they haven’t give me identification numbers, no.
TS: We have documentation of our permits.
AR: That’s what we’ve come to look at mate. That’s a building site…
TS:[unclear] under 117…
SM: If you read it [over speaking] two days’ notice.
CG: Hang on madam; these gentleman are talking to me.
AR: This is the photos from upstairs.
TS: This is the contravention of the safety scaffold code of practice.
AR: Scaffold and everything. There’s federal right of entries.
CG: Do you mind if I have a quick look?
AR: Yeah, go for your life, there’s all the part of the Act there about where we can go in.
CG: These gentlemen are going to be – when I have a look at this document (the “notice of entry”) are going to come in under the Workplace Health and Safety Act. You must let them in.
SM: I’m not; you can put me in goal.
CG: Well you’ll have no choice.
SM: No, you can put me in gaol for resisting arrest, whatever they’re not going inside.
CG: We’re not going to arrest you.
SM: Because they’re not going inside. I’m the [unclear].
CG: Well they have a permit.
SM: I’m not letting them inside; they’ve got no jurisdiction; it’s a non-union site.
AR: Doesn’t matter.
SM: And they’re supposed to give two days – in the Act is says two days’ notice.
Male: [Unclear]?
AR: Don’t know mate, [about the same].
SM: They haven’t given two days’ notice. [Over speaking] two days’ notice. They haven’t given me their card, identification or anything.
AR: You haven’t asked for it yet.
SM: I did so.
AR: No you didn’t.
SM: I did so.
AR: No, sorry.
SM [Unclear].
…
CG: I'm taking [unclear] people with me.
SM: [Unclear] go on.
CG: No, no, I'm taking these people all with me.
SM: They're not {going}.
CG: Okay? They are. So you - there's got to be more to it than you think they're corrupt?
SM: They're bullies. They're corrupt, they're bullies, they want money in a paper bag, they harass everybody, they're costing the industry millions and millions of dollars on down time. Why would you even support them for?
CG: I'm not supporting them, I'm supporting legislation.
SM: They are so corrupt, you've got no idea. Haven't you been listening to the news? One fellow built a house in the Gold Coast, another one's got a $2.5 million house in the Gold Coast. My mate [Ronnie Taraba] gave...
CG: Oh, Ronnie Tarabay.
SM: ...$20,000 in a paper bag because these guys, this is what they do, they come to the site, they stop the job , stop the job , stop the job ...
CG: Ron Tarabay.
SM:...and then...
CG: Or [Carabay]? The man who goes by different names, [don't go there].
SM: Well anyway...
CG: Because I know Ron Tarabay and he's not the saint you're talking about.
SM: Well it wasn't him anyway, it was...
CG: Oh it wasn't him, it wasn't him now?
SM: Anyway.
CG: It was someone else.
TS: Once again, a misheard story.
SM: They [get a chunk of that]. Another guy who's building at Mount Gravatt, he gave $30,000 in a paper bag, because this is what they do. They come here, harass and harass and harass you and then you say, here mate, I'll give you money in a paper bag.
TS: I'm going in the wrong job.
AR: Yeah, I am too.
[Over speaking]
AR: I don't even carry a receipt book. [Over speaking]
SM : ...he used to give $5000 a month. I won't, I won't. I won't give money in a paper bag. I don't want them on my site...
CG: You don't have to.
SM: ...because they're all corrupt.
[Over speaking]
CG: They're here in relation - they're taking pictures in relation to what they believe to be a contravention of the Workplace Health and Safety Act. It's as simple as that.
SM: Why do they want to come on? There's nothing there, the scaffolder's up there fixing it...
[Over speaking]
AR:...getting fixed, that's all right.
CG: Let them see that it's fixed then.
SM: ...inspectors, he can inspect it because he's inspected [unclear] before. don't want them on there.
Female Police Officer: Susan, the sergeant's simply telling you the way it is. They're not going to be doing anything, touching anything, they do need... [Over speaking]
SM: But then they'll come back again...
Female Police Officer: They do need to come out and do an inspection...
SM ...and again and again. Listen, if you let them on...
[Over speaking]
SM: If you let…
Female Police Officer: You need to listen to us; they're here, they need to do the inspection. These gentlemen need to be with them. The sergeant's only telling you the legislation, we have to uphold the [unclear] legislation.
CG: So do you.
Female Police Officer: That's our job.
[Over speaking]
SM: If you let them on once, they're going to come back again and again and again.
Female Police Officer:…need our help. So...
[Over speaking]
SM: If you let them on once - well obviously you're not helping,
……………………………………………………………
SM:...over $20 million in Brisbane, look at my sign, and this is [what I put up with], harassing, harassment. Go [unclear], driving me fucking crazy. Please.
CG: [Unclear] don't raise your voice at me.
SM: I tell you.
CG: I don't appreciate it or care for it.
SM: That's one...
[Over speaking]
SM:…he's going to take me to court again.
CG: My wife is trying to call me because I was supposed to pick her up for an appointment. Okay? So I'm wasting my time here with you...
SM: Well I'm wasting my time, they have wasted four hours of my time and they're going to pay for this because I'm not fucking stopping, I'm actually going to go and sue CFMEU and Workplace Health and Safety.
CG: Yeah, I don't think you can do that.
SM: I can.
CG: If you claim that this is fixed, we'll be here...
SM: I can, and you know what, an investigative reporter flew up to meet me last Thursday...
CG: Oh good.
SM:...from Melbourne, yeah, and he's investigating all the corruption on the union.
CG: All right.
SM: He saw that and he's flying up and down and it's going to be on Today Tonight as well.
CG: We are going to - all of us are going to have a look and if you don't let them...
TS: She's persistent.
AR: Talk to your missus mate. [Over speaking]
AR: I'm recording, so...
IW: Can I just make something clear though, we have issued a prohibition notice verbally on the actual scaffold...
[Over speaking]
CG: Just listen to the gentleman.
IW: So nobody here, including yourselves, can actually - this is Workplace Health and Safety, they can access internally, they can look out at the scaffold but they can't access the scaffold. I'm just letting everybody know, we can't go on the scaffold, just so you know.
AR: There's no way we'd go one the scaffold anyway, the condition it's in.
CG: [Unclear] fixed [unclear].
SM:[Unclear] fixed because...
AR: Well they're fixing it, aren't they?
SM: They're fixing it at the moment and I have to take photos and send it to - he gave me a card.
AR: What's a verbal prohibition ?
[Over speaking]
SM: I'm not letting them on because they will just come back and back and back...
CG: Workplace Health and Safety are here right now.
SM: Yeah. Yeah, but he - no, look, I've got to send it to [Geoff]. Well [Ian] can go and look at it, yeah Jan can go up and see if it's fixed.
CG: These gentlemen here have accreditation in relation to being here lawfully.
SM: I don't care.
CG: If you're lawfully obstructing them, you...
[Over speaking]
SM: Yes, I'm obstructing them. You can fine me, you can put me in gaol...
CG: Well I won't be but...
SM: ...you can do whatever you like to me but I'm not letting them on. Because once you let them on once then they come back and they bully and bully and bully. Why do you think I spent $1000 on that sign?
CG: They've got the paperwork ...
SM: Have you read my sign?
CG:...that's in order - I haven't.
SM: Did you see my sign? Why have I spent $1000 on my signs? Because that's exactly...
[Over speaking}
AR: That's cheap, Jesus [unclear].
SM: For 11years - 11years, I've been getting this.
CG: Today...
SM: Because you know why? I'm a female.
AR: Oh god.
SM: Female building developer...
CG: Oh okay, here we go, all right, sorry. [Over speaking]
SM: Jealous, I would say, fucking jealous .
CG: See this female officer here, right? She gets paid the same rate as a male officer on her rank level, okay, the same as my rank level, we all get the same. So let's not go there about women being hard done by, because it is not the case anymore. That's absolute rubbish.
SM: It is so.
CG:[Unclear].
[Over speaking]
CG: You have five minutes to mull it over before [unclear].
AR [Unclear] it's just unbelievable.
As can be seen from that exchange, the First Respondent was still refusing to allow the two Applicants to enter the premises. It seems that during this time, the scaffolders were rectifying the deficiencies in the scaffolding.
As time progressed, the First Respondent began to calm down and was acting in a far more reasonable manner towards both Mr Williamson and the police. The First Respondent looked at the documentation given to her by the First Applicant. She saw the entry permits of both Applicants and the photographs of the scaffolding that the Applicants had brought with them.
The First Respondent then discussed the photographs with her scaffolders and Mr Williamson in the presence of the First Applicant. Soon after this, the First Respondent relented and allowed the two Applicants to enter the premises.
Both Applicants inspected the premises as per the “notice of entry”. However, the “notice of entry” was never given to the First Respondent or to her husband.
The Present Application
On 12 April 2016, the two Applicants filed the present application seeking declarations that the First Respondent had breached s.501 of the FW Act or alternatively s.502 of the FW Act by her actions on 11 December 2015. The further claim is that the Second Respondent is accessorily liable for the actions of the First Respondent.
In particular, the claim asks for a declaration that the First Respondent contravened s.501 by refusing entry on to the premises when the two Applicants first arrived.
The claim also asks for a declaration that the First Respondent contravened s.501 by refusing entry on to the premises after Mr Williamson had arrived and made his “adjudication”.
The claim also asks for a declaration that the First Respondent contravened s.501 by refusing entry on to the premises after Sgt Greenwood had arrived and explained the situation to the First Respondent.
Because of accessorial liability, the claim asks for similar declarations against the Second Respondent.
As an alternative, if it hasn’t been proven that the First Respondent refused or unduly delayed entry on to the premises, the application asks for declarations that the First Respondent intentionally hindered or obstructed the Applicants’ exercise of the rights for those same 3 occasions. Similarly, as an alternative, the claim asks for those declarations to also be made against the Second Respondent.
The Second Respondent
As the Second Respondent is a corporation, r.9.04 of the Federal Circuit Court Rules 2001 states:
“Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.’
The First Respondent has represented herself from the beginning of this action in this Court. She is the sole director of the Second Respondent and there is no one else responsible for the direction of the Second Respondent. The First Respondent sought leave to represent the Second Respondent on the grounds that she had no money to afford a lawyer.
At the callover when I listed this matter for hearing, I told the First Respondent that I would make a decision on that aspect at the trial. In between that callover and this hearing, a newspaper article was written in which the First Respondent seemed to indicate that she did, in fact, have some money.
On the first day of this hearing, I alerted the First Respondent to the fact that I had read that newspaper article and that, without any further material, I would not be acceding to her request to represent the Second Respondent. The hearing proceeded as an undefended hearing against the Second Respondent.
However, that was done because the actions of the First Respondent were, in effect, the actions of the Second Respondent. But that would be so for any corporate entity of which the First Respondent is the sole director.
It is instructive to look at the pleadings in this matter. Paragraph 6 of the Statement of Claim merely asserts that “in December 2015 the Second Respondent was engaged in construction work at the site.” The claim is not that such engagement was for the whole of December, but simply some time in December 2015.
Neither is the claim that the Second Respondent was the corporate entity in charge of the construction. There is no particularity as to the claim that the Second Respondent was engaged in construction work at the site.
The next mention of the Second Respondent, in the Statement of Claim, is that in paragraph 53 which states:
“The conduct of the first respondent pleaded at paragraphs 3, 7, 16, 20, 21, 23, 24, 31, 32, 34, 35, 39, 40, 42, 43 and 44 was engaged in on behalf of the second respondent”.
In the response, the Respondents (as there was no separate response filed for the First Respondent as opposed to the Second Respondent) do not contest the claim in paragraph 6 but deny the claim in paragraph 53 and following.
Therefore, there was no issue that the Second Respondent was engaged in construction work at the site some time in December 2015 but there was an issue that the First Respondent’s behaviour on 11 December 2015 was conduct that she engaged in on behalf of the Second Respondent.
In the course of the proceeding, it emerged that the Second Respondent was not the “builder” but instead the “builder” was Z Group 1 Pty Ltd. This was the evidence of the First Respondent. The effect of this evidence was that the First Respondent was testifying that her conduct on that day was not conduct that she engaged in on behalf of the Second Respondent; rather it was conduct that she engaged in on behalf of Z Group 1 Pty Ltd.
This evidence was challenged by Counsel for the Applicants who tendered a photograph of the sign outside the premises which was taken after 11 December 2015. That sign clearly connotes the builder as being the Second Respondent.
However, the written prohibition, that followed the verbal prohibition given by WHS for the scaffolding, clearly shows that WHS issued the prohibition notice to Z Group 1 Pty Ltd.
It was submitted that I could infer that the Second Respondent was the corporate entity undertaking the construction because there was no pleading as to the contrary. But there was no onus upon the Second Respondent to plead to anything other than to answer the Statement of Claim. The Statement of Claim did not allege that the Second Respondent was the corporate entity undertaking the construction.
All the pleading acknowledged was that the Second Respondent was engaged in construction work in December 2015. That is not inconsistent with the evidence given by the First Respondent or the inference to be properly drawn by the prohibition notice which is Exhibit 4. There is nothing in the evidence that has emerged that would suggest that there has been anything misleading pleaded by either the First Respondent or the Second Respondent.
Whilst the hearing was undefended by the Second Respondent and the Second Respondent had never claimed that the corporation was not the builder, it is still for the Applicants to prove their case. Counsel for the Applicants conceded that the written prohibition notice was part of the material subpoenaed by the Applicants. Therefore, the Applicants did have notice that, according to WHS records, the builder was not the Second Respondent.
Evidence was given from the Bar table that once the WHS records were discovered, a search of the records of Z Group 1 Pty Ltd disclosed that this company was now deregistered and therefore the Applicants were unable to launch action against that corporate entity. That may be unfortunate, but it does not mean that I can simply ignore the evidence because the Applicants were “sloppy” in their preparation of this matter.
It was never satisfactorily explained as to why the Department of WHS knew that Z Group 1 Pty Ltd was the corporate entity responsible for the construction but the Applicants did not.
There is insufficient evidence for me to conclude that the conduct of the First Respondent occurred while she was engaged in and on behalf of the Second Respondent.
The action against the Second Respondent must therefore fail.
How is Section 501 of the FW Act engaged?
Section 501 of the FW Act provides that a person must not refuse, or unduly delay, entry of a permit holder seeking to exercise rights in accordance with this Part. The relevant part is Part 3-4 of the FW Act.
Sections 494 to 499 of the FW Act regulate permit holders who are seeking to exercise State or Territory OH & S rights of entry. The right of entry pursuant to s.117 of the WHS Act is a State or Territory OH & S right of entry. Provided that Part 3-4 is complied with, it is a civil penalty offence for an occupier to refuse entry to a permit holder who was seeking to exercise that State or Territory OH & S right of entry.
I have been referred to the judgement of Justice Reeves in Ramsay & Anor v Sunbuild (2014) 22 FCR 315 and CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227. I accept what has been said in those authorities as being correct statements of the law.
As long as both Applicants have acted in accordance with the requirements of the State legislation, they have the protection of s.501 of the FW Act because both of the Applicants were holders of entry permits issued by the Fair Work Commission and were WHS permit holders under the State legislation,.
This may seem a curious result. The positions that pertain to both Federal and State regimes can be contrasted and the differences are apparent.
If a FWC permit holder wishes to exercise their right of entry, they must give proper notice of their intention to exercise that right. If that proper notice has not been given, then the protections of s.501 do not apply.
If a WHS permit holder wishes to exercise the right of entry, there is no need to provide proper notice of their intention to exercise that right. However, if a person denies, or impedes, entry to the site, under s.144 of the WHS Act, there is no penalty if that person can prove that they had a reasonable excuse for their actions.
Therefore if the power been exercised was solely a Federal power, then the First Respondent was entitled to 48 hours’ notice before there would be a right of entry. If it were State power that was being exercised, then she had the protection of being able to withhold permission for entry if she had a reasonable excuse. But because the State power was being exercised by a Federal permit holder, the result is that the Federal protections apply.
Obviously, any contradiction between Federal laws and State laws must be resolved in favour of the Commonwealth. One of the difficulties for the First Respondent to accept in this case is that the exercise of both State and Federal rights at the same time leads to a conclusion that no one had ever explained to her before. Her confusion because of these “hybrid” regimes is quite understandable.
But the combination of being both a Federal permit holder and a State permit holder and then exercising their State power means that there does not have to be any notice given and any refusal results in Federal sanctions. It is totally understandable why such a concept would not be able to be understood by most persons in the construction industry.
Requirements under the WHS Act
The power that allows entry to enquire into suspected contravention is under the WHS Act comes from Division 2 of Part 7 of that Act which is contained in ss.116-120. Sections 117 and 119 are reproduced below
“117 Entry to inquire into suspected contraventions
(1) A WHS entry permit holder may enter a workplace for the
purpose of inquiring into a suspected contravention of this Act
that relates to, or affects, a relevant worker.
(2) The WHS entry permit holder must reasonably suspect before
entering the workplace that the contravention has occurred or
is occurring.
119 Notice of entry
(1) A WHS entry permit holder must, as soon as is reasonably
practicable after entering a workplace under this division, give
notice of the entry and the suspected contravention, as
prescribed by regulation, to—
(a) the relevant person conducting a business or
undertaking; and
(b) the person with management or control of the
workplace.
(2) Subsection (1) does not apply if to give the notice would—
(a) defeat the purpose of the entry to the workplace; or
(b) unreasonably delay the WHS entry permit holder in an
urgent case.
(3) Subsection (1) does not apply to an entry to a workplace
under this division to inspect or make copies of documents
mentioned in section 120.”
History of the Act
The WHS Act was introduced to the Queensland Parliament on 10 May 2011. The explanatory notes to the bill note the following:-
“Clause 117 allows a WHS entry permit holder to enter a workplace and exercise any of the rights contained in clause 118 in order to inquire into a suspected contravention of the Bill at that workplace. These rights may only be exercised in relation to suspected contraventions that relate to, or affect, a relevant worker (as defined in clause 116).
Subclause 117(2) requires the WHS entry permit holder to reasonably suspect before entering the workplace that the contravention has occurred or is occurring. If this suspicion is disputed by another party, the onus is on the WHS entry permit holder to prove that the suspicion is reasonable.
Clause 119 sets out the provisions regarding notice after entry by a WHS entry permit holder. Subclause 119(1) requires a WHS entry permit holder to provide notice, in accordance with the regulations, to the relevant PCBU and the person with management or control of the workplace as soon as is reasonably practicable after entering a workplace under clause 117 to inquire into a suspected contravention. The contents of the notice must comply with the regulations.
However, subclause 119(2) provides that a WHS entry permit holder is not required to comply with the notice requirements in subclause 119(1), including to provide any or all of the information required by the regulations, if to do so:
• would defeat the purpose of the entry to the workplace, or
• would cause the WHS entry permit holder to be unreasonably delayed in their inquiry in an urgent case, i.e. in an emergency situation.
Subclause 119(3) provides that the notice requirements in subclause 119(1) do not apply to entry to a workplace under clause 120 to inspect or make copies of employee records or records or documents directly relevant to a suspected contravention that are not held by the relevant PCBU.
The Second Reading speech was made on 26 May 2011. In that speech, there was no mention of the right of entry provisions. The Act was assented to on 6 June 2011.
As can be seen, the Bill emerged from the Parliament relatively unscathed. However, there is quite a difference in the language of s.119(2) of the WHS Act and what the explanatory notes suggest should be provided in that subsection. The explanatory notes seem to suggest that there may not be a requirement to even have a notice in some circumstances, whereas the actual wording of the Act does not.
Reasonable Suspicion
The basis for the power of entry is that the permit holder has a reasonable suspicion that there is a contravention that has occurred or is occurring. The evidence of the Applicants was to the effect that the photographs that they saw were sufficient to give them a “reasonable suspicion”.
It was not clear, at first, from the evidence of the First Applicant as to who had formed the reasonable suspicion.
His evidence was that he was concerned about the photographs he was given, and that is why he handed them to the assistant state secretary. His evidence was that he had been directed to go to the premises by the assistant state secretary. His evidence was that the assistant state secretary had confirmed with the person who had taken the photos that the photos were recent and were photos from the Cordelia Street site.
The First Applicant testified that he was directed to attend the premises and to investigate the possible contraventions and that was because the assistant state secretary had formed a reasonable suspicion. It was not until re-examination that the First Applicant actually testified that he had a reasonable suspicion that a contravention had occurred or was occurring. He eventually said that, even if the assistant state secretary had not directed him to go to the site, he would have gone in any event.
To my mind, that was sufficient evidence to prove that the First Applicant had the reasonable suspicion needed pursuant to s.117(2).
Evidence of Mr Fredrickson
I did have some disquiet from the evidence of Calvin Fredrickson. Mr Fredrickson testified that he was a labourer on that work site. He saw contractors deliberately sabotaged parts of the scaffolding and had taken photos. He questioned those persons and was told to “fuck off”. He complied and did not see what happened after that. He cannot give any temporal reference as to when this occurred.
When that evidence is put together with the evidence that the photos somehow were sent to the CFMEU via a Facebook message and that there was no action taken until the assistant state secretary spoke to the person who provided the photos (and who has never been identified), it raises the very real prospect that this incident was, somehow, some form of “setup”.
Still, this was a very long bow to draw. The aspect that gave me some disquiet was that there was obvious intimidation of Mr Fredrickson as he gave his evidence. Both Applicants were seated in the front row of the public gallery as Mr Fredrickson gave his evidence. As Mr Fredrickson was testifying, his attention was drawn to the gallery and his demeanour immediately changed.
This caused me to look and I just saw the tail end of a head shake from both Applicants. At the same time, Mr Fredrickson exclaimed that he was telling the truth and that he didn’t tell lies and it didn’t matter if they were shaking their heads at him.
I immediately rebuked both Applicants for their behaviour. Mr Fredrickson asked if he needed to “be here any longer “. His evidence had almost finished at this stage and I then excused him as a witness. He then asked me “do they have my address?” and I told him that, as far as I knew, no one had his address.
It was quite obvious to me, and to any objective observer, that Mr Fredrickson was quite scared. Mr Fredrickson had been in Court for the start of the trial and had listened to all of the preliminary matters that were ventilated before evidence got underway. The First Applicant was in Court for the whole of that time. Mr Fredrickson left when I explained that all witnesses must stay outside until they are called unless they are the actual parties to this hearing.
There was no apprehension or concern in what Mr Fredrickson said or in his manner when he volunteered that he was a witness and that he would now leave the Court. There was no apprehension or concern at all when he came into the Court and when he was giving his evidence. The change in his demeanour coincided with his glancing at the public gallery.
The disquiet I had was that there was no reason to intimidate this witness. As I have previously pointed out, there was far too long a bow to draw from his evidence that would, in any way, have caused me not to accept that there was “reasonable suspicion” held by either or both of the Applicants.
The behaviour of the two Applicants was such that it was not unreasonable to conclude that the intimidation was done out of a “consciousness of guilt”. If this was the motivation for the intimidating of Mr Frederickson, that would tend to support any theory of a “setup”.
But disquiet is not sufficient for me to come to any firm conclusion as to this notion of a set up. On the evidence before me, I conclude that the First Applicant did have a reasonable suspicion that a contravention had occurred at the Cordelia Street site.
But I hope these observations are sobering reminders to the Applicants, and to all spectators in public galleries, that Courts will not be loathe to draw inferences based on behaviour that is observed in Court.
Conduct of Counsel
In the course of final submissions, I informed Counsel for the two Applicants as to my disquiet. Counsel then made a submission that I could not draw any such inference or conclusion because such a claim had not been put to either Applicant in their evidence. When I explained that such could not be put to either Applicant because they had finished giving evidence, I was told by counsel that somehow I, as the judge, had some obligation to recall the witnesses and put to them such an inference.
That Counsel could make such a submission left me dumbfounded. I was not going to respond to such a submission because in doing so I may have made some injudicious remarks. But it is important to respond to such an outrageous submission as this. It is trite to say that judges listen to the evidence and assess the evidence. This includes all things that occur in the courtroom that impinge upon findings of credibility and context.
It is fair for a judge to ask of Counsel during final submissions as to why a conclusion of facts or conclusion of law could not be drawn. That gives Counsel an opportunity to answer matters that may be on the mind of a judge.
But a judge doesn’t have any obligation to “put” things to witnesses as Counsel does. It does seem to me that in this case, Counsel for the two Applicants has become “wedded to the cause” and has forgotten that his first duty is to the Court. However, I was able to ignore this submission and treat it as an aberration in an otherwise proper conducting of the case by Counsel.
Notice of Entry under s.119 of the WHS Act
This aspect of the “workplace entry by WHS entry permit holders” regime under the WHS Act is very important. Such a notice must be given when exercising the power under s.117 (my underlining). This notice informs the person who has management and control of the premises that are entered, that such entry is a proper exercise of the power conferred by s.117.
Regulation 27 and 28, of the WHS regulations, prescribe mandatory information that must be part of any valid notice under s.119.
“27 Notice of entry—general
A notice of entry under part 7 of the Act must—
(a) be written; and
(b) include the following—
(i) the full name of the WHS entry permit holder;
(ii) the name of the union that the WHS entry permit holder represents;
(iii) the section of the Act under which the WHS entry permit holder is entering or proposing to enter the workplace;
(iv) the name and address of the workplace entered or proposed to be entered;
(v) the date of entry or proposed entry;
(vi) the additional information and other matters required under section 28, 29 or 30 (as applicable).
28 Additional requirements—entry under section 117
A notice of entry under section 119 of the Act in relation to an entry under section 117 of the Act must also include the following—
(a) so far as is practicable, the particulars of the suspected contravention to which the notice relates;
(b) a declaration stating—
(i) that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union; and
(ii) the provision in the union’s rules that entitles the union to represent the industrial interests of that worker; and
(iii) that the suspected contravention relates to, or affects, that worker.
Note—
Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.”
The First Respondent contends that she was not given the notice of entry. Throughout the course of the interaction between the two Applicants and the First Respondent, there are many attempts to give, or show, documentation to the First Respondent. The First Respondent refused to look at any of that material.
However there is no attempt by either Applicant to give the First Respondent the notice of entry, as distinct from any other document, to ensure that their statutory duty has been fulfilled. The First Respondent said, on a number of occasions during her evidence, that she still does not have the notice of entry relating to this matter.
It is very easy to conclude that the Applicants did not comply with s.119 because they did not give the First Respondent, or her husband, the “notice of entry”. As none of the conditions of s.119(2) applied, it was mandatory that the notice be given.
What is obvious from the manner in which the First Respondent behaved on 11 December 2015, is that she would not have accepted any documentation from the two Applicants. It is clear that the two Applicants did have the notice of entry and it is this document that both Mr Williamson and Sgt Greenwood have had brought to their attention. This is illustrated in the conversation reproduced in Paragraph 29 above.
It is this document that seems to have been the key to both Mr Williamson and Sgt Greenwood telling the First Respondent that she should allow the Applicants onto the site.
Validity of the notice of entry
However, the notice does not comply with the regulations. The notice, which is annexure AWJR4 to the affidavit of the First Applicant, is clearly deficient. The most basic information required is that the “notice of entry” displays the full name of the entry permit holder.
The First Applicant, both in his affidavit and in evidence before me, testified that his full name is Andrew William John Ramsay. The Second Applicant, both in his affidavit and in evidence before me, testified that his full name is Anthony Lucas Stott.
The notice of entry has the following information entered in the “full name of entry permit holder” section: “Andrew Ramsay/Tony Stott”. Obviously that is not the full name of either of the two Applicants.
As the notice of entry does not comply with the obligations mandated by the regulations, I have no option but to conclude that this was not a valid “notice of entry”.
What follows from this Conclusion?
The Applicants submitted that the “right to enter premises” is a right pursuant to s.117 of the WHS Act. The Applicants submit that there only needs to be compliance with s.117 for there to be compliance with Part 3-4 of the FW Act.
The submission was that it is only after there has been entry to the premises that s.119 takes effect. It was argued that because the First Respondent had refused entry into the premises, there was no need to comply with s.119 before the protections of s.501 of the FW Act can be relied upon.
However, the right to enter premises does not solely come from s.117. It is a right that is subject to compliance with s.118, s.119 and s.120. Section 117 does not stand alone. There must be compliance with the whole of Division 2 of Part 7 of the WHS Act before it can be said that there has been compliance with the provisions of Part 3-4 of the FW Act.
Section 119 of the WHS Act must be looked at properly. The whole emphasis of the section is on the “giving” of the notice. The section must be construed that there must be a valid “notice of entry” and that this section regulates how such notice must be given.
The arguments of the Applicants may have had some force if the only criticism of the Applicants was constituted by the failure to give the “notice of entry” to the First Respondent. That would be because, in circumstances such as the present, it may be argued that there was compliance with Division 2 of Part 7 of the WHS Act.
This is because the valid “notice of entry” did not have to be given to the First Respondent until there had been an actual entry. But this still means that there had to be a valid notice of entry.
The power under s.117 cannot be exercised without there being a valid “notice of entry” under s.119. Even in the circumstances that may obtain pursuant to s.119(2), that does not absolve the permit holder from having a valid notice of entry; it only absolves the permit holder from having to give it to the occupier.
The power to enter premises is a power not given to individuals by Parliament in any light or haphazard manner. This is because such power is an exception to the rights of persons to privacy and an interference with their liberty. Such power must be exercised according to very strict guidelines. For example, police must have a warrant before they enter premises. If police enter premises for an urgent reason, they must then obtain a “post-entry” warrant in which they explain the circumstances to the issuing officer.
Under this regime, no warrant is needed to enter premises. But the legislation is clear that a valid “notice of entry” is mandatory. It is the valid “notice of entry” that must be given pursuant to s.119(1) and it is the excusing of the giving of that notice in certain circumstances that comprises s.119(2). There is nothing in the legislation that would prevent a valid “notice of entry” being completed after an emergency entry had been undertaken in circumstances envisaged under s.119(2), as long as there was a valid “notice of entry” completed.
To interpret that legislation in any other manner, would be to suggest that WHS permit holders have more power than police to enter premises. To interpret that legislation in any other manner, would be to also suggest that there are less checks needed in the exercise of such power than are required of police. To suggest that Parliament has engineered a situation which would give officials from unions more power than police is absurd.
This is further borne out by reference to the wording used in the explanatory notes. It is very instructive that this wording has not been reproduced in the actual wording of s.119(2) as enacted.
I conclude that the two Applicants have not validly exercised the right of entry power.
I find that, in order to comply with Part 3-4 of the FW Act, the Applicants had to validly exercise the right of entry power contained in Division 2 of Part 7 of the WHS Act. This they did not do.
As there has not been a valid exercise of the “right of entry” power contained in Division 2 of Part 7 of the WHS Act, there has not been compliance with the provisions of Part 3-4 of the FW Act. Therefore, the provisions of s.501 and s.502 of the FW Act do not apply in this case.
This means that the action must fail.
Other Observations
There may well be a feeling by the Applicants that the First Respondent has escaped censure because of a “technicality”. I can well understand this sentiment. But when the interference of rights to the individual is in issue, “near enough is not good enough”.
I have a number of misgivings about what occurred on 11 December 2015 and neither party has “covered themselves in glory”.
The Applicants were both extremely eager to explain that they were only there that day “to save lives”. Yet if the safety of individuals was their paramount concern, one wonders why they did not contact WHS officials to find out what they had discovered at the site. This is especially so if the view of the facts consistent with the affidavits is that the Applicants actually arrived before the WHS officials left the site.
When the Applicants did contact Mr Pat Stein from WHS, they only wanted him to send “an umpire” to try and resolve the issue surrounding entry. At no stage did they ask what WHS had done to ensure the safety of persons at the site, notwithstanding that they knew that WHS officials had just visited the site. It was Mr Williamson who eventually volunteered the information as to what WHS had done to all parties upon his arrival. But no one had even asked him before that time.
None of that derogates from the rights that the Applicants were exercising that day; it is simply that their behaviour was not consistent with what I would have expected if the true concern was that of the safety of the workers. Objectively, it seems that the Applicants were more concerned with “flexing their muscles”. In making that observation, I take into consideration the very full report made by the Second Applicant.
Parliament has granted very wide powers through the enacting of Division 2 of Part 7 of the WHS Act. It behoves all concerned to use those powers wisely and properly, otherwise they risk eroding their credibility in the eyes of the community.
I can understand that the First Respondent has a distrust of the CFMEU. On the material that she placed before me, such a feeling may not be completely unjustified. Nevertheless, such a background can only explain what occurred that day and not excuse what occurred.
The behaviour of the First Respondent was appalling. She refused to even consider the possibility that the Applicants had a lawful reason for being there. She maintained a belligerent stance and was not concerned with ensuring she obeyed the law, but was concerned with ensuring that the Applicants did not come onto the site.
Supposedly, the issue at stake here was safety of workers on the site. The only person that seems to be making this issue their priority that day was Mr Williamson, and there are many illustrations of this in the video recordings. The First Respondent and the two Applicants were more concerned with being “right” and “winning” the argument. It is a very sad state of affairs when this philosophical battle becomes more important than actually ensuring the safety of workers. Thankfully, Mr Williamson and other WHS officials are there to ensure that safety standards are maintained.
If I had needed to move to the stage where I actually imposed pecuniary penalties, I would have taken a very dim view of what occurred that day. If the Applicants had complied with Part 3-4 of the FW Act, I would have found that there were three breaches of s.501 of the FW Act by the First Respondent.
Unlike suits for compensation where liability has been found against the applicant/plaintiff, there is no obligation on me to traverse the issue of quantum in this case. Notwithstanding that, I think it is important that I do make some observations, albeit not fully explained or reasoned.
With respect to the first breach, I would not have imposed any significant penalty. This is because I do accept that there may well have been a reasonable excuse for the First Respondent not wanting to allow the two Applicants entry given the previous clashes that the First Respondent had endured at the hands of the CFMEU.
But the second breach is in a different category. At that time, Mr Williamson was present. There could have been no danger to the First Respondent. Mr Williamson attempted to be the “voice of reason” but the First Respondent simply did not want to listen. She became fixated on not allowing the two Applicants onto the site. She didn’t care what the law was and was quite blatant in her disregard for what Mr Williamson was trying to do.
The third breach is even worse. Now present, were officers of the law. The manner in which both police officers approached this conflict is to be commended. They showed restraint and a calm attitude in the midst of what was becoming a very heated exchange. The only saving grace in regards to this breach for the First Respondent was that she finally relented and allowed the two Applicants to enter the site. That is why I would treat the third breach and exactly the same manner treated the second breach.
Without going into all the reasoning that I would have undertaken if I were imposing the pecuniary penalties, I will let the parties know what I would have imposed if it were not for the non-compliance by the two Applicants with Part 3-4 of the FW Act. The penalties that I would have imposed reflect the seriousness with which I view such behaviour.
For the first breach, I would have imposed a penalty of $500.00. For the second breach I would have imposed a penalty of $9,000.00 and for the third breach I would have imposed a penalty of $9,000.00. This is a total penalty of $18,500.00.
I would hope that these remarks let all concerned know that this sort of behaviour is viewed very seriously by this Court.
Order
For the reasons I have given, this application against both Respondents is dismissed.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 23 June 2017
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