Application/Notification by Bechtel Construction (Australia) Pty Ltd & Bechtel Australia Pty Ltd [2014] FWC 5900 (18 September 2014)

(#P83_3928) Statement of Mr Ingham at paragraph 34-38; evidence of Mr Robinson in Transcript dated 5 December 2012 at PN2731ff. The Tenth Respondent travelled later that day to Curtis Island by ferry: Agreed statement of facts.

(#P93_5475) said to be 9 April in the Amended Application but in submissions and evidence appears to be a second entry effected on 8 April.

(#P137_8988) a matter to be determined on objective standards: Somerville Retail Services Pty Ltd v Australasian Meat Industry Employees' Union [2011] FWAFB 120.

(#P142_9514) including at (e) "any other order it considers appropriate". Orders are subject to the limitation in s.505(5).

(#P145_10101) just as the Commission issues permits under s.512.

(#P146_10233) s.612(2)

(#P149_10339) s.612 (1)

(#P152_10973) Mr Friend's further final submissions for the CFMEU urged either no orders (consistently with his argument there was no dispute about the operation of the Part or no dispute at all), or alternatively recommendations.

(#P153_11409) Parker and others [2011] FWA 2577 at [18] per Boulton J reflecting on the Commission's exercise of its powers under s.510.

(#P162_12877) compare Construction, Forestry, Mining and Energy Union - re Application for a permit to enter and inspect premises PR964419 per VP Ross at [60]-[70]: no evidence of contrition.

(#P169_13720) ss.491, 492, 497, 500 and 503

(#P170_13772) ss.117, 119, 125, 128, 146 and 147

(#P171_13881) s.501 Act; s.144 WHS Act

(#P172_13953) s.502 Act; s.145 WHS Act

(#P175_14497) it is a matter for the parties if they choose to pursue civil remedies under the Act or civil penalties under the WHS Act.

(#P176_14765) see above at [24] to [26].

(#P181_15053) Transcript dated 4 April 2014 at PN7038.

(#P186_15322) Transcript dated 4 April 2014 at PN6981. As to the passage of time, see paragraphs [40] to [42] below.

(#P191_15870) Industrial Relations Commission Decision 283/1992 K2415, DP Riordan: "clauses of the type sought in these applications should not be inserted for the purpose of creating a process in order to penalise any person or organisation for past conduct. Their proper purpose is to make the award effective, to overcome a particular industrial dispute and to achieve harmonious industrial relations in place of discord and disputation."

(#P194_16395) [2013] FWC 1659

(#P211_19629) CFMEU's submissions 24 April 2014.

(#P218_20495) Construction, Forestry, Mining and Energy Union - re Application for a permit to enter and inspect premises PR964419 per Ross VP; compare Bechtel (Western Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWC 1659 at [55] per McCarthy DP - delay of 6 months did not lessen the seriousness of the behaviour.

(#P233_21521) Transcript dated 4 April 2014 at PN7024ff.

(#P236_21691) Transcript dated 4 April 2014 at PN7023.

(#P245_23055) Ramsay v Sunbuild Pty Ltd [2014] FCA 54 at paragraph 76.

(#P250_23247) Australian Industry Group [2010] FWAFB 4337 at [33].

(#P253_23335) [2014] FCA 54, decided 11 Feb 2014, shortly before final oral submissions. This appears to be the only decided case so far exploring the interaction of the Fair Work Act 2009 and Work Health and Safety Act 2011 (Qld).

(#P254_23699) Work Health and Safety (National Uniform Legislation Act 2001 (NT), identical in relevant terms to the Queensland statute.

(#P275_28008) Transcript dated 4 April 2014 at PN7005.

(#P282_28761) CFMEU's Final Submissions at paragraph 329. In my view Bechtel is asking this Commission to make orders, a different proposition from that put forward.

(#P287_29777) Construction, Forestry, Mining and Energy Union - re Application for a permit to enter and inspect premises PR964419.

(#P296_31335) Bechtel's Further Final Submissions. See Jones v Dunkel (1959) 101 CLR 298, Kitto J, 308; Gaskell v Denkas Building Services Pty Limited (2008) NSWCA35

(#P299_31604) in Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85 at paragraph 13.

(#P306_32125) CFMEU's Further Final Submissions at paragraph 327.

(#P307_32307) [2007] AIRC 717 at [229].

(#P314_33337) s. 505(6)

(#P317_33376) s. 480

(#P322_33598) Vivienne Daniels v Joe Patti and Eric Maher S4571 at [34]; Construction, Forestry, Mining and Energy Union - re Application for a permit to enter and inspect premises PR935310 at [18]-[20] per VP Ross.

(#P325_33865) above at paragraphs [40] to [42].

(#P326_34219) eg CFMEU's Final Submissions at paragraphs 91-103; 129ff; 182ff; 227ff; 237ff; 262ff.

(#P338_35077) omitting material about TCF award workers and remote area accommodation

(#P375_36597) see "may" in s. 502(1)

(#P377_36669) eg by arbitration: s. 505(2); or other means: s. 595

(#P379_36785) see "may" in s. 502(2); s. 595(2)

(#P390_38147) Parker and ors [2011] FWA 2577

(#P402_39106) Respondents' Final Submissions dated 31 March 2014

(#P409_39775) Senior Counsel for the CFMEU submitted both generally and in many individual cases the facts do not give rise to a dispute. For reasons given above I do not agree

(#P412_40553) ibid, [14]

(#P421_42242) ss.505(1)(a), 491 and 499.

(#P426_42455) Amended Further Material Facts on which the Bechtel relies (9 May 2013) at paragraph 2.

(#P437_43195) Bechtel's Amended Further Material Facts at paragraph 3. See also Bechtel's advice by letter of 19 March 2012 to CFMEU at paragraph 4; Affidavit of Mr Knight.

(#P440_43409) For example attached to Mr Brendon Davis' affidavit, Attachment BD05.

(#P441_43541) Attachment BD06. See also Evidence of Mr Genrich, in Transcript dated 20 December 2012 at PN5757ff.

(#P455_44698) CFMEU's Further Final Submissions at paragraphs 86-90.

(#P456_44846) Bechtel's Final Submissions on the original application at paragraphs 8.11-8.23.

(#P461_45596) Affidavits of: Mr Knight at paragraphs 72 and 75; Mr Pyle (supplementary) at paragraphs 26, 33 and 36; Mr Goltz (2nd supplementary) at paragraphs 49 and 50.

(#P474_46447) Agreed Statement of Facts at paragraph 14; Affidavit of Ms Child at paragraph 6; Transcript dated 6 December 2012 at PN3006-PN3007.

(#P477_46823) see below for relevant evidence.

(#P479_46889) Affidavits of: Mr Lester at paragraph 31; Mr Knight at paragraph 76, (second supplementary) at paragraphs 51-52; Mr Whitton at paragraph 25, (supplementary) at paragraph 22; Ms Child at paragraph 33. Evidence of Mr Whitton in Transcript dated 3 December 2012 at PN513 and Mr Lester in Transcript dated 3 December 2012 at PN710.

(#P482_47438) CFMEU's Further Final Submissions at paragraph 314.

(#P489_48239) eg Transcript dated 6 December 2012 at PN2903ff; PN2927 and PN2933ff.

(#P490_48417) Transcript dated 6 December 2012 at PN2937ff.

(#P498_48827) Affidavit of Mr Cosgrove at paragraphs 9 and 21.

(#P500_48926) Agreed Statement of Facts at paragraph 23; Affidavits of: Ms Child at paragraph 31ff; Mr Knight at paragraph 63; Mr Lester at paragraph 28; Mr Fox at paragraph 185; Mr Cosgrove at paragraph 166.

(#P502_49150) Affidavits of: Mr Lester at paragraph 31; Mr Knight at paragraph 76, (second supplementary) at paragraphs 51-52; Mr Whitton at paragraph 25, (supplementary) at paragraph 22; Ms Child at paragraph 33. Evidence of Mr Whitton in Transcript dated 3 December 2012 at PN513 and Mr Lester in Transcript dated 3 December 2012 at PN710.

(#P504_49553) eg Affidavit of Mr Fox at paragraph 180ff.

(#P506_49679) Agreed Statement of Facts at paragraphs 87-88; Affidavit of Mr Whitton at paragraph 120ff.

(#P508_49918) Affidavit of Mr Fox at paragraphs 14-15 and 81.

(#P510_50055) Affidavits of: Ms Child at paragraphs 162-163 and 171; Mr Fox at paragraph 158.

(#P515_50509) CFMEU's Further Final Submissions at paragraph 313.

(#P524_51094) Transcript dated 4 December 2012 at PN1529.

(#P526_51170) Evidence of: Mr Whitton in Transcript dated 3 December 2012 at PN511ff; Mr Lester dated 3 December 2012 at PN710; Affidavit of Mr Knight at paragraph 76; Supplementary Affidavit of Mr Knight at paragraphs 51-52; Affidavit of Ms Child at paragraph 33; Affidavit and Supplementary Affidavit of Mr Whitton at paragraphs 25 and 22 respectively.

(#P528_51589) Agreed Statement of Facts at paragraph 23; Affidavit of Ms Child at paragraph 31ff; Affidavit of Mr Knight at paragraph 63; Affidavit of Mr Lester at paragraphs 28-29.

(#P535_52347) Evidence of Mr Ravbar in Transcript dated 5 December 2012 at PN1872.

(#P538_52558) Transcript dated 5 December 2012 at PN1962ff.

(#P539_52659) Transcript dated 5 December 2012 at PN1822ff.

(#P542_52859) Evidence of Mr Robinson in Transcript dated 5 December 2012 at PN2644ff.

(#P543_52984) Affidavit of Mr Knight at paragraph 112.

(#P556_53840) Evidence of Mr Loakes in Transcript dated 5 December 2012 at PN2085ff.

(#P557_54030) Evidence of Mr Loakes in Transcript dated 5 December2012 at PN2205ff.

(#P558_54219) Transcript dated 5 December 2012 at PN2278ff.

(#P561_54410) Transcript dated 5 December 2012 at PN2237.

(#P564_54545) Bechtel's Further Final Submissions at paragraph 17.3.

(#P565_54715) Affidavit of Mr Davis, Attachment BD06.

(#P570_54998) Evidence of Mr Robinson in Transcript dated 5 December 2012 at PN2747ff.

(#P572_55118) Evidence of Mr Davis in Transcript dated 18 December 2012 at PN4718.

(#P574_55286) Evidence of Mr Robinson in Transcript dated 5 December 2012 at PN2646; Affidavit of Mr Knight at paragraph 112 and 131; Second Statement of Mr Loakes at paragraph 5.

(#P576_55518) Evidence of Mr de Andrade in Transcript dated 4 December 2012 at PN1316ff.

(#P578_55733) eg Affidavit of Mr Knight at paragraph 143; Supplementary Affidavit of Mr Goltz at paragraph 21ff; Affidavit of Mr Davis at paragraphs 63-85.

(#P583_56418) CFMEU's Further Final Submissions at paragraph 317.

(#P584_56584) CFMEU's Further Final Submissions at paragraph 311, although without further elaboration.

(#P595_57404) Evidence of Mr Robinson in Transcript dated 5 December 2012 at PN2586ff and PN2729ff.

(#P596_57675) Evidence of Mr Robinson in Transcript dated 5 December 2012 at PN2486, PN2493ff and PN2547ff.

(#P597_57877) Evidence of Mr Robinson in Transcript dated 5 December 2012 at PN2644 and following; Affidavit of Mr Lester at paragraph 74; Affidavit of Mr Knight at paragraph 184.

(#P604_58767) Mr Huddy's statement at paragraph 22; Bechtel's Final Submissions at paragraph 11.1 and 16.1; CFMEUs Further Final Submissions at paragraph 65; Evidence of Mr Ravbar in Transcript dated 5 December 2012 at PN1926ff and PN1942ff. Mr Huddy's evidence that he thought he could enter under authority of another permit holder (in Transcript dated 6 December 2012 at PN2838, PN2870 and PN2877) is not credible.

(#P607_59374) Evidence of: Mr Ravbar in Transcript dated 5 December 2012 at PN1926; Mr Robinson in Transcript dated 5 December 2012 at PN2586ff.

(#P608_59613) Evidence of Mr Robinson in Transcript dated 5 December 2012 at PN2644ff; Affidavit of Mr Knight at paragraph 112.

(#P611_59990) Statement of Mr Ravbar at paragraph 65; Evidence of Mr Ravbar in Transcript dated 5 December 2012 at PN1926ff.

(#P612_60282) CFMEU's Further Final Submissions at paragraph 315.

(#P623_61873) Agreed Statement of Facts at paragraph 74.

(#P624_62022) Agreed Statement of Facts at paragraph 75.

(#P625_62133) Statement of Mr Goltz at paragraph 57.

(#P630_62454) Transcript dated 20 February 2014 at PN6085ff.

(#P631_62567) Transcript dated 20 February 2014 at PN5886 and PN5904ff.

(#P633_62708) Transcript dated 20 February 2014 at PN5918ff.

(#P635_62884) Transcript dated 20 February 2014 at PN5971 although he disputes that was so.

(#P637_63087) Transcript dated 20 February 2014 at PN6089ff, although he denies walking to the centre of the road saying he walked on the verge.

(#P640_63450) despite the CFMEU's Further Final Submissions to the contrary (without explanation) at paragraph 320.

(#P647_64185) Statement of: Ms Harvie at paragraph 26; Mr Davis at paragraph 99, although he does not recall being asked: Statement of Mr Lowth at paragraph 29; Evidence of Mr Lowth Transcript dated 4 December 2012 at PN1689ff. The CFMEU's Further Final Submissions assert that he acted under the WHS Act at paragraph 325.

(#P648_64605) Affidavit of Mr Whitton at paragraph 69ff; Bechtel's Further Final Submissions at paragraph 12.212. Denied or not recalled by Mr Lowth: Transcript dated 20 February 2014 at PN6217ff.

(#P657_65568) Transcript dated 20 February 2014 at PN6451 and PN6457ff.

(#P658_65719) Transcript dated 20 February 2014 at PN6543ff.

(#P659_65836) Affidavit of Mr Butler at paragraphs 63, 119 and 151ff. Mr Bragdon says he merely gives employees information about safety issues and they then chose to cease work: Transcript dated 20 February 2014 at PN6253 and PN6493.

(#P660_66154) Affidavit of Mr Butler at paragraph 155ff.

(#P661_66237) Affidavit of Ms Harvie at paragraph 40.

(#P662_66305) Affidavit of Mr Butler at paragraphs 42, 92, 95, 98-99, 129; Affidavit of Ms Harvie at paragraph 39; Transcript dated 20 February 2014 at PN6532.

(#P665_66661) despite submissions to the contrary, without further explanation: CFMEU's Further Final Submissions at paragraph 315.

(#P672_67198) contrary to the CFMEU's Further Final Submissions at paragraph 318.

(#P673_67300) Affidavit of Ms Harvie at paragraphs 66-70 and 84; Affidavit of Mr Butler at paragraph 130; Evidence of Mr Butler in Transcript dated 18 February 2014 at PN4578; Evidence of Mr Bragdon in Transcript dated 20 February 2014 at PN6540.

(#P674_67641) Affidavit of Mr Butler at paragraph 127.

(#P675_67717) Evidence of Mr Bragdon in Transcript dated 20 February 2014 at PN6561ff.

(#P684_68406) Supplementary Affidavit of Ms Culey at paragraph 8. The CFMEU's Further Final Submissions assert that he acted consistently with this WHS Act authority at paragraph 321 and that he had to take matters into his own hands when obstructed by the Applicants: paragraph 322. I do not accept those submissions

(#P685_68810) Affidavit of Ms Culey at paragraphs 83, 84, 88 and 90-91; Transcript dated 20 February 2014 at PN5886ff.

(#P686_69011) Affidavit of Ms Culey at paragraphs 105-106.

(#P697_69960) Supplementary Affidavit of Ms Culey at paragraph 8. The CFMEU's Further Final Submissions assert that he acted within the authority of the WHS Act at paragraph 324.

(#P708_70742) Supplementary Affidavit of Ms Culey at paragraph 8 despite the CFMEU's Further Final Submissions to the contrary at paragraph 319.

(#P711_71126) eg Affidavit of Ms Culey at paragraph 20; Second Supplementary Affidavit of Ms Culey at paragraph 5; Affidavit of Ms Harvie at paragraph 8; Affidavit of Mr Butler at paragraphs 15 and 39; Mr Davis at paragraphs 8, 28, 33 and 42, Attachment BD03 (entry permits under ss.484 and 481); Attachment BD06 (induction checklist dated 13/3/13); Attachment BD10.

(#P712_71543) abusive language - Affidavit of Mr Davis at paragraph 57.

(#P717_71955) s.595(2)(b)

(#P720_72224) Act s.793

(#P721_72467) the CFMEU submits the permits are personal: Further Final Submissions at paragraph 329.

(#P728_73499) Australasian Meat Industry Employees Union v Teys Bros (Beenleigh) Pty Ltd [2013] FWC 2753 in which VP Lawler made an interim order under s.589(2) as to the venue for s.484 meetings.

(#P741_75705) Vivienne Daniels v Joe Patti and Eric Maher PR900753 at [42].

(#P742_75887) ibid at [67].

(#P749_76276) Note the order requiring such training of the Ninth Respondent.

(#P776_78581) If Mr Huddy does not hold a current Right of Entry permit(s), then the period of suspension will commence from the date the CFMEU or another organisation next applies for a permit(s) that pertains to him.

(#P779_79107) If Mr Genrich does not hold a current Right of Entry permit(s), then the period of suspension will commence from the date the CFMEU or another organisation next applies for a permit(s) that pertains to him.

(#P788_79573) If Mr Harrison does not hold a current Right of Entry permit(s), then the period of suspension will commence from the date the CFMEU or another organisation next applies for a permit(s) that pertains to him.

Printed by authority of the Commonwealth Government Printer