Construction, Forestry and Maritime Employees Union v Richard Crookes Constructions Pty Ltd

Construction, Forestry and Maritime Employees Union v Richard Crookes Constructions Pty Ltd - [2024] FCA 437 - FCA 2024 case summary — Zoe

Background 1 Part 3-4 of the Fair Work Act 2009 (Cth) provides a framework by which officials of industrial organisations may enter premises. The statutory scheme seeks to balance the rights of organisations to represent the interests of the members in workplaces, to hold discussions with potential members and to investigate suspected breaches of State and Territory Occupational Health and Safety laws, the rights of employees to receive at work, information and industrial representation and the right of occupiers of premises and employers to go about their business without undue inconvenience. 2 By originating application filed 10 November 2022 the applicant Construction, Forestry and Maritime Employees Union commenced proceedings against the respondent, Crookes, and five of its employees or agents alleging, variously, primary and accessorial liabilities for intentionally refusing, hindering or obstructing permit holders from exercising their statutory rights under the Work Health and Safety Act (NSW) and the FW Act. Ultimately, the CFMEU claims (and Crookes admits) that, on one occasion, on 8 April 2020, Mr Rielly, one of its employees was unduly delayed entry, by Mr Davie, a site Project Manager, for approximately three and three-quarter hours, where the requested entry was for the purpose of inquiring into a suspected contravention of the WHS Act. 3 The parties tendered a Statement of Agreed Facts pursuant to s 191 of the Evidence Act 1995 (Cth) for the purpose of assisting the Court in the determination of the appropriate penalty to be fixed. The parties' SOAF is annexed to these reasons. 4 Crookes does not dispute that it has breached s 501 of the FW Act, a civil remedy provision, giving a permit holder the right to enter premises in accordance with the Act. As a consequence, the primary issue for determination is the imposition of an appropriate penalty. The parties proposed by agreement, that the penalty be $25,000 (40% of the maximum penalty). 5 For the reasons that follow I am satisfied that liability has been established, and it is appropriate to make a declaration and impose a pecuniary penalty in the sum of $25,000 on Crookes, payable to the CFMEU.

[4]

Relevant statutory provisions 6 Part 3-4 of the FW Act prescribes the circumstances in which officials of industrial organisations may enter workplaces for the purpose of representing their membership, holding discussions with potential members and investigating suspected breaches of the FW Act and State and Territory occupational, health and safety laws, which includes the WHS Act. 7 An industrial organisation may apply to the Fair Work Commission and to other State industrial commissions, including, the NSW Industrial Relations Commission for an entry permit to be issued to an official if that Commission is satisfied that the official is a fit and proper person to hold that permit: s 512 FW Act; s 131 WHS Act. In this case, it is agreed that Mr Rielly was the holder of entry permits issued under s 512 of the FW Act and s 134 of the WHS Act. 8 The mere holding of an entry permit does not entitle a permit holder to enter a workplace. The FW Act and WHS Act prescribe the circumstances where such rights may be exercised, for example to investigate a suspected contravention, inter alia, of the FW Act: s 481. 9 In addition, the FW Act allows permit holders to exercise rights to enter premises under State and Territory legislation, as prescribed under s 494(1) of the FW Act: An official must not exercise a State or Territory OHS right unless the official is a permit holder and may only enter premises if the right is conferred by a State or Territory OHS law and the premises are occupied or otherwise controlled by a constitutional corporation: s 494(2)(a)(i). A "State or Territory OHS law" is a "law of a State or Territory prescribed by the regulations" (s 494(3)) and the WHS Act has been so prescribed: r 3.25 item 1 of the Fair Work Regulations 2009 (Cth). 10 The combined operation of these two legislative schemes is that a person who has a State or Territory OHS right to enter premises and is also a permit holder under the FW Act is such that the person is entitled to enter premises in the manner prescribed under Part 3-4 of the FW Act. 11 Relevantly for the purpose of this case, the holder of a NSW permit (under the WHS Act), as was Mr Rielly could exercise his right to enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act, under s 117, in the following circumstances: 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. 12 The rights of a WHS entry permit holder, as at April 2020, were prescribed in the following way: 118 Rights that may be exercised while at workplace (1) While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act - (a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention, (b) consult with the relevant workers in relation to the suspected contravention, (c) consult with the relevant person conducting a business or undertaking about the suspected contravention, (d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that - (i) is kept at the workplace, or (ii) is accessible from a computer that is kept at the workplace, (e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk. (2) However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State. (3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d). WHS civil penalty provision. Maximum penalty - (a) in the case of an individual - $10,000, or (b) in the case of a body corporate - $50,000. (4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse. 13 The CFMEU claims, and Crookes admits that, through the actions of its employees, Crookes contravened s 501 of the FW Act. Section 501 is a civil remedy provision, the contravention of which can lead to the imposition of a pecuniary penalty. It provides: 501 Person must not refuse or delay entry A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part. Note: This section is a civil remedy provision (see Part 4-1). 14 It is accepted that Mr Rielly was a permit holder and that he was so "entitled" to enter the premises by reason of his rights under s 117 of the WHS Act, namely for the purpose of inquiring into a suspected contravention of the WHS Act.

[6]

Agreed facts 16 It is worthwhile briefly describing the factual context as agreed between the parties. 17 This proceeding concerns an attempt on 8 April 2020 by a CFMEU official, Mr Rielly, to enter the Armidale Secondary College site occupied by Crookes, located at 182 Butler Street in Armidale (the site). Mr Rielly (holder of entry permits issued under ss 512 of the FW Act and 134 of the WHS Act) says that he received several phone calls and text messages from CFMEU members on or around 6 April 2020, in which he was told about workers at the site having difficulty accessing the areas where they had to do work as a result of rain and poor drainage. 18 After receiving these calls, Mr Rielly says he called Mr Cleary (a CFMEU delegate working at the site for a crane company engaged by Crookes) and says that Mr Cleary told him about further concerns held by him and other workers, including with respect to: (a) the blocking of access ways; (b) poor communication between workers with gyprocking workers who had limited English skills; (c) directions to operate cranes and drive Franna cranes in wet conditions; (d) workers working in wet conditions generally; (e) workers working alongside moving plant machinery with poor visibility in wet conditions; and (f) concerns about emergency egress. 19 On 7 April 2020, Mr Rielly and Mr Davie, a project manager employed by Crookes, had a telephone conversation during which Mr Rielly provided details of the concerns that had been raised with him (that involved suspected contraventions of the WHS Act at the site). Mr Rielly then told Mr Davie that he would attend the site and exercise his right of entry to investigate the suspected contraventions the following day. 20 On 8 April 2020, Mr Rielly arrived at the site and entered through an open panel of temporary fencing, through which he had seen workers entering and exiting the site. Soon after entering, between 9:00 am and 9:30 am, he was approached by Mr Davie, and told him that he was there to inquire into suspected contraventions of the WHS Act involving the matters discussed over the phone and roofers working on roofs without edge protection. He showed Mr Davie his FW Act permit and WHS Act permit and asked to sign in. Mr Davie did not respond, and returned to the site office, where he spoke into a phone and said: "Yeah, we've got trespassers on site". Mr Davie then had the following exchange with Mr Reilly: Rielly We've come to sign in, is there a sign in area? There used to be an area to sign in right here. We've come in to do it. That's the tape, that's the pen, where is it mate? Can we sign in please? No? Can I sign in please? Because we're permit holders under the Act, if you hinder, obstruct or delay a union official. We're asking to sign in. Is that the sign in area? Can me and Paul sign in? Thankyou' Davie So, you 're not signing to go on site. Rielly Why am I not signing in to go on the site? Davie You 're not coming on the site. Rielly I'll show you my permit right now, right that's my permits right there. You can see those, you want to see them? You'll take the number down? We'll give you a notice, right here, a suspected breach. I've written it out already, because I knew what we were coming on site for, EWPs and other access ways. I'm happy to give you that now, Joel? If we could follow the process please? We're trying to get on the site. Otherwise, Paul, having walked in, there was roofers on the roof, with no edge protection. Paul's going to deal with that right now. I'm asking you: can you please allow us to sign in? Yes, or no? Davie You 're not signing in to go on site. Rielly You've already breached the rules of the site, you've walked out on the construction site with no hard hat on. .. Davie Yeah.. Rielly ... no glasses on ... Davie Yeah ... Rielly ... because the last time I was here ... Davie ... because you were trespassing. Rielly Because we were trespassing? Davie You were trespassing Rielly And you think that breaching your own safety protocols is adequate if people are trespassing is that right? And now you've had your mate bring you your hard hat and your vest and you want to go out to site. You're not allowing us to sign in? Davie You're not going out to site Rielly Is that your statement, you're not allowing us? Davie Yeah, that's my statement Rielly All right, okay no worries. 21 During this conversation, Mr Davie removed the sign in book from its usual place in the site office, and did not tell Mr Rielly where it was. When Mr Rielly eventually found it, Mr Davie took it away. Mr Davie then positioned himself in front of Mr Rielly as Mr Rielly attempted to walk down the stairs from the site office verandah so as to prevent Mr Rielly from walking down the stairs. Mr Davie repeatedly said words to the effect of "you are not going on the site" and "you are not allowed on to the site". 22 Mr Rielly left the verandah by walking down a different set of stairs at around 9:45 am and walked towards the areas of the site where construction work was being conducted. Mr Rielly was ultimately permitted to exercise his right of entry at around 1:30 pm that day.

[9]

Consideration 27 The parties agreed upon a penalty of $25,000, which equates almost 40% of the possible maximum penalty. 28 The High Court recognised in the Agreed Penalties case at [57] that there is very considerable scope for the parties to agree on the facts and upon the consequences by which the court may make orders on the terms provided by the parties if the court is persuaded that the course is appropriate, stating at [58]: ….Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. (citation omitted) 29 As to why this course is "highly desirable" the High Court drew on the reasons identified by Sheppard J in Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 60 FLR 38 at 41-42, which included that: All things being equal, it is always important to bring litigation or any part of it to a conclusion as soon as possible. It is in the public interest that litigation should finish. That is specially so in a case such as this where the potential liability for each for further costs is most substantial. 30 Similarly, Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; 284 FCR 24 at [126], citing the above extracted portion of the Agreed Penalties case, articulated the desirability of the Court accepting a proposed agreed penalty which it is persuaded is an agreed penalty, as derived "primarily from a public policy consideration; the promotion of predictability of outcome in civil penalty proceedings" (by encouraging corporations to acknowledge contraventions and assist in avoiding lengthy and complex litigation) but noting "that this public policy consideration is but one of the relevant considerations to which the Court must have regard and, more significantly, it cannot override the statutory directive for the Court to impose a penalty that is determined to be appropriate". 31 I note that a regulator was a party in both the Agreed Penalties Case and in Volkswagen and there are aspects of their reasoning applicable only to that circumstance. Here, the position of the CFMEU is not analogous to that of a regulator: It is a registered organisation, with certain statutory powers, but which arise not by reason of it being a public body acting in the public interest, but rather to further the interests of its members. While "a regulator in a civil penalty proceeding is not disinterested" (Agreed Penalties case at [60]), a regulator's interests are in achieving its statutory objectives of general and specific deterrence, a union is not so constrained. As a consequence, it is not necessarily correct to assume that a penalty agreed between a union and a contravener reflects an equivalent "considered estimation of the penalty necessary to achieve deterrence and the risks and expense of the litigation had it not been settled": Agreed Penalties case at [60]. 32 However, I accept the submission of the parties that whilst a regulator was a party in both the Agreed Penalties Case and in Volkswagen and there are aspects of their reasoning applicable more broadly. 33 As the authorities recognise, the starting point, even where an agreed position as to penalties is reached by the parties, is whether the Court is satisfied that a person has contravened the relevant provision and ultimately it is always a matter for the Court to determine the appropriate penalty having regard to all relevant matters. 34 Here I must determine the penalty to encourage compliance and it must be fixed at an amount so as not to be regarded by Crookes (or other potential contraveners) as an acceptable cost for doing business: Singtel Optus at [62]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 at [66]; Pattinson at [17].

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The conduct and the statutory objective 35 The relevant features of the contravening conduct arise from the agreed facts, for which I am satisfied that a contravention of s 501 of the FW Act. I concur with reasoning of Wigney J in Construction, Forestry, Maritime and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992 at [163]-[164] (Crookes 1) that breaches of this aspect of the statutory scheme are objectively serious - such breaches have the potential to fundamentally undermine the safety of workers. 36 Here, I accept that there was undue delay of three and three-quarter hours in allowing Mr Rielly to enter the site to investigate suspected safety breaches. There is no allegation that there was no foundation for that suspicion (including it not being reasonable) or that he was motivated to act other than as required under the FW Act and the WHS Act. 37 There is a curiosity as to Mr Davie's motivation or state of mind. 38 As can be seen from the above, whilst not required to, Mr Rielly put Mr Davie on notice the day before he came to site of his concerns as to suspected WHS Act contraventions and that he would attend the following day: SOAF [10]. Mr Rielly then on 8 April 2020 repeated those concerns (and additional concerns arising on the day) to Mr Davie as to why he wanted to enter the site: SOAF [14]. In addition, Mr Rielly showed Mr Davie both his statutory permits: SOAF [13]. Mr Davie provided no reason to Mr Rielly as to why he stopped Mr Rielly from entering the site. The only articulation of any potential reason was as he stated to a third party on the telephone "Yeah, we've got trespassers on site". Crookes sought to argue, that the evidence at its highest, was Mr Davie's belief that Mr Rielly was trespassing because he had come onto site via an open panel in the temporary fencing rather than by the designated entrance. I do not accept that this is an available inference. 39 It may be accepted that Mr Davie's conduct was deliberate to the extent that he understood from the conversations with Mr Rielly both the day before and on the day, as to the reasons for Mr Rielly wanting to enter the site and, and that despite this, Mr Davie unduly delayed his entry. No mitigatory evidence was relied upon by Crookes as to any purported confusion or misunderstanding of each parties' rights and responsibilities under the FW Act and the WHS Act. There was a dispute as between the parties as to how to describe the nature and character of the contravening conduct. The CFMEU described it as both contumacious and contumelious - an adjective pairing ordinarily arising in cases of contempt but referred to by Wigney J in Crookes 1 at [179] and referred to Brocx v Hughes [2010] WASCA 57; 41 WAR 84 at [98], per Newnes JA, as: 'for all practical purposes [the coupling of] "contumelious" and "contumacious" have generally been used interchangeably in the cases as denoting a wilful and obstinate resistance or disobedience to authority'. In support of this submission, the CFMEU noted Mr Davie's refusal to speak to Mr Rielly at all and his conduct in standing in Mr Rielly's way, and taking away the sign-in book, with the object of preventing him from going on site. 40 Regardless of how the Court lands by adjectival description, Mr Davie was given notice of and was aware of the reasons for entry, was shown Mr Rielly's permit and proffered no explanation at the time or after for the delayed entry. His actions were deliberate and account must be taken of the fact that no explanation has been proffered for his conduct. Account must be taken because the Court is left with an incomplete understanding of the circumstances and its ability to assess the extent of the need for specific deterrence is impeded. 41 In addition, Mr Davie was a Project Manager on site. It can be inferred that he had relative seniority on the site given his title, he was the person with whom Mr Rielly made contact with the day before he attempted entry and on the day in question, and it was him who assumed responsibility for determining who could or could not enter the site. 42 I also accept, however, that the contravening conduct occurred on one day and over a relatively short period of time. In addition, the contravening conduct involved unduly delaying Mr Rielly's entry to the site, rather than refusing entry (which is conduct of a more serious nature), and that Mr Rielly was ultimately able to exercise his right of entry later that day.

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Contrition and remediation 45 There is no evidence of any contrition or remorse or evidence about rehabilitation or any steps that have been taken to ensure that there is no repetition of the kind of offending that occurred in this case. 46 I accept that account must be taken of Crookes' demonstrated cooperation in reaching agreement on liability, including its admission of the contravention, the preparation of the SOAF and agreeing upon a penalty, which all avoided the cost of lengthy trial. This conduct, Crookes contended, demonstrated a willingness to facilitate the course of justice: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Doubletree Hilton Case) [2021] FCA 1468 at [71]. I accept that Crookes is entitled to be given some credit for its conduct and approach to the proceedings: Doubletree Hilton Case at [71]. 47 However, the absence of any evidence as to the steps it has taken to ensure that there is no repetition of the kind of offending that occurred in this case (and thereafter in Crookes 1 and Crookes 2) does remain of concern. This is particularly so given the observation of the Court in Crookes 1 at [198] as to the absence of any evidence as to any "genuine or positive steps [taken] in response to the contraventions so as to ensure they are not repeated again". To the extent that I was taken to paragraph [53] of Crookes 2 it provides no assistance to fill the large hole in the SOAF. 48 The Court needs to be confident that a contravener understands why its conduct contravened the law, takes responsibility for it and has taken steps to ensure that the conduct does not occur again. The absence of that confidence increases the need for a higher penalty to assist in the deterrence of future conduct. 49 As aptly described by Counsel for the CFMEU, the theory underpinning the power in s 545(6) is to provide a financial disincentive, by the imposition of a pecuniary penalty, which will encourage compliance by the contravener and others so that contravening conduct constitutes an economically irrational choice. 50 It is my view in all the circumstances that a penalty of $25,000 is within the appropriate permissible range. In this regard, it is notable that the contravening conduct (comprising delay rather than refusal of entry) occurred on one day and over a relatively short period of time. It occurred in circumstances where there was no prior history of breach. The appropriate penalty may have been less but for the absence of evidence regarding contrition and remedial action. I also accept that there is public utility, where the amount is agreed and within the permissible range, after having undertaken my own assessment, to award the agreed sum. There is no compulsion to do so, but it is desirable where the appropriate circumstances arise (as have arisen here). 51 Subsection 545(6) of the FW Act gives the Court the power to order that the pecuniary penalty may be paid, inter alia, to a particular person. The CFMEU seeks the usual order where the applicant is not a regulator, that the penalty be paid to the CFMEU, as the successful applicant. Crookes does not oppose this order.

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