CONSIDERATION
43 As White J pointed out in the Flinders University case, the provisions of Part 3-4 of the FW Act seek to balance the competing interests of various parties on construction and other work sites. Under the scheme, rights of entry are made conditional in order that any such right is exercised in accordance with the provisions of the FW Act in a manner that minimises inconvenience to the occupier of a site and the disruption of productive work: cf Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 at [18] (Tracey J). Once, however, the conditions are satisfied, as they were in the present case, a permit holder such as Mr Doyle is entitled to unimpeded access to the site to ascertain whether the health and safety of members of his union are or have been compromised. As counsel for the CFMEU rightly submitted, the protection of workers' safety on building sites is a highly important function and breaches of provisions such as s 501 have the potential fundamentally to undermine workers' safety: cf Ponzio v B & P Caelli Construction Pty Ltd (2007) 158 FCR 543 at 545; [2007] FCAFC 65 at [1] (Marshall J).
44 The CFMEU submitted that the contraventions were all the more egregious because inspectors, appointed under the OHS Act, had attended the site on both days and advised Mr Bam that they considered that they had each "formed the reasonable belief that [Mr Doyle had] a lawful right of entry into this workplace under section 87 of the OHS Act …". Despite being so advised Mr Bam had refused entry to Mr Doyle.
45 On each occasion an inspector prepared what was described as an "entry report". The reports were prepared off-site and after Mr Doyle had been refused entry. The relevant parts of the two reports were in almost identical terms. The report made in relation to the events on 21 January 2016 read:
I discussed the issues in dispute with Lloyd Bam and the above said management and elected health and safety representatives.
I have verified from my discussions, enquiries and observations that Fergul [sic] Doyle is an ARREO [Authorised Representative of a Registered Employee Organisation] as a representative of CFMEU being a registered employee organisation and I have sighted a copy of:
• a valid entry permit F11786236 issued under the Occupational Health and Safety Act 2004; and
• a valid federal entry permit RE2015/773 27 August 2015 under the Commonwealth Fair Work Act 2009. I am satisfied that the ARREO satisfies or can satisfy the requirements under which the federal entry permit is issued.
I observed that the ARREO has completed an approved Notice of Suspected Contravention form and confirmed that the ARREO reasonably suspects that a contravention of the Occupational Health and Safety Act 2004 OR the Occupational Health and Safety Regulations has occurred or is occurring at this workplace and that the suspected contravention relates to or affects work that is being carried out by:
• Persons eligible to be members of the CFMEU, as a registered employee organisation but whose employment is not subject to a certified agreement by which the registered employee organisation is bound.
For these reasons I have formed the reasonable belief that the ARREO has a lawful right of entry into this workplace under section 87 of the OHS Act 2004.
I informed Lloyd Bam and Fergul [sic] Doyle of my belief, and advised that a refusal to allow the ARREO to enter this workplace would be contravention of section 93(a) of the OHS Act.
46 The notices of suspected contravention prepared by Mr Doyle on 21 January 2016 and 2 February 2016 were in evidence. In the first notice he identified his health and safety concerns at the site as being:
Concern regarding the steel erection plan including but not limited to the jacking systems for the tank construction.
The second notice identified his concerns as:
Concerns relating to the steel erection plan including but not limited to the safe workloads of the jacking systems and associated welding concerns relating to the proper access and egress into the tank during construction.
The parties were agreed that the reference to "access and egress into the tank" reflected a concern that, once the tank was closed, employees would have to enter it by crawling underneath the steel work.
47 There were agreed facts that, on both days, the tank remained open and that workers were able to move inside through a gap in its side and that, on neither day, was the jacking system connected to the tank. The system was not in use or ready to be used. The inspectors, who unlike Mr Doyle had access to the site, must be presumed to have been aware of these facts. They examined the notices produced by Mr Doyle. It is somewhat puzzling that they could conclude that Mr Doyle reasonably suspected that a contravention of the OHS Act had occurred or was occurring for the purposes of s 87 of that Act. Nowhere in either report does the inspector identify a safety concern which falls within the temporal conditions prescribed in s 87.
48 In each case, before he refused entry to Mr Doyle, Mr Bam consulted a solicitor from the Australian Industry Group. The questions asked and the advice given were not in evidence. It was, however, an agreed fact that Mr Bam acted on whatever advice he received from the solicitor when he refused entry to Mr Doyle. That he did so supports another of the agreed facts, namely, that Mr Bam acted under an honest belief that Mr Doyle could not have entertained a relevant suspicion for the purposes of s 87(1) of the OHS Act because the tank was open and the jacking system was not in use at the relevant times.
49 In these circumstances I do not consider that Mr Bam and, through him, the two corporate respondents deliberately set out to contravene s 501 of the FW Act. On each occasion he acted under a mistake of fact and on legal advice.
50 I do not, therefore, regard Mr Bam's decisions to refuse entry to Mr Doyle, despite the inspectors' advice, to be a significant aggravating factor.
51 Mr Doyle deposed that, in his experience as an organiser, he had rarely been confronted with the level of hostility that was displayed to him when he attempted to enter the site on the two occasions under consideration. This might be thought to be an aggravating factor. The difficulty, however, is that Mr Doyle did not descend to any detail about the conduct on the part of Mr Bam and Mr Reeves which he says exhibited hostility. His affidavit does no more than record Mr Bam's intimations that access to the site would be refused. There is no evidence about the terms of the verbal exchanges which occurred or the manner in which those involved conducted themselves.
52 Decmil and Eastcoast Development relied on a number of mitigatory factors which were not disputed by the CFMEU. They were that:
Neither company had previously contravened the FW Act or other industrial legislation.
The boards of the two companies have formally expressed regret for the two incidents and undertaken to prevent a recurrence of any such contraventions.
Since 2 February 2016 neither company has refused any request by representatives of the CFMEU for entry to the site. Mr Doyle sought and was granted access on 5 February 2016 and 7 March 2016 in relation to the same safety concerns regarding access and egress to and from the tanks.
The two companies have revised their right of entry procedures in order to provide more extensive guidance to their employees as to how to deal with requests for entry to their sites.
53 The two corporate respondents also called in aid what they said was their co-operation with the CFMEU "by admitting the contraventions and reaching agreement on facts and a penalty range." I do not accord this factor any great weight. The proceeding, in its amended form, effectively commenced on 20 May 2016. A mediation took place on 19 October 2016 but proved unsuccessful. Shortly afterwards the trial was listed to commence in March this year. Three weeks later the two corporate respondents filed an amended defence in which they denied liability. It was not until 17 January 2017 that they initiated the discussions which led ultimately to their acknowledgment of liability for contraventions of s 501 of the Act and the filing of the agreed statement of facts in March 2017. The delay in reaching agreement after discussions had been initiated occurred partly because of difficulty experienced by the CFMEU's solicitors in obtaining instructions in the latter part of January. Instructions were eventually obtained in early February 2017. By the time the discussions commenced, however, the CFMEU had already incurred the time and expense of preparation for a contested hearing.
54 The authorities to which I have referred emphasise the need for general and specific deterrence to be at the forefront of matters taken into account when the Court is determining appropriate penalties. The corporate respondents have not previously offended and have taken practical steps to avoid future contraventions. There is no suggestion that they have been or are prepared to incur pecuniary penalties for contraventions of the Act as a "cost of doing business". Specific deterrence, therefore, weighs less heavily that the need for general deterrence.
55 It is to be borne in mind that the two contraventions by each of the corporate respondents arose from the same conduct of Mr Bam on each day. Decmil and Eastcoast Development each acknowledge a degree of responsibility for Mr Bam's actions. As a result I consider that I should determine an appropriate penalty for one of the bodies corporate on each day and then apportion that sum between them. This will ensure that the penalties imposed are proportionate to each company's overall level of culpability.
56 I consider that a penalty of $12,000 is warranted in respect of the conduct attributed to the two companies on each of 21 January and 2 February 2016. This will result in individual penalties of $6,000 on each day.
57 The penalties should be paid to the CFMEU as proposed by the parties.
58 The proposed declaratory relief should also be granted.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.