A different standing invitation?
110 Before reaching a final conclusion concerning the existence of the pleaded "standing invitation", it is appropriate to refer to other evidence which bears on this issue more generally and to track the developments in Mr Kirner's filed defences on the topic.
111 A plea of a standing invitation was first made in the Further Amended Defence filed on 23 April 2015. Mr Stephenson, who was then denying his contravention of s 500, pleaded in [8] a form of "standing invitation" by Hindmarsh to officials of the CFMEU to the effect that they could come to the site without providing prior notice, make themselves known and then be escorted around the site by Hindmarsh personnel.
112 In the same Further Amended Defence, Mr Kirner pleaded that his entry on 22 November had been pursuant to the standing invitation pleaded by Mr Stephenson. Each of Mr Stephenson and Mr Kirner maintained the same plea in the Second Further Amended Defence filed on 25 August 2015, seven days before the trial commenced.
113 However, in the 3FAD filed four days before the trial commenced, Mr Stephenson withdrew the plea in [8] in the two previous defences and admitted the Director's allegation that on 11 November 2013 he had been exercising, or seeking to exercise, his right under s 484.
114 Mr Kirner made a consequential amendment to his defence. He withdrew altogether the plea that he had entered the site pursuant to the standing invitation pleaded by Mr Stephenson and instead pleaded the standing invitation which I have been addressing so far.
115 The affidavits from the parties' witnesses had been prepared at a time when Mr Stephenson's plea of a standing invitation had been the only such invitation pleaded. Despite Mr Stephenson's withdrawal of that plea and despite Mr Kirner's plea of a different standing invitation, the parties still led much of the same evidence at the trial. This was so even though Mr Kirner had not pleaded that he was aware, between March and November 2013, of the matters previously relied upon by Mr Stephenson. Nevertheless, it is appropriate to make findings concerning aspects of this evidence because it forms an element of the context in which Mr Kirner's pleaded standing invitation and his subsequent conduct is to be assessed.
116 Mr Staltari was the Senior Project Manager for Hindmarsh on the SAHMRI site for the 18 month period between 6 April 2010 and 7 October 2011. He had come from Canberra to Adelaide for this purpose. Mr Bickerdike took over as Senior Project Manager in November 2011.
117 Mr Staltari agreed that, in either late 2010 or early 2011, he had referred at a meeting (at which some CFMEU officials may have been present) to a practice in Canberra by which union representatives had been permitted to come to a site without notice, to sign-in like other visitors and then to meet members of the senior management team in the project site office. On occasions, a management team member had invited the union official to accompany him or her on to the construction area of the site, but not for the purpose of conducting union business. If union officials had wished to enter the construction area of the site for that purpose, then they had first to provide an entry notice and otherwise comply with the requirements of the FW Act.
118 Mr Staltari said that he had followed the same practice on the SAHMRI site. To that extent, there had been a standing invitation but it had not extended to entry on to the construction area. Mr Staltari said that he had not been aware during the period when he was the Senior Project Manager of any union officials entering the construction area of the site without having provided the requisite notice. His attitude of mind at the time was such that, had he become aware that Hindmarsh safety officers were permitting union officials to enter the construction area of the site for the purpose of union business without have first provided a notice of entry, he would have reported the matter to Mr Alarcon, the Hindmarsh SA Construction Operations Manager, and would have counselled the safety officers about Hindmarsh's expectations.
119 Thus, Mr Staltari drew a distinction between union officials being permitted to come to the site office for the purpose of speaking with management personnel, on the one hand, and going on to the construction area of the site, on the other. He said that he had authorised the former occurring without prior notice, but not the latter. He expected that a notice of entry would be provided in respect of entries on to the construction area as well as compliance with the other aspects of the FW Act concerning entry. When a union official was on site and speaking to a member of management, that member could invite the union official into the construction area but would escort them. He was unaware that safety officers such as Mr Dench, Mr Mitchell or Mr Neale had escorted union officials on to the site but was clear that that should not have occurred if the union official was intending to carry out "union business". He was not aware that it had occurred.
120 I considered Mr Staltari to be a reliable witness. However, his approach did allow some grey areas to exist as he acknowledged that he may not have made explicit to union officials or to safety officers the distinction which he drew between the site offices, including the workers' lunchrooms, on the one hand, and the construction area of the site, on the other. He also accepted that a union official coming to the site office to speak to a member of management could, lawfully, go to the lunchrooms located immediately under the SAHMRI site office for the purpose of conducting union business. Thus, the boundary lines between the different kinds of entries contemplated by Mr Staltari may not always have been understood clearly by those responsible for their implementation.
121 Mr Bickerdike's evidence about the practice was to similar effect. He considered that union officials wishing to go on to the construction area of the site for union business had to provide notices of entry but that such notices were not necessary if the official was coming to talk to management. Mr Bickerdike said, in addition, that he had endeavoured in staff meetings to make the responsibilities of safety officers with respect to union entries on the site clear. In support of the contention that safety officers had understood that position, Mr Bickerdike referred to processes of audit carried out by the Fair Work Commission. The evidence regarding these audits was limited and did not really go beyond indicating that their purpose was a check on whether SAHMRI was "a federally code compliant project".
122 Mr Bickerdike also said that he had not been aware in 2013 of any practice by which union officials had been permitted to enter the construction area without having provided a notice of entry in accordance with s 487. He said, and I accept, that as Senior Project Manager, he had not authorised any standing invitation to CFMEU officials, and that no one else had had the authority to do so.
123 The respondents led evidence which, to an extent, showed that the position may have been different from that understood by Mr Staltari and Mr Bickerdike.
124 Mr Dench was until December 2011 employed by Hindmarsh as a Safety Officer at the SAHMRI site. In the affidavit containing his evidence in chief, Mr Dench deposed that there had been occasions when Mr Staltari had not required CFMEU officials to provide notices of entry, and that that practice had continued after Mr Bickerdike became the Senior Project Manager. Mr Dench's oral evidence indicated that he may not have been alert when working on the SAHMRI site to the distinction between attendance at the site office area, on the one hand, and attendance on the construction area of the site, on the other.
125 However, Mr Dench's evidence did not support the proposition that Mr Bickerdike had either allowed, or at least not objected to, CFMEU officials entering the construction area without previously having provided a notice of entry. When asked to identify an occasion when this may have occurred, Mr Dench said only that Mr Bickerdike had said, when commencing in the position of Senior Project Manager, that he wished to develop a good relationship with the CFMEU. He also said that he could not recall any specific occasion when Mr Bickerdike had been "fine" with CFMEU officials coming on to the site without having provided a notice of entry.
126 Mr Dench drew attention however, to the monthly SQE Reports provided to senior management, including Mr Bickerdike, which, amongst other things, reported on the number of visits by union officials and the number of notices of entry which had been received. Mr Dench said that it was often the case that there were discrepancies between the number of attendances, on the one hand, and the number of notices on the other. Sometimes there were more attendances than notices, and sometimes more notices than attendances. The effect of his evidence was that senior management, such as Mr Bickerdike, should have been able to see that in some months there were more attendances than notices and thus have been aware that union officials must have been attending without providing prior notice.
127 Mr Dench acknowledged, however, that it would not have been apparent to management in such circumstances whether the union official had attended only the site office. That is to say, it would not have apparent that union officials were entering the construction area without having provided a notice of entry.
128 Mr Dench said that Mr Staltari had not, in his discussions with him, drawn a distinction between the site office and lunchroom area, on the one hand, and the construction area, on the other; that there had been a "few times" on which he had accompanied CFMEU officials into the construction area even though they had not provided a notice of entry; that he had regarded it as being for senior management to decide whether that was permissible; and that he had never been counselled on the topic. In cross-examination however, Mr Dench said that, on each occasion he had accompanied CFMEU officials into the construction area, he had received approval from senior management to do so, and that he had not regarded himself as free to take a union official in to the construction area of his own volition, and without reference to senior management.
129 Mr Mitchell said that that were occasions when CFMEU officials, after coming to the site office, had gone in to the construction area, sometimes accompanied by a Hindmarsh Manager, such as Mr McLeavey, and sometimes unaccompanied. When the latter occurred, he had understood that it was with the general approval of Mr Staltari, and not that Mr Staltari had granted approval for that particular entry. He said that these arrangements continued after Mr Bickerdike commenced as Senior Project Manager, although the position changed over time as Mr Bickerdike's relationship with some CFMEU officials "was not as positive" as that of Mr Staltari. This was the "change of approach" to which Mr Mitchell had referred in [16] of his affidavit.
130 Mr Mitchell also said that, after the attendances of CFMEU officials, he had reported their presence to Mr Bickerdike, generally telling him that there was "no negativity" associated with their visits. Mr Bickerdike had not on any of those occasions raised the question of notices of entry with him.
131 However, as noted earlier, Mr Mitchell agreed that Mr Bickerdike had told him that the CFMEU officials should provide notices of entry. He had responded by telling Mr Bickerdike that he did not understand it to be part of his responsibilities to enforce a requirement for notices of entry. Mr Mitchell went further and said that he had deliberately shown no interest in whether a union official had provided a notice of entry because it was not part of his responsibilities. In addition, he said that he had told union officials that Hindmarsh would most likely require a notice of entry but that he (Mr Mitchell) would not be enforcing it.
132 In his cross-examination, Mr Mitchell said that "latterly" in the period 2011 to 2013, he had been told by Mr Bickerdike that union officials had to provide notices of entry to go on to site to conduct union business. By the term "latterly", I understood Mr Mitchell to be referring at least to the year 2013 and, in any event, to the period after March 2013 when Mr Kirner had first come to the SAHMRI site.
133 In my opinion, the evidence just summarised indicates that there had been a limited form of standing invitation commencing during the time Mr Staltari held the position of Senior Project Manager. That standing invitation was for union officials to come, without having provided a prior notice, to the site office and then, only at the further invitation of the member of Hindmarsh's senior management, to go, accompanied by a Hindmarsh employee, into the construction area. The official could, however, also go into the lunchroom area because that did not form part of the construction area.
134 The distinction between these areas may not have been articulated clearly but generally was understood by Hindmarsh's own safety officers. That explains the evidence that they would not themselves authorise union officials to go into the construction area. There may well have been occasions when, even though not authorised by senior management and not accompanied by a member of management, union officials did go into the construction area. The safety officials did not act to prevent this because they did not regard it as part of their role to police compliance with the provision of notices of entry. There may therefore have been occasions when union officials were able to "get away" with entering the construction area without having provided notices of entry, even though they knew that it was not authorised. This is a possible explanation for the occasions to which Mr Kirner referred when he had entered the site without having provided a notice of entry. He was able to "get away with it" because those who were aware of his presence, like Mr Mitchell, were not enforcing the requirement that he not enter the construction area without providing a proper notice of entry.
135 I accept the evidence of Mr Staltari and Mr Bickerdike to the effect that they were unaware that this was occurring. It assists in understanding Mr Bickerdike's reaction of 22 November 2013 when he was informed of Mr Kirner's presence in the construction area. Knowing that it was unauthorised, he went immediately to confront him about his entry.