Action SAD 306/2014 - Quest South Project: 5 May 2014
66 On 5 May 2014, G Colangelo Development Company Pty Ltd (Colangelo Development) was the head contractor on a construction project, known as the Quest South Project, at 379 King William Street, Adelaide. Mr Roberto Colangelo was employed by Colangelo Development as Project Manager at the site. His brother David Colangelo was employed by Colangelo Development as Construction Manager.
67 The Director relied upon the admissions of the respondents in their amended defence and on the affidavit of Roberto Colangelo. On the basis of those documents, I make the following findings of fact.
68 Mr McDermott, Mr Stephenson and Mr Christopher attended the Quest South site at about 9:30 am on 5 May 2014. They were accompanied by another person. The evidence did not disclose the identity of this person but I am satisfied, having regard to the description of his clothing and the fact that he accompanied Mr McDermott, Mr Stephenson and Mr Christopher, that he too was a CFMEU official. I will refer to this group as "Group One".
69 Roberto Colangelo met Group One near to, and just inside, the southern laneway entrance gate to the site. The members of the Group asked to enter the site, with each of them saying words to the effect of "we want to come on site". Roberto Colangelo refused entry, saying words to the effect of "no, you're not coming on, you don't have a permit". Mr Colangelo said this because he knew that none of the officials had provided a notice of entry. At this time, David Colangelo joined his brother and a conversation to the following effect occurred:
David Colangelo: Can we see your permit?
One of the officials: No we're not going to give that.
Roberto Colangelo
& David Colangelo: You don't have a notice or permit, you can go.
70 At this time, the Group was standing approximately 3 m from a doorway to the stairs which provided access to the upstairs part of the building under construction. Roberto Colangelo went to that door to close it. As he did so, Mr Christopher pushed him out of the way, using his shoulder and elbow, and started moving through the doorway. Roberto Colangelo responded by pushing Mr Christopher back against the door when he was part way through the doorway. Both men then took hold of the clothing of the other at chest level, holding each other at arms-length. After a few moments, Mr Christopher lifted his arms and said "I'm not touching any more". Roberto Colangelo released his grip at the same time.
71 A standoff then developed.
72 At about 10 am, Robert Colangelo telephoned Mark Gava, a CFMEU organiser whom he knew. He told Mr Gava to tell the CFMEU officials to leave the site. Mr Gava responded by saying that he would see what he could do. The evidence did not disclose what, if any, action Mr Gava took.
73 At about the same time, Mr McDermott telephoned Roberto Colangelo's father, Jack Colangelo.
74 The standoff continued. Roberto Colangelo stood beside the doorway preventing access to the stairs to the higher levels of the building and to the workers' lunchroom. Mr Christopher stood to his left, Mr Stephenson to his right and the unidentified official behind Mr Christopher. This continued for about 20 minutes. The group of CFMEU officials then walked away. However, Mr Stephenson returned almost immediately and a conversation to the following effect occurred:
Mr Stephenson: Come on Rob, let us on site, let us upstairs.
Roberto Colangelo: No, not after what has happened, you don't have a permit.
75 At about this time, Group One moved again towards Roberto Colangelo. He felt intimidated and asked his brother to come and stand behind him.
76 The situation seemed to quieten and a conversation to the following effect occurred:
Mr Stephenson: Rob, just let us upstairs.
Roberto Colangelo: You're not going on, because you don't have a permit.
Unidentified official: You have to let me on, I don't need a permit. Fair Work says you have to let us on site.
Roberto Colangelo: Show me the law.
77 After a few minutes, the CFMEU officials moved away and Roberto Colangelo closed the stair access door. At about this time, four further CFMEU officials (Group Two) arrived. The fourth respondent, Mr James O'Connor, was a member of Group Two. Mr O'Connor approached Roberto Colangelo and a conversation to the following effect occurred.
Mr O'Connor: Rob, let them in the lunch shed to talk to the boys and then they'll be on their way.
Roberto Colangelo: No, I've closed the Alimak, I'm pumping out the pit, I'll get the boys together and you can talk to them down here [i.e., on the ground floor].
You walked the job a couple of weeks ago - the carpets have been laid so you can't walk the job.
Unidentified
CFMEU Official: We don't do meetings in the basement, we do them in the lunchroom.
Roberto Colangelo: That's my compromise.
CFMEU Officials: OK.
78 The CFMEU officials then asked the trade supervisors to have their workers gather in the ground floor entrance area and approximately 28 did so. The CFMEU officials spoke to these workers about wages and membership. Mr Stephenson spoke about the benefits of union membership, said that he had "some membership forms", and handed them out to the workers. The CFMEU officials who addressed the workers were Mr McDermott, Mr O'Connor and Mr Stephenson. They did so for about 15 minutes and then left the site.
79 Roberto Colangelo gave the following explanation for allowing the CFMEU officials to meet the workers in the downstairs area:
[30] I would not ordinarily organise the workers to meet with the CFMEU without having been provided a notice of entry. However, given the events of the morning, the fact that there were then eight CFMEU officials in and around the site and that I felt intimidated by the number of officials present, I thought that the best way to diffuse the situation was to organise them to talk to the men at the bottom of the Site. This was so as to prevent any further access to the building. My concern was that if they were allowed into the Building, they could wander around and it would become more difficult to get them to leave the Site.
80 It is appropriate to infer, and I do, that the Group One officials had requested the attendance of Group Two in order to reinforce their demand to be allowed to enter the site. It is unsurprising that Mr Colangelo felt intimidated in these circumstances, especially given the earlier physical conduct of Mr Christopher.
81 The evidence did not disclose the time at which the CFMEU officials left the Quest South site. It was probably between 10.45-11 am, meaning that Mr McDermott, Mr Stephenson and Mr Christopher were present on the site for approximately 1¼-1½ hours.
82 Mr McDermott and Mr Stephenson admit that they had been exercising, or seeking to exercise, rights in accordance with s 484 of the FW Act and that they had acted in an improper manner in contravention of s 500. They acknowledge that their conduct was improper by reason of their entry onto the site without having provided notice of entry in accordance with s 487 and in the face of the refusal by Roberto Colangelo to permit them entry; their remaining on the site despite Mr Colangelo having expressly asked them to leave; in Mr Stephenson's case, his witnessing of Mr Christopher's use of force on Mr Colangelo coupled with his failure to intervene and then subsequently remaining on the site while Mr Colangelo continued to refuse them entry; in both cases, their remaining on the site when Group Two arrived with the common purpose of gaining access to the building; and, subsequently, their holding discussions with employees on the site.
83 Mr Christopher admits that he was involved in each of the contraventions of Mr McDermott and Mr Stephenson, within the meaning s 550 of the FW Act, and therefore liable as an accessory in respect of each contravention. Mr Christopher admits that his involvement included his entry on the site with Mr McDermott and Mr Stephenson and for the same purpose as Mr McDermott and Mr Stephenson, his use of force, his association with Group Two which had the common purpose of gaining access to the building, and his omission to take action disassociating himself from the conduct of the other CFMEU officials.
84 The CFMEU acknowledges that it is to be taken as having contravened s 500 by each of the contraventions of Mr McDermott, Mr Stephenson and Mr Christopher.
85 Originally, the Director alleged two contraventions of s 348 of the FW Act had occurred at the Quest South Project by reason of the events on 5 May 2014. However, at the hearing he discontinued the first allegation.
86 The Director's second allegation of a contravention of s 348 concerned Mr McDermott, Mr Stephenson and Mr Christopher but, at the hearing, the Director discontinued this allegation insofar as it concerned Mr McDermott. The allegation which the Director pursued was that Mr Stephenson and Mr Christopher had contravened s 348 by taking action against Roberto Colangelo with intent to coerce him or Colangelo Development to comply with Mr O'Connor's request that the CFMEU officials be allowed into the lunch shed and to talk to the workers on the site. The coercive conduct was said to arise from a combination of circumstances at the Quest South Project. These were that Mr Christopher had manhandled Roberto Colangelo; that Mr Stephenson was aware that Mr Christopher had done so; that not only had Mr Stephenson not said or done anything to indicate that he did not support Mr Christopher's conduct, he had, after the manhandling incident and despite further refusals by Mr Colangelo, continued to press Mr Colangelo to be allowed into the building; and had formed part of the group of eight CFMEU officials whose very presence involved a pressing of Mr Colangelo to be allowed into the building. The allegation in respect of Mr Christopher was the same only that the Director relied upon his manhandling conduct itself.
87 Mr Stephenson and Mr Christopher admit that they contravened s 348 in the way alleged. The CFMEU admits that, by reason of the conduct of Mr Stephenson and Mr Christopher and the operation of s 793 of the FW Act, it twice contravened s 348.