Nature of the conduct
41 There is not much about the conduct in which Mr Tzimas and Mr Buckley engaged that is relevantly in dispute. From the summary that follows, I should be understood to accept (and to have found) that events transpired as described.
42 During the evening and early morning of Tuesday, 3 and Wednesday, 4 December 2019, John Holland was engaged in the overnight lifting and installation of five bridge beams on the northern side of an existing bridge over Millers Road. To that end, a "temporary scaffold deck" had been erected for the purpose of ensuring that each beam could be positioned securely and safely prior to installation. The work was to be performed only in the presence of those who were to execute it (and who had undergone appropriate briefings to that end). It could not be undertaken if others were present in the "exclusion zone" of the scaffold deck area.
43 Mr Tzimas and Mr Buckley entered onto the Site shortly after 9:30pm on Tuesday, 3 December 2019, not long after the affected part of the freeway had been closed. Upon arrival, Mr Tzimas and Mr Buckley each issued a notice of suspected contravention pursuant to the OHS Act to the management representatives who were present and produced their respective entry permits. Mr Tzimas's notice described suspected contraventions of the OHS Act inhering in "inadequate [safe work methods statement] for the tasks being performed, risks associated with works not all accounted for & [safe work method statement] not site specific. Inadequate lifting gear in use. No risk assessment …". Mr Buckley's notice described "inadequate safe systems of work in regards to concrete element installation, inadequate maintenance in regards to lifting hardware, inadequate hardware being used".
44 Upon presenting their notices, Mr Tzimas and Mr Buckley proceeded to position themselves on the scaffold deck. As the lifting and installation of the bridge beams could not be undertaken whilst they were there, that work immediately ceased (or, at any event, did not proceed).
45 Mr Tzimas and Mr Buckley thereafter refused requests to vacate the scaffold deck. Instead, whilst there, they asked that certain safety documentation (including a "safe work method statement") be brought to them for their review. It was agreed that they could review what had been requested; but only somewhere away from the scaffold deck. Mr Tzimas and Mr Buckley did not agree and remained where they were.
46 That prompted the making of two phone calls: one to WorkSafe Victoria and one to the police. Mr Drury arrived at the Site at approximately 12:15am, whereupon he was apprised of the issues about which Mr Tzimas and Mr Buckley had expressed their concern. Two Victoria Police officers also came to the Site.
47 There were then some interactions as between Mr Drury (on the one hand), and Mr Tzimas and Mr Buckley (on the other). Mr Drury advised Mr Tzimas and Mr Buckley of his assessment that there was no immediate risk to worker safety at the Site. He asked Mr Tzimas and Mr Buckley to move from the scaffold deck to a safer location so that work could resume, whereupon Mr Tzimas made the "lap dog" comment referred to above (at [5]). He and Mr Buckley again refused to vacate the scaffold deck.
48 That refusal was repeated following an equivalent request made to Mr Tzimas and Mr Buckley by the police. Mr Buckley stated that the safety documentation needed to be reviewed in the work area in order to compare it with the work activity. Mr Tzimas expressed some concern that, if he and Mr Buckley were to leave the scaffold deck, they would not be let back onto it.
49 At approximately 2:05am, further members of Victoria Police arrived. They advised Mr Tzimas and Mr Buckley that they had been asked to leave the scaffold deck by the occupier of the Site, that WorkSafe had advised that there was no immediate safety risk and that the Site was safe, and that, if they did not leave, they would be arrested and removed. Mr Tzimas responded that it did not matter that the WorkSafe inspector, Mr Drury, had said that the Site was safe, that he and Mr Buckley had "a right to inspect any thing, plant or substance that [they] inquired about" and that they had not yet been able to do that.
50 Notwithstanding the above exchange, Mr Tzimas and Mr Buckley did agree to leave the Site, although Mr Buckley thereupon indicated that he would, "just write another [notice of suspected contravention]".
51 Indeed, at approximately 2:20am, Mr Tzimas and Mr Buckley left the Site and immediately began writing fresh notices of suspected contraventions of the OHS Act. Upon completion, they issued them to a management representative that was present, Mr Don Banks. Mr Tzimas's notice described his suspicions as "inadequate [safe work method statement] and safe systems of work around beam installation, fall protection and access/egress is inadequate". Mr Buckley's notice described "inadequately safe systems of work in regards to concrete element installation, inadequate lifting gear and maintenance" and "inadequate [safe work method statement], fall protection".
52 Mr Tzimas then re-entered the scaffold deck "exclusion zone". It had, by then, been blocked off by two traffic cones, at which a John Holland employee had been stationed in order to prevent unauthorised access. At some point, the employee moved away from the scaffold deck entry point, whereupon Mr Tzimas stepped through the two traffic cones and made his way up some stairs back to the scaffold deck.
53 The police then demanded that Mr Tzimas get off the scaffold deck but he refused. Meanwhile, Mr Buckley remained at the bottom of the stairs. Mr Drury advised Mr Buckley that he (Mr Drury) had already dealt with the issues identified in the two fresh notices of suspected contravention. On seven occasions, Mr Drury advised Mr Buckley that there was no immediate risk to worker safety at the Site. Mr Drury and a member of Victoria Police then walked up the scaffold stairs to speak with Mr Tzimas, whereupon Mr Tzimas made the "corrupt" comment referred to above (at [5]). Victoria Police then escorted Mr Tzimas from the Site.
54 At approximately 2:30am, whilst outside the Site, Mr Tzimas and Mr Buckley again began writing fresh notices of suspected contravention. At that time, Mr Tzimas made the "disgrace" comment referred to above (at [6]), and Mr Buckley made the comments referred to above (at [7]).
55 Mr Tzimas and Mr Buckley each issued their notices of suspected contravention to the management representative, Mr Banks. Each then sought to access the Site but was refused (presumably by Victoria Police, although nothing turns on that). It was then that Mr Tzimas made the "lap dog" comment referred to above (at [6]).
56 A short while later, Mr Tzimas approached Mr Drury and made the "disgrace" comment referred to above (at [6]).
57 At approximately 3:00am, Mr Tzimas and Mr Buckley left the Site. The overnight lifting and installation of the five bridge beams was not completed as scheduled.
58 The FWO sought to stress the context in which the respondents' conduct took place. She submitted that the overnight lifting and installation of the five bridge beams was time-sensitive work that involved closing down part of the West Gate Freeway (with all the consequential inconvenience that doing so necessarily entails). She noted that, upon gaining access to the Site, Mr Tzimas and Mr Buckley went straight up to the scaffold deck, plainly conscious that their presence there would result in disruption to that work. They refused to leave it, despite knowing that their presence would sound in disruption to the work and despite being told that they could elsewhere review the documentation that they had requested. When Mr Drury arrived at the site to consider the very issues that they had raised, Mr Tzimas and Mr Buckley refused to speak with him about them; instead, they dismissed him, saying "we don't need to talk to you…we don't have to discuss it".
59 Further, the FWO noted that, when Mr Drury asked Mr Tzimas and Mr Buckley to move to a safer location, they refused. They refused notwithstanding that they were told that there were no immediate risks to health or safety. That refusal necessitated (or, at the very least, led to legitimate) police involvement. Again, Mr Tzimas and Mr Buckley refused to budge. Ultimately, Mr Tzimas had to be escorted from the Site.
60 The respondents contend that the conduct constituting the contraventions that I am satisfied occurred involved only the making of improper communications. To punish them for other conduct, they say, would be in error, as there is no other conduct that is relevantly here the subject of allegation and admission.
61 Moreover, the respondents maintain that the statements that were made in breach of the FW Act were the product of frustrations that arose from genuinely held perceptions that:
(1) the work that was to be undertaken at the Site on the night in question would not have been undertaken with proper regard to worker safety;
(2) their efforts to investigate Mr Tzimas's and Mr Buckley's concerns were being foiled by John Holland's refusal to bring the paperwork that had been requested, or otherwise to engage with those concerns at the scaffold deck (rather than some other location);
(3) Mr Drury could not properly have taken the view that the works were safe in the short span of time that he had to consider the issue; and
(4) the only concern by which Mr Drury and others at the Site were animated was the timely completion of the works.
62 The respondents also sought to impress upon the court that Mr Tzimas had seen first-hand how dangerous construction work can be, such that the concerns that he raised on the night in question were genuine; and that at least some of the concerns that they had raised were later addressed. Finally, they noted that the contravening conduct had been engaged in by way of reaction to the circumstances in which Mr Tzimas and Mr Buckley found themselves, and not as part of some deliberate or broader industrial strategy. So understood, they maintained that the contravening conduct of which the court is presently seized is qualitatively different to what arose in authorities such as Pattinson.
63 As senior counsel for the respondents (with respect) correctly submitted, the court should be alive to the precise nature of the conduct that has been alleged and admitted - and that I have found transpired in contravention of s 500 of the FW Act. The respondents are not to be penalised for anything other than the regrettable comments that Mr Tzimas and Mr Buckley made during their attendance on 4 December 2019. Nevertheless, matters of context should not be ignored, particularly insofar as they bespeak attitudes that are relevant to discerning the deterrent effect that is to be served by appropriate pecuniary penalties.
64 The nature of the contravening conduct is properly to be assessed against the backdrop of the circumstances within which it was engaged. On no view could it be thought that Mr Tzimas and Mr Buckley were justified in behaving the way that they did on 4 December 2019. By holding up the performance of work, and by refusing to engage in a meaningful way with management, Mr Drury or the police as to their concerns, the conduct in which Mr Tzimas and Mr Buckley indulged bespoke a thuggish assertion of control over how the site should operate. They sought to appropriate unto themselves an authority that they plainly did not possess; and, when challenged, their response was to bully their interlocutors with unwarranted insults and abuse.
65 It is, I think, one thing to behave improperly whilst seeking legitimately to exercise statutory powers; it is another altogether to do so in connection with behaviour for which there could be no possible statutory justification. Improper conduct of the latter kind is, by its nature, more serious than equivalent conduct of the former kind. The court should be concerned to impose penalties of greater severity if for no other reason than to recognise that its engagement likely reflects an attitude toward wrongdoing that requires greater deterrent energy.
66 In saying so, I accept that there is no evidence to suggest that Mr Tzimas and Mr Buckley did what they did in furtherance of any broader union policy or industrial strategy. Such conduct would undoubtedly warrant consideration as more serious than what confronts the court presently; but so to observe is not to doubt that conduct in which a permit holder engages "in the moment" might nonetheless qualify as "serious".
67 I should pause to say something about the nature of the concerns by which Mr Tzimas and Mr Buckley were animated. I am not asked to find that - and much less could I properly determine whether - the safety concerns that Mr Tzimas and Mr Buckley identified were well-founded. I accept that they thought that they were well-founded (notwithstanding that there may be reason to doubt that, given the manner in which they behaved).
68 It is not apparent to me why the states of mind of Mr Tzimas and Mr Buckley should sound in the respondents' favour. It is to be borne firmly in mind that Mr Tzimas and Mr Buckley were each, at the relevant time, exercising a right of entry in accordance with pt 3-4 of the FW Act. In doing so, they must be presumed to have been (and I have found that they were) animated by concerns genuinely held. Indeed, it is difficult to see how a permit holder might contravene s 500 of the FW Act without thinking that the purpose animating his or her exercise of an entry right was legitimate.
69 If anything, the fact that Mr Tzimas and Mr Buckley were minded to behave as they did - and that they responded in the ways that they did when they were challenged - tends to suggest that each might be prone to hot-headedness in the service of legitimate ends (here, the promotion of workplace safety). There is no possible justification for the conduct in which they engaged; and yet each felt licensed to obstruct the performance of work, and to bully and abuse those who sought to persuade them not to, including independent third parties who were unwittingly called upon to deploy their expertise in a difficult situation in the middle of the night.
70 By its nature (and in each instance), the contravening conduct in which Mr Tzimas engaged - that is to say the making of the communications that he made in the circumstances within which he made them - is properly to be characterised as of low-to-mid-level seriousness. To speak to Mr Drury and the police as he did - and to do so in the context within which he did so - cannot be written off as mere triviality. His conduct (looked at in isolation from the other considerations that are analysed below) is deserving of sanctions commensurate with low-to-mid-level contravening. Mr Buckley's conduct (for which the CFMEU is accessorily liable) was similarly serious.