Whether the Employees were required to comply with the Directions once they were given even if they were invalid
330 The respondents submit that regardless of whether the 21 July Direction and the July/August Direction (together, the Directions) were invalid, once given, the Employees were required under s 85(1) of the WHSQ Act to comply with them. They submit that the Employees were then under no legal obligation to work and, accordingly, their cessation of work was not "industrial action" within s 7(1) of the BCI Act.
331 The applicant submits that while the power under s 85(1) is to give a "direction", there is no obligation on workers to comply with such a direction, valid or invalid. The applicant points out that, first, s 85(1) does not expressly require compliance, in contrast with the mandatory language used in the s 85(2) ("must not"), s 85(4) ("must carry out"), s 85(5) ("must inform") and s 85(6) ("can not"). Second, the use the word "if" in reference to a worker ceasing work in the heading to s 86 and the body of ss 87 and 88 is inconsistent with the existence of an obligation to cease work following a direction from a HSR. Third, s 28 sets out the duties of workers at work, but does not prescribe any obligation to comply with a direction from a HSR. Fourth, the effect of s 85(1) is to confer on the worker, a right (but not an obligation) to cease work, consistently with the heading to Division 6, "Right to cease or direct cessation of unsafe work".
332 The applicant next contends that where a direction is purportedly given under s 85(1) but any condition for the giving of the direction is not satisfied, there is "no direction at all", relying on Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51]. The applicant submits that there cannot be a valid direction where a HSR's appointment is defective or where any of the conditions under s 85(1) for the exercise of the power are not met.
333 The applicant submits that scheme for the appointment and election of HSRs is procedural and technical, requiring a number of conditions to be satisfied for the process of election. There is no provision in the WHSQ Act that excuses any deficiency in relation to the appointment. This may be contrasted with ss 98 and 208, which provide that certain notices are not invalid only because of a formal defect or irregularity unless they cause or are likely to cause substantial injustice.
334 The applicant relies on s 267 which states, relevantly, that, "nothing in this Act is to be construed as… conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings". The submission is that the provision prevents the respondents from relying on a direction under s 85(1) as a defence in the present proceeding.
335 The applicant submits that the existence of an immunity under s 66 expressly contemplates that a HSR has engaged in an act or omission or conduct (whether it is beyond their authority or for other reasons) and may be exposed to suit. The existence of the immunity is said to point to an intention to grant an immunity to the person in preference to conferring validity to an invalid decision.
336 The applicant submits that the Employees were not relieved of their legal obligation to attend the site and perform work consistent with Broad's construction program, irrespective of any subjective belief to the contrary and irrespective of whether they were following the purported Directions.
337 The respondents contend that the applicant's argument that it is not mandatory for a worker to comply with a direction made pursuant to s 85 of the WHSQ Act should be rejected. They submit that the use of the words direct and cease in s 85(1) connote that the statutory direction is not optional.
338 The respondents submit that the consultation provisions of s 85 strongly suggest that once a direction is issued it will be acted upon. Further, the absence of any provision requiring consultation between the PCBU and the workers suggests that it is only the HSR's decision which is operative.
339 The respondents submit that the context provided by the other provisions in the WHSQ Act is against the applicant's construction. If the scheme were that an employee who received a s 85 direction would then decide whether or not to stop work, they would be doing no more than exercising the right conferred under s 84. The direction would be no more than a recommendation from the HSR.
340 The respondents submit that s 85(5) would serve no purpose if there were still a decision to be made by workers after the HSR has given a direction. They submit that the word "if" in the heading to s 86 and the body of ss 87 and 88 does not indicate that the provisions apply only if a worker chooses to cease work. They observe that s 87 refers to the capacity of a PCBU to "direct" the employee to perform alternative work and note that, on the applicant's construction, compliance with such a direction from the employer would also be voluntary.
341 The respondents submit that the applicant's contention that any of the alleged non-compliance with either the requirements for the election of a HSR or the power to issue a direction pursuant to s 85 results in no direction being given at law should not be accepted. They rely on Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]. They submit that the effects on innocent third parties are important and, in many cases, the individual workers who receive the s 85 direction would be unaware of any non-compliance.
342 The respondents submit that the purpose of the WHSQ Act is to protect workers at work and an important mechanism for that protection is that a HSR can issue directions that work is to stop because it is unsafe. The applicant's construction, that any noncompliance with s 85 renders the direction invalid, would result in a situation where workers would be faced with a situation where they were given a purportedly valid HSR direction, but that complying with that direction might leave them exposed to liability at some later point because of some matter that they could not possibly know of. If that were the case, it is difficult to see in what circumstances a worker would ever comply with a HSR direction. That construction would undermine the statutory scheme and should not be adopted.
343 I will begin by considering the applicant's submission that as matter of construction of s 85(1), workers are under no obligation to comply with a direction given by a HSR to cease work, even where the direction is valid. If that submission is correct, then notwithstanding the Directions, the Employees remained under a legal obligation to work (unless they made an independent decision to cease work under s 84, a case that has not been directly pleaded), and they will have engaged in "industrial action" within s 7(1) of the BCI Act.
344 Section 85(1) of the WHSQ Act provides:
A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.
345 It is true that there is no express obligation on a worker to comply with a direction given by a HSR under s 85(1). However, the existence of such an obligation is implied from the language and context of the provision.
346 Section 85(1) allows a HSR to "direct a worker…to cease work". The verb "direct" is defined in Macquarie Dictionary in various ways. In this context, the relevant definitions are, "2. to give authoritative instructions to: I directed him to do it. 3. to command; order or ordain: I directed that he do it.".
347 Another definition of "direct" given in the Macquarie Dictionary is, "1. to guide with advice…". However, that cannot be the meaning of the word in s 85(1) when regard is had to the immediate and broader context.
348 In considering context, it is helpful to bear in mind the observations of the Full Court in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470, at [15]:
…[N]otwithstanding the closely regulated environment of industrial and employment legislation, provisions as to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament practically and with an eye to commonsense so that they can be implemented in a clear way on a day-to-day basis at work sites. The legislation needs to work in a practical way at the work site, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site.
349 Those observations are apt in the present case.
350 Division 6 of Part 5 of the WHSQ Act provides for the protection of the health and safety of workers in circumstances involving a degree of urgency, while balancing the interests of PCBUs in not having work unduly or unnecessarily disrupted. It does so by conferring authorisation upon workers under s 84 to cease work, and a power under s 85 upon HSRs to direct workers to cease work, where the specified conditions are satisfied. Under s 50, the role of a HSR is to "represent workers who carry out work for the business or undertaking". The role carries substantial responsibility and confers substantial power under ss 68, 85 and 90 of the WHSQ Act. That is recognised by detailed and prescriptive provisions being made for appointment and election (ss 50-67), disqualification (ss 67A-67F), training (s 72) and meetings (ss 75-79). The role of a HSR as the workers' elected and trained representative in matters affecting their health and safety is consistent with a power in the HSR to give an authoritative instruction or command to cease work when the HSR is reasonably satisfied of the urgent circumstances described in s 85(1).
351 The power under s 85(1) cannot be regarded a power to merely give advice or make a recommendation to workers to cease work. It is self-evident that anyone could give such advice or make such a recommendation. It would be unnecessary for the legislature to enact detailed and specific provisions conferring power upon a HSR to do so.
352 This view is reinforced by s 85(3). It cannot be supposed that where, "the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction", the HSR's power is to merely give advice to a worker to cease work. The power is to give an authoritative instruction or command to cease work.
353 Further, s 86 (which provides that if a worker stops under s 84, they must personally notify their employer of their decision) may be contrasted with s 85(5) (which requires that where the HSR gives a direction, the obligation to notify the PCBU falls on the HSR). Section 85(5) would serve no purpose if there were still a decision to be made by workers after the HSR has given a direction.
354 Another contextual matter is that s 87 provides that if a worker has ceased work under Division 6, a PCBU, "may direct the worker to carry out suitable alternative work". That cannot be supposed to confer a power to merely advise a worker to carry out suitable alternative work. It is ordinarily a sound rule of construction to give the same meaning to the same word appearing in different parts of a statute: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; IMM v The Queen (2016) 257 CLR 300 at [143].
355 I am unpersuaded by the applicant's contextual arguments. Under the applicant's construction, the HSR's direction would be merely advisory, and the worker would have to make their own assessment of whether the conditions specified in s 84 of the WHSQ Act are satisfied. A fundamental purpose of having a trained HSR to represent workers in matters affecting their health and safety must be to take that kind of decision-making out of the workers' hands where urgency is involved.
356 Accordingly, the HSR's power under s 85(1) of the WHSQ Act to "direct a worker…to cease work" is a power to give authoritative instructions or command that a worker cease work. That power implies a corresponding obligation on a worker to comply with the direction. If there were no such obligation on a worker, the direction would amount to a mere recommendation or advice, a construction which I have rejected.
357 I reject the applicant's submission that a worker is never required to comply with a direction - even an invalid one - given by a HSR under s 85(1).
358 It is necessary to next consider the applicant's submission that the 21 July Direction and the July/August Directions were invalid and had no legal effect, so that they could not operate to compel the Employees to cease work or to give them a legal entitlement not to work.
359 The HSRs and Mr Mattas purported to give the Directions. I have found that the conditions under s 85(1) allowing the HSRs to direct the Employees to cease work were not satisfied as they lacked any reasonable concern of exposure to a "serious risk". I have also found that, for the purposes of s 85(3), there was no risk that was so serious and immediate or imminent that it was not reasonable to consult before giving the Directions.
360 Further, I have found that Mr Mattas was not appointed as HSR for employees of Statewide, Euro Precast Vertical, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist, and was not entitled to give them any directions. None of the other HSRs purported to give these employees a direction to cease work.
361 In Project Blue Sky, the plurality held at [91]:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied: there is not even a ranking of relevant factors or categories to give guidance on the issue.
(Citations omitted.)
362 Accordingly, it is necessary to consider whether the legislative purpose of the WHSQ Act is to invalidate any direction that does not comply with the conditions set out in s 85(1) and (3) of that Act.
363 In Project Blue Sky, the plurality observed at [92]:
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition.
(Citations omitted.)
364 The plurality continued at [93]:
…A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute.
(Citations omitted.)
365 In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, Spigelman CJ observed at [40]:
The first textual indicator that is always of significance is the mode of expression of the element directly in issue. Substantial, indeed often, but not always, determinative, weight must be given to language which is in mandatory form.
366 His Honour went on to state at [42] that, "[t]he second aspect which must be taken into account, in addition to the text, is the structure of the legislative scheme", noting that, in that case, a particularly relevant consideration was the point of time in the decision-making process at which the element under consideration occurs.
367 I will first consider whether a direction is invalid and of no effect where the HSR's concern was not reasonable, or where there was no consultation, but the risk was not so serious and immediate or imminent that it was not reasonable to consult before giving the direction. I will assume, for present purposes, that Mr Mattas was validly appointed as Site-wide HSR.
368 I have explained that a direction under s 85(1) to cease work is intended to be given in circumstances of urgency to protect workers against a serious risk to their health and safety. The legislative scheme envisages there will be greater urgency when a direction is given without consultation with a PCBU under s 85(3). I have concluded that that a worker is obliged to comply with a valid direction. The obligation to comply means there is no scope for the worker to second-guess the direction. Neither is a worker required to assess the circumstances and, under s 84, make their own decision.
369 These matters inform the question of whether a direction given in circumstances where it is ultimately determined that HSR's concern was not reasonable, or that the risk was not so serious and immediate or imminent that it was not reasonable to consult before giving the direction, is invalid and of no effect. In the circumstances of urgency that s 85 of the WHSQ Act is concerned with, it cannot be intended that workers will make inquiries as to whether the conditions of the section have been satisfied. It follows that the worker will often be unaware of circumstances that may give rise to non-existence of the conditions under s 85(1) and (3).
370 If a direction is invalid and of no legal effect because a condition under s 85(1) or (3) does not exist, an employee will have ceased work without authority to do so. The worker may be liable to civil action for, inter alia, a breach of s 46 of the BCI Act and breach of contract despite being bound to follow a direction that they have no control over: see also Rookes v Barnard [1963] 1 QB 623 at 682-3; [1962] 2 All ER 579 at 600; Australasian Meat Industry Employees Union v Australian Meat Holdings (1999) 93 IR 308 at [102]; Irving M, The Contract of Employment (2nd ed, LexisNexis Butterworths, 2019) at pp 498-499.
371 An anomaly would arise that the HSR giving the direction may be protected under s 66, but no corresponding protection would extend to a worker who merely complied with the direction. The serious injustice that could be caused to workers is a factor that tells against construing s 85(1) and (3) as rendering a direction invalid and of no legal effect in such circumstances: see Montreal Street Railway Company v Normandin [1917] AC 170 at 175; Accident Compensation Commission v Murphy [1988] VR 444 at 449.
372 The applicant relies on Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167 which is said to involve "a materially identical issue". In that matter, workers had been given a direction to cease work in accordance with the Victorian equivalent to s 85 of the WHSQ Act. A submission considered by Jessup J was that the Fair Work Act 2009 (Cth) evinced an intention to "vacate the field" on matters of occupational health and safety and that nothing done by the employees in compliance with directions given by their HSRs under s 74 of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act) could be treated as "industrial action" within the meaning of the FW Act. This required his Honour to first determine whether directions had been given under s 74 which produced the result that the employees refused to work. His Honour found that while the workers had complied with a HSR's direction, there had been no immediate threat to the health or safety of any person. His Honour held at [124] the, "cease-work direction on 27 March 2014 was not made under s 74 of the OHS Act".
373 The Australian Paper Case was not concerned with a question of the kind involved in this case, namely whether a direction under the particular legislative scheme under consideration is invalid and of no effect because a condition for it to be given is not satisfied, or whether employees are nevertheless required to comply. I do not consider that the case assists in my determination of the present issue.
374 In my opinion, the legislative purpose of the WHSQ Act is not to invalidate a direction on the basis that a HSR's concern was not a reasonable one, or that there was no consultation in circumstances where a risk was not so serious and immediate or imminent that it was not reasonable to consult. It is unnecessary to consider the position where workers know, or ought to know, that the conditions of s 85(1) or (3) have not been met. The applicant has not made any such allegation.
375 I will turn to consider the issue of whether a direction given by someone who has not been validly appointed as HSR is invalid and ineffective.
376 In the present case, Mr Mattas was not validly appointed as HSR for the employees of Statewide, Euro Precast Vertical, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist, because there was no negotiation and agreement with those employers. Despite that, Mr Mattas purported to give those employees a direction to cease work.
377 Mr Mattas gave unchallenged evidence that "a ballot of all the workers on the site on the day of the election" was conducted and he was elected as "Site HSR". Since Mr Mattas' evidence is that he represented all the Employees at the Project, he implies that employees of Statewide, Euro Precast Vertical, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist participated in his election. Mr Mattas was treated by Broad as the site HSR and they listed him, for the purposes of complying with s 74 of the WHSQ Act, as the site HSR.
378 Section 85(1) of the WHSQ Act provides that, "a health and safety representative may direct a worker who is in a work group represented by the representative to cease work". The provision proceeds on the assumption that the HSR has been validly appointed as the representative for that work group under Part 5, Division 3. If a person has not been validly appointed as the HSR for a work group, the person is not authorised to direct that a worker in that work group cease work.
379 An exercise of the power conferred in a HSR under s 85(1) may cause significant adverse consequences for a PCBU. Section 55(2) and 56(1) require that the PCBU has been given the opportunity to negotiate and agree to, relevantly, the number and composition of work groups to be represented and the businesses or undertakings to which the work groups will apply. The language of s 55(2) ("are to be determined") is in mandatory form. In this way, a PCBU is given the opportunity to agree or disagree with its workers forming part of a work group covering multiple PCBUs. These provisions recognise the fundamental importance of negotiation and agreement with a PCBU before a work group can be determined. Where a PCBU has not been notified and given the opportunity to negotiate and agree to its workers forming part of a work group covering multiple businesses, the work group cannot have been validly determined.
380 Section 62(1) provides that a HSR "for a work group is to be elected by members of that work group". If there has been no valid determination of a work group covering multiple businesses, there cannot be any valid election of a HSR for such a work group. The valid election of a HSR falls within the description in Project Blue Sky at [92] of, "acts done in breach of an essential preliminary to the exercise of a statutory power or authority".
381 Section 85(1) confers substantial power upon a HSR for a work group. The WHSQ Act carefully and methodically prescribes requirements for the determination of a work group represented by a HSR. In my opinion, the legislative intention is that where a work group has not been validly determined under s 55(1) and a HSR has not been validly elected under s 62(1) because a relevant PCBU has not been given the opportunity to negotiate and agree the particulars, a direction given by the purported HSR to the workers of that PCBU is invalid and of no legal effect.
382 I have referred to the potentially adverse consequences for a worker if a direction under s 85(1) is to be regarded as invalid and of no legal effect. I recognise that such a construction would create unfairness for workers who cannot be expected to be unaware of defects in the process leading to the election of a HSR for a work group. In this case, for example, it can be accepted that the employees of Statewide, Euro Precast Vertical, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist were unaware that Mr Mattas was not validly elected as the Site-wide HSR. Nevertheless, to exclude a PCBU from negotiations and to deprive it of the opportunity to disagree with the formation of the proposed work group is so fundamental to the election of a HSR that a subsequent direction under s 85(1) by the purported HSR cannot be regarded as effectual.
383 The Directions given by Mr Mattas to the employees of Statewide, Euro Precast Vertical, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist were invalid and of no effect. Those purported directions did not require or entitle those Employees to cease work.
384 Mr Kirkwood's evidence demonstrates that the following Subcontractors' employees attended the site on the specified days, but did not work:
Statewide: 21 (13 employees), 22 (7 employees), 27 (3 employees), 28 (1 employee) and 29 (1 employee) July 2020.
Euro Precast Vertical: 21 (5 employees) and 27 (4 employees) July 2020.
Liebherr Cranes: 21 (5 employees), 22 (6 employees), 27 (6 employees), 28 (6 employees), 29 (6 employees), 30 (6 employees), 31 (6 employees) July and 3 (6 employees), 4 (6 employees) August 2020.
Priest & Co: 21 (2 employees) and 22 (2 employees) July 2020.
Ministaff: 21 (1 employee) and 22 (1 employee) July 2020.
Auscoast Fire: 21 (2 employees) and 22 (2 employees) July 2020.
Venmist: 21 (2 employees), 22 (1 employee), 27 (1 employee), 28 (2 employees), 29 (2 employees) and 30 (1 employee) July 2020.
385 I find that Mr Mattas gave the respective employees of those Subcontractors directions to cease work on each of these dates but that the directions were ineffective to authorise the employees to cease work. I find that these employees engaged in "industrial action" on the dates indicated.