Pine v Doyle

REASONS FOR JUDGMENT 1 The applicant, who is an inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996 (Cth) ('the Act'), has applied for an order pursuant to s 285F(2) of the Act imposing a penalty on the respondent for contravening s 285E(1) of the Act. Under that sub-section, a person exercising powers under s 285C to enter an employer's premises 'must not intentionally hinder or obstruct any employer or employee'. 2 The respondent is an organiser for the Construction, Forestry, Mining and Energy Union ('CFMEU') and is the holder of a permit issued under s 285A of the Act, which entitles him to exercise the power of entry under s 285C. On 18 February 2004, the respondent entered a construction site at 173-175 High Street, Prahran ('the site') of Villex High Street Pty Ltd ('the builder'). At the time of the entry, the site was being supervised by Lyndon Arnel ('Arnel'), the operations manager of Villex Constructions Pty Ltd ('Villex'). The builder had engaged a number of subcontractors to work on the site, including Urban Wall Pty Ltd ('Urban Wall'). The builder was not a party to any industrial agreements with the CFMEU in relation to the work being carried out at the site. However, Urban Ritek Pty Ltd (which is now Urban Wall) and the CFMEU had entered into a certified agreement under the Act ('the certified agreement'), cl 33 of which conferred a right of entry on accredited union officials to any premises at which Urban Wall is undertaking work. The right of entry was able to be exercised for the purpose, inter alia, of checking 'safety conditions', which would include the Workplace safety standards agreed to in cl 11 of the certified agreement. 3 Between 29 January 2004 and 18 February 2004, the respondent had visited and inspected the site on several occasions and informed Arnel that there were a number of safety issues which were required to be addressed. The builder and Arnel raised queries concerning the respondent's right to enter the site. Notwithstanding the queries, on 18 February 2004, the respondent visited and inspected the site with Andrew Gude ('Gude'), who was a CFMEU member who had been elected as the Occupational Health and Safety representative of Urban Wall's employees at the site. That site visit was described by the respondent as a 'follow-up safety inspection'. 4 The evidence relied upon by the applicant as constituting the contravention of s 285E(1) was set out in pars [101]-[109] of Arnel's first affidavit: '101. I was on the Site on Wednesday 18 February 2004. There were electricians working on the second level that day and work was also being done on some handrails. I was expecting Mr Doyle to arrive at the Site at some time. At about 2.10pm, after the lunch break, I was standing in the undercover carpark area when I saw Mr Doyle come on to the Site through the rear access. At that time I was on my mobile phone arranging for sub-contractors to come on the Site the next day. I stopped making the call when I saw Mr Doyle come on to the Site. Andrew Gude was sitting in the carpark area at this time several metres away from me having a cigarette. 102. As Mr Doyle was walking towards me, I said "Do you have a right of entry permit?" Mr Doyle said "Yes" as he continued to walk towards me with his hands in his pockets. He walked up very close to me, so close that I had to take steps backwards to avoid him making contact with me. He stopped just short of making contact with me, stepped back and he reached into a pocket and pulled out a card and held it up in front of my eyes for a brief moment. I said I did not see it properly and he then gave it to me to look at. I looked at it. It looked like an A4 letter of some type that had been reduced to credit card size. While I was looking at it Mr Doyle asked to have a look around. I said "No. You can talk to your members off Site. I'll get them for you." 103. Whilst I was still examining the document he had given me, Mr Doyle walked past me brushing me as he did so, made his way along the walkway leading to the access stairs in the building and began walking up the stairs. I turned and followed him. As I walked after him I called to him, "You can't go there" or words to that effect. I called this out quite loudly several times as I followed him. He did not acknowledge what I said. Andrew Gude followed me. 104. At the level one stairway landing, the entry door was boarded off by a black 20mm form-ply pineboard. This boarding covered the doorway and was anchored in place by several screws drilled into the concrete frame or edges of the doorway. I saw Mr Doyle attempt to pull the boarding away from its anchor points with his hands. As he was attempting to do this I said to him, "You can't get in there, there is no access". He said words to the effect "You've got it so I can't get in there. What are you hiding?" I said, "Nothing. It's been boarded off as it's not been checked or cleared to work in there yet." I also said "You are not supposed to be on site, you are only supposed to speak to the electricians." 105. Mr Doyle then stopped trying to remove the boarding and made his way up the stairs to level two. I followed him. This is where the electricians had been working in the morning of that day moving and re-positioning temporary wiring in preparation for tradespersons to do work on that level. I was aware that the electricians had been working there and I did not know precisely what stage they had reached in doing their work. 106. There was a black 20mm form-ply pineboard covering the doorframe preventing access to the second level. It was kept in position by several tech-screws drilled through the board into the pine doorframe. On reaching the blocked doorway, Mr Doyle said, "What's going on here." I said, "You can't go in there, electricians are working in there, I don't know whether it is safe." Mr Doyle took hold of the boarding and forcefully pulled it away from its fixings. He began to walk into the second level area. As he did so I grabbed his jacket to stop him going further into that area. I was concerned about his safety. He spun around quickly and said "That's assault." I said "No, all I did was stop you from going in there because you are not allowed and it could be unsafe." 107. At this stage Andrew Gude was standing behind Mr Doyle and I had let go of Mr Doyle's jacket. Mr Doyle said to Andrew "You saw that. That's assault. Write it in your diary. You'll be my witness." He and Andrew Gude then went up the next flight of stairs to the next level. I followed them. Mr Doyle looked at the handrails on that level. He looked at the kicker boards on that level and said "The height of the kick boards is not right". Andrew and I said "It's been passed by WorkSafe." Mr Doyle said "He shouldn't do that. He doesn't know what he's talking about." After that exchange Mr Doyle went down the stairs and left the Site. As he did so he appeared to be making calls on his mobile telephone. 108. During the course of the events I have described in the previous four paragraphs, Mr Doyle asked me several times whether I had been drinking and whether I had had a drink at lunch time. I told him that I had not. I had not had any alcohol that day and at the time he made those remarks I did not know of any reason why he had chosen to make them. 109. Mr Doyle was on the site for about an hour. I was quite busy on that day and had plenty to do. His presence and conduct on the Site prevented me from carrying out the work I would have otherwise have done. After he left, I spoke to the electricians and directed them to fix the boards that Doyle had ripped off. I supervised this being done. I also called Greville and reported to him what had taken place. At the time it happened and after, I considered Mr Doyle's conduct and demeanour to be belligerent and I was unsettled by it, as well as being diverted from the work I would otherwise have done. This included calling relevant people to re-schedule a crane, get Urban back on the Site and arrange for other contractors to resume work at the Site'. 5 The applicant claims that the evidence establishes that the respondent misused his power under s 285C(1) to enter the site for an ulterior purpose, which was to use the safety issues he raised as a vehicle to coerce the builder and Villex to enter into an enterprise bargaining agreement (an 'EBA') with the CFMEU in respect of the site and to ensure that all workers on the site became CFMEU members. It is then contended that, as a result of the misuse of the statutory power, Arnel was intentionally diverted away from the tasks he would normally be undertaking in order to deal with the respondent's entry onto the site. That diversion, which is said to have been established by pars [103]-[109] of Arnel's affidavit, was claimed to constitute an intentional hindrance and obstruction of an employee (Arnel) and his employer (Villex). 6 The issues are: (a) whether the respondent was 'exercising powers' under s 285C during his visit to the site on 18 February 2004; and (b) whether the respondent intentionally hindered or obstructed Arnel and through him, Villex, during that visit. 7 It is common ground that, as the application is for the imposition of a penalty, the standard of proof is that laid down in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361‑362. It is also common ground that whether a person is obstructed or hindered is a question of fact in a particular case and that conduct, which is essentially negative in character, may in some circumstances constitute such hindrance or obstruction: see O'Reilly v The Commissioner of the State Bank of Victoria (1983) 153 CLR 1 at 49-50, cf Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 ('Curran') at 258. 8 The respondent, as the holder of a permit under s 285A of the Act, was entitled to exercise the powers set out in s 285C which, relevantly, provides: '(1) Subject to subsections (2) and (3), a person who holds a permit in force under this Division may enter premises in which: (a) work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and (b) employees who are members, or eligible to become members, of that organisation work; for the purposes of holding discussions with any of those employees who wish to participate in those discussions. (2) The person may only enter the premises during working hours and may only hold the discussions during the employees' meal-time or other breaks. (3) …' 9 Section 285B provides for similar rights of entry for the purpose of investigating suspected breaches of the Act, industrial awards, orders or agreements made under the Act. Section 285D provides: '(1) If: (a) a person proposes to enter, or is on, premises in accordance with section 285B or 285C; and (b) the occupier of the premises requires the person to show his or her permit; the person is not entitled under that section to enter or remain on the premises unless he or she shows the occupier the permit. (2) A person is only entitled to enter premises, and exercise powers, under section 285B or 285C if the person has given the occupier of the premises at least 24 hours' notice of the person's intention to do so. (3) …' 10 Section 285E, relevantly, provides: '(1) A person exercising powers under section 285B or 285C must not intentionally hinder or obstruct any employer or employee. (2) The occupier of premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 285B or 285C. (3) … (4) A person must not otherwise intentionally hinder or obstruct a person exercising powers under section 285B or 285C. To avoid doubt, a failure to agree on a place or a time as mentioned in paragraph 285B(4)(a) or (c) does not constitute hindering or obstructing a person exercising such powers'. 11 The parties were in dispute about the relevant events. However, findings need not be made about most of the disputed matters as they relate to incidental issues that do not need to be determined. I shall therefore restrict my findings, which are set out below, to the factual matters that are relevant to my determination of the application. 12 The findings are: