100421749

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES JOSEPH LEE, DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION

CLAIMANT

 -v-

 HANSSEN PTY LTD

RESPONDENT

CORAM MAGISTRATE RH BURTON IM

DATE  WEDNESDAY, 10 MARCH 2004

FILE NO M 126 OF 2003

CITATION NO. 2004 WAIRC 10868

_______________________________________________________________________________ 

Representation

Claimant Mr RJ Andretich (of Counsel) and with him Mr J Lee on behalf of the Claimant.

Respondent  Mr AD Lucev (of Counsel) and with him Ms K Primrose (of Counsel) on behalf of the Respondent.

_______________________________________________________________________________

Reasons for Decision

The Claim

1         This is an application pursuant to section 83E of the Industrial Relations Act 1979 (the Act) alleging a contravention of a civil penalty provision.  The application alleges a breach of section 49M(1) of the Act in that on 30 June 2003 the Respondent refused to permit accredited union officials, namely Michael Buchan and Joseph McDonald, entry to a site where construction work was being carried out at 78 Terrace Road, Perth of which the Respondent was the occupier.

2         The claim for entry was made during working hours in relation; it is alleged, to occupational health and safety matters where employees, who were employed by Australian Piling Co and who could have been members of the officials’ union, were working.  The relevant union was The Construction, Forestry, Mining and Energy Union of Workers (the CFMEU).  The claim for entry was made by the officials to a representative of the site management.  There had been a notice issued stopping work on the site because of the muddy, wet conditions at the rear of the site.  There were security guards on the site behind closed gates who refused the officials entry.

3         Gerardus Peter Hanssen, the sole director and shareholder of the Respondent, attended later and also did not permit the union officials entry.  Subsequently a Mr Ric Rimington, a representative of the development company, attended and, after discussions, the officials and other persons were let onto the site.

The Law

4         Section 83E of the Act relevantly provides:

83E.Contravention of a civil penalty provision

(1)  If a person contravenes a civil penalty provision, an industrial magistrate’s court may make an order imposing a penalty on the person, not exceeding —

  (a) in the case of an employer, organisation or association, $5 000; and

  (b) in any other case, $1 000.

(2) Subject to subsection (3), if a person contravenes a civil penalty provision an industrial magistrate’s court may, instead of or in addition to making an order under subsection (1), make an order against the person for the purpose of preventing any further contravention of that provision.

(3)  …

(4) An order under subsection (2) —

  (a) may be subject to any terms and conditions the court thinks appropriate; and

  (b) may be revoked at any time.

(5) An interim order may be made under subsection (2) pending final determination of an application under this section.

(6) An application for an order under this section may be made by —

  (a) a person directly affected by the contravention or, if that person is a represented person, his or her representative;

  (b) an organisation or association of which a person who comes within paragraph (a) is a member;

  (c) the Registrar or a Deputy Registrar; or

  (d) an Industrial Inspector.

(7) An application under subsection (6) must be made in accordance with regulations made by the Governor.

(8) The standard of proof to be applied in determining whether there has been a contravention of a civil penalty provision is the standard observed in civil proceedings.

(9) A person must comply with an order made against him or her under subsection (2).

  Penalty: $5 000 and a daily penalty of $500.

(10)Where, on an application under subsection (6), the industrial magistrate’s court does not make an order under subsection (1) or (2), the court may, by order, dismiss the application.

(11)An order under subsection (1), (2) or (10) may be made in any case with or without costs, but in no case shall any costs be given against the Registrar, the Deputy Registrar, or an Industrial Inspector.

(12)In proceedings under this section costs shall not be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the industrial magistrate’s court, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.

5         Section 49M of the Act is in the following terms:

49M.Conduct giving rise to civil penalties

(1) The occupier of premises must not refuse, or intentionally and unduly delay, entry to the premises by a person entitled to enter the premises under section 49H or 49I.

(2) A person must not intentionally and unduly hinder or obstruct an authorised representative in the exercise of the powers conferred by this Division.

(3) A person must not purport to exercise the powers of an authorised representative under this Division if the person is not the holder of a current authority issued by the Registrar under this Division.

The Evidence

Darryl Tancred

6         Darryl John Tancred, a WorkSafe Inspector, gave evidence.  He said that he had been to the site on 10 June 2003 in relation to safety concerns.  A number of notices were issued relating to safety and on 11 June 2003 he returned to the site and issued further notices, in particular for a breach of regulation 3.6 of the Occupational Safety and Health Regulations 1996. The basis for the issuing of a notice is that the Inspector was of the opinion that there was a risk of imminent and serious injury.  The notices prevented work but, needless to say, permitted remedial work.  Mr Tancred said that it was really an honour system for rectification.

7         He said he returned to the site on 25 June 2003 having received a complaint which had been passed on to him by the Chief Inspector, who asked him to attend the site as soon as possible.  He said that there had been some attempt to fix the problems and that there was evidence that trucks had been used.  He said Mr Hanssen later made an application for some modifications to the notices.

Michael Buchan

8         Michael John Buchan gave evidence.  He said he was a union organiser with the CFMEU and worked in the health and safety areas and was qualified to assess site risks.  He held a permit to let him enter construction sites.  He said he had been to the site in early June and had seen the conditions. He had complained to WorkSafe as there was construction work going on there and the conditions could injure someone.  He had been to the site a number of times in June a had spoken to Mr Hanssen about the matter.  There was a prohibition notice in effect applying to the rear of the site.

9         He said he was at the site on 30 June 2003 when Mr McDonald arrived.  He had gone to the site to see if the notices had been complied with.  He arrived about 6.45 am but work did not start until 7.00 am.  The gates were shut and there were security guards in front of them. There is a footpath in front of the gates.  There were men from the Australian Piling Co working there.  He said he had identified himself as a union official.  He said the men knew him and he was wearing a shirt with a union logo on it.  He was told he could not get access to the site.  He tried to phone someone.  He was told by Rod, the site supervisor, that if he wished to get access he would have to contact Mr Hanssen.  Later he was told that Mr Hanssen was on his way down.  Men working for the piling contractor came out onto the footpath at one stage.  There were union men on the site working for Australian Piling Co.  Work started at 7.00 am and at least by 7.30 am there was work being carried out.

10     He went and had a coffee and returned at 8.00 am when he saw Mr Hanssen present.  Mr Hanssen said he could not go onto the site.  He said that if he went onto the site it would cost him $7,000.00 for each official.  He testified that he told Mr Hanssen of the problems at the back of the site.

11     Later Ric Rimington, a senior representative of the company developing the site, arrived and there were various conversations including some between Mr Rimington and Mr Hanssen.  The officials were subsequently let onto the site.  They included an Inspector called Lee and a lawyer named Kucera, who worked for the union, as well as Mr McDonald.  He thought it was about 8.30 am - 9.00 am that that occurred.  Some remedial work had been done.  Rod said he would attend to the rest of the problems.

12     Mr Buchan said he had been allowed access before and after 30 June 2003.  In fact he re-attended the site in July.

13     Photographs of the site were tendered through Mr Buchan.

Timothy Kucera

14     Timothy Robert Kucera gave evidence.  He said he was a union employed lawyer with an entry permit. He attended the site at about 7.45 am.  He said the gates were locked and there were security guards behind them.  Messrs McDonald and Buchan were on the footpath, work was going on and there were members of the union on the site. Mr Hanssen came out through the gates.  He at first said he would allow Kucera to go onto the site as he was a lawyer; but then refused when he found out he had a permit and was employed by the union.

15     Mr Hanssen mentioned the $7,000.00 proposition referred to above.  He stated no union organisers were going to come onto the site.  Mr Kucera said all three of them had a right to go onto the site for safety reasons and Mr Hanssen responded that they would have to first pay $7,000.00 each.

16     He said they went and had a coffee and returned and were let onto the site after discussions between Mr Rimington and Mr Hanssen.

17     He said in cross-examination that he did not know if he had the consent of the occupier before he finally went onto the site.  He said that they all got onto the site after 8.00 am.

18     It was not unusual to have a discussion to resolve the problem of site access.  There was a security guard locking and unlocking the gates.  He had visited the site since

Joseph McDonald

19     Joseph McDonald gave evidence that he was the Assistant Secretary of the CFMEU and was an authorised person under section 49 of the Act.  He held a permit enabling entry onto the site.  He said that he knew Mr Hanssen and had previously been to the construction site.  On 30 June 2003 he went to the site again having been there four or five days before in relation to safety matters.  He was there at 6.45 am.  Work usually began at 7.00 am.  He said people were getting ready to work.  Mr Buchan was also there.  The gates were locked and there were security guards on the gates.  He said he wanted to go onto the site for union business concerning problems with the job at the back of the site.  He said that he had a right of entry.  He identified himself.  The reply was that there were instructions not to let unions onto the site.  He in turn told them they were breaking the law.  He was pushed back out the gate.  He requested that Rod be called.  Rod then went out and Mr McDonald repeated himself.  In response Rod said that Gerry (Hanssen) had instructed that no unions be allowed onto the job and further that Gerry had to be told if officials came to the site.  Further, union officials were to be told that Gerry was on his way down to the gates.  Mr McDonald said there were union members at the site.  The gates were locked and unlocked as workers came and they were subsequently left open.  As he had been there previously he knew there was a piling crew working at the back of the site where the problems were.

20     Upon arrival at about 7.30 am Mr Hanssen told him he was not going to let them on the site as there had been difficulties.  He told Mr Hanssen that he wanted to see the back of the site.  There was discussion about the payment of $7,000.00 to get in and things got a bit heated.  Mr Rimington arranged for them to get onto the job.  The foreman said that he would set the site right.  He said he eventually got onto the site between 9.00 am and 10.00 am.

21     In cross-examination, he denied he was told by those on the gate that they had to get instructions.  One went to get the project manager.  The foreman said he was waiting for Mr Hanssen to come onto the site and he would decide.  Mr Hanssen never asked for a reason as to why they wanted to go onto the site.  He said that Mr Hanssen said he had the security guards there to keep the unions off the site.  He also conceded that sometimes lawyers are involved in site entry issues.

Joseph Lee

22     Joseph Paul Lee gave evidence.  He said he was the senior investigating officer with the Building Industry Inspectorate.  After a call on the telephone he arrived at the site at 9.00 am.  Mr Hanssen was out the front with the others.  There was a chain on the gates and security guards were inside.  Mr Hanssen said he was not prepared to let union organisers onto the site.  Mr Lee advised him of section 49M of the Act.  He was let in after Mr Rimington arrived and following discussions.  They were subsequently let in sometime between 9.35 am and 9.40 am.

23     Mr Lee telephoned Mr Hanssen on 10 July 2003 to see if he would agree to an interview concerning what had occurred.  Mr Hanssen agreed and the interview took place on 11 July 2003.  I will not refer to evidence of what was said at interview because I have ruled that what transpired at that interview was inadmissible.  I decided the criminal investigation rules as to confessions and admissions apply to an application to enforce a civil penalty.  I found that the interview was unfair.  I also decided that Mr Lee could only interview a person found on a construction site.  I published reasons for that decision on 22 January 2004.

24     During the course of Mr Lee’s evidence a letter dated 28 June 2003 (exhibit H) from the Respondent to Kevin Reynolds, the Secretary of the CFMEU, was tendered.  The letter stated inter alia that because of difficulties at the site security guards had been hired to stop organisers going onto the site.  If someone wished to visit the site they were required to make a personal appointment with Mr Hanssen and outline their reasons for the visit.

25     Mr Lee said that in August of the previous year Mr Hanssen had been told of the new provisions in the Act relating to the right of entry and had been given some written material about that.  Mr Lee told Mr Hanssen that the officials had a legitimate right of entry and Mr Hanssen refused to permit them onto the site.

26     In cross-examination Mr Lee said Mr Hanssen was standing nearby when the officials were let onto the site. Mr Hanssen was the sole occupier.  Mr Hanssen was concerned about the legislation. He said that he had had no direction by the Minister in relation to the site.  Mr Hanssen did not say, on that day, that if they had legitimate reasons they could come onto the site.

27     The Respondent elected not to call evidence.

Elements of the Contravention

28     I set out the elements of the contravention that need to be proved on the balance of probabilities:

1.  The “occupier” or person in charge of the premises, being 78 Terrace Road, Perth (section 49L).

3.  Relevant employees, that is, members of or persons eligible to be members of the organisation mentioned above, were working on the site (sections 49G and 49M(1)).

4.  The persons entitled to enter were refused entry to the premises (section 49M).

5.  The purported refusal occurred during working hours (section 49I(1)).

6.  The persons refused entry were authorised person who had a current authority from the Registrar to represent an organisation called The Construction, Forestry, Mining and Energy Union of Workers (section 49G).

7.  The persons refused entry were requested to show their authority (section 49L)

8.  The persons refused entry had sought entry to investigated a breach of the Occupational Safety and Health Act 1984 (section 49I(1)0.

29     Each element of the contravention must be proved.

30     I decide that, as the right of entry provisions take away an occupier’s rights and bestow rights on union officials who would otherwise be unable to go onto building sites, that the provisions should be interpreted strictly according to the applicable standard of proof being on the balance of probabilities.

Conclusions of Fact

31     I find that both Mr McDonald and Mr Buchan were at the site about 6.45 am and that work had started at 7.00 am.  They eventually entered onto the site about 9.35 am to 9.40 am.  I find that a safety notice had been issued.  I further find that Mr Buchan and Mr McDonald had the required permits.  I decide that the gates were locked and that there were security guards attending them.  I also find that there were men on the site who could be members of the relevant union.

32     I accept that the two officials were not initially allowed to enter the site.  They were permitted onto the site only after Mr Rimington had discussions with others, including Mr Hanssen.  I find that there is often discussion concerning letting union officials onto sites.  I am satisfied that Mr Hanssen said they could go onto the site if they paid $7,000.00.

33     I find that at all material times the Respondent was the occupier.

Submissions and Conclusions of Law

34     I now deal with the submissions made to the Court.  Mr Andretich commenced and Mr Lucev followed, however, I allowed a right of reply given that I was concerned that all the matters properly raised should be addressed.

Claimant’s Submissions

35     I deal firstly with the Claimant’s submissions.

36     It was submitted that the two men had a right of entry for suspected breaches of the Occupational Safety and Health Act 1984.  The Respondent was the occupier and construction work was being undertaken.  The two men were refused entry whilst there were members of the CFMEU on the site.

37     The two men were investigating to see if the Respondent was complying with the prohibition and improvement notices.  It is submitted, and I so find, that the union has a role to play in policing the Act.  It was a bona fide attempt, says the Claimant, to make sure men would not be required to work in areas contrary to the prohibition notices.  I find such to be the case.  The notices required work to be done to improve the worksite as there was a risk of imminent and serious injury to a person.  The possibility of an offence is sufficient, as it is only an offence if a Court so holds.  Such an example could be one of failing to provide a safe place of work.

38     Work started at 7.00 am and the two men were blocked from entry by the security guards.  Mr Hanssen also said they could not come onto the site or only if they each paid $7,000.00.  The fact that union officials had been disruptive in the past I find to be irrelevant.  Mr Rimington was the relevant officer of Finbar, the developer, who had contracted with the Respondent to do the construction.  I find I have no evidence that Finbar was the occupier.

39     What we have here, says the Claimant, is a continuing refusal.  I should take into account that a delay could allow a site to be cleaned up.  The case before me could be either refusal or delay as a composite contravention.  I have been asked to amend the charge if I find that there has been mere undue delay.

40     The Claimant referred to a number of authorities to support its case.  They included Reg v Honan [1971] 1 NSWLR 697, a breath test case where there was an initial refusal and later a test.  It was held in that matter that there had been a refusal.  A delay would affect the alcohol concentration in the blood.  In Ansett Transport Industries v AFAP (1991) 30 FCR 183 the issue involved an application to inspect documents.  The employer did not respond immediately and said it would consider the application.  No answer was given on that day and the Court decided that that amounted to hindering.  In CMEWU(WA) v R & Y Byl Nominees P/L [1989] 30 IR 263, a case of a refusal to make records available, it was held that the nature of the alleged breaches did not have to be specified.

41     In AFMEPKIU v Transfield Services (Australia) Pty Ltd and Another (2003) 83 WAIG 376, a decision of Mr Commissioner Kenner, he decided that the subject provisions of the Act were a code. He decided entrants did not have to comply with the employer’s drug and alcohol policy.

42     In this matter I find that the evidence does not disclose an entry for an ulterior purpose.  In any event in Victorian Association of Forest Industries v CFMEU Print No PR 939097, 9 October 2003, Lawler VP, Lacy SDP, Richards C it was held that the employer was not entitled to know of the suspected breaches.  Further in Australian Liquor, Hospitality and Miscellaneous Workers Union v Olten Pty Ltd 80 WAIG 4383 it was held that no written authority was needed for entry nor was it necessary to advise the occupier of the breach.

43     I find that delay occurred between 7.00 am and 9.35 am and such constitutes too long a delay and can be characterised as an undue delay.

44     I decide that a conditional refusal such as “you can get on the site if you pay $7,000.00” is a refusal.

Respondent’s Submissions

45     I now address Mr Lucev’s submissions.  Mr. Lucev referred to Queensland Bacon Pty Ltd v Rees (1965-1966) 115 CLR 266 at 303; George v Rockett (1990) 93 ALR 483 at 490-491 and Fisher v McGee [1947] VLR 324 at 327-329 for the Court’s assistance.

46     He submitted that there was a difference between a suspected breach of the Act and knowledge of a breach of the Act.  I find that there is a difference between suspicion, belief and knowledge.  I find that the two men had knowledge of facts that could amount to a belief or knowledge of a breach of the Act in that the notices had not been complied with.

47     I find that the two men knew of a breach of the Occupational Safety and Health Act 1984. I find that the two officials wanted to enter the site to see if the notices had been complied with.  They wanted to see the work carried out under the notices.  That poses the question “Is that a suspected breach of the Act?”

48     In re Storemen and Packers, Wholesale Drug Stores (State) and other Awards [1951] AR (NSW) 527 is authority for the proposition that there must be a bona fide suspicion of a breach of the Act.  Byl Nominees (supra) says there must be suspicion.  Further it is submitted that Parliament could have specified if belief or knowledge were proper bases.  This was a breach of a prohibition notice.  It is said that there is no evidence from the guards that they refused or prevented entry and that that was necessary (see ALHMU v Neatclean Pty Ltd 83 WAIG 3377).

49     It is argued that there was access allowed to the site after a period.  The legislation contemplates some delay.  The section does not create a composite contravention; it is one or the other, a refusal or undue delay.

50     I was asked to note that I am considering an application for the imposition of a civil penalty.  Contravention of section 49M(1) does not constitute an offence (see section 49O of the Act).

51     A number of the authorities cited are distinguishable.

52     Caswell v Hundred House JJ (1889) 53 JP 820 was a case where entry was not allowed and then was permitted.  The Ansett case (supra) is distinguishable as it was a case alleging hindering.  Master Ladies Hairdressers Association of NSW v Hairdressers & Wigmakers Employees Union [1976] IAS Current Review 293 dealt with a suspected breach. The issue here is whether there was a suspected breach on the evidence before the Court.

53     Federated Carters and Drivers’ Industrial Union of Australia v McKay [1922] 30 CLR 139 was a case of whether the suspected breach had to be declared, which is not the issue here.  The same applies to AMIEU v Victorian Valley Beef Pty Ltd (1987) 16 IR 259.  The Byl Nominees case (supra) is not relevant.

54     Honan (supra) is not relevant as in the case before the Court there can be delay.  AFMEPKIU v Transfield (the decision of Commissioner Kenner)(supra) was an application to insert a clause in an award.  Olten (supra) was a case on different legislation.

55     It was further argued that there was no work going on that could have altered the site; only remedial work.

Reply

56     Mr Andretich replied that the section applies to belief or knowledge as well as suspicion.  Mr McDonald had been on the site before.

Determination

57     I now deal with the arguments raised.

58     Firstly, I say that I have been unable to find any relevant case where there has been a refusal followed by a later permission to enter.  I decide that the charge does not require amendment as a delay of this length amounts to a refusal to permit entry.

59     I decide that Mr Lucev’s argument that there must only be suspicion is not well founded and there is a right of entry where there is a belief or even knowledge of an offence. The Act has used suspicion as a minimum requirement.

60     The evidence before me is that the two men wished to enter the premises to see if the notices had been complied with.  Mr Lucev argues that that is not the same as an investigation of a breach of the Occupational Safety and Health Act 1984.  I decide that is too fine a distinction to draw and that the attendance relating to those notices is sufficient to be regarded as an investigation under the Act.  I also decide that evidence from the guards would have had to have been led if the Claimant had only relied on that evidence.  Here I have other evidence.

61     Relevant to delay being a refusal is the case of Keen Bros. Pty. Ltd. v Young (1983) 33 S.A.S.R. 481 a decision of the South Australian Full Court sitting In Banco. It related to the inspection by an inspector of potato marketing records where the person at the appellant’s office wished to clear the request for inspection with the Managing Director. At page 486 Wells J. says “To defer compliance with a request is not, of itself, a refusal. To defer for an unreasonable time may amount to a refusal. The matter becomes one of fact and degree”.  At page 488 he states “refusal” means “a final refusal made after reasonable enquiries”.

62     Also relevantly applied is Michaels v R [1995] 69 ALJR 686, a decision of the High Court of Australia, where it was decided that “without undue delay” meant, “as soon as practicable”.  That, in my view, would only go so far as to probably allow the person on site to inform his boss.

63     I also find that Finbar, the developer, was not the occupier of the site, in any relevant sense, as I have no evidence of that.  In any event that was not particularised.

64     I decide that the contravention created by the section is not a composite contravention.

65     I find that the claim has been made out.

RH Burton

Industrial Magistrate