2026 WAIRC 00532
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00532



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
WEDNESDAY, 27 MAY 2026



DELIVERED
:
WEDNESDAY, 22 JULY 2026



FILE NO.
:
M 169 OF 2025



BETWEEN
:
ELECTRICAL TRADES UNION WA


CLAIMANT





AND

HANSSEN PTY LTD
FIRST RESPONDENT

AND





MR CRAIG SIMONDS


SECOND RESPONDENT




CatchWords : INDUSTRIAL LAW – Right of Entry under s 49I of the Industrial Relations Act 1979 (WA) – Refusal of Right of Entry – whether purpose of exercise was to investigate suspected breach – whether purpose was improper – respondents obstructed entry to premises – whether refusal contravened s 49M – contravention established
Legislation : Industrial Relations Act 1979 (WA)
Work Health and Safety Act 2020 (WA)
Cases referred
to in reasons: : Australian Liquor, Hospitality and Miscellaneous Workers Union,
Western Australian Branch v Neatclean Pty Ltd [2003] WAIRC 9563; (2003) 83 WAIG 3377
Building Industry and Special Projects Inspectorate v McDonald [2006] WAIRC 3664; (2006) 86 WAIG 326
Construction, Forestry and Maritime Employees Union v JW Land Construction [2024] FedCFamC2G 145
Construction, Forestry, Maritime, Mining and Energy Union v Hanssen Pty Ltd [2019] FCCA 1664
Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd [2017] NSWIRComm 1000
Darlaston v Parker [2010] FCA 771; (2010) 189 FCR 1
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Henderson v Queensland [2014] HCA 52; (2014) 255 CLR 1
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
McLennan v Campbell [2003] WASCA 145
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
Victorian Association of Forest Industries v Construction, Forestry, Mining & Energy Union [2003] AIRC 1260; (2003) 127 IR 349
Result : Contraventions established
Representation:
Claimant : Mr P Dean (of counsel) and with him Ms Y Abousleiman (of counsel) and Ms K Rashleigh (industrial officer)
Respondents : Mr L Swanson (of counsel) and with him Ms K Mincherton (of counsel)



REASONS FOR DECISION
1 The claimant, the Electrical Trades Union WA (ETU), is a registered organisation under s 58 of the Industrial Relations Act 1979 (WA) (IR Act). Mr Rory Cumins is an authorised representative of the ETU for the purpose of s 49I of the IR Act, that is, he is an employee of the ETU who holds a right of entry permit under the IR Act.
2 On the morning of 2 December 2025, Mr Cumins went to the entry gate of the Garden Towers construction project at the corner of Hay Street and De Vlamingh Avenue in East Perth (Garden Towers Project/Site). The first respondent, Hanssen Pty Ltd was the occupier of the Garden Towers Project.
3 Mr Cumins sought entry onto the Garden Towers Project. The second respondent, Mr Craig Simonds, was Hanssen’s site administrator for the Site and had Hanssen’s authority to control who could gain entry to the Site. He refused Mr Cumins entry.
4 The ETU commenced these proceedings alleging that in refusing Mr Cumins entry to the Garden Towers Project on 2 December 2025, Hanssen contravened s 49M(1) and s 49M(2) of the IR Act and Mr Simonds contravened s 49M(2).
5 There is a narrow scope of factual dispute between the parties. It is not disputed that Mr Cumins held a right of entry permit which permitted him to enter premises during working hours to investigate suspected breaches under s 49I of the IR Act. It is not disputed that Mr Cumins sought entry during working hours. It is not disputed that he was refused entry.
6 However, the respondents say that s 49M was not contravened because Mr Cumins was not seeking entry for a genuine or legitimate purpose. The respondents allege that Mr Cumins was motivated to seek entry for an improper and impermissible purpose, that is, to show solidarity with another union whose officials had earlier been refused entry. The respondents say Mr Cumins did not have a reasonable basis for suspecting any breach of the Work Health and Safety Act 2020 (WA) (WHS Act).
7 This case is relatively focused. The key issue for me to decide is whether, when Mr Cumins sought entry, he did so for the purpose of investigating any suspected breach of the WHS Act. More particularly, did Mr Cumins actually have the relevant suspicion? In deciding this case, it is irrelevant whether there was in fact any breach of the WHS Act. Similarly, it is unnecessary to inquire into what subjective reasons there may have been for refusing entry.
8 The parties agreed that if I decide that the respondents or either of them have contravened s 49M then they will have a further opportunity to be heard in relation to penalty based on the evidence adduced at the hearing on 27 May 2026.
Legislative Framework
9 Part II Division 2G of the IR Act is about right of entry and inspection by authorised representatives. Division 2G confers powers to enter premises for holding discussions, and for investigating various breaches of instruments, in s 49H and s 49I.
10 Relevantly, s 49I of the IR Act states:
49I. Entry to investigate certain breaches
(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of any of the following —
(a) this Act, the [Long Service Leave Act 1958] or the [Minimum Conditions of Employment Act 1993];
(b) the Work Health and Safety Act 2020;
(c) the Construction Industry Portable Paid Long Service Leave Act 1985;
(d) a local government long service leave provision;
(e) an award, order, industrial agreement or employer-employee agreement that applies to a relevant employee.
11 In s 49G the term ‘authorised representative’ is defined to mean ‘an officer or employee of the organisation who holds a right of entry permit’ and the term ‘relevant employee’ to mean ‘an employee who is a member of the organisation or who is eligible to become a member of the organisation’.
12 Section 49M imposes obligations on occupiers and others in relation to the exercise of right of entry powers:
49M. Obstructing etc. rights etc. under this Division etc.
(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 right of entry permit.
(4) A contravention of subsection (1), (2) or (3) is not an offence but those subsections are civil penalty provisions for the purposes of section 83E.
13 The process for obtaining a right of entry permit is set out in Division 2G Subdivision 3. To be issued a right of entry permit, the Western Australian Industrial Relations Commission must be satisfied that the nominated official is a ‘fit and proper person’ meeting the criteria set out in s 49P(2). The Commission may suspend or revoke right of entry permits, or impose conditions on them, on grounds including that an authorised representative has acted improperly in exercising a power under Subdivision 2. Industrial Relations Act 1979 (WA) s 49T.

14 As s 49M is described as a civil penalty provision for the purpose of s 83E, an application can be made to the Industrial Magistrates Court for the imposition of a pecuniary penalty by a person directly affected by the contravention. Industrial Relations Act 1979 (WA) s 83E(6)(a).

15 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. Industrial Relations Act 1979 (WA) s 83E(8).

Applicable Legal Principles
16 The power to enter premises under s 49I cannot be exercised unless a suspicion about a breach of a type listed in the section is actually held. It cannot be exercised for a purpose other than those purposes mentioned in s 49I. Like all statutory powers, the power must be used bona fide for the purposes for which it was conferred: Darlaston v Parker. [2010] FCA 771; (2010) 189 FCR 1 [44], citing O’Reilly v The Commissioners of the State Bank of Victoria (1982) 153 CLR 1, 48; Victorian Association of Forest Industries v Construction, Forestry, Mining & Energy Union [2003] AIRC 1260; (2003) 127 IR 349 [28]  [30].

17 To suspect that something is occurring involves having a state of mind that is different to belief or knowledge. In George v Rockett, [1990] HCA 26; (1990) 170 CLR 104, 115 referring to Hussien v Chong Fook Kam [1970] AC 942, 948.
the High Court adopted the following definition of suspicion:
Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam, ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”’
18 To have a suspicion that something exists is more than mere idle wondering whether it exists or not. It is a positive feeling of actual apprehension or mistrust: Queensland Bacon Pty Ltd v Rees. [1966] HCA 21; (1966) 115 CLR 266, 303 per Kitto J.
Suspicion ‘lives in the consciousness of uncertainty.’ It is located adjacent to ‘belief’ and a distance removed from ‘knowledge’ on a graded scale of meaning: McLennan v Campbell. [2003] WASCA 145 [11], [15].

19 The claimant must establish on the evidence that there were facts or matters that existed at the relevant time that could ground a reasonable suspicion: Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Neatclean Pty Ltd. [2003] WAIRC 9563; (2003) 83 WAIG 3377 [15].
Some factual basis for the suspicion must be shown: George v Rockett. [1990] HCA 26; (1990) 170 CLR 104, 115.

20 The respondents relied upon a decision of the New South Wales Industrial Relations Commission in Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd [2017] NSWIRComm 1000.
as support for the proposition that hearsay evidence will be insufficient to create the relevant suspicion, and that there must be a factual basis with probative value in order to find that there was a suspicion held.
21 In that case, Commissioner Murphy said at [70]  [71]:
Any contravention by a person conducting a business or undertaking of section 19 of the WHS Act is a serious matter with serious consequences. The formation of a reasonable suspicion that such a contravention has occurred, or is occurring, particularly in relation to a failure to ensure, as far as is reasonably practicable, the psychological health of workers, requires more than hearsay evidence and direct observation of workers feeling stressed, anxious and uncomfortable at work.
The exercise of right of entry by WHS entry permit holders is an important mechanism by which unions, such as the [applicant], are able to investigate suspected contraventions of the WHS Act. It is a right that should only be exercised responsibly and for its intended purposes. The health and safety of workers in the workplace, including their psychological health, especially in inherently dangerous industries such as civil construction, is an important issue. The attempted use of rights of entry on the basis of the sort of non-probative evidence relied upon by the [applicant] in this matter has the potential to undermine the very important purpose for which rights of entry exist.
22 The context in which Commissioner Murphy made these observations, and then declined to make an order permitting union officials to enter the workplace under s 117 of the Work Health and Safety Act 2011 (NSW) (WHS Act (NSW)) was:
(a) At the time the applicant union sought to exercise a right of entry, the Australian Workers’ Union (AWU) had an existing presence on the relevant construction site and the applicant and AWU were in active competition for members and representative rights for employees;
(b) The test in s 117 of the WHS Act (NSW) required that an entry permit holder ‘must reasonably suspect before entering the workplace that the contravention has occurred or is occurring’ (emphasis added);
(c) The alleged suspected contravention was a contravention of WHS Act (NSW) by the employer by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the site;
(d) The facts which the applicant relied on as the basis for the suspicion, in brief summary, were drawn from statements from members that a coworker known as Doc, had been hassling and threatening people about joining the applicant, as well as observations by the applicant’s officials of workers being reluctant to speak with them, appearing anxious about being spotted by management talking to them, and workers presenting as stressed or anxious.
23 The Commissioner concluded, at [68] and [69], that the evidence relied on by the applicant lacked sufficient probative value to form the basis of a reasonable suspicion that Acciona had contravened or was contravening the WHS Act (NSW).
24 It must be remembered that when the Commissioner describes the evidence as ‘nonprobative’, the Commissioner is describing the evidence by reference to the suspected breach by Acciona, that is, whether the evidence pointed to a failure on the part of Acciona to ensure the psychological health of workers. Obviously, the reports of members concerning what Doc had said or done is probative as to what Doc had said or done. But it said nothing of what Acciona had done, or failed to do to ensure the psychological safety of workers. That is particularly so, bearing in mind that the apparent stressful dynamics at the workplace might have been precipitated by the demarcation dispute between the applicant and the AWU, for which Acciona was not responsible.
25 I therefore consider that Commissioner Murphy’s remarks at [70]  [71] are specific to the facts of that case, rather than being a broader statement of principle.
26 An authorised representative seeking to exercise a right of entry to investigate suspected breaches is not required or obliged to identify particulars of their safety concern or the grounds on which it is held. To do so could potentially defeat the purpose for which the power exists: Darlaston v Parker. [2010] FCA 771, [55], [211]. See also Victorian Association of Forest Industries v Construction, Forestry, Mining & Energy Union [2003] AIRC 1260; (2003) 127 IR 349, 354  355.
However, an inability or unwillingness to divulge the areas of concern to be investigated may say something as to the absence of a genuine suspicion: Darlaston v Parker. [2010] FCA 771 [212].

27 An employer does not have to agree with the authorised representative that there is a suspected breach before the authorised representative is able to exercise the right of entry. The right of entry cannot be negated because of a difference of opinion as to whether or not there is a breach: Building Industry and Special Projects Inspectorate v McDonald. [2006] WAIRC 3664; (2006) 86 WAIG 326 [60].

The Evidence
28 The parties agreed the following relevant facts:
8. …
8.2. Hanssen employed persons to work at Garden Towers Project;
8.3. Persons who were employed by Hanssen to work at Garden Towers Project were eligible to become members of the ETU WA pursuant to its rules;
Facebook Post
9. On 1 December 2025, a video was posted to the Facebook page of Gerry Hanssen, Executive Director of Hanssen, (Mr Hanssen) (Video);
10. The Video was posted with the caption ‘People power prevailed, our workers wouldn’t let the CFMEU onsite’;
11. …
12. The Video shows John Morgan, a contractor of Hanssen, standing next to Mr Simonds;
Attempted Entry
13. On 2 December 2025, Mr Cumins attempted to gain access to the Garden Towers Project pursuant to s 49I of the IR Act;
14. Mr Cumins attempted to gain access during the Garden Towers Projects’ working hours;
15. At the time that Mr Cumins attempted to gain access to the Garden Towers Project:
15.1. Mr Simonds met with Mr Cumins; and
15.2. Mr Cumins showed Mr Simonds his right of entry permit. Exhibit C3 – Statement of Agreed Facts dated 22 April 2026.

Ky Sinclair’s Evidence
29 The ETU relied on a witness statement made by Ky Sinclair. Exhibit C1 – Witness Statement of Ky Sinclair dated 29 April 2026
As at December 2025, Mr Sinclair was employed by the Construction, Forestry and Maritime Employees Union (CFMEU) as an organiser. He had been an organiser for two to three years. He had held a right of entry permit under s 49N of the IR Act since May 2023, and completed training regarding his rights and responsibilities as a permit holder in May 2025. Exhibit C1 [4]  [9].

30 Mr Sinclair stated that during his employment with the CFMEU he conducted approximately four entries under s 49I of the IR Act each week, and estimates that he would have conducted over 60 entries at Hanssen’s premises. Exhibit C1 [12].

31 According to Mr Simonds’ unchallenged evidence, between 15 October 2025 and 1 December 2025, Mr Sinclair entered the Site twice on:
(a) 15 October 2025 to investigate alleged suspected safety breaches; and
(b) 6 November 2025 to meet with workers. Exhibit R1 – Witness Statement of Craig Simonds dated 6 May 2026 [23].

32 Several alleged safety breaches were documented by the CFMEU in a letter to WorkSafe following the 15 October 2025 entry. Exhibit R1, annexure CCS-1.
This letter included photographs depicting, amongst other things, trip hazards in access ways, the storage of flammables, silica dust in the amenities room, broken ladders in use (which were then taken out of use), silica dust that had been dry swept, and edge protection issues.
33 On 27 November 2025, Mr Sinclair gave Hanssen notice of his intention to exercise his right of entry to meet with workers on 1 December 2025 during a lunch break. In his evidence-in-chief, Mr Sinclair says he attended the Site ‘for the purpose of investigating safety concerns raised by members.’ Exhibit C1 [14].
However, in cross-examination he conceded that he was exercising his right of entry to hold discussions with workers pursuant to s 484 of the Fair Work Act 2009 (Cth). ts 27.

34 Mr Sinclair was refused entry on 1 December 2025. The exchange between him, the CFMEU’s industrial officer, Mr Rhys Cardinal, and Hanssen representatives was filmed. Mr Hanssen posted this video on Facebook on 1 December 2025.
35 Mr Sinclair’s unchallenged evidence was that he missed a call from Mr Cumins at 4.45 pm on 1 December 2025. Mr Cumins called him again on 2 December 2025 at approximately 9.20 am. They had a brief conversation lasting no more than five minutes. Mr Cumins informed him that he had spoken with Stephen Parker regarding safety issues at the Garden Towers Project.
36 According to Mr Sinclair, he told Mr Cumins words to the effect of ‘you are not going to have an issue locating safety breaches, you can see them from outside the site.’ Exhibit C1 [17]  [20].

37 Mr Cumins asked Mr Sinclair for further details of the issues. Mr Sinclair explained to him that:
(a) Everything is wrong: traffic management, access and egress and walkways including concrete pumps going through main walkways; housekeeping of the site was atrocious; poor and perished Personal Protective Equipment (PPE); lunchroom seating capacity; forklifts had not been serviced; and the hoists were out of date.
(b) [Mr Sinclair] was aware of these safety issues because [he] had seen them during a previous inspection [he] had conducted with [his] CFMEU colleague, Nathan Fisher. Exhibit C1 [21].

38 Mr Sinclair did not give any account in his evidence of having told Mr Cumins what power he was purporting to exercise on 1 December 2025. Mr Cumins’ evidence would be that Mr Sinclair told him he was attempting to enter the Site because the CFMEU had received safety reports. What was put to Mr Sinclair in cross-examination was different to what Mr Cumins’ evidence was. He was asked:
MR SWANSON: Why did you tell - then tell Mr Cumins the day later when he - you returned his call, he called you, that you’d sought to enter under section 49I and it was a safety issue?
MR SINCLAIR: I can’t say I told him that. ts 28.

39 In cross-examination, it was put to Mr Sinclair that by 27 November 2025, he was aware that the safety concerns he had arising from his inspection on 15 October 2025 had all been resolved. He adamantly denied that was the case. He said that each time he had attended the Site, safety issues were evident. He considered there was a culture of failing to remedy safety issues in a timely way. For example, he had observed a WorkSafe notice onsite specifying changes that needed to be made to the rigging dock or laydown area. On 15 October 2025 the notice was still up, and the rigging area was still not compliant with its requirements. ts 22  23.

40 Mr Sinclair strongly held the view that Hanssen had a lax culture around workplace safety. Exhibit C1 [13].
While he agreed that Hanssen had personal protective equipment (PPE) available to workers to minimise risks associated with silica dust, and had implemented training about silica dust harm minimisation, he said that workers were not always implementing the training or using the PPE. His evidence was that some tools were not equipped with vacuums for dry cutting. He therefore considered that silica remained a safety hazard on the Site at all relevant times. ts 30  31.

41 While it was put to Mr Sinclair in a general way that he knew all safety issues had been resolved, the respondents did not produce any evidence which tended to show that Mr Sinclair could have known that safety concerns were resolved. Indeed, the evidence falls well short of showing that any safety concerns had been resolved, other than taking broken ladders out of service and providing a service record for one of two hoists.
42 In this regard, Mr Simonds’ evidence was that he had provided Mr Sinclair with various documents which Mr Sinclair had requested on 6 November 2025. However, while the documentation Mr Simonds provided included service documentation for the west hoist, he had not provided service documentation for the east hoist as the 10-year service could not be carried out until after completion of construction. Exhibit R1 [27]  [28].
Mr Sinclair’s evidence was that the service documentation that was provided had different asset numbers to the assets he had seen on the Site. ts 31.

43 Nothing else in the respondents’ evidence demonstrated any reason for Mr Sinclair to be satisfied that the safety issues raised on 15 October 2025 had all been resolved between that date and 1 December 2025.
Stephen Parker’s Evidence
44 The ETU relied on a witness statement made by Stephen Parker. Exhibit C2 – Witness Statement of Stephen Parker dated 29 April 2026.
He is employed by the CFMEU as an organiser. He has known Mr Cumins for about six years. He said that he and Mr Cumins speak regularly on the phone about construction industry issues that affect their respective members. Exhibit C2 [1]  [3].

45 Mr Parker gave his account of a telephone call with Mr Cumins of 1 December 2025. He said he called Mr Cumins to talk about the video Mr Hannsen posted to Facebook that day. His version of the conversation is not materially different to Mr Cumins’ version detailed below, except he makes no reference to telling Mr Cumins the reasons why Mr Sinclair was seeking to access the Site. Exhibit C2 [4]  [6].

46 Mr Parker was asked in cross-examination about when he had last spoken with a worker about the Site. Mr Parker said that while he could recall speaking with the health and safety representative or delegate, he could not say when that contact was. Initially he thought it might have been two or three weeks before 1 December 2025, but he could not be sure. ts 35  36.

47 Mr Parker accepted that he had not himself been to the Site during the course of November 2025 and may not have attended the Site more recently than July 2025. When he was last on the Site he described it as ‘like a beach’ meaning that silica dust had not been adequately contained. ts 38  41.

48 While he had not himself attended the Site for some time before 1 December 2025, he had read reports that other organisers had prepared about the Site to send to Hanssen and WorkSafe, and based on those reports his concerns about safety issues remained unchanged. He believed that unless there had been whole safety system changes, he would not expect there to have been any significant reduction in health and safety risks. ts 41.

49 Mr Parker remained resolute that he knew about or was aware of safety issues on the Site, and that his reason for calling Mr Cumins was to encourage him to check on safety issues which he knew were likely to still be present on the Site. This, of course, is consistent with him encouraging Mr Cumins to contact Mr Sinclair for further details of the safety issues. ts 42.

50 Like Mr Sinclair, Mr Parker did not give an account of having explained to Mr Cumins what the CFMEU’s purpose was in seeking entry on 1 December 2025. His evidence was that he did not know why Mr Sinclair was entering the Site that day. He was not asked in crossexamination about what he did or did not tell Mr Cumins in this regard. ts 38  39.

Rory Cumins’ Evidence
51 Mr Cumins gave evidenceinchief by a witness statement, Exhibit C4 – Witness Statement of Rory Cumins dated 29 April 2026.
and was crossexamined. Mr Cumins has been an organiser for the ETU since 2022 and has held a right of entry permit under s 49N of the IR Act since 2022. He holds a Certificate IV in Work Health and Safety and in July 2025 completed right of entry permit holder training. Exhibit C4 [2]  [8].

52 Mr Cumins said that he takes his rights and responsibilities as an entry permit holder seriously. He acknowledges that noncompliance would result in him being unable to continue to exercise rights of entry and therefore unable to fulfil his duties as an organiser. Exhibit C4 [9].

53 Mr Cumins estimates he has exercised his right of entry under s 49I approximately 25 times. He had never sought to exercise a right of entry at the Garden Towers Project prior to 2 December 2025. Exhibit C4 [10].

54 Mr Cumins described the lead-up to his attendance at the Garden Towers Project on 2 December 2025. At 4.15 pm on 1 December 2025, he received a call from Mr Parker. He found Mr Parker to be credible and trustworthy.
55 Mr Parker told Mr Cumins that Mr Hanssen had posted a video on Facebook showing Mr Sinclair and Mr Cardinal being denied entry to the Garden Towers Project site. According to Mr Cumins, Mr Parker told him that:
(1) Mr Sinclair had been attempting to exercise a right of entry to investigate suspected safety breaches under s 49I of the IR Act;
(2) Mr Parker had received reports from CFMEU officials and workers on the Garden Towers Project about poor safety onsite;
(3) The reports he received concerned silica dust, which he said was everywhere, edge protection, that is, scaffolding not having kick boards to prevent things falling from the scaffolding, crib rooms being filthy and inadequate access to crib rooms.
(4) He had photos and videos of safety issues that had been reported. Exhibit C4 [13(b)]  [13(e)].

56 According to Mr Cumins, Mr Parker suggested he could contact Mr Sinclair for further details about the safety issues.
57 After speaking with Mr Parker, Mr Cumins viewed the Facebook post that Mr Parker had referred to. Exhibit C4 [12]  [15].

58 The video that was posted to Facebook was before the Court. It showed Mr Cardinal and Mr Sinclair being denied entry to the Site. There is some argument between the CFMEU officials and the Hanssen representatives about the legality of denying entry, and who bore responsibility for it. No particular safety issues are referred to, nor is there any reference to the particular statutory right of entry that the officials were seeking to exercise.
59 After watching this post, at 4.45 pm. Mr Cumins called Mr Sinclair but there was no answer. Exhibit C4 [17].

60 The next morning, 2 December 2025 at 9.19 am, Mr Cumins called Mr Sinclair again. He said that Mr Sinclair told him that he was attempting to enter the Site because the CFMEU had received safety reports about chemical storage, silica dust, access and egress, emergency procedures and evacuation, and hoists not having their 10-year tests. In cross-examination, he was asked whether Mr Sinclair said he and Mr Cardinal had sought entry under s 49I. He responded that he was not aware of that, but agreed that he assumed the entry must have related to a safety breach. ts 62.

61 Although Mr Cumins did not know Mr Sinclair well, having met him only a few times, he says he trusted his knowledge and judgment in combination with the information Mr Parker gave him. He based this trust, at least in part, on the fact that Mr Sinclair was a right of entry permit holder.
62 Accordingly, Mr Cumins said that he ‘held a suspicion that s 19 of the WHS Act 2020 was being breached’ by Hanssen at the Garden Towers Project. On that basis, he decided to exercise his right of entry to investigate the suspected safety breach. Exhibit C4 [20]  [21].

63 Mr Cumins arrived at the Garden Towers Project at approximately 10.55 am. He was advised that management were on their way to meet him. He was then met by Mr Simonds. Mr Cumins introduced himself as an organiser from the ETU and explained that he wanted to conduct a safety inspection under s 49I of the IR Act. Exhibit C4 [24]  [27].

64 Mr Cumins accepted that he referred to having viewed the Facebook post, and having spoken to CFMEU organisers in the lead-up to his attendance at the Site.
65 It would be Mr Simonds’ evidence that Mr Cumins said he was there in solidarity with the CFMEU. Exhibit R1 [48].
Mr Cumins denied he said those words. ts 64.

66 At 10.59 am, Mr Simonds said he wanted to turn on his body worn camera. Mr Cumins said he would also start recording the interaction with his phone. Exhibit C4 [28].
Mr Cumins’ recording was tendered into evidence. Exhibit C6 – Video by Rory Cumins Part 1, 1 December 2025.

67 The pertinent parts of the recording show:
(a) Mr Cumins introducing himself saying ‘g’day, I’m Rory Cumins from the Electrical Trades Union.’;
(b) Mr Cumins asking Mr Simonds how he was going;
(c) Mr Cumins referring to having seen the Facebook post, and speaking to two organisers of the CFMEU the previous day and that morning;
(d) Mr Cumins saying that ‘based on those conversations’ he had a reasonable suspicion that there were safety breaches on the Site;
(e) Mr Simonds asked Mr Cumins to ‘name the safety breaches’;
(f) Mr Cumins named chemical storage, silica onsite, access/egress, concrete pipes in walkways, emergency procedures and evacuation procedures and the hoists not having had their 10-year tests;
(g) Mr Simonds said ‘unless you can show me the safety breach, I’m not going to let you in on it’ and ‘If you’re coming in on silica then that’s got nothing to do with you.’;
(h) Mr Cumins attempts to explain that if the silica and access ways affect workers onsite generally, it was a matter that concerned the ETU, but Mr Simonds interrupts him, talking about what measures were in place to control silica dust risks;
(i) Mr Cumins says he is asking Mr Simonds ‘politely’ whether he is denying him access. Mr Simonds responds that based on what Mr Cumins had told him, and the suspected breaches ‘they are not good enough’ for him to let Mr Cumins onto the job site;
(j) Mr Simonds says that if Mr Cumins had a photograph, it would be ‘happy days’, he would take Mr Cumins onto Site. Mr Cumins starts to explain that that is ‘why we do safety inspections.’;
(k) Mr Cumins shows his state right of entry permit, and explains he was there under the State Act, under which he has a right of entry to ‘come in and do a safety inspection.’;
(l) Mr Simonds said Mr Cumins thought that just because Mr Hanssen had put a video on Facebook, that was a reason to come here. Mr Cumins said no, the reason was a suspicion that workers were exposed to safety breaches. Mr Simonds denied any safety breaches, to which Mr Cumins said ‘we don’t know, that’s why we need to investigate.’;
(m) At that point, a third person not visible on camera said ‘you need to have photographic evidence.’;
(n) Mr Cumins asked ‘who told you that?’;
(o) The third person said ‘the legislation.’;
(p) Mr Simonds maintained that the reasons Mr Cumins was there was not valid, because it was based on the Facebook post and he could not say what the safety breach was;
(q) The conversation ends with Mr Cumins thanking Mr Simonds for his time, shaking his hand and saying that he would take the matter up with the union’s legal team.
68 The conversation ended at 11.04 am, and Mr Cumins then left the Site. Exhibit C4 [31]

69 The recorded part of the discussion was civilised. Mr Cumins was calm, casual and polite throughout. It would be Mr Simonds’ evidence that before the cameras were turned on, Mr Cumins was agitated and behaving in an intimidating manner, but that he settled down once the camera was on. ts 88.
Mr Cumins denied this. ts 51  52.

70 In cross-examination, Mr Cumins said:
(a) He was not certain, but believed there was likely to be electrical works occurring onsite given it was a large construction site. Specifically, the lift installation would require electrical works;
(b) He was not aware of any worker who could have been an ETU member;
(c) He did not ask Mr Parker to provide him with photographs of safety issues on the Site, nor ask Mr Parker or Mr Sinclair the precise location of silica dust issues;
(d) He did not speak with any electricians or workers generally working at the Site, prior to arriving on 2 December 2025;
(e) He had not spoken to WorkSafe about the Site, before or after 2 December 2025;
(f) In the past he had exercised right of entry after speaking with ETU members and other union organisers, as well as from people contacting him anonymously;
(g) On one past occasion, when the initial contact was another union organiser, he contacted an ETU member who was working on the relevant site to check the information given before exercising the right of entry, but he denied this was ‘best practice’ or always necessary;
(h) He accepted that he did not know how many ETU members were onsite, and he was not aware whether there were electrical workers present at the time he attended, although he expected or assumed there would be electrical workers attending the Site from time to time because the works involved lifts and electrical installations;
(i) He agreed he did not tell Mr Simonds that Mr Parker had photographs of safety issues.
(j) He agreed he did not accept an invitation from Mr Simonds to conduct a joint inspection with WorkSafe or call a worker onsite, although the evidence does not demonstrate that Mr Simonds made invitations to Mr Cumins in these terms. Rather, Mr Simonds’ suggestion was that Mr Cumins contact WorkSafe, and if WorkSafe ‘wanted to come on,’ that Mr Cumins could come with them. Mr Simonds’ suggestion that the ‘electrician’ be contacted was a reference to a licenced electrician who did not work on the job site but ‘looked after’ a group of electricians, ts 91.
although his evidence later changed to ‘I think I was referring to any electrician on the job site… or any ETU member. Not electrician necessarily.’ ts 97.

(k) Mr Cumins agreed he relied entirely on what he was told by Mr Parker and Mr Sinclair as the basis for his seeking to exercise a right of entry. ts 54  70.

Craig Simonds’ Evidence
71 The respondents’ evidence comprised Mr Simonds’ evidence-in-chief in the form of his witness statement. Exhibit R1.

72 Mr Simonds is a mechanical engineer with 45 years’ experience in the mining and building construction sectors. He owns and operates Opulent Cabins Pty Ltd. Since 1 March 2024, he has been the Site Administrator for the Garden Towers Project pursuant to a contract between Hanssen and Opulent. As Site Administrator, he manages all aspects of the management of the construction as a support to Hanssen’s leading hands and site foremen. This includes being the first point of contact for all visitors to the Site. Exhibit R1 [4]  [13].

73 Mr Simonds reports to Hanssen’s Managing Director, Darren Linton, and Mr Hanssen. Exhibit R1 [14].

74 Large parts of Mr Simonds witness statement go into matters which are not relevant to a determination of whether there has been a contravention of the IR Act. Those matters relate to Mr Simonds’ previous interactions with CFMEU employees and officials, and his subjective state of mind. His witness statement was accepted into evidence on the basis that those matters may be relevant to penalty if a contravention is found.
75 Relevantly, on 28 November 2025 and 29 November 2025, Mr Simonds received Form 2 Entry Notices requesting access for Mr Sinclair and Mr Cardinal to enter the Site on 1 December 2025 to speak to workers during their lunch break.
76 At about 1.00 pm on 1 December 2025, Mr Simonds was informed that Mr Sinclair had arrived at the Site. He went to the gate where he saw Mr Hanssen, Mr Sinclair, Mr Cardinal and another Hanssen representative, John Morgan. While he, Mr Hanssen and Mr Morgan were talking to Mr Sinclair and Mr Cardinal, a group of workers began to congregate behind him. Mr Hanssen then said words to the effect that Mr Sinclair and Mr Cardinal could not come on site to meet with Hanssen workers because of the language that the CFMEU had used in previous site visits. He said he was not denying access but rather the workers themselves were.
77 Mr Hanssen began recording the conversation on his mobile phone.
78 Mr Morgan said words to the effect that the workers did not want Mr Sinclair and Mr Cardinal onsite.
79 Mr Sinclair and Mr Cardinal then left.
80 As to the events of 2 December 2025, Mr Simonds said that he was told that a union delegate was outside the gate, seeking entry based on suspected safety breaches. He called Ms Kayla Popperwell, an independent sub-contractor providing Health and Safety services to Hanssen, and asked her to meet him and the person he erroneously described as the ‘union delegate.’ Exhibit R1 [45].

81 At 10.55 am, he met Mr Cumins. He said that Mr Cumins told him he was ‘a delegate of the ETU.’ Exhibit R1 [47].

82 Mr Simonds remembers Mr Cumins saying:
(a) that he had seen Mr Hanssen’s Facebook post and that he was concerned that Hanssen was denying the CFMEU entry to the Site.
(b) That he had telephoned a colleague at the CFMEU the previous evening after viewing the Facebook post and he was there ‘in solidarity’ with his CFMEU colleagues;
(c) He was seeking entry to the Site under s 49I of the IR Act. Exhibit R1 [48].

83 Ms Popperwell arrived at about 10.58 am and introduced herself to Mr Cumins as the HSR Representative for the Site. Exhibit R1 [50].

84 Mr Simonds was concerned that Mr Cumins was ‘becoming agitated and unhappy with the way the discussion was going.’ He felt that Mr Cumins was trying to intimidate him and Ms Popperwell by ‘using demanding language’ and by the way he was standing.
85 At 10.59 am he told Mr Cumins that he would start his body camera recording. Once he activated his body camera, Mr Cumins also began recording the conversation.
86 Mr Simonds says that once the recording started, Mr Cumins again identified himself as a delegate of the ETU. Exhibit R1 [56].
The video shows Mr Cumins identified himself as an organiser with the construction division of the ETU. Exhibit C6.
Otherwise, what Mr Simonds’ says about the discussion in his evidence-in-chief is corroborated by the video, although much of what is described at [67] above is not mentioned in Mr Simonds’ evidence-in-chief. For instance, he makes no reference to the fact that he said he would not let Mr Cumins in unless he could show him the safety breach, or where the safety breach was, that he suggested a safety breach had to relate to an electrical issue for him to allow entry, or that a photograph would satisfy him.
87 Mr Cumins does not deny that he refused Mr Cumins entry. He says he formed the view that Mr Cumins was not seeking to exercise his right of entry for a genuine purpose. This was the reason for him refusing entry. Exhibit R1 [19].

88 Mr Simonds said that the safety issues Mr Cumins listed were very similar to those identified by the CFMEU in October and November 2025, and that those concerns had been remediated by Hanssen and discussed with WorkSafe, although his evidence was that the only safety issue that had been discussed with WorkSafe since October 2025 was the 10year service of the west hoist and the east hoist. Exhibit R1 [25]  [29].

89 Mr Cumins notes, and it is not contentious, that neither Mr Cumins nor the ETU followed up any safety issues with Hanssen by any correspondence or further requests to access the Site. Mr Cumins did not accept his invitation to call WorkSafe. ts 68.

90 Mr Simonds gave evidence-in-chief of a discussion he had with a WorkSafe officer on 27 November 2025. He says he told WorkSafe that Hanssen had provided service documentation for only one of two hoists, and that the WorkSafe officer ‘agreed Hanssen’s position was acceptable and that there was nothing more required from Hansen by WorkSafe.’ Exhibit R1 [25]  [29].

91 His evidence on this topic was either incomplete or simply unsatisfactory. He says WorkSafe contacted him to discuss the CFMEU’s letter of 15 October 2025, and in particular the issue of servicing of hoists. Yet the CFMEU’s letter of 15 October 2025 does not mention the hoists or their servicing at all. Exhibit R1 CCS-1.

92 The contents of the 15 October 2025 letter, and what Mr Simonds says was the subject of discussions with WorkSafe, do not align. I am not prepared to accept that this discussion with WorkSafe supports a finding that any of the safety issues raised by the CFMEU in its letter of 15 October 2025 were resolved.
93 Mr Simonds’ evidence in cross-examination was that he believed a union official seeking access to the Site had to prove to his satisfaction that there was a health and safety issue onsite, and had to convince him to his satisfaction that there was a risk. He readily agreed to this proposition: ‘100 per cent, yes.’ He said that Mr Cumins had no right of entry to tell him he had problems with silica dust when he knew he did not. ts 92  93.
At the date of the hearing he maintained that he was entitled to insist upon the provision of a photograph prior to admitting union officials to access the Site for safety inspections. ts 95.

94 Mr Simonds’ view was that turning up to a job site having watched a video and speaking to ‘a couple of mates down the road at the CFMEU’ was bullying and intimidation. ts 93  94.

95 When given an opportunity to explain his view that Mr Cumins was bullying him prior to the cameras being activated, Mr Simonds answered vaguely that it was Mr Cumins’ ‘manner’ ‘in the way he was conducting himself… he’s just coming round, making assertions… sprouting now that he has the right of entry.’ ts 97.
He further said ‘the way he came in on the job site, sprouting the way he was, was- he-he was showing the normal traits of a union organiser.’ He contrasted the ‘normal traits of a union organiser’ with ‘a normal, sane person doing normal, sane things and not things that believe that you have the right over a normal human being to intimidate and bully them onto the job site.’ ts 98.
The sum effect of his evidence was that a union official exercising a right of entry was by virtue of that fact a bully and that the exercise of a right of entry was, in and of itself, intimidation.
96 Mr Simonds was asked in cross-examination whether he agreed that Mr Hanssen does not want a unionised workforce. He laughed as he answered ‘no, that’s not the case’ and went on to explain that the Garden Towers Project worked under a ‘casualisation program’, whereby every worker is a casual employed through one of multiple labour hire companies, meaning it would be hard for unions to ‘get them all together as a collaborative’. He suggested that as a result, unionisation did not affect Hanssen in any way. ts 77.

97 In his evidence-in-chief, Mr Simonds suggested that the CFMEU had ‘deliberately targeted Hanssen because Mr Hanssen has publicly sought to have a non-unionised workforce.’ Exhibit R1 [22].
In cross-examination, Mr Simonds contradicted his own evidence. He denied that Mr Hanssen sought to have a non-unionised workforce, disagreed that Mr Hanssen is critical of the CFMEU and disagreed that Mr Hanssen had publicly sought to have a non-unionised workforce. ts 77  78
His denials are not only contradictory, they do not sit easily with his eagerly proffered evidence of the ‘casualisation program.’
What is the effect of the s 49I(1) requirement for premises to be ‘where relevant employees work’?
98 There are four preconditions for the exercise of a right of entry under s 49I(1):
(a) The person purporting to exercise the right must be an authorised representative of an organisation;
(b) The exercise must be during working hours;
(c) The premises must be premises where relevant employees work; and
(d) The purpose of the exercise of the right must be investigating any suspected breach of any of the laws listed in s 49I(1)(a) to (e).
99 It is uncontroversial that preconditions (1) and (2) were met in this case.
100 It is an agreed fact that at all material times, persons who were employed by Hanssen to work at the Garden Towers Project were eligible to become members of the ETU. Yet in closing, the respondents submitted that absent knowledge of workers on the Site ‘at the relevant period in time,’ the power in s 49I cannot be properly exercised. ts 107.
Counsel submitted that a correct construction of s 49I requires knowledge that relevant employees are working at the premises. The submission was not developed beyond this, but when questioned by me, counsel qualified the submission somewhat, saying that the absence of knowledge of employees working at the premises is relevant to the assessment of whether the authorised representative could have had a proper purpose. The submission was then expanded again, to a submission that the minimum threshold for suspecting a breach cannot be met without actual knowledge of a relevant employee working at the premises. ts 108.

101 I accept that an authorised representative’s state of knowledge about the existence of relevant employees working at the premises may in some circumstances be relevant to the authorised representative’s state of mind, and whether the authorised representative was exercising a right of entry for the purpose allowed by s 49I. However, the section does not, as a matter of construction, import a threshold requirement for the authorised representative to have knowledge that the premises are premises where relevant employees work. The only s 49I precondition set out in [98] that refers to a subjective state of mind is the fourth precondition. There are no words in s 49I(1) concerning the first three preconditions that direct attention to a subjective state of mind. They are just questions of objective fact.
102 To the extent that the respondents submit that the relevant employees must be working at the premises at exactly the time when the right of entry is sought to be exercised, I also reject this contended construction of the precondition. If one of the purposes of s 49I is to promote compliance with the WHS Act, then it would defeat that purpose to require an authorised representative to wait until relevant employees were at work before seeking entry to investigate a suspected breach of the WHS Act, and therefore expose employees to the suspected safety hazard. Further, the right of entry could be subverted by the occupier by directing the relevant employees not to attend the work location.
103 It follows from my conclusions that the third precondition is also met in this case.
Did Mr Cumins suspect a contravention of the WHS Act so that his purported exercise of a right of entry was a proper exercise of that right?
104 The respondents rely on Mr Simonds’ evidence that Mr Cumins expressly said to Mr Simonds that, after seeing the Facebook post, he was concerned that Hanssen had denied the CFMEU entry and was seeking entry ‘in solidarity’ with the CFMEU. Although the respondents do not rely on this evidence in isolation, it is the best evidence they point to of Mr Cumins having an improper purpose.
105 Mr Cumins denied he said this. It is therefore necessary for me to make a finding as to whether Mr Cumins made the statement attributed to him by Mr Simonds.
106 For the following reasons I prefer Mr Cumins’ evidence to Mr Simonds’ evidence and find that he did not make the statement relied upon.
107 First, Mr Cumins’ planned his attendance at the Site, whereas Mr Simonds was taken off guard by it. Mr Cumins had time to consider his purpose and plan how to execute it. As Mr Simonds had no advance notice, the interaction would naturally have been more challenging for him. It was clear from the recorded part of the interaction that Mr Simonds was acting defensively and reactively. It is more likely his memory of the event is unreliable relative to Mr Cumins’.
108 Second, Mr Simonds demonstrated a degree of animosity towards unions and union officials, as discussed at [95] above. When giving this evidence he had a heightened, fervent demeanour. His views are likely to have coloured his evidence.
109 Third, in the part of the discussion that was recorded, Mr Simonds put to Mr Cumins that he had earlier made reference to the Facebook post, and having spoken with ‘his mates’ at the CFMEU. He did not accuse Mr Cumins of making the solidarity statement or the denied entry statement. Had these statements been made by Mr Cumins, I would expect Mr Simonds would have referred to them during the recorded conversation, as he had the other references.
110 Fourth, evidence Mr Simonds gave about the recorded part of the discussion was clearly wrong. Although it may be a minor detail, Mr Cumins did not introduce himself as a delegate, as Mr Simonds said in his evidence.
111 Fifth, Mr Simonds’ evidence was confused and contradictory in several respects. He contradicted his own evidence about whether Mr Hanssen had been publicly critical of the CFMEU as discussed at [97] above. His evidence as to whether Ms Popperwell was present when Mr Cumins is alleged to have made the solidarity statement and the denied entry statement was confused. In his evidence-in-chief, Ms Popperwell’s arrival is mentioned after his evidence about these statements. Exhibit R1 [48]  [50].
But in cross-examination he said she was with him at the time. He did not give a satisfactory answer to why his evidence-in-chief presented differently, saying:
It's just the way that I've written it there. The fact that we’re talking three minutes between [10.48 am and 10.50 am], then if I should have, in your terminology, made a - a - a 40 - 48(d) when Ms Popperwell entered, it's not different. She was there when he - when Rory was carrying on. We wouldn't have activated the body cam if it wasn’t - if we didn’t believe that there was a reason to. ts 87.

112 Sixth, Mr Simonds said that he made a note of the interaction in his diary on the same day of the discussion, that he relied on his note in preparing his evidence-in-chief because it was better than his own memory, but he did not produce the note and offered no reason for not doing so as part of his evidence. Further he was not confident that what he said in his evidence-in-chief was identical to what he noted in his diary. ts 85  86.

113 Finally, according to Mr Simonds’ evidence in cross-examination, Ms Popperwell witnessed Mr Cumins’ making the solidarity statement and the refusal of right of entry statement, but Ms Popperwell was not called as a witness. The respondents offered no reason why Ms Popperwell was not called as a witness. In these circumstances, I may conclude that Ms Popperwell’s evidence would not have assisted the respondents’ case. See generally Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
It allows me to draw an inference that the solidarity statement was not made by Mr Cumins in Ms Popperwell’s presence with greater confidence. Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [63]  [64].

114 The respondents invite me to find that Mr Cumins did not have the purpose required by s 49I, or at least had another or other improper purposes when he sought to exercise the right of entry because:
(a) there was not an objective basis for Mr Cumins to have genuinely formed or held a suspicion that there was a breach of the WHS Act; and
(b) in the lead-up to the exercise of the right of entry, the CFMEU had been denied right of entry and he had been speaking with CFMEU organisers about that fact.
115 The following circumstances were relied on to show that there could be no objective basis for forming a suspicion:
(a) Mr Cumins’ only source of information about the Site was gained from two brief telephone discussions with CFMEU organisers, whom he knew from the Facebook post were in dispute with Hanssen;
(b) He did not provide particulars or details relating to his alleged safety concerns;
(c) He had not been contacted by any ETU member or worker about safety issues;
(d) He had not himself attended the Site or viewed it;
(e) He did not know whether the ETU had members working at the Site at the relevant time;
(f) He did not know whether there were workers who were eligible to be members of the ETU on the Site at the time;
(g) He did not ask Mr Parker for, or rely on, any photographs, notes, or documents.
116 The respondents characterised Mr Cumins’ sources for his suspicion as hearsay and nonprobative.
117 I do not agree that the information Mr Cumins acted on was nonprobative. Mr Cumins did not act on Mr Parker’s information on its own. He sought further clarification from Mr Sinclair, in the knowledge that Mr Sinclair had attempted entry on 1 December 2025. He made two calls to Mr Sinclair, and only sought to exercise the right of entry after he had spoken with Mr Sinclair. Mr Sinclair’s knowledge of the condition of the Site was contemporary, having conducted an inspection on 15 October 2025. There was no evidence that Mr Sinclair ought to have concluded that all or any of the concerns raised on that date had been resolved by 1 December 2025. Mr Sinclair genuinely held strong concerns about safety on the Site.
118 Two cases are illustrative. In CFMEU v JW Land Construction, [2024] FedCFamC2G 145 [156], [170].
a union organiser formed a suspicion as to possible breaches of Work Health and Safety Regulations 2011 (Cth) and Work Health and Safety Act 2011 (ACT) based on discussions with another organiser. The suspicion was found to be a reasonable one. In Construction, Forestry, Maritime, Mining and Energy Union v Hanssen Pty Ltd, [2019] FCCA 1664 [15].
a suspicion was formed based on information in the form of a photograph. The respondents submitted that there could not be a proper basis for suspecting a safety breach based on a photograph when the date of the photograph was unknown. His Honour Street J rejected that submission in circumstances where the relevant project was ongoing.
119 A reasonable suspicion can be formed based on credible information from another union organiser. Even if Mr Cumins did not know when Mr Sinclair last observed the safety issues he described, because the project was ongoing, it was reasonable to suspect that the safety issues might continue to be present.
120 Mr Sinclair and Mr Parker were both experienced union organisers in construction. They were both holders of right of entry permits. Nothing that Mr Parker or Mr Sinclair said to Mr Cumins was implausible, outrageous or incredible. It was reasonable for Mr Cumins to rely on their experience and take their word.
121 Mr Cumins did not blindly rely on the information he received from Mr Parker and Mr Sinclair. As I have already said, Mr Cumins contacted Mr Sinclair to check Mr Parker’s information. Mr Sinclair’s information corroborated Mr Parker’s. Further, the information they provided Mr Cumins was grounded in fact, because both had attended the Site and observed its condition for themselves.
122 The respondent is critical of Mr Cumins for not seeking to contact a worker on the Site. Information from a worker, in and of itself, would not provide better quality or more probative information than the information Mr Cumins received from Mr Sinclair. It might be more uptodate information if the worker had been on the Site more recently than Mr Sinclair, but it could also be less informed. A worker may not perceive safety issues which a union organiser has perceived, because the worker is not trained in workplace health and safety.
123 Mr Cumins was not required to seek details of the locations at which the safety issues were present, or more details of the safety concerns from Mr Sinclair. The ‘generalised’ concerns that were identified were of a ‘housekeeping’ nature, that is, a general lack of silica dust management, a general failure to keep access and egress areas free of hazards. They were suspicions that concerned the Site generally and it was acceptable to describe them in the terms that Mr Cumins did. It is difficult to see how the suspected breaches he raised about the 10year testing of the hoist, and emergency evacuation procedures, could have been more particularised or detailed. Similarly, I consider reference to ‘chemical storage’ sufficiently identifies the nature of the safety suspicion held.
124 While Mr Cumins did not know if relevant employees were on the Site at the time he was to exercise the right of entry, he reasonably assumed that relevant employees worked at the Site because it was a large construction project.
125 Having found that there was an objective basis for Mr Cumins to have formed the suspicion which he said he had, the claimant has made out a prima facie case of contravention. This means that the respondents have a tactical onus to show that Mr Cumins had an improper purpose: Henderson v Queensland. [2014] HCA 52; (2014) 255 CLR 1 [90].
It is for the respondents to adduce evidence to prevent this inference of fact being drawn.
126 The factors that the respondents rely on to support a finding that Mr Cumins had an improper purpose are that:
(a) Mr Cumins attended the Site the day after the CFMEU had sought and been denied entry, and the day after Mr Hanssen had made the Facebook post;
(b) Hanssen and the CFMEU were in dispute over entry issues;
(c) Mr Cumins attended the Site after speaking with CFMEU organisers;
(d) He did not accept Mr Simonds’ invitation to speak to Hanssen’s electrician;
(e) He did not agree to contact WorkSafe or to come on the Site with WorkSafe;
(f) He did not seek to gain access to the Site again, or write to Hanssen following 2 December 2025.
(g) There is no evidence that safety breaches were in fact occurring as of 2 December 2025;
(h) Hanssen is now accredited as a safe workplace by the Office of the Federal Safety Commissioner, having become accredited after 2 December 2025.
127 The first difficulty the respondents face is that they have not articulated precisely what purpose they say I should infer Mr Cumins had. There was a suggestion that the purpose was to induce Hanssen to refuse entry, so as to set up Hanssen to contravene the IR Act. Of course, Mr Cumins could not have known that Hanssen would refuse him entry. That inference is unavailable.
128 There was the suggestion that the purpose was to show ‘solidarity’ with the CFMEU. I take it this means to show support for, and have a common purpose with, the CFMEU. At one level, it can be said that all unions have a common purpose in protecting employees against work health and safety risks. If that is the common purpose that the respondents are referring to, then it cannot be said to be an improper purpose. Otherwise, my finding that Mr Cumins made no express reference to solidarity with the CFMEU means there is no evidentiary basis for the alternative inference the respondents seek to be drawn.
129 Mr Cumins’ evidence was that he was not aware of disputation between Hanssen and the CFMEU about rights of entry, other than having seen the Facebook post. He learned of the Facebook post from Mr Parker. When he attended on 2 December 2025, he told Mr Simonds that he had seen the Facebook post, but he strongly denied that it was the reason he was attending or seeking entry. He said that he was seeking entry because he suspected safety breaches from his conversations with the two CFMEU organisers. That remained his evidence at hearing. His evidence on this was credible and there is no reason for me to reject it.
130 It follows from what I said at [119]  [121] above, that I do not consider Mr Cumins’ failure to contact an electrician displaces the inference of fact I would otherwise draw. I note that Mr Simonds did not have a clear recollection of who he had in mind that Mr Simonds should be contacting, when he referred to the electrician.
131 Mr Cumins adequately explained why he did not take any follow up action after the attendance on 2 December 2025. He reasonably expected that any further entry would be denied, and as he had not been permitted entry, he had no basis for contacting WorkSafe or writing to Hanssen about safety concerns. Both of those actions would follow naturally after conducting the inspection for which he had sought entry.
132 A lack of evidence of safety breaches as at 2 December 2025 does not displace the inference as to Mr Cumins’ proper purpose either. There was evidence of safety breaches occurring on the Site prior to 2 December 2025, and in particular, on 15 October 2025.
133 The fact that Hanssen subsequently obtained accreditation is self-evidently not a matter that was within Mr Cumins’ knowledge at the relevant time and therefore cannot support a finding that is adverse to him.
134 I find that there was a basis in fact for Mr Cumins to have formed a suspicion relating to breaches of the WHS Act, that he did have that suspicion and that his purpose in seeking to enter the Site on 2 December 2025 was to investigate the breaches he suspected were occurring. The respondents have failed to establish that Mr Cumins had an improper purpose in seeking to exercise his s 49I right of entry.
Conclusion and Orders
135 All of the preconditions for Mr Cumins to have a right to enter the Garden Towers Project under s 49I were present on 2 December 2025. Accordingly, when Mr Simonds denied Mr Cumins entry, Mr Simonds intentionally and unduly hindered or obstructed an authorised representative in the exercise of the powers conferred by Division 2G of the IR Act, in contravention of s 49M(2).
136 It follows that Hanssen, as the occupier of the Site and Mr Simonds’ principal, refused entry to the premises by a person entitled to enter the premises under s 49I in contravention of s 49M(1) and s 49M(2).
137 I will hear further from the parties in relation to the penalties to be imposed in respect of these contraventions.





R. COSENTINO
INDUSTRIAL MAGISTRATE