Industrial Relations Commission New South Wales Medium Neutral Citation: Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1000 Hearing dates: 9 & 26 September, 17 & 21 November 2016 Date of orders: 17 January 2017 Decision date: 17 January 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The application by the CFMEU for orders and a determination is granted in part Catchwords: RIGHT OF ENTRY DISPUTE – major road construction project – CFMEU in competition with AWU for members and representative rights – bullying and harassment of workers by employee of Pacifico – negative impact on workers mental health – hassling workers about joining the CFMEU – bullying, threatening and standing over workers – making workers nervous and uncomfortable being at work – implications for workers if they joined the CFMEU – workers would lose their bonus – suspected contravention of the WHS Act – failure to ensure the mental health of workers – bullying and harassment policy – workers presented as being extremely stressed and anxious – right of entry under section 117 of WHS Act for the purpose of inquiring into a suspected contravention – right to inspect documents – requirement to give notice under section 120 – requirement to allow the person conducting the business or undertaking to conduct its own investigation first – application granted in part Legislation Cited: Fair Work Act 2009 (Cth) Work Health and Safety Act 2011 Crimes Act 1990 Work Health and Safety Regulation 2011 Cases Cited: George v Rockett (1990) 170 CLR 104 R v Rondo [2001] NSWCCA 540 Streat v Bauer; Streat v Blanco (unreported, Supreme Court, NSW, Smart J, Nos 13686, 13687 of 1996, 16 March 1998) Category: Principal judgment Parties: Construction, Forestry, Mining and Energy Union (New South Wales Branch) (Applicant) Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture (Respondent) Representation: Solicitors: Mr P Boncardo (Applicant) Ms H McKenzie, Ashurst Australia (Respondent) File Number(s): 2016/254613 DECISION 1. The Construction, Forestry, Mining and Energy Union (New South Wales Branch) ('CFMEU') has made an application pursuant to section 142 of the Work Health and Safety Act 2011 ('WHS Act') for the authorising authority, being the Industrial Relations Commission, to deal with a dispute about the exercise, or purported exercise, by a WHS entry permit holder of a right of entry under the WHS Act. 2. The respondent to this application, Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture ('Pacifico'), is undertaking a major road construction project on the Pacific Highway between Warrell Creek and Nambucca Heads in northern New South Wales ('the Site'). This project involves the upgrading of a 20 kilometre stretch of the highway and the construction of some 15 bridges as well as interchanges and access ramps. The legislation 1. Relevant provisions of the WHS Act are set out below: 4 Definitions In this Act: "health" means physical and psychological health. 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) If: (a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and (b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. (5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work. Note: A self-employed person is also a person conducting a business or undertaking for the purposes of this section. 116 Definitions In this Part: …………… "relevant worker", in relation to a workplace, means a worker: (a) who is a member, or eligible to be a member, of a relevant union, and (b) whose industrial interests the relevant union is entitled to represent, and (c) who works at that workplace. 117 Entry to inquire into suspected contraventions (1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker. (2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring. 118 Rights that may be exercised while at workplace (1) While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act: (a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention, (b) consult with the relevant workers in relation to the suspected contravention, (c) consult with the relevant person conducting a business or undertaking about the suspected contravention, (d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that: (i) is kept at the workplace, or (ii) is accessible from a computer that is kept at the workplace, (e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk. (2) However, the relevant person conducting the business or undertaking is not required under subsection (1) (d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State. (3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) (d): WHS civil penalty provision. Maximum penalty: (a) in the case of an individual-$10,000, or (b) in the case of a body corporate-$50,000. (4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse. Notes: 1 At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120. 2 The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth. 119 Notice of entry (1) A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to: (a) the relevant person conducting a business or undertaking, and (b) the person with management or control of the workplace. (2) Subsection (1) does not apply if to give the notice would: (a) defeat the purpose of the entry to the workplace, or (b) unreasonably delay the WHS entry permit holder in an urgent case. (3) Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120. 120 Entry to inspect employee records or information held by another person (1) This section applies if a WHS entry permit holder is entitled under section 117 to enter a workplace to inquire into a suspected contravention of this Act. (2) For the purposes of the inquiry into the suspected contravention, the WHS entry permit holder may enter any workplace for the purpose of inspecting, or making copies of: (a) employee records that are directly relevant to a suspected contravention, or (b) other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking. (3) Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant person conducting a business or undertaking. (4) The notice must comply with the regulations. (5) The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. Note: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth. 121 Entry to consult and advise workers (1) A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, one or more relevant workers who wish to participate in the discussions. (2) A WHS entry permit holder may, after entering a workplace under this Division, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk. 122 Notice of entry (1) Before entering a workplace under this Division, a WHS entry permit holder must give notice of the proposed entry to the relevant person conducting a business or undertaking. (2) The notice must comply with the regulations. (3) The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. 142 Authorising authority may deal with a dispute about a right of entry under this Act (1) The authorising authority may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable). (2) The authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. (3) If the authorising authority deals with the dispute by arbitration, it may make one or more of the following orders: (a) an order imposing conditions on a WHS entry permit, (b) an order suspending a WHS entry permit, (c) an order revoking a WHS entry permit, (d) an order about the future issue of WHS entry permits to one or more persons, (e) any other order it considers appropriate. (4) The authorising authority may deal with the dispute: (a) on its own initiative, or (b) on application by any of the following to whom the dispute relates: (i) a WHS entry permit holder, (ii) the relevant union, (iii) the relevant person conducting a business or undertaking, (iv) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry, (v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder, (vi) the regulator. (5) In dealing with a dispute, the authorising authority must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this Part. 144 Person must not refuse or delay entry of WHS entry permit holder (1) A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under this Part: WHS civil penalty provision. Maximum penalty: (a) in the case of an individual-$10,000, or (b) in the case of a body corporate-$50,000. (2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse. Background 1. According to the CFMEU, in or about July 2016 the union was contacted by employees employed by a subcontractor that was performing precast work at the Site known as Telum Precast (NSW) Pty Ltd ('Telum'). These employees asked the CFMEU for assistance in negotiating better terms and conditions of employment. 2. The Australian Workers Union ('AWU') also had a presence on the Site and it is apparent that the CFMEU and the AWU were engaged in active competition for members and representative rights for employees on the Site. On 28 July 2016 the CFMEU obtained approximately 42 signatures on a petition which expressed a 'wish' to negotiate an enterprise agreement with Telum to cover the project. The signatories requested that Telum commence bargaining immediately and negotiate in good faith. 3. On 16 and 17 August 2016 the AWU obtained approximately 33 signatures on an AWU petition expressing a 'wish' to be represented in any enterprise agreement negotiations with Telum by the AWU and not the CFMEU. A cursory examination of the two petitions reveals that almost half (20) of the signatories to the petition supporting the CFMEU subsequently signed the petition supporting the AWU and opposing the CFMEU. 4. The CFMEU claims that, prior to 12 August 2016, two of its officials, David Kelly and Thomas Rigby, received reports from employees who performed work on the Site, that an employee of Pacifico, Darren O'Connor ('Doc'), had engaged in conduct that amounted to bullying and harassment of the employees employed by Telum. Mr Kelly and Mr Rigby are both WHS entry permit holders under the WHS Act. It was claimed that the conduct of Doc was reported by these employees to be having a negative impact on their mental health. 5. By notices dated 9 August 2016, both Mr Rigby and Mr Kelly gave notice pursuant to section 122 of the WHS Act in relation to a right of entry under section 121of that act to enter the Site to consult and advise workers on 11 and 12 August 2016. 11 August 2016 1. On 11 August 2016 Mr Kelly, along with Mr Rigby and Dean Riley, another CFMEU official, entered the Telum precast facility under section 484 of the Fair Work Act 2009 ('FW Act') and spoke to employees who worked for Telum and who were CFMEU members. 2. Mr Rigby gave evidence that, during this visit, workers told them that Doc had been hassling them about joining the CFMEU. Workers reported that Doc was bullying, threatening and standing over them and that this was making them nervous and uncomfortable being at work. During the course of the day, a number of workers informed Mr Rigby that Doc had been going around the precast yard telling workers that they could not and should not join the CFMEU and that there would be implications for them if they joined the CFMEU. Further, Doc had told them they should not talk to CFMEU officials and they would 'lose their bonus' if they did. Later Mr Rigby and Mr Kelly became aware that the bonus which the workers were referring to was a site-wide performance bonus paid by Pacifico. Mr Rigby claimed that he was told that Doc was taking workers aside and talking to them individually, telling them not to join or get involved with the CFMEU. Mr Rigby noticed that the workers were very reluctant to speak with him and Mr Kelly and were anxious about being spotted by management talking to them. 3. Mr Rigby stated that, because of the reports he received during his previous visit and during this visit, he suspected that there had been a contravention of the WHS Act. He thought that Pacifico had not ensured the mental health of workers working at the precast yard. He suspected that Pacifico did not have a bullying and harassment policy or were not implementing it or enforcing it properly. 4. Mr Kelly gave similar evidence to that given by Mr Rigby. According to Mr Kelly, the employees informed the CFMEU officials that Doc had been going around the precast yard telling workers that they could not and should not join the CFMEU and that there would be negative consequences if they did. 5. Doc was reportedly bullying and harassing workers by making threatening comments and saying things like 'don't join the CFMEU' and 'if you do join the CFMEU there will be consequences'. The employees told Mr Kelly that workers were being isolated by Doc, taken aside and 'the heavies' were being put on them, and that their situation at work had become extremely uncomfortable since the CFMEU had come to the Site. They said Doc was standing over them and had told them they would lose their bonus for signing the CFMEU petition. They said that their pay was already way too low and that they were relying on the bonus and could not afford to lose it. They also said that Doc was intimating to them they would not be carried on to the next project if they supported the CFMEU in attempting to get an 'EBA' for the project. 6. According to Mr Kelly, unlike at his previous visit when the workers were very keen to speak with him and sign the petition, on this occasion they would only speak with him out of the sight of the management. The workers he spoke to presented as being extremely stressed and anxious. They also told him that they were uncomfortable at work as a result of Doc's activities and stressed out by what he had been doing. 7. It was on the basis of these interactions with the workers that Mr Kelly suspected that there had been a potential breach of section 19 of the WHS Act as Pacifico had not fulfilled its duty to ensure, as far as practicable, the psychological health of workers performing work at the precast yard. 8. Mr Kelly elaborated on his suspicion under cross-examination: Q. As a result of those, you suspected that there had been a potential contravention of section 19? A. Yes. Q. And what was the basis of that suspicion? A. the basis of the suspicion was that workers told me that they were very worried about their job prospects, that they had been I suppose, for want of a better word, stood over by Doc. I don't know what more I could add, other than you know, it is clear. I mean at one minute when workers are phoning you and signing petitions and saying thanks for coming, and the next time you see them they've got their head in their esky, too scared to look up at you, I mean it's pretty clear what's going on in the place. Q. So that was the basis of your suspicion. What was the contravention of the Act? A. Well the Act is to ensure that there's management systems and codes and systems in place to ensure that people are safe at work. 1. Mr Kelly was concerned because the sort of workplace pressure described to him by Telum workers not only has a negative impact on workers' psychological health but, in his experience, can cause workers to not be focussed at work and to become distracted, leading to accidents. 2. Specifically, Mr Kelly suspected that there had been a breach of section 19 of the WHS Act as Pacifico had not provided and maintained a workplace that was without risks to the psychological health of workers. He also suspected that Pacifico had not provided the information, training, instruction or supervision necessary to protect all workers from risks to their health arising from work being undertaken at the precast facility. In this latter respect, Mr Kelly suspected that Pacifico did not have in place, or were not implementing or enforcing, a bullying and harassment policy, given Doc's reported activities. He also suspected that Doc may not have been properly educated or inducted in relation to any bullying and harassment policy, or that he was acting in breach of that policy. 3. Mr Rigby and Mr Kelly went to the main Site office and raised their concerns about what they had been told by the workers with Sarah Hamilton, Pacifico's Human Resources Manager. 12 August 2016 1. On the following day, 12 August 2016, Mr Kelly served Justin McCarthy, Pacifico's Construction Manager, with a notice pursuant to section 119 of the WHS Act of his and Mr Rigby's right of entry under section 117 of that act for the purpose of inquiring into a suspected contravention of the WHS Act. That notice contained the following handwritten notation: Seeking Bullying & Harassment policy. Seek to investigate Bullying and harassment of workers in precast area of site 1. Mr Kelly later spoke to Ms Hamilton and told her that he and Mr Rigby were seeking to enter the Site to investigate suspected contraventions of the WHS Act. They intended to consult with and interview workers and interview managers about the suspected contraventions, including Doc. It is common ground that Ms Hamilton asked Mr Kelly for more information about the suspected contraventions so that Pacifico could conduct its own investigation. Ms Hamilton did not provide Mr Kelly with Pacifico's bullying and harassment policy. 2. Later that day Ms Hamilton received correspondence from Tom Fisher, Legal/Industrial Officer of the CFMEU. That correspondence referred to the alleged activities of Doc and to a number of potential breaches of the FW Act. No reference was made to any alleged contraventions of the WHS Act. Section 142 application 1. On 24 August 2016 the CFMEU filed an application under section 142 of the WHS Act for the authorising authority (this Commission) to deal with a dispute about right of entry under that act. That application sought an order from the Commission in the following terms: Mr David Kelly, Mr Tom Rigby and any other WHS permit holder who is an official of the Construction, Forestry, Mining and Energy Union, may enter the workplace of Ferrovial Agroman (Australia) Pty Ltd and Acciona Infrastructure Australia Pty Ltd (Pacifico) located at the Warrell Creek to Nambucca Heads Pacific Highway upgrade site in northern New South Wales to investigate a suspected contravention of the Work Health and Safety Act 2011 (NSW) concerning reports of bullying and harassment by an employee and/or agent of Pacifico known as Darren O'Connor including by consulting with relevant workers and persons conducting the business or undertaking and inspecting and making copies of any relevant document that is directly relevant to such suspected contravention that relates to or affects a relevant worker, so long as such documents are kept at the workplace or accessible from a computer kept at the workplace, without first providing notice in accordance with s 120 of the Work Health and Safety Act 2011 (NSW) to Pacifico where such documents do not relate to employees or are not held by Pacifico as the person conducting a business or undertaking at the workplace and so long as such entry is otherwise in conformance Part 7 of the Work Health and Safety Act 2011 (NSW). 1. On 26 August 2016 Mr Kelly again sought to exercise a right of entry in relation to a suspected contravention of section 19 of the WHS Act and sought to inspect the bullying and harassment policies of Pacifico and of Telum. Again his request was refused by Ms Hamilton. 2. The CFMEU's application was listed before me for conciliation on 9 September 2016. On that occasion the two questions which were raised by Pacifico in response to the CFMEU's application were: (1) Whether the period of 24 hours' notice provided for in subsection 120(5) of the WHS Act is required for the exercise of a right of entry under section 117 and the requirement for the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that: (i) is kept at the workplace, or (ii) is accessible from a computer that is kept at the workplace. (2) Whether Pacifico is entitled to be provided by the CFMEU right of entry permit holder with details of the suspected contravention of the WHS Act so that it can conduct its own investigation prior the inquiry into the suspected contravention by the right of entry permit holder. 1. Following the conciliation conference on 9 September 2016, Mr Kelly, on 12 September, wrote to Ms Hamilton asserting that the requirement for at least 24 hours' notice contained in section 120 of the WHS Act applied only to the inspection of employee records and other relevant documents that are not held by the person conducting the business or undertaking, in this case, Pacifico. Nevertheless, and without admissions, Mr Kelly did give written notice of his intention to exercise his right of entry at the Site on 15 September 2016. Mr Kelly stated that he suspected that Pacifico had contravened its duty under section 19 of the WHS Act by the actions of its servant or agent, Darren O'Connor who, it had been reported to Mr Kelly, had engaged in bullying and intimidatory conduct towards workers performing work at the Site which had impacted on workers' psychological health. Particulars of such conduct were that Mr O'Connor had: threatened workers that their bonus will be taken off them if they bargain for or get a new enterprise agreement directed workers to sign a petition providing that the Australian Workers' Union (AWU) was to represent them in lieu of the Construction Forestry Mining and Energy Union (CFMEU) told workers that they should sign up with the AWU "not the fucking CFMEU" and generally made derisive, derogatory and threatening comments about the CFMEU and any workers who join or wish to join the CFMEU 1. Mr Kelly claimed that Mr O'Connor's conduct had reportedly caused workers, who were members or eligible to be members of the CFMEU, to suffer stress and anxiety at work and to feel uncomfortable about being at work. This, according to Mr Kelly, had impacted negatively on their psychological health. 2. Mr Kelly also gave notice of his suspicion that servants and agents of Pacifico, including Mr O'Connor and Ms Hamilton, had contravened section 19 of the WHS Act in relation to their reported treatment of a CFMEU member, which treatment amounted to bullying and harassment of this particular CFMEU member whilst at work and has had a negative impact on his psychological health. Particulars of this contravention were that servants and agents of Pacifico had reportedly: distributed or encouraged the distribution of a petition amongst this CFMEU member that calls for his sacking told this CFMEU member that they have a problem with them because he had gone and "joined the fucking CFMEU" informed this CFMEU member that workers had lost trust in him and that it would be difficult for him to continue working said that many allegations (none of which were specified to any extent) had been made against the CFMEU member 1. Mr Kelly claimed that this conduct had reportedly made this CFMEU member stressed, anxious and upset, and had impacted deleteriously on his experience of work. 2. Mr Kelly gave notice that he proposed to inspect documents that were directly relevant to the suspected contraventions, including Pacifico's bullying and harassment policy. 15 September 2016 1. On 15 September 2016 Ms Hamilton responded in writing to Mr Kelly stating that Pacifico did not accept his notice as a valid authority for him to enter the Site for the purpose of inspecting or making copies of Pacifico's bullying and harassment policy and the other documents described in the notice. Pacifico's reasons for adopting this position included the claim that the allegations contained in the notice did not provide a sufficient basis for a reasonable suspicion that a contravention of the WHS Act had occurred or was occurring. Ms Hamilton stated that unsubstantiated and non-specific allegations of bullying by individuals cannot, of themselves, ground a reasonable suspicion that section 19 of the WHS Act has been contravened. 2. Ms Hamilton further stated that, under subsection 117(2) of the WHS Act, the WHS entry permit holder must reasonably suspect that a contravention has occurred or is occurring before entering the workplace. Pacifico's bullying and harassment policy and other documents sought to be inspected related to suspected bullying, rather than a suspected contravention of the WHS Act. They were not 'directly relevant' to a suspected contravention of section 19 of the WHS Act. 3. Insofar as the notice sought access to documents relating to 'the above mentioned CFMEU member', Ms Hamilton stated that it did not adequately describe the documents that were proposed to be inspected and, therefore, did not comply with regulation 29 of the Work Health and Safety Regulation 2011. Ms Hamilton's letter concluded as follows: In the premises, the JV will not be allowing entry in respect of the Notice. However, we understand that entry will occur today and tomorrow pursuant to other notices issued to the JV. 1. When Mr Kelly attended the Site on 15 September 2016 he provided Ms Hamilton and Mr McCarthy with a notice pursuant to section 119 of the WHS Act of his entry to the workplace under section 117 of the Act. That notice contained the following handwritten notation: Seeking Material on Bullying and Harassment – policy, file notes and other items outlined in correspondence issued to the joint venture per you 12th September 2016 per IRC matter No-254613 of 2016 1. Ms Hamilton and Mr McCarthy refused Mr Kelly entry to investigate the suspected contravention he had outlined in his notice. 2. On 19 September 2016 the CFMEU filed an amended application which included details of 'The 15 September incident'. The union requested that the matter be relisted before the Commission for programming. This occurred on 26 September 2016 and a timetable for the filing and serving of evidence and written submissions was put in place. The application was heard on 17 and 21 November 2016. Case for the CFMEU 1. Ultimately, the CFMEU sought that the Commission make the following orders and determination to resolve the dispute: 1. Bullying, harassment and other intimidatory conduct which causes or is capable of causing risks to workers' psychological health can amount to a suspected contravention of the Work Health and Safety Act 2011 (NSW); 2. As and from the date of these orders, CFMEU WHS permit holder who reasonably suspect contraventions of the Work Health and Safety Act 2011 (NSW) in respect to bullying and harassment and other intimidatory conduct which causes or is capable of causing risks to workers' psychological health can enter the Respondents' workplace under s 117 of the Work Health and Safety Act 2011 (NSW) subject to complying with all other applicable obligations under Part 7 of the Work Health and Safety Act and the Fair Work Act 2009 (Cth); 3. As and from the date of these orders, the Respondents will not refuse entry to CFMEU WHS permit holders who seek entry under s 117 of the Work Health and Safety Act 2011 (NSW) to investigate suspected contraventions of the Work Health and Safety Act 2011 (NSW) in circumstances where the Respondents have not had opportunity to investigate such contraventions first; 4. As and from the date of these orders, the Respondents will not refuse to allow CFMEU WHS permit holders to inspect and make copies of documents under s 118(1)(d) of the Work Health and Safety Act 2011 (NSW) in circumstances where a notice has not been given under s 120 of the Work Health and Safety Act 2011 (NSW) as such a notice is unnecessary if the documents are not employee records or documents of someone other than the Respondents' as persons conducting the business or undertaking. 1. Mr Paul Boncardo, for the CFMEU, submitted that there existed a dispute between the parties about the exercise, or purported exercise, by a WHS entry permit holder of a right of entry under the WHS Act, such as to enliven the Commission's power, as the authorising authority, to deal with the dispute under section 142 of the WHS Act. This dispute was said to be encapsulated by the 'duelling letters' of 12 and 15 September 2016. 2. Mr Boncardo identified, as issues between the parties, whether the exercise of a right of entry could be refused in circumstances where Pacifico hasn't first had the opportunity to investigate a suspected contravention. A second issue identified related to the application of section 120 of the WHS Act, which, the CFMEU contends, does not have any work to do in circumstances where the documents which the WHS entry permit holder wants to inspect are documents of the person controlling the business or undertaking. 3. Issues raised by Pacifico in Ms Hamilton's letter of 15 September 2016 included the view of Pacifico that the allegations set out in the notice did not provide a sufficient basis for a reasonable suspicion of a contravention of the WHS Act. Secondly, that unsubstantiated and non-specific allegations of bullying by individuals cannot, by themselves, ground a reasonable suspicion under section 117 of the WHS Act. Further, that the documents sought by the CFMEU, including the bullying and harassment policy, were not directly relevant to any suspected contravention. 4. These were all issues, in Mr Boncardo's submission, that well satisfied the jurisdictional fact that the Commission needs to be satisfied of, that there is a dispute about the exercise, or purported exercise, by entry permit holders of rights under the WHS Act. One of the critical issues in this case, and it forms part of the dispute about the exercise of rights by WHS entry permit holders, is whether or not risks to the psychological health and the failure of the person conducting the business or undertaking, or suspected failure, to take all reasonably practical steps to ensure the psychological health of workers, can amount to a contravention of the WHS Act. 5. Mr Boncardo referred to the primary duty of a person conducting a business or undertaking, under section 19 of the WHS Act, to ensure, so far as is reasonably practicable, the health and safety of workers. He then pointed to the definition of 'health' in section 4 of the WHS Act which includes 'psychological health' and referred to part of the Explanatory Memorandum to the WHS Act which states: The term 'health' is defined to clarify that it is used in its broadest sense and covers both physical and psychological health. This means the Bill covers psychological risks to health like stress, fatigue and bullying. 1. Mr Boncardo then submitted as follows: So, it is my submission that there is a dispute about whether or not psychological health is something that falls within the primary duty of care a person conducting a business or undertaking under s 19 and there is a dispute about whether a permit holder can have a reasonable suspicion about that. That dispute really arises not from my friend's submissions but from the evidence that Ms Hamilton gave in the witness box today where she said that so far as she understands a permit holder is not entitled to investigate risks or - I withdraw that - suspected contraventions of the Act relating to psychological or mental health. Ms Hamilton also confirmed in her evidence that Pacifico supports that proposition. That is a live dispute between the parties and it is one we ask the commission to quell in the orders that we're seeking in this matter. 1. Reference was then made to certain passages from the judgement of the High Court in George v Rockett (1990) 170 CLR 104, including the following (at p.115): The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. 1. Mr Boncardo then continued as follows: That, in my submission, encapsulates what is needed to be established by a permit-holder under s 117, that there is some factual basis for a suspicion and the suspicion doesn't have to reach a level of proof of the balance of probabilities or proof beyond reasonable doubt. It is simply a state of conjectural surmise that Mr Kelly and Mr Rigby had to have in respect to its contravention of the Act. 1. Reference was also made to the judgement of the New South Wales Court of Criminal Appeal in R v Rondo [2001] NSWCCA 540 at [53] to support the proposition that a reasonable suspicion may be based on hearsay material or materials which may be inadmissible in evidence. 2. Mr Boncardo then pointed to some of the evidence of Mr Kelly and Mr Rigby, which is referred to at paragraphs 10-14 above, to support the proposition that both CFMEU WHS entry permit holders reasonably suspected that a contravention of the WHS Act had occurred, or was occurring, that related to, or affected, a 'relevant worker', as defined in section 116 of the WHS Act, which enlivened their right to enter the workplace pursuant section 117 of that act. 3. In relation to the definition of 'relevant worker', the CFMEU relied upon Rule 2 - Constitution of its registered rules and, in particular, subrules 2(E)(a) and (A)(A)(3)(i). Subrule 2(E)(a) contains the classifications, 'crane drivers, mobile crane drivers'. It seems to be common ground that crane drivers and mobile crane drivers were employed on the Site at the relevant times. Subrule (A)(A)(3)(i) contains the term, 'also those engaged in the preparation and/or erection of terrazzo or similar compositions'. It was submitted that concrete is a similar composition to terrazzo which would make the workers in the precast yard conducted by Telum eligible to be members of the CFMEU. Case for Pacifico 1. Pacifico's primary submission was to the effect that, at the time that the CFMEU WHS entry permit holders attempted to exercise their right of entry under section 117 of the WHS Act, there was no proper basis for the existence of a reasonable suspicion that a contravention of the WHS Act had occurred, or was occurring, relating to or affecting a relevant worker. 2. It was further submitted by Ms Helen McKenzie, solicitor for Pacifico, that the matter was, in substance, not a dispute about the exercise or purported exercise of a right of entry, which this Commission may deal with under section 142 of the WHS Act but, rather, an allegation that Pacifico had, without reasonable cause, refused entry into the Site by the two CFMEU WHS entry permit holders in breach of section 144 of the WHS Act. Such a breach is beyond the jurisdiction of this Commission. The power to deal with such a breach lies with a court of competent jurisdiction. 3. Ms McKenzie submitted that the factual background against which the events of 12 August 2016 need to be considered was the attempt by the CFMEU, in competition with the AWU, to attract membership at the Site to strengthen the union's negotiating position for an Enterprise Bargaining Agreement. 4. Further, Ms McKenzie submitted that there was no evidence that Pacifico's conduct had, in some way, caused or was the reason for the alleged bullying and harassment that had occurred. There was no basis upon which the two CFMEU WHS entry permit holders could have reasonably suspected that Pacifico had contravened, or was contravening, section 19 of the WHS Act. 5. Ms McKenzie relied upon the same passage from the Court of Criminal Appeal judgement in R v Rondo referred to at paragraph 46 above for the proposition that hearsay material, which is the basis for holding a reasonable suspicion, must have some probative value. The material relied upon by the two CFMEU WHS entry permit holders in this matter lacked that characteristic. 6. It was conceded by Pacifico that there may be circumstances where bullying, harassment and intimidation in a workplace could give rise to psychological damage to workers and could conceivably constitute breaches of the WHS Act. However, on the facts of this case, there was no evidence that could base a reasonable suspicion that Pacifico had contravened section 19 of the WHS Act. There was no evidence of any persistent or repeated conduct over a period of time. Consideration 1. I do not accept the submission put by Pacifico that this Commission does not have power to grant the relief sought by the CFMEU in this matter. Section 142 of the WHS Act authorises the Commission to exercise extremely wide powers to deal with a dispute about the exercise, or purported exercise, by a WHS entry permit holder of a right of entry under the WHS Act. The orders that the Commission may make under subsection 142(3) are broad in their scope and will, in many cases, require the Commission to examine and form a view about exercises, or attempted exercises, of rights of entry that have occurred in the past. Orders suspending or revoking WHS entry permits under subsections 142(3)(b) and (c) may well require the Commission to examine and form a view about past transgressions, or alleged past transgressions, by WHS entry permit holders. 2. The real issue in dispute is whether or not Pacifico was entitled to refuse the CFMEU WHS entry permit holders entry to the Site under section 117 of the WHS Act on 12 and 26 August and 15 September 2016. 3. I accept that on the days in question there were engaged on the Site employees who came within the definition of 'relevant worker' for the purposes of subsection 117(1) of the WHS Act. In other words, I accept that there were present on the Site workers who were members, or eligible to be members, of the CFMEU and whose industrial interests the CFMEU was entitled to represent. 4. In light of the concession made by Ms McKenzie in final addresses that there may be circumstances where bullying, harassment and intimidation in a workplace could give rise to psychological damage to workers and could conceivably constitute breaches of the WHS Act, I see no utility in making a determination in the terms set out at paragraph 37(a) above. This is no more than a statement of the legal position and is not in dispute. 5. However, in relation to the proposed order set out at paragraph 37(c) above, I do see some utility in making an order in those terms. One of the initial issues which divided the parties was Pacifico's request to the CFMEU WHS entry permit holders to be provided with particulars of the suspected contraventions so that it could carry out its own investigation first. Ms McKenzie did not address this issue in her submissions and, to the extent that Pacifico still holds to this position, it needs to be clearly stated that there is no support for it in the WHS Act. 6. Likewise, in relation to the proposed order set out at paragraph 37(d) above, I again see some utility in making an order in those terms. Another of the initial issues which divided the parties was Pacifico's insistence that the notice requirements contained in subsection 120(5) of the WHS Act applied to a requirement that Pacifico allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to a suspected contravention and that: 1. is kept at the workplace, or 2. is accessible from a computer that is kept at the workplace. Again, Ms McKenzie did not address this issue in her submissions and, to the extent that Pacifico still holds to this position, it, again, needs to be clearly stated that there is no support for it in the WHS Act. The notice requirements contained in subsection 120(5) of the WHS Act apply to the inspection and copying of: 1. employee records that are directly relevant to a suspected contravention, or 2. other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking. 1. The main focus of the dispute between the parties is crystallised in the order sought by the CFMEU which is set out at paragraph 37(b) above. On one view, the proposed order is no more than a statement of what is currently provided for in the WHS Act. However, the evidentiary basis upon which the application for this order is grounded is the evidence led by the CFMEU as to the suspicions held by Mr Kelly and Mr Rigby, on or around 12 and 26 August and 15 September 2016, that a contravention of the WHS Act had occurred or was occurring. 2. The factual basis upon which that suspicions of the two CFMEU WHS entry permit holders were said to be based may be summarised as follows: - Workers told them that Doc had been hassling them about joining the CFMEU; - Workers reported that Doc was bullying, threatening and standing over them and that this was making them nervous and uncomfortable being at work; - Workers informed Mr Rigby that Doc had been going around the precast yard telling workers that they could not and should not join the CFMEU and that there would be implications for them if they joined the CFMEU; - Doc had told them they should not talk to CFMEU officials and they would "lose their bonus" if they did; - Doc was taking workers aside and talking to them individually, telling them not to join or get involved with the CFMEU; - Workers were very reluctant to speak with them and were anxious about being spotted by management talking to them; - Doc had been going around the precast yard telling workers that they could not and should not join the CFMEU and that there would be negative consequences if they did; - Doc was reportedly bullying and harassing workers by making threatening comments and saying things like "don't join the CFMEU" and "if you do join the CFMEU there will be consequences"; - Workers were being isolated by Doc, taken aside and 'the heavies' were being put on them, and their situation at work had become extremely uncomfortable since the CFMEU had come to the Site; - Workers said Doc was standing over them and had told them they would lose their bonus for signing the CFMEU petition. Workers said that their pay was already way too low and that they were relying on the bonus and could not afford to lose it; - Workers also said that Doc was intimating to them they would not be carried on to the next project if they supported the CFMEU in attempting to get an 'EBA' for the project; - Workers would only speak with Mr Kelly out of the sight of the management; - Workers presented as being extremely stressed and anxious; - Workers also told Mr Kelly that they were uncomfortable at work as a result of Doc's activities and stressed out by what he had been doing; - Workers with their heads in their esky, too scared to look up at Mr Kelly; - Doc had threatened workers that their bonus will be taken off them if they bargain for or get a new enterprise agreement; - Doc had directed workers to sign a petition providing that the AWU was to represent them in lieu of the CFMEU; - Doc had told workers that they should sign up with the AWU "not the fucking CFMEU" and generally made derisive, derogatory and threatening comments about the CFMEU and any workers who join or wish to join the CFMEU; - Doc's conduct had reportedly caused workers, who were members or eligible to be members of the CFMEU, to suffer stress and anxiety at work and to feel uncomfortable about being at work; - In relation to one particular member of the CFMEU, Mr O'Connor and Ms Hamilton had contravened section 19 of the WHS Act in relation to their reported treatment of this CFMEU member. Particulars of this contravention were that servants and agents of Pacifico had reportedly: distributed or encouraged the distribution of a petition amongst this CFMEU member that calls for his sacking; told this CFMEU member that they have a problem with them because he had gone and "joined the fucking CFMEU" informed this CFMEU member that workers had lost trust in him and that it would be difficult for him to continue working; and said that many allegations (none of which were specified to any extent) had been made against the CFMEU member. This conduct had reportedly made this CFMEU member stressed, anxious and upset, and had impacted deleteriously on his experience of work; 1. It was on the basis of these 'facts', as reported to the CFMEU WHS entry permit holders by workers on the Site, and as observed directly by Mr Kelly and Mr Rigby, that they claimed that they suspected that a contravention of the WHS Act had occurred or was occurring. The suspected contravention was that Pacifico, as the person conducting the business or undertaking, had failed to ensure, so far as was reasonably practicable, the psychological health of workers on the Site, in contravention of section 19 of the WHS Act. 2. However, the test contained within section 117 of the WHS Act is that the WHS entry permit holder "must reasonably suspect before entering the workplace that the contravention has occurred or is occurring" (emphasis added). The notion of 'reasonableness' injects an element of objectivity into the assessment of whether or not the requirements of section 117 have been met. It matters not that both Mr Kelly and Mr Rigby may well have genuinely suspected that a contravention of the WHS Act had occurred or was occurring. The question to be addressed is whether such suspicion was reasonable. In my opinion, based on the evidence put forward by the CFMEU, it was not. 3. In R v Rondo, an authority relied upon by both parties, the Court of Criminal Appeal considered the term "reasonably suspects" in the context of section 357E of the Crimes Act 1990 which was, at the time of those proceedings, in the following terms: 357E A member of the police force may stop, search and detain: 1. any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence; or 2. any vehicle in which he or she reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence. 1. After considering the authorities cited in Streat v Bauer; Streat v Blanco (unreported, Supreme Court, NSW, Smart J, Nos 13686, 13687 of 1996, 16 March 1998) Smart AJ stated as follows at [53]: 53 These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances. 1. In the present matter, the question to be answered was whether or not there was some factual basis, some material or materials with probative value, which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, section 19 of the WHS Act by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the Site. 2. The hearsay evidence relied upon by the CFMEU was of workers feeling nervous and uncomfortable being at work; of their situation at work having become extremely uncomfortable since the CFMEU had come to the Site; of workers being uncomfortable at work as a result of Doc's activities and stressed out by what he had been doing; of workers suffering stress and anxiety at work and feeling uncomfortable about being at work; and of a particular worker feeling stressed, anxious and upset, as a result of the actions of Pacifico which had impacted deleteriously on his experience of work. In my opinion such hearsay evidence lacks sufficient probative value to form the basis of a reasonable suspicion that Pacifico had contravened, or was contravening, section 19 of the WHS Act. 3. Evidence was given of observations by the CFMEU WHS entry permit holders of workers being very reluctant to speak with them and being anxious about being spotted by management talking to them; of workers only speaking with Mr Kelly out of the sight of the management; of workers presenting as being extremely stressed and anxious; and of workers with their heads in their esky, too scared to look up at Mr Kelly. Again, in my opinion this evidence is lacking in sufficient probative value form the basis of a reasonable suspicion that Pacifico had contravened, or was contravening, section 19 of the WHS Act. 4. 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. 5. The exercise of right of entry by WHS entry permit holders is an important mechanism by which unions, such as the CFMEU, 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 CFMEU in this matter has the potential to undermine the very important purpose for which rights of entry exist. 6. For these reasons I decline to make the order set out at paragraph 37(b) above. 7. I make the following orders: 1. As and from 17 January 2017, the respondents will not refuse entry to CFMEU WHS entry permit holders who seek entry under s 117 of the Work Health and Safety Act 2011 to investigate suspected contraventions of the Work Health and Safety Act in circumstances where the respondents have not had opportunity to investigate such contraventions first. 2. As and from 17 January 2017, the respondents will not refuse to allow CFMEU WHS entry permit holders to inspect and make copies of documents under s 118(1)(d) of the Work Health and Safety Act 2011 in circumstances where a notice has not been given under s 120 of the Work Health and Safety Act as such notice is unnecessary if the documents are not employee records or documents of someone other than the respondents as persons conducting the business or undertaking. 3. Orders 1 and 2 shall remain in force for a period of twelve months. ********** Amendments 17 January 2017 - Minor formatting and punctuation. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 January 2017