B.M.D Constructions Pty Ltd v Construction, Forestry, Mining, and Energy Union of Employees & Ors [2024] QIRC 105

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: B.M.D Constructions Pty Ltd v Construction, Forestry, Mining, and Energy Union of Employees & Ors [2024] QIRC 105 B.M.D Constructions Pty Ltd (Applicant) v Construction, Forestry, Mining, and Energy Union of Employees (First Respondent) and Construction, Forestry and Maritime Employees Union (Second Respondent) and Dylan Howard (Third Respondent) and Hayden Turney-Davy (Fourth Respondent) and Matthew Vonhoff (Fifth Respondent) and Dean Mattas (Sixth Respondent) and -- 1 of 12 -- 2 Eben Cox (Seventh Respondent) and Hoani Edwards (Eighth Respondent) and Joshua Thompson (Ninth Respondent) and Cody Budgeon (Tenth Respondent) and Jamie Porter (Eleventh Respondent) and Trevor Sinclair (Twelfth Respondent) and Dean Rielly (Thirteenth Respondent) CASE NOS: WHS/2024/113 WHS/2024/114 PROCEEDING: Application to deal with a dispute about right of entry DELIVERED ON: 3 May 2024 HEARD AT: Brisbane -- 2 of 12 -- 3 HEARING DATES: 3 May 2024 MEMBER: Pidgeon IC ORDER: CATCHWORDS: 1. The application is dismissed WORKPLACE HEALTH AND SAFETY – Dispute about right of entry – Whether interim relief sought should be granted LEGISLATION: Industrial Relations (Tribunals) Rules 2011 (Qld) r 98 Work Health and Safety Act 2011 (Qld) ss 3(1), 117, 118, 119, 128, 142 CASES: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 APPEARANCES: Mr D Hegarty for the Applicant Mr E Dalgleish for the Respondents Reasons for Decision Introduction [1] B.M.D Constructions Pty Ltd ('B.M.D') has applied to the Queensland Industrial Relations Commission ('the Commission') to deal with a dispute about the exercise, or purported exercise, of a right of entry by a Work Health and Safety ('WHS') entry permit holder pursuant to s 142(4)(b) of the Work Health and Safety Act 2011 (Qld) ('WHS Act'). [2] The Respondents to the application are the Construction, Forestry, Mining, and Energy Union of Employees, Construction, Forestry and Maritime Employees Union (collectively 'the union') and eleven individual right of entry permit holders, Mr Howard, Mr Turney-Davy, Mr Vonhoff, Mr Mattas, Mr Cox, Mr Edwards, Mr Thompson, Mr Budgeon, Mr Porter, Mr Sinclair and Mr Rielly ('the permit holders'') who sought entry to B.M.D's premises. [3] The relief sought by B.M.D in the interim application for relief was ultimately framed1 in the following terms: The Applicant applies for the following interim orders on an urgent basis:- 1 See Form 73 – Application to deal with a dispute about right of entry dated 30 April 2024. -- 3 of 12 -- 4 a. WHS Entry Permit holders from the First and Second Respondent are not permitted to enter the Project without first obtaining approval from the Commission, by: i. The WHS Entry Permit holder providing the Commission and the Applicant's representative with a Notice of Entry which adequately and appropriately identifies the suspected contravention that is being inquired into; and ii. The Commission and/or Applicant representative is entitled to test the reasonable suspicion of the WHS Entry Permit holder; and iii. The Commission, WHS Entry Permit holder and Applicant's representative will agree the reasonable safety requirements the WHS Entry Permit holder must follow should approval be granted. b. Any entry onto the Project by representatives of the First and Second Respondent who have not obtained approval from the Commission is not permitted under the Work Health and Safety Act 2011. c. The interim orders remain in effect until such time as the substantive disputes have been heard and determined or otherwise resolved. [4] The Respondents resist the relief sought and seek that the application for urgent interim relief be dismissed. Relevant statutory framework [5] Section 142 of the WHS Act provides that the Commission may deal with a dispute about a right of entry under the WHS Act. [6] There was an attempt at conciliation regarding the application for interim orders on 1 May 2024. This was unsuccessful and so I determined to arbitrate the matter pursuant to s 142(2). Legal Framework [7] The test to be applied in considering whether to grant an interlocutory injunction was set out in Australian Broadcasting Corporation v O'Neill ('ABC v O'Neill'),2 where Gummow and Hayne JJ said: [65] The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: “The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an 2 [2006] HCA 46, citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 (‘ABC v O’Neill’). -- 4 of 12 -- 5 injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.” By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at the trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: “How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”3 The Disputes [8] The substantive applications in WHS/2024/113 and WHS/2024/114 seek a range of orders including that the WHS entry permit of two individual respondents be revoked, that the WHS entry permits of some other individual respondents be suspended or that a range of conditions be imposed on their permits. [9] In summary, the subject matter of the dispute which is the basis of WHS/2024/113 relates to several permit holders who the Applicant says purported to enter the Project under s 117 of the WHS Act, purporting to exercise rights under s 118 of the WHS Act. The Applicant says the matters in dispute include: a. That the WHS permit holders did not hold a reasonable suspicion of any contravention of the WHS Act or the Electrical Safety Act 2022 prior to attending the workplace and have failed to adequately articulate the suspected contravention. b. Whether the permit holders have genuinely entered the workplace for the purpose of inquiring into a suspected contravention in circumstances where they refuse to attend the site compound to inspect documents they have requested to sight. c. The permit holders have made misrepresentations about things they are authorised to do when exercising a right under section 118 of the WHS Act, including asserting that as soon as they provide a Notice of Entry, as required by section 119 of the WHS Act, they are entitled to complete, unfettered access to the Project. d. The permit holders refuse to comply with reasonable requests by the Applicant to comply with work health and safety requirements that apply to the workplace, including signing into the Project, to acknowledge that they would be bound to comply with the site safety rules specific to the Project, and breaching exclusion zones. e. The permit holders have purported to exercise their right of entry in a manner that intentionally and unreasonably delays, hinders and/or obstructs the Applicant form carrying out work at the workplace. [10] The Applicant submits that on 23 April 2024, one of the third, fourth or fifth respondents said words to the effect, 'we are not going to stop until we break BMD'. The Applicant said 3 ABC v O’Neill (n 2) [65] (emphasis added) (citations omitted). -- 5 of 12 -- 6 this causes them to reasonably suspect the matters in dispute will continue or be repeated by the individual respondents or other permit holders employed by the first and second respondents. [11] In summary, the subject matter of WHS/2024/114 arises from attendance on the Project by ten individuals named in the dispute notice on 29 April 2024. The Applicant says that these individual respondents produced Notices of Entry, which contained generic statements of suspected contraventions they were purporting to enter the site to enquire into. [12] The application further states that in addition to the named individual respondents, Mr Dean Reilly and approximately 8 other individuals wearing clothing and/or hardhats displaying CFMEU logos entered the Project without the production of Notices of Entry and did not otherwise identify themselves. [13] The Applicant says that the matters in dispute include: a. The Applicant submits the permit holders did not genuinely enter the workplace on 29 April 2024 for the purpose of inquiring into a suspected contravention, given that: i. The permit holder's actions while on site do not correlate with inquiring into the suspected contraventions contained on the entry notices. ii. The permit holders and other individuals referred to in paragraph 9 herein were observed to scale fencing to gain access to work areas that were otherwise excluded. iii. The permit holders and other individuals referred to in paragraph 9 herein were observed to be sitting on a crane. iv. During previous discussions with the Third, Fourth and Fifth Respondents on 24 April 2024, words to the effect of 'we are not going to stop until we break BMD' were said. v. The individuals referred to in paragraph 9 herein did not produce any Notice of Entry as required by s 119 of the WHS Act. b. The permit holders and other individuals referred to in paragraph 9 herein failed and/or refused to comply with reasonable requests by the Applicant to comply with work health and safety requirements that apply to the workplace, including by; i. Refusing to sign into the Project, to acknowledge that they would be bound to comply with the site safety rules specific to the Project; ii. Accessing the workplace and/or restricted areas within the workplace improperly by jumping over fencing in multiple locations, including temporary fencing approximately 1.8 to 2 metres high. iii. Breaching exclusion zones. c. The permit holders and other individuals referred to in paragraph 9 herein have purported to exercise their right of entry in a manner that intentionally and unreasonably delays, hinders and/or obstructs the Applicant from carrying out work at the workplace, including by: -- 6 of 12 -- 7 i. Verbally and/or physically intimidating site representatives and site security, including by pushing/shoving site security and calling a site representative a 'dog'; ii. Accessing the site improperly by jumping over fencing; iii. Entering a restricted area of the Project and sitting on plant and equipment, including a crane. Submissions before the Commission [14] Given the urgent nature of the hearing, I asked the parties to hand up written submissions at the hearing this morning and to speak to those. I asked some questions and the parties were offered an opportunity to reply to each other's oral submissions. While I have set out some of the arguments of the parties below, it is worth noting that I have not attempted to capture every submission made. Applicant's submissions [15] The Applicant says that the actions set out above pose a significant risk to the health and safety of workers, others on the Project and members of the public. [16] In written submissions handed up at the hearing this morning, the Applicant states that it is pressing all of the matters summarised above from [9] – [13]. For the purposes of the interim relief sought, the Applicant says it relies upon the following conduct: a. The permit holders' refusal to comply with reasonable requests by the applicant to comply with work health and safety requirements that apply to the workplace, including signing into the project, to acknowledge that they would be bound to comply with the site safety rules in respect of the Project, and breaching exclusion zones; i. At all times, the respondents have been informed that singing the visitor register so that the applicant has a record of who is on site together with it serving as a record of the respondents acknowledgement of the site specific safety rules they are to be bound by, is a reasonable safety requirements that needs to be completed prior to any entry to the workplace. ii. The applicant has repeatedly informed the respondents that it would facilitate entry upon the respondents complying with the reasonable safety requirements set out on the visitor sign in register. iii. Rather than comply with the reasonable safety requirements of the applicant, the respondent have barged their way through and past workers at the Project creating a risk of physical and psychological injury for those workers on the Project. iv. Rather than comply with the reasonable safety requirements of the applicant the respondents have scaled retaining walls, climbed fences, entered exclusion zones immediately adjacent to live traffic travelling along the Centenary Highway and interfered with control measures to prevent public access to work areas. b. The permit holders have purported to exercise the right of entry in a manner that intentionally and unreasonably delays, hinders and/or obstructs the applicant from carrying out work at the workplace, including acting in an unsafe manner upon entry and acting in a manner that risks the safety and health of the applicant and its workers, including their psychosocial health and safety. -- 7 of 12 -- 8 c. The conduct of the respondents also poses a significant risk to public health and safety. [17] The Applicant says that even where a WHS entry permit holder has a right to enter a site, which they do not concede regarding any of the entries subject of this dispute, they do not have a licence to behave as they see fit, let alone in an unsafe manner or a manner that hinders or obstructs the operations of the site. [18] The Applicant's written and oral submissions set out the reasons why it believes the Commission should make the orders it seeks in the substantive application. Effectively, it states that it will be able to demonstrate that valid grounds exist (in the form of the behaviour it describes above) to support the making of orders. [19] The Applicant says that the balance of convenience strongly favours the granting of interim orders. The Applicant notes the 'speedy hearing' listed for 13-15 May. The Applicant also notes that the interim order it seeks 'does not seek to prohibit the exercise of a right of entry, rather, provide clarity of expectations for the Applicant and the Respondents. The Applicant further argues that the granting of interim orders will 'protect the health and safety of both permit holders, members of the public and workers on the Project'. Finally, the Applicant says that interim orders will minimise the effect of delays and cost to the Applicant. The Applicant submits that 'the direct costs associated with ceasing work due to improper conduct of the Respondents is no less than $237,000 per day. Respondents' submissions [20] The Respondents submit that the orders proposed by the Applicant are without merit and are contrary to law. [21] Regarding entry to the Project, the Respondents say that there is no planned right of entry by CFMEU permit holders on site unless a risk to the health and safety of workers is identified and requires entry. Further, the Respondents say that if a risk to the health and safety of workers is identified and permit holders are required to enter the site, they would do so lawfully under ss 117, 118 and 119 of the WHS Act. [22] The Respondents point out (and it is not contested) that the parties are waiting for a report by the Inspectors from Workplace Health and Safety Queensland regarding the matters in issue. [23] The Respondents submit that permit holders required to comply with the Applicant's work health and safety requirements on site have not been informed of the Applicant's health and safety policy document and have only been provided with a copy by way of Mr Hegarty's affidavit today. The Respondents say that this means it has not been able to review the document in order to consider the request from the PCBU. [24] The Respondents submit that there is 'no admissible evidence before the QIRC of any interference on site or with right of entry by the CFMEU'. In support of this submission, the Respondents say that there is no reason why the Applicant's evidence should be accepted. Without setting out all submissions, I note the Respondent's argument that a -- 8 of 12 -- 9 consideration of the facts and the relevant law in this matter require a consideration of all circumstances in which the matters in dispute arise. [25] Further, the Respondents say that when the substantive matter is to be heard within a short period of time, no interim order should be made because it is not in the public interest having regard to how weak the Applicant's claim is. [26] With regard to the Applicant's submissions that it has made 'reasonable requests' of the Respondents to comply with work health and safety requirements to enter the workplace pursuant to s 128 of the WHS Act, the Respondents say that to date no 'reasonable request' has been made to the CFMEU and that no BMD policy has been presented to the CFMEU for its consideration in relation to right of entry and its permit holders. [27] The Respondents' written submissions address the purpose of the WHS Act and the relevant sections of the Act.4 The Respondents then go on to submit that the substantive applications 'are no more than a scheme to defeat the entry by the CFMEU to unreasonably hinder or delay the exercise of the statutory rights by CFMEU permit holders'. The Respondents say that the WHS Act serves a public purpose for providing for minimum workplace health and safety standards for workplaces and that it is not in the public interest to defeat lawful entry by CFMEU permit holders. [28] The Respondents submit that in giving effect to the Act's purpose of securing the health and safety of workers and workplaces5 the Act confers a right on permit holder to elect to lawfully enter a workplace that would otherwise be deemed trespass. The Respondents submit that the Commission could not make an order that would operate to defeat a statutory purpose where statutory rights are conferred in the public interest. [29] The Respondents make submissions about the amending section 128 of the WHS Act and states that it clarifies that a PCBU cannot require a WHS entry permit holder to comply with an occupational health and safety requirement at the site if compliance with that requirement 'would unreasonably hinder or delay the exercise of the statutory rights' conferred by sections 117 and 118 of the WHS Act or would otherwise defeat the exercise of those rights. [30] The Respondents says that the Applicant's substantive case seeks the interim and final orders against the CFMEU and the individual permit holders on the basis that permit holders haven't 'signed in' at a workplace despite the fact that: a permit holder has already been identified through their entry notice/permits; the requirement does not apply to all visitors, only permit holders; and the permit holder would need to travel to a location, away from the location at which entry is sought to sign in. [31] The Respondents further note that the Applicant seeks the orders on the basis that permit holders must be 'inducted into a workplace' despite the fact that the permit holders have been trained previously in WHS legislation and site safety, or inducted previously or would 4 Respondents' written submissions [10]-[12]. 5 Section 3(1) WHS Act. -- 9 of 12 -- 10 need to travel to a location away from the location at which entry is sought, to be inducted. The Respondents are also critical of the Applicant's argument that permit holders have entered certain areas to which entry is prohibited, even where the area relates to the permit holder's suspicion of a contravention. [32] The Respondents make submissions about the operation of s 128 of the WHS Act from [23]-[31]. I will not set those submissions out here as I have concluded that arguments such these will be best addressed at the hearing of the substantive matter on 13 May 2024. [33] With regard to the Applicant's submissions or content of the dispute notices addressing the notices of entry provided by the permit holders on the dates relevant to the dispute, the Respondents submit that entry notices are not a pre-requisite to a valid entry. Further, the Respondents say that any inadequacies in an entry notice do not stop access to a workplace. Should the interim orders sought by B.M.D Constructions Pty Ltd be granted? Prima facie case / genuine dispute between the parties [34] The matters set out above clearly demonstrate that there is a dispute between the parties. The facts of the matter and the applicable law are contested. Based on the material available to me, there is clearly a question to be tried. I do not think it is possible or necessary at this stage to comment on the likelihood that the Applicant will be successful in its substantive application. I have expedited the hearing of the substantive applications to deal with disputes WHS/2024/113 and WHS/2024/114 and to that end, I have listed a three day hearing from 13 May 2024. [35] I have viewed the CCTV footage and the body worn camera footage presented by the Applicant.6 No one depicted in the footage gave evidence at the hearing today. Even if I were willing to make an assessment of that footage in the absence of commentary from those depicted in it, it appears that the real controversy arises from an argument about whether requests regarding work health and safety requirements made of the Respondents pursuant to s 128 of the WHS Act were reasonable or whether the Respondents were properly acting in compliance with the requirements imposed on permit holders by ss 117, 118 and 119 of the WHS Act. All of these matters will be addressed at the hearing commencing on 13 May 2024. Balance of convenience [36] I find that the balance of convenience does not support making the urgent interim orders sought by the Applicant. 6 DJH1 Body worn camera footage from 23 April 2024; DJH3 Body worn camera footage; DJH4 CCTV camera footage from 29 April 2024; DJH6 Chronology of body worn camera and CCTV camera footage. -- 10 of 12 -- 11 [37] Firstly, while there were events at the Project on 23 April 2024 and 29 April 2024 that gave rise to the dispute notices filed by the Applicant, as at the time of the hearing this morning, there has been no further attendance at the Project by any of the Respondents. [38] Secondly, I have expedited the hearing of the substantive matters and it will commence in ten days from now. [39] Thirdly, the orders sought relate to all permit holders employed by the First and Second Respondents. I do not think that this is warranted in circumstances where the First and Second Respondent employ many people who are permit holders and I have no information before me as to who these people are or what actions they have taken that should give rise to a serious condition being imposed on them. [40] Fourthly, I see no practical need or utility for the orders which are sought. The legislative scheme provides for the Applicant to raise a dispute about right of entry. This is open to the Applicant at any time in the coming days prior to the hearing commencing on 13 May 2024. [41] I also note that the parties await a report by Inspectors from the Workplace Health and Safety Regulator regarding some of the matters in issue. I have no other information about that process and I am unable to comment on what effect, if any, it may have on the parties' positions regarding the substantive disputes. [42] There is some question in my mind as to whether the orders sought are actually orders I can make; however I do not need to consider that matter as I am not making the orders. I am concerned that the orders sought pre-empt a situation where a permit holder does not comply with the Act. Further, the interim orders ask the Commission to determine and supervise all activities of permit holders employed by the First and Second Respondent as they relate to the Project. The interim order sought also seeks that the Commission involve itself in a tripartite process to determine health and safety requirements for each exercise of a notice of entry. It seems to me that the interim orders sought are impractical, virtually unworkable and unsustainable. [43] Further to that, the Applicant seeks an order that no permit holder employed by the First and Second Respondents can enter the Project without approval from the Commission. I understand that the Applicant cites a health and safety risk as a significant basis for the interim orders. However, the Respondents also cite the health and safety risks which emerge when permit holders are unable to enter the Project to inquire into a suspected contravention of the Act. [44] Finally, the parties currently have a listing for a conciliation conference on Thursday 9 May 2024 before Commissioner Gazenbeek. It is a matter for the parties whether they wish to go ahead with this conference, however I make two observations: the first is that if further disputes arise at the Project, they could form the basis of discussions on 9 May 2024 (or be joined to the matters I am hearing on 13 May 2024 pursuant to -- 11 of 12 -- 12 rule 98 of the Industrial Relations (Tribunals) Rules 2011 (Qld). The second observation is that if the parties are genuine in their desire to explore BMD's health and safety policy for the Project and how that policy might provide for a 'reasonable request' made of a permit holder by BMD, these are matters which may be discussed at the conciliation conference or future report back conferences. Those discussions may occur concurrently with any arbitration of the matters before me. Order [45] The application is dismissed. -- 12 of 12 --