ACI PET Operations Pty Ltd v Comptroller-General of Customs

[1990] FCA 398

Re: AUSTRALIAN FEDERATION OF AIR PILOTS
And: ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LTD.; AUSTRALIAN AIRLINES
LTD.; EAST-WEST AIRLINES (OPERATIONS) LTD. and MAYNE NICKLESS LTD. TRADING AS
IPEC AVIATION
Nos. V I20, 21, 23 and 24 of 1990
FED No. 398
Industrial Law
34 IR 12

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - offence - hinder or obstruct officer of organisation in exercise of powers of entry, inspection and interview - letter from organisation to employers, specifying time and seeking place for inspection of records - reply refusing to make records available at specified time - whether person in exercise of power - no officer authorised - need for authority to specify premises or employer.

Words and phrases - "person".

Industrial Relations Act 1988 s.306, s.134, s.286.

Acts Interpretation Act 1901 s.22.

Ansett Airlines of Australia (Pilots) Award 1989.

Australian Airlines Pilots Award 1989

East-West Airlines (Operations) Limited Pilots Award 1989.

IPEC Aviation Pilots Award 1989.

HEARING

MELBOURNE

#DATE 2:8:1990

Counsel for the prosecutor: H. Borenstein

Solicitors for the prosecutor: Mahoney and Galvin

Counsel for the defendant: F. Parry

Solicitors for the defendant: Freehill, Hollingdale and Page

JUDGE1

Before the Court are four informations, alleging offences against s.306(a) of the Industrial Relations Act 1988 ("the Act"). The prosecutor is the Australian Federation of Air Pilots, which is admitted by the defendants to be an organisation registered pursuant to the Act. The defendants are four companies, the incorporation of which is also admitted. They are Ansett Transport Industries (Operations) Pty. Ltd. ("Ansett"), Australian Airlines Limited ("Australian Airlines"), East-West Airlines (Operations) Limited ("East-West") and Mayne Nickless Limited, which trades under the name Ipec Aviation ("Ipec"). Each of the defendants is a party to one information.

1. Section 306 of the Act provides relevantly as follows:
   

"A person shall not:

(a) hinder or obstruct a person in the exercise of a power under subsection 134(1) or 286(1); ...".

This proceeding is not concerned with s.134 of the Act. Section 286 provides relevantly as follows:

"(1) An officer of an organisation authorised in writing by the secretary of the organisation or of a branch of the organisation to act under this subsection may, for the purpose of ensuring the observance of an award or an order of the Commission binding the organisation:

(a) at any time during working hours, but subject to any conditions provided by the award or order, enter prescribed premises that are specified in the authority or occupied by an employer specified in the authority;

(b) inspect or view any work, material, machinery, appliance, article, document or other thing on the prescribed premises; and

(c) interview, on the prescribed premises, an employee who is a member, or is eligible to be a member of the organisation; but an officer acting under this subsection shall not hinder or obstruct an employee in the performance of work during working time.

...

(3) In this section:

"officer", in relation to an organisation, means a person holding an office in, or employed by, the organisation or a branch of the organisation;

"prescribed premises", in relation to an organisation bound by an award or an order of the Commission, means:

(a) premises in which work to which the award or order applies is being carried on; or

(b) premises occupied by an employer bound by the award or order."

1. By consent of the parties, the four proceedings have been heard together, although much of the evidence is not common to all matters. Subject to one matter of which mention will be made, Mr Borenstein of counsel, who appears for the prosecutor, has closed his case. Mr Parry of counsel, who appears for all of the defendants, has made a submission that there is no case for the defendant to answer in any of the proceedings, and it is necessary for me to rule on that submission immediately.

2. There have been tendered as exhibits four instruments purporting to be awards of the Australian Industrial Relations Commission. They are respectively the Ansett Airlines of Australia (Pilots) Award 1989, the Australian Airlines Pilots Award 1989, the East-West Airlines (Operations) Limited Pilots Award 1989 and the IPEC Aviation Pilots Award 1989. Each award is dated 1st November 1989, and provides that it is operative from 13th October 1989. There is a variation of each, dated 15th May 1990, under which it is provided that the award is binding on the prosecutor. There has been some evidence in these proceedings which must give rise to doubt whether any of the awards was made in settlement of an industrial dispute within the meaning of the Act. In closing his case, however, Mr Borenstein referred to the fact that the defendants have in their possession evidence going to the circumstances of the making of the awards, which Mr Parry is willing to lead should the cases proceed. The validity of the awards has formed no part of Mr Parry's submission that there is no case to answer, and it is unnecessary for me to say anything further about it.

3. In three of the proceedings, the offence charged is particularised in the summons by reference to a letter from the prosecutor to the relevant defendant, and a letter from the solicitors for the defendant to the prosecutor, allegedly refusing to make available certain documents for inspection. It is this refusal which is said to constitute the offence charged. In the case of East-West, there is also particularised an additional letter from the defendant's solicitors, and an unsuccessful visit to premises at Mascot Airport in Sydney. The addition of these particulars has led to a submission by Mr. Parry that there is duplicity in the information and summons in the proceeding in which East-West is the defendant.

4. The letter sent by the prosecutor to Ansett is dated 8th June 1990 and is in evidence. Its terms are as follows:
   

"Dear Mr Oldmeadow,

I refer to Section 286 - Organisation May Authorise Inspection - of the Australian Industrial Relations Act 1988. The Australian Federation of Air Pilots as the employee respondent to the airline awards named hereunder;

Ansett Airlines of Australia

(Pilots) Award 1989

Ansett Air Freight (Pilots) Award 1989

wishes to inspect the following documents:

- All salaries and allowances for pilots employed from the 13th October, 1989.

- All rosters flown by pilots employed from the 13th October, 1989 - Copies of letters of

employment of pilots (or proof thereof) employed at this time

- The names of pilots whose status has changed since October, 1989, with the nominated change. Any Federation representative will bear with them a letter of authority required pursuant to Section 286 sub-section 2 of the Australian Industrial Relations Act 1988, an example of which is attached. I would request your assistance to nominating a place as to where all these records are available to be inspected by Federation Officers on Wednesday 13th June, 1989, at 9.30am.

Yours faithfully,

(Sgd.) T.P. O'Connell"

1. The equivalent letters to the other defendants need not be quoted in full; they are similar in substance, but refer to different awards, and specify different dates on which the inspections proposed were to take place. The letter to Australian Airlines is also dated 8th June 1990. That sent to Ipec is dated 13th June 1990, and that to East-West is dated 20th June 1990. The letter to East-West names particular persons who will conduct an inspection on behalf of the prosecutor, and specifies the premises at which it is proposed that the inspection will take place.

2. Although only one copy was tendered, it is accepted by all parties that each letter was accompanied by a draft authority, in which a blank is left for the name of the person whom it was proposed to authorise to conduct an inspection. The draft authority in evidence is in the following terms:
   

"TO WHOM IT MAY CONCERN Pursuant to Section 286 of the Australian Industrial Relations Act, 1988, the bearer, is an officer of this organisation authorised to enter the premises of employers and to inspect books and records and interview employees.

Your attention is drawn to Section 306 of the Act which provides for:- A person shall not:

(a) Hinder or obstruct

a person in the exercise of power under subsection 134(i) or 286(i) or

(b) Make, to a person

exercising a power under subsection 134(i) or 286(i), a statement, whether orally or in writing, that is to the person's knowledge false or misleading in a material particular. Penalty:

(a) In the case of a

natural person - $500.00 or imprisonment for 6 months, or both; and

(b) In the case of a

body corporate - $1,000.00. CAPT. P. McCONNELL,

SECRETARY/TREASURER."

1. In the case of East-West, there is in evidence a document of this kind, with the blank filled in with the name of Mr. Brian Henderson, a senior industrial officer of the prosecutor based in Sydney. He is one of two people who visited the premises of East-West on 26th June 1990 and, on the evidence so far, were refused admission. The other person who carried out this visit was Mr Gary de Courcey. There is secondary evidence that Mr de Courcey held an authority in similar form to that of Mr Henderson.

2. In response to the letter of the prosecutor to Ansett, the solicitors for the defendants, Messrs. Freehill, Hollingdale and Page, wrote to the prosecutor on 12th June. The letter is in the following terms:
   

"Dear Sir

Section 286

We act for Ansett Airlines of Australia. Your letter to Mr I Oldmeadow of 8 June, 1990 concerning this matter has been referred to us with instructions to respond. The provisions of Section 286 are designed to ensure observance of relevant awards. As such they do not provide a general power of inspection. In this context we make the following points:

(a) Much of the material to which you seek access could not be relevant to the observance of either of the awards to which your letter refers.

(b) Without some indication of the particular award provision in relation to which a breach is alleged, inspection of all employment records would be required. The Section does not authorise such an inspection.

(c) Given the continuation of legal proceedings between Ansett and the AFAP, an assurance would be required that your request is for the purpose of ensuring the observance of the awards and not for any other purpose. The records referred to in your letter will not be made available for inspection by AFAP representatives on 13 June, 1990. We point out that our client's pilots do not wish to be represented by the AFAP and the question of representation of pilots is a matter to be decided by the Industrial Relations Commission in Section 118 proceedings. In those circumstances the AFAP is acting in an interest which is diametrically opposed to the interests of the pilots whose records it seeks to inspect.

Yours faithfully

FREEHILL HOLLINGDALE and PAGE INDUSTRIAL RELATIONS PRACTICE Per:

(Sgd.) Jonathan Forbes"

Similar letters were sent to the prosecutor by the same solicitors, with the necessary variations in names and dates. Indeed, one was sent on behalf of East-West in advance of the letter which the prosecutor wrote to that defendant, and a further letter in similar form was sent on behalf of East-West after the a prosecutor's letter to that defendant. The prosecutor wrote a further letter to East-West, dated 25th June (the day before the visit of Mr Henderson and Mr de Courcey), disputing the points made in the letter of the defendant's solicitors.

1. The principal issue which divides the parties on the question whether there is a case to answer is the degree of specific adherence to the terms of s.286(1) which is required before there will be an exercise of the powers referred to in that subsection. Mr Parry has drawn attention to the fact that, in the letters to the various defendants other than East-West, the prosecutor did not specify any particular officer to carry out an inspection. He also argued that no-one had been authorised in writing in terms of the section, there being a requirement that the authority specify either premises to be entered, or an employer whose premises are to be entered. Mr Borenstein has contended that these particular steps are unnecessary, because the prosecutor has put in train the process which will lead to the making of an inspection, and each defendant has made it clear by letter from its solicitors that the process will not be allowed to continue to fruition.

2. It must be emphasised that s.306(a) makes it an offence to hinder or obstruct a person in the exercise of a power under s.286(1). By s.22(a) of the Acts Interpretation Act 1901, the word "person" in an act includes a body corporate, unless the contrary intention appears. A body corporate cannot exercise a power under s.286(1) of the Act, for the simple reason that each of the powers specified in that subsection must be exercised by an officer of an organisation. It follows that there is a contrary intention disclosed, for the purposes of s.22(a) of the Acts Interpretation Act. When the word "person" is used in s.306(a) with reference to the exercise of a power under s.286(1), it means an officer of an organisation, authorised as required by s.286(1). The prosecutor cannot establish its case by proving that it was hindered or obstructed in its intention to have its authorised officers carry out inspections.

3. It is clear that, in respect of Ansett, Australian Airlines and Ipec, no officer of the prosecutor was authorised in writing by the secretary of the prosecutor for the purposes of entering any premises or inspecting any documents. The draft authorities annexed to the letters sent to those defendants did not contain the name of any officer of the prosecutor, and did not bear any signature of the secretary of the prosecutor. Nor did the draft authorities contain any designation of any premises or of any employer. Paragraph (a) of s.286(1) permits a right of entry only to premises specified in the authority, or to premises occupied by an employer specified in the authority. In my view, the expression "the premises of employers" in the draft authorities is insufficient to constitute specification for the purposes of s286(1)(a).

4. Mr Borenstein attempted to rely on a passage from the judgment of the Full Court in Meneling Station Pty.Ltd. v. Australasian Meat Industry Employees' Union (1987)18 FCR 51, at pp65-66. That passage is as follows:
   

"However, in our view, a breach of a term of an award constituted by refusal to comply with a demand or request may arise in one of two ways. It is most commonly proved by establishing a failure to perform the obligation at, or within, the time stipulated by the request or demand in accordance with the term of the award. Secondly, it may arise from an explicit statement by a party to the award that he will not perform his obligation thereunder. Such a statement does not have the consequences imported by the law of contract where one party accepts what is sometimes called an "anticipatory breach" by another party. Accordingly, an applicant under s 119 of the Act, who relies on such a refusal to perform in the future an obligation imposed by a term of an award, runs the risk of the respondent's adducing evidence that he resiled from the anticipatory refusal before the time for performance had arrived. Where, as in this case, no evidence of that kind is adduced, the Court is entitled to presume, as the learned trial judge apparently did, that the unequivocal refusal continued up to the time fixed for performance."

1. It must be remembered that the Meneling Station case was concerned with a penalty for a breach of a term in an award which gave to an authorised officer of a union a right of inspection of certain records, in defined circumstances. The question with which the Full Court was dealing in the passage quoted was whether there had been sufficient evidence before the trial judge of refusal to comply with a demand or request. In the present cases, the question is whether there was an exercise of a power under s.286(1) by an officer of an organisation authorised in writing. Being a provision creating a criminal offence, s.306 must be construed with some degree of strictness in favour of the defendants. The express requirements of s. 286(1) cannot be ignored, simply on the basis that the section is intended to be a beneficial one.

2. There is an inherent contradiction in the argument of Mr Borenstein. On the one hand, he points out, correctly in my view, that there is no requirement that notice be given of the intention to exercise a power under s.286(1). On the other hand, the basis of his argument is that the process of exercising the powers began with the letters to the various defendants. It is difficult to see how a step which forms no part of the exercise of the powers could be regarded as the commencement of their exercise.

3. In the cases of Ansett, Australian Airlines and Ipec, there is no evidence which would justify a finding that any person was exercising a power under s.286(1). The lack of any written authority given to any officer of the prosecutor is fatal. In no way could any of the letters to the defendants be construed as authorities, to satisfy the statutory requirements. They do not purport to constitute authorities; nor are they signed by the secretary of the prosecutor. Instead of specifying premises where inspections were to take place, they ask for places of inspection to be nominated by those defendants.

4. The case of East-West is different, because Mr Henderson and Mr de Courcey did attend at the premises of East-West at Hangar 20, Kingsford Smith Airport, and did seek to gain entry. Each was equipped with an authority, signed by the secretary-treasurer of the prosecutor. That authority was, however, in similar terms to the draft authority sent with the letters to the defendants, in that it purported to authorise its holder to enter "the premises of employers". As I have already stated, in my view, such an authority does not specify what is required to satisfy s. 286(1)(a). The particular authority cannot be read together with the letter from the prosecutor to East-West, which was not signed by the prosecutor's secretary, or referred to in the authority. There is, therefore, no evidence which would justify a finding that any person was exercising a power under s.286(1) of the Act, with respect to East-West.

5. These conclusions make it unnecessary for me to deal with the other arguments put by Mr Parry. I say nothing about the question of duplicity in the East-West case, and nothing about the submission that the letters of the solicitors for the defendants could not have amounted to a hindering or obstruction if some person had been exercising a power under s.286(1).

6. Each of the informations must be dismissed.