Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Mr Anthony Sheldon

[2017] FWC 5968

[2017] FWC 5968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 505 - Application to deal with a right of entry dispute

Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support
v
Mr Anthony Sheldon; Transport Workers' Union of Australia
(RE2017/850)

DEPUTY PRESIDENT SAMS SYDNEY, 22 NOVEMBER 2017

Application to deal with a right of entry dispute – objections to evidence – hearsay, opinion, commentary, irrelevance – subjective understanding may be relevant to Commission’s jurisdiction – alleged scandalous material – objections overruled except for scandalous material which is irrelevant for the purposes of the arbitration of the right of entry dispute.

BACKGROUND

[1] Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support (the ‘applicant’ or ‘Aerocare’) has filed an application in which it seeks to have the Fair Work Commission (the ‘Commission’) deal with a right of entry dispute, pursuant to ss 505 and 505A of the Fair Work Act 2009 (Cth) (the ‘Act’). Aerocare seeks a number of orders against the Transport Workers’ Union of Australia (the ‘Union’)(the second respondent), its National Secretary, Mr Anthony Sheldon (the first respondent) specifically and all its officials and employees who seek to exercise a right of entry in relation to Aerocare’s premises at Sydney International Airport (the ‘Airport’). It is uncontroversial that the application arises from an incident involving Mr Sheldon’s and another official’s attendance at Aerocare’s premises on 7 July, 2017. The Commission has chaired an unsuccessful conference with the parties and has inspected Aerocare’s premises at the Airport. However, the right of entry dispute has not been resolved and is to proceed to arbitration in respect to the orders Aerocare presses the Commission to make.

[2] Directions for the filing and service of evidence and outlines of submissions were issued on 24 July 2017. Both parties have complied with the primary directions in preparation for a hearing on 16 and 17 October 2017. However, on 15 September, 2015, solicitors for Aerocare (Macpherson Kelley) advised the Commission that ‘much of the content’ of the filed statements of Mr Sheldon and two other TWU officials, Mr Neale Harper and Mr Shane O’Brien, is irrelevant, hearsay, opinion, commentary or scandalous. Aerocare had invited the Union to withdraw the alleged offending material. However, the Union has declined to do so.

[3] Accordingly, I listed a preliminary hearing to deal with the objections on the first day of the scheduled hearing (16 October 2017). This date was convenient due to the Union’s Counsel being unavailable prior to the hearing and the fact that the applicant’s reply evidence would be very much conditioned by the Commission’s rulings on any, or all of its objections. At the hearing, Mr J Murdoch of Queen’s Counsel and Mr S Hughes, Solicitor (Macpherson Kelley), appeared for Aerocare and Mr M Gibian of Counsel with Mr M Doherty, Solicitor (Michael Doherty Legal), appeared for the first and second respondents. Both parties were granted permission to be represented by lawyers, pursuant so s 596 of the Act.

[4] At the outset of the objections hearing and in accordance with my usual practice, I directed the parties to confer as to whether any, or all of the objections could be resolved by agreement, in order to narrow the issues to be determined by the Commission. This was a spectacular failure with no agreement on any of the 41 objections to various paragraphs in the three witness statements and five supporting annexures.

SUBMISSIONS OF THE PARTIES

Aerocare’s overview of relevant statutory provisions and authorities

[5] Mr Murdoch submitted that although the Commission is not bound by the rules of evidence:

a) The rules of evidence should provide general guidance to the Commission as to the manner in which it informs itself; see: Australasian Meat Industry Employees’ Union v Dardanup Butchering Company Pty Ltd (2011) 209 IR 1 at [28], citing Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) 143 IR 354 at [47]-[50] (‘Hail Creek’).

b) The rules of evidence are relevant and if it would cause unfairness, they cannot be ignored; see: Re: Construction, Forestry, Mining and Energy Union, unreported, AIRC, Ross VP, 25 July 2003 PR935310 at [36].

c) The Commission should act judicially and should follow ‘notions of procedural fairness and impartiality’;see: Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [25]; and

d) The Commission should act quickly and effectively, without unnecessary technicality or formality, to get to the heart of the matter; see: Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [25].

[6] Mr Murdoch relied on ss 590 and 591 of the Act and submitted the following in respect to the Evidence Act 1995 (Cth):

a) Evidence will be relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue; see: s 55 of the Evidence Act;

b) Hearsay evidence is an out of court statement that is introduced to prove the truth of the matter asserted therein and will be inadmissible unless an exception applies; see: 59 of the Evidence Act; and

c) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion is expressed.

[7] Mr Murdoch reiterated that although the Commission is not bound by the rules of evidence, such rules are not irrelevant; see: Wong v Taitung Australia Pty Ltd [2017] FWCFB 990 (‘Wong v Taitung’). It was put that the Commission has a discretion to refuse to admit evidence, even if by applying the rules of evidence, it would be admissible. It will depend on the probative value of the evidence; see: 4 Yearly Review of Modern Awards – Casual Employment and Part-Time Employment [2016] FWCFB 2479.

[8] It was further submitted that the rules of evidence are a general guide of good practice. Ultimately it is judicial fairness that is required. Hearsay evidence can be adduced, but will be given limited weight; see: Andrew Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701. Such evidence will not be allowed if its limited probative value does not outweigh unfair prejudice; see: Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940, and may be admitted if supplemented by oral evidence; see: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd[2013] FWCFB 453.

[9] The Union’s response to the objections was set out in a document provided by Mr Gibian and which is annexed to this decision as Annexure A. This is to be referenced to the oral submissions of Mr Murdoch and Mr Gibian on 16 October 2017.

Parties’ submissions on the objections

Mr Harper’s Statement

[10] The 4 objections taken to Mr Harper’s evidence may be broadly characterised as objections related to relevance, hearsay and opinion.

[11] Mr Gibian’s response, (also in respect to a number of other objections taken to the witness’ evidence) was that a relevant fact in issue in the proceeding is the subjective state of mind of Mr Harper (and Mr Sheldon) and their subjective reasons for attending the Airport on 7 July 2017. This was directly relevant to whether they were exercising, or seeking to exercise rights of entry under the Act and whether the contraventions alleged by Aerocare were established; see: Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46 (‘Bragdon’); and Australian, Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802 (‘ABCC v CFMEU’). It was put that Mr Harper and Mr Sheldon were not exercising, or seeking to exercise rights of entry, as they did not consider it was necessary to do so, given their long involvement in the airline industry. Mr Gibian submitted that the authorities make clear that whether or not a contravention exists, can only arise where a person is exercising, or seeking to exercise rights of entry. That matter is informed by the subjective state of mind of the person and is plainly relevant and admissible.

[12] Mr Murdoch distinguished the present matter from ABCC v CFMEU because it was clear from Mr Harper’s own statement that he and Mr Sheldon were intending to hold discussions with the employees. Mr Murdoch submitted that Mr Harper’s evidence of what he observed, or what he assumed was taking place in Aerocare’s office, does not establish the facts of what the room is used for.

[13] Mr Gibian replied that what is alleged here is ‘hindering or obstructing persons’ (s 500) and having discussions with persons not on breaks or down time. This goes directly to the jurisdictional issue and whether any contravention can be made out.

Mr Sheldon’s Statement

[14] Mr Murdoch put that Mr Sheldon’s history in the airline industry is irrelevant to the issues to be determined in the case. What other operators or companies have asked him to do is hearsay and irrelevant. Mr Gibian responded that this is direct evidence, it is not opinion or hearsay. It is plainly relevant to the conditions Aerocare seeks to have imposed on Mr Sheldon’s right of entry.

[15] As to Mr Sheldon’s observations about downtime, Mr Murdoch put that s 490(2) of the Act requires the permit holder to hold discussions during meal times or other breaks - not downtime. The section reads:

SECT 490 When right may be exercised

(1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours.

(2)  The permit holder may hold discussions under section 484 only during mealtimes or other breaks.

(3)  The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry.

The Union did not accept Aerocare’s interpretation of s 490(2) as to the meaning of ‘other breaks’, and it was therefore a ‘live’ issue for argument for which such evidence must be admitted.

[16] As to the evidence of a ‘gentleman’s agreement’ with other aviation operators, that there is no requirement for TWU officials to exercise rights of entry to gain entry to their work areas, Mr Murdoch put that this was hearsay and so vague as being unable to be properly tested by Aerocare. Mr Gibian relied on para [11] above as to Mr Sheldon’s subjective understanding. In any event, Mr Murdoch can cross examine him about these matters. Mr Sheldon’s evidence refers to specific aviation employers and is relevant as to what right of entry restrictions might be sought to be imposed.

[17] Mr Murdoch strongly objected to the entirety of Mr Sheldon’s statement under the heading of ‘TWU concerns about Aerocare’ and the corresponding annexures, as scandalous, irrelevant hearsay from unidentifiable sources (including an internal un-authored Union document) and is obvious opinion. Serious and scurrilous allegations are made, without any evidence. Mr Gibian submitted that this material was what informed Mr Sheldon to visit the Airport. In any event, the matters referred to have been widely agitated in the media and scandalous material is not an objection, per se.

[18] The balance of Mr Sheldon’s statement dealt with his observations, his subjective state of mind and what was discussed at the meeting on the day in question. Mr Murdoch and Mr Gibian relied on their earlier submissions in respect to these matters. Mr Gibian noted that s 78 of the Evidence Act permits a person to give evidence of what the person saw or heard.

Mr O’Brien’s statement

[19] Mr Murdoch objected to Mr O’Brien’s evidence going to his personal experience and discussions with unnamed Union officials and so called ‘arrangements’ with other aviation employers. This was hearsay. It was irrelevant what other operators do or whether they require inductions or not. Aerocare was within its rights to request an induction and that persons on its premises be escorted. It is not a ‘false’ safety issue. Mr Gibian replied that Mr O’Brien’s evidence as to his experience is entirely unremarkable in Commission proceedings. Mr O’Brien’s evidence, as to other operator’s requirements, is directly relevant to what relief is being sought by Aerocare.

[20] Mr Murdoch agreed that Mr O’Brien can give evidence about his own awareness and what he does to comply with safety and security protocols, but he cannot give hearsay/opinion evidence of what other TWU officials have done or might do in this respect. Mr Gibian relied on his earlier submissions in the above paragraphs.

[21] Mr Murdoch said that the same submissions he made on the scandalous matters in Mr Sheldon’s statement, apply to paras [22] to [25] of Mr O’Brien’s statement in which he alleges that Aerocare is some ‘bad employer’. Similarly, Mr Gibian adoptedhis earlier submissions.

CONSIDERATION

[22] It seems to me that Aerocare’s objections to the Union’s evidence falls into three broad categories, namely:

1. Evidence going to the state of mind of Mr Sheldon and Mr Harper.

2. Opinions/assumptions and hearsay evidence of all three Union witnesses.

3. Scandalous material in Mr Sheldon’s and Mr O’Brien’s statements.

I will address each of these categories in turn below.

[23] Firstly, the Union has clearly foreshadowed ‘live’ jurisdictional issues going to the powers of the Commission under Part 3-4 of the Act, in particular, whether a s 500 contravention can be established, absent a finding that the person was exercising or was seeking to exercise rights of entry (which it is claimed Mr Sheldon and Mr Harper were not). As was said in Hail Creek:

[59] In respect of the evidence which the CFMEU contends is "irrelevant" we were not persuaded that this material ought be excluded. Evidence is relevant if it is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue.

[60] Hence the test is whether the evidence could rationally affect the determination of a fact in issue. We were satisfied that the challenged evidence is of this character. It would have been premature to discard this material at that stage of the proceedings in the absence of further argument.

Given that one of the Union’s defences (indeed, a fundamental one), is based on the Commission’s jurisdiction to make the orders sought by Aerocare and which may ultimately go to the subjective understanding or state of mind of Mr Sheldon and Mr Harper; see: ABCC v CFMEU, it would seem to me that these matters are relevant to that argument. In ABCC v CFMEU, Bromberg J referred to Bragdon and said:

48. That conclusion is consistent with the Full Court’s holding in Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64; (2016) 242 FCR 46 (Buchanan, Reeves and Bromberg JJ). In that case, the Full Court at [61]–[64] held that (despite entry onto premises having been proved) a contravention of s 500 was not established in the absence of a finding that the alleged contraveners were exercising or seeking to exercise rights under Part 3–4.

At 77, His Honour continued:

77. Whilst the purported exercise of a right may be objectively discerned from conduct which does not depend upon the actor’s subjective intent, the word “seeking” connotes a subjectively held intent on the part of the actor to achieve a particular result. That is, as I perceive it, the nature of the distinction between “purporting to exercise” and “seeking to exercise” which the Full Court sought to draw. The Full Court’s focus upon the subjectively held intent of the actor is reinforced in the quoted observation of White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[2015] FCA 1293 (“DFWBII v CFMEU 1”) (at [76]) that “[p]ermit holders may seek to exercise the s 484 right even though they are mistaken in their belief that there are employees on the site at the time of the entry ...”, as well as the Full Court’s ultimate conclusion that the respondents in that case “did not proceed under any mistaken belief about their rights”.

Whether the Union is successful as to the Commission’s lack of jurisdiction, is not a matter able to be determined at this preliminary point in the proceedings. I will not exclude this evidence.

[24] Secondly, assumptions or opinion are invariably given little weight, but this is not a ‘knock out’ reason for refusing to admit such evidence, particularly when the Commission is not bound by the rules of evidence (although noting they are not to be ignored either); see: Wong v Taitung. Even so, I assume for present purposes that Mr Sheldon’s and Mr O’Brien’s opinion evidence as to their experience in the airline industry, can be arguably described as ‘specialised knowledge’ for which s 79 of the Evidence Act excludes from the Opinion Rule (s 76). As I said in the hearing, if the Commission was called upon to rule on objections to opinion or assumption evidence, it is likely it would be doing little else. In any event, little weight is given to such evidence and it is unlikely that such evidence would be helpful, let alone determinative in deciding Aerocare’s application. Moreover, Mr Murdoch can obviously cross examine the witnesses as to the basis for their knowledge as to the opinions they offer and the basis for any hearsay evidence. As was said in Hail Creek:

[62] In respect of the hearsay evidence we were not persuaded to uphold the objection having regard to Hail Creek Coal's concession as to the use to which the evidence was to be put. The parties were able to address us in submissions as to the weight to be attributed to this evidence.

I will not exclude this evidence based on opinion or assumptions.

[25] In respect to what Mr Harper, Mr Sheldon and Mr O’Brien observed, s 78 of the Evidence Act, permits a person to give evidence of what they saw or heard or what they perceived. Section 78 is as follows:

78 Exception: lay opinions

 The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a)  the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b)  evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

Accordingly, I will not exclude this evidence based on witness observations.

[26] However, in my opinion, the third category of evidence is of an entirely different character. The material contained in paras 13 to 17 and referenced annexures in Mr Sheldon’s statement, is irrelevant and scandalous material which is prejudicial. It shall not be admitted. These paragraphs make serious unproven allegations and their admission would invite extensive and detailed reply evidence in order for Aerocare to protect its public standing and reputation. That is not the purpose of the application and will deflect attention from the Commission’s consideration of the statutory provisions relied on by both parties in the case.

[27] In any event, right of entry provisions are directed to the permit holder seeking to hold discussions with employees, as s 484 makes plain:

484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a)  who perform work on the premises; and

(b)  whose industrial interests the permit holder's organisation is entitled to represent; and

(c)  who wish to participate in those discussions.

Note 1:       A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2:       A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3:       Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.

While I accept the Union intends to argue Mr Sheldon and Mr Harper were not exercising right of entry rights that day, this is not how Aerocare views the circumstances and how the case will be developed by Aerocare.

[28] There is no requirement for an entry holder to give reasons for exercising the right to hold discussions. Paragraphs 13 to 17 of Mr Sheldon’s statement concern serious allegations against Aerocare which are just that – allegations which will not inform my consideration of this application. The fact Mr Sheldon may have been prompted to visit Aerocare because of serious allegations which he had been aware of, is not the point. He only needs to exercise his right of entry rights to ‘hold discussions’; if that is what he was doing, (which is disputed), without having any reasons for such discussions. For similar reasons, I would also uphold objections to paras 21 to 23 of Mr O’Brien’s statement.

CONCLUSION

[29] In this matter, the Commission determines that:

1. Aerocare’s objections to Mr Neale Harper’s statements are dismissed;

2. Aerocare’s objections to Mr Anthony Sheldon’s statement are dismissed, except for paragraphs 13-17 and referenced annexures TS1, TS2, TS3, TS4 and TS5 which are upheld; and

3. Aerocare’s objections to Mr Shane O’Brien’s statement are dismissed, except for paragraphs 21-23 which are upheld.

The statements will be amended accordingly.

[30] This matter will be listed for further directions and programming at 3pm on Thursday, 30 November 2017.

DEPUTY PRESIDENT

Appearances:

Mr J Murdoch QC for the applicant with Mr S Hughes, Solicitorof Macpherson Kelley instructing

Mr M Gibian of Counsel for the first and second respondent

Hearing details:

2017.

Sydney.

16 October.

Printed by authority of the Commonwealth Government Printer

Annexure A

<Price code C, PR597701>