Bechtel (Western Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FWC 1659

[2013] FWC 1659

FAIR WORK COMMISSION

DECISION

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

Bechtel (Western Australia) Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(RE2013/536)

DEPUTY PRESIDENT MCCARTHY PERTH, 18 MARCH 2013

Whether jurisdiction to hear right of entry dispute. Jurisdiction found.

Background

[1] I made a decision on 13 March 2013 on transcript regarding the jurisdiction of the Fair Work Commissions to deal with an application lodged by Bechtel (Western Australia) Pty Ltd (Bechtel). I made a decision and provided brief verbal reasons for that decision on 12 March 2013 finding that the Fair Work Commission (FWC) did have jurisdiction to deal with the application. I found that the dispute was one regarding the operation of Part 3-4 of the Fair Work Act 2009 (Cth) (the FW Act) at the Wheatstone Project. These are written and edited reasons for that decision and finding.

[2] The Wheatstone Project (the Project) involves the construction of an onshore Liquefied Natural Gas (LNG) facility located about 12 kilometres west of Onslow in Western Australia’s Pilbara region. The foundation project includes two LNG trains with a combined capacity of 8.9 million tonnes per annum (MTPA) and a domestic gas plant.  The Project is being developed by Chevron Australia Pty Ltd ("Chevron"). The Project also involves the construction of a large construction village to accommodate employees (estimated to be about 4000 at peak) for the construction of that LNG plant.

[3] Bechtel is engaged by Chevron to provide engineering, procurement and construction management services to Chevron in respect of the Wheatstone Project. Bechtel has a range of legal rights and responsibilities in relation to the Project Site, including in relation to union right of entry under the FW Act and maintaining safety and security on the Project Site.

[4] The application lodged (the conduct dispute) involves a dispute concerning the conduct of Mr Brad Upton (Mr Upton) an official of the Construction, Forestry, Mining and Energy Union (CFMEU) when exercising his right of entry to the Project.

[5] I am also dealing with on my own motion a dispute regarding the operation of s.492 of the FW Act. 1 I have dealt with the dispute about the operation of s.492 to date by conducting an inspection of a particular room chosen for the holding of discussions by union officials with employees at the site and the route to and from that room. That dispute is not the matter of consideration for the purposes of this decision

[6] The dispute is stated in the Form 12 lodged under the Fair Work Australia Rules 2010 (the Rules) by Bechtel as being about Mr Brad Upton behaving in an improper manner and in breach of theFW Act. Whilst the Form 12 describes the dispute in that manner the FWC is not confined to the strict terms and description of the matter or matters in dispute as described. Indeed the FWC may allow amendment of any application, 2 or dispense with compliance with compliance with the Rules. 3

[7] Even though the description may be described as breach or contravention of the FW Act it is clear that there is a dispute about the future conduct Mr Upton. That much is clear from the nature of the Orders sought by the Applicant and the background provided. The Applicant relies at least in part on their assertions about the past behaviour of Mr Upton to establish their case that the Commission should issue orders regarding future conduct.

[8] The Applicant must provide grounds for what they are seeking and it is unavoidable that the conduct asserted might be the same conduct that could be the subject of consideration by a court as to whether a breach of the FW Act has occurred. There are many examples throughout the Act that give rise to fundamental legal issues but the FWC deals with those issues or has regard to them in dealing with the dispute itself, which is the statutory focus. Here there is a dispute of the type that the FW Act contemplates the Commission deals with.

[9] Section 505 is broad in nature and provides the Commission with broad discretionary powers. It is a power directed at disputes about how the right to enter should be conducted. The Commission's task in dealing with a dispute about the operation of the Right of Entry provisions is directed at the control of the right, not punishment where the right has not been exercised in accordance with obligations that go with that right. Whilst some have described controls that the Commission may order as sanctions I do not regard the task as one of imposing or not imposing sanction.

[10] The application seems to me to not be directed at past conduct and punishment for that conduct, if it occurred, but rather a dispute about future conduct and controls regarding it. There is nothing that prevents this Commission having consideration of that conduct for the purposes of dealing with a dispute and it is proper to have regard to any past conduct in considering whether any restrictions or obligations should be ordered. Past conduct however is not the only matter I may take into consideration as to whether orders should issue and what the nature of those orders should be.

[11] In essence the FWC has the power to examine whether a person should have a right of entry or should have controls placed on a right of entry. Here it seems to me that there is a dispute about whether that there is a probability that there will be future conduct that is contrary to the statutory purposes of the right or the express obligations regarding the exercising of that right.

[12] The powers provided to the FWC clearly are for that purpose and envisage the FWC having a capacity to deal with a dispute about that.

[13] I therefore reject the CFMEU’s argument that there is no jurisdiction to deal with the dispute and I will proceed to deal with it.

[14] There is also clearly a dispute about the direction by Bechtel to Mr Upton to conduct discussions and interviews in a particular room. The issues of how the exercising of the right of entry by Mr Upton will be conducted and where Bechtel requires the right to be exercised are interwoven.

DEPUTY PRESIDENT

Appearances:

Mr H Dixon SC with Mr D Parker for the Applicant

Mr K Sneddon for the Respondent

Hearing details:

2013

Perth.

12 March.

 1   RE2013/640

 2   s.586(a)

 3   Rule 4

Printed by authority of the Commonwealth Government Printer

<Price code A, PR534909>