Construction, Forestry, Maritime, Mining and Energy Union v BGC POS Pty Ltd
[2018] FCCA 1270
•23 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION v BGC POS PTY LTD & ANOR | [2018] FCCA 1270 |
| Catchwords: INDUSTRIAL LAW – Right of entry – alleged contraventions of s.502 of the Fair Work Act 2009 (Cth) – hindering or obstructing – whether parties attempted to reach agreement – respondents’ conduct – whether failure to include the permit holders’ middle name invalidates a notice of entry and vitiates a right of entry – contraventions established. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.25C, 15AB, 40A |
| Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198; (2017) 271 IR 163; [2017] FCA 802 |
| Applicant: | CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION |
| First Respondent: | BGC POS PTY LTD |
| Second Respondent: | BRIAN CARLTON |
| File Number: | PEG 15 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing date: | 14 March 2018 |
| Date of Last Submission: | 14 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Philip Boncardo |
| Solicitors for the Applicant: | Construction, Forestry, Maritime, Mining And Energy Union |
| Counsel for the Respondents: | Ms Heather Millar |
| Solicitors for the Respondents: | K&L Gates |
THE COURT DECLARES THAT:
The second respondent, Mr Brian Carlton, contravened s.502 of the Fair Work Act 2009 (Cth) (the “Act”) on 22 October 2015 by intentionally hindering or obstructing Mr Douglas Heath and Mr Peter Joshua in exercising rights under Part 3-4 of the Act.
The first respondent, BGC POS Pty Ltd, contravened s.502 of the Act on 22 October 2015 by the conduct of its employee, Mr Brian Carlton, identified in declaration 1.
THE COURT ORDERS THAT:
The matter be listed on a date and time to be fixed for directions concerning any compensation and penalty orders to be made in light of the above declarations.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 15 of 2016
| CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION |
Applicant
And
| BGC POS PTY LTD |
First Respondent
| BRIAN CARLTON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 20 January 2016 and amended Statement of Claim filed 9 January 2018, the applicant, the Construction, Forestry, Maritime, Mining and Energy Union (the “CFMEU”), alleges, in effect, that on 22 October 2015 the second respondent, Brian Carlton (“Mr Carlton”), in contravention of s.502 of the Fair Work Act 2009 (Cth) (the “Act”), intentionally hindered Douglas Heath (“Mr Heath”) and Peter Joshua (“Mr Joshua”) (collectively the “Permit Holders”) from exercising rights under Part 3-4 of the Act.
The CFMEU further alleges that the first respondent, BGC POS Pty Ltd (“BGC”), contravened s.502(1) of the Act by the conduct of its employee Mr Carlton by virtue of s.793 of the Act.
The CFMEU seeks declarations in this regard and the imposition of penalties under s.546(1) of the Act.
Synopsis
BGC, through the conduct of its employee, Mr Carlton, contravened s.502 of the Act by intentionally hindering Mr Heath and Mr Joshua from exercising rights under Part 3-4 of the Act.
Relevant Facts
In the period 20 to 22 October 2015, BGC was the principal contractor for the construction of a 22 level building at 480 Hay Street, Perth in the State of Western Australia (the “Site”) and, in that capacity, was also the occupier of the Site.
Relevantly, in the period 20 to 22 October 2015, subcontractors were engaged to perform construction works on the Site. These subcontractors employed workers, some of whom were either CFMEU members or eligible to become CFMEU members.
The working hours at the Site were 7:00am to 3:30pm. Workers took breaks at different times during the day. There was no uniform break time for workers on the Site and different subcontractors determined the times their workers took their breaks.
At all material times, the Permit Holders were officials of the CFMEU within the meaning of s.12 of the Act. On 20 October 2015, they caused notices to be sent to BGC advising that they intended to exercise their right (as per s.484 of the Act) to enter the Site on 22 October 2015 for the purpose of holding discussions with workers at the Site. The declaration in the notice given by Mr Heath did not include his middle name. This is discussed further below.
On the morning of 22 October 2015, the Permit Holders arrived at the Site office and were met by Mr Carlton. At approximately 9:25am, the Permit Holders signed the visitors register. Mr Carlton explained the Site conditions of entry to the Permit Holders and inspected their entry permits − a process which took approximately 5 minutes.
Mr Carlton then escorted the Permit Holders to an available meeting room (the “Meeting Room”) behind the Site office that had been set aside so that the Permit Holders could hold discussions with workers.
Upon inspecting the Meeting Room, the Permit Holders determined that it was unsuitable for the purpose of holding discussions and advised Mr Carlton that they wished to use the room that workers ordinarily used for meal breaks or other breaks (the “crib room”) to hold discussions with workers.
Mr Carlton informed the Permit Holders that they would need to go with him to the reception area so that he could obtain instructions in relation to their request to use the crib room.
Mr Carlton escorted the Permit Holders to the reception area. He then left the reception area to make a series of telephone calls in relation to the request to use the crib room. Mr Carlton made his first telephone call in a series of calls at approximately 9:35am.
At approximately 9:50am, Mr Carlton received advice that the Permit Holders could use the crib room. He then escorted the Permit Holders from the reception area to the crib room. The Permit Holders conducted their meetings in the crib room and remained there until they left the Site, signing out of the visitor register at approximately 10:28am.
Does the CFMEU Have Standing Before This Court?
Counsel for the CFMEU made various submissions, both in writing and orally, about the CFMEU’s standing to bring these proceedings.
Counsel submitted that the CFMEU has standing to bring the current application in this Court because it is a “person affected” by the alleged contraventions of Mr Carlton and BGC. In this regard counsel drew the Court’s attention to Item 25 of s.539(2) of the Act.
It was submitted that the amended defences filed by the respondents did not plead to paragraph 1 of the CFMEU’s amended statement of claim which asserts (at paragraph 1.7) that the CFMEU is a person affected by the contraventions. Counsel argued that pursuant to r.16.07 of the Federal Court Rules 2011 (Cth) (which applies by operation of s.43(2) of the Federal Circuit Court Act 1999 (Cth)) there was a deemed admission to the CFMEU being a person affected by the contraventions.
The Court agrees and so finds.
Relevant Legislation
Part 3-4 of the Act provides for the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative roles.
Section 480 of the Act outlines the object of Part 3-4 as follows:
Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
Section 484 of the Act provides for the entry of permit holders to hold discussions as follows:
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.
Section 487(2) of the Act defines an ‘entry notice’ as a notice that complies with s.518 of the Act. Subsections 518(1) and (3) of the Act set out the requirements for an entry notice in relation to a proposed entry under s.484 of the Act as follows:
Requirements for all entry notices
(1) An entry notice must specify the following:
(a)the premises that are proposed to be entered;
(b)the day of the entry;
(c)the organisation of which the permit holder for the entry is an official.
…
Requirements for entry notice for entry to hold discussions
(3)An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must:
(a)specify that section as the provision that authorises the entry; and
(b)contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of an employee or TCF award worker who performs work on the premises; and
(c)specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF award worker.
Section 490 of Act regulates when a right of entry may be exercised.
Section 490(2) of the Act provides that a permit holder who has entered premises to hold discussions under s.484 of the Act may only hold those discussions during mealtimes or other breaks.
Section 492 of the Act provides for the location of those discussions.
Relevantly, under s.492(1) of the Act, the permit holder and the occupier must agree on the room or area of the premises that the permit holder uses to hold discussions.
If the permit holder and the occupier cannot agree on a room or area, ss.492(2) and (3) relevantly provide that a permit holder may hold the discussions in any room or area:
a)in which one or more of the persons who participate in the discussions ordinarily take meal or other breaks; and
b)that is provided by the occupier for the purpose of taking meal or other breaks.
In these proceedings the default room provided for by s.492 of the Act was the crib room. This is not in dispute.
Note 2 to s.492 of the Act provides that a person must not intentionally hinder or obstruct a permit holder exercising rights under that section with reference to s.502 of the Act.
Relevantly, s.502 provides:
Person must not hinder or obstruct permit holder
(1)A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.
Note:This subsection is a civil remedy provision (see Part 4-1).
(2)To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.
(3)Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.
In relation to BGC’s proposed liability for Mr Carlton’s actions, s.793 of the Act relevantly provides that:
Conduct of a body corporate
(1)Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2)If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a)that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b)that the person had that state of mind.
Meaning of state of mind
(3)The state of mind of a person includes:
(a)the knowledge, intention, opinion, belief or purpose of the person; and
(b)the person’s reasons for the intention, opinion, belief or purpose.
Issues
The facts in this matter are relatively confined and largely uncontroversial. It is not in dispute that:
a)the Permit Holder arrived at the Site at around 9:25am;
b)Mr Carlton informed the Permit Holders that they had been allocated the Meeting Room in which to hold discussions;
c)the Permit Holders inspected the Meeting Room to determine its suitability;
d)the Permit Holder determined the Meeting room was unsuitable; and
e)the Permit Holders were required by Mr Carlton to wait in the foyer for approximately 20 minutes before being allowed to use the crib room to hold discussions.
What was said after the Permit Holders inspected the Meeting Room and what occurred during the walk from the Meeting Room back to the Site foyer is, however, contested.
To summarise, counsel for the CFMEU submit that because Mr Carlton and the Permit Holders could not agree to hold discussions in the Meeting Room discussions should have (as a default) commenced in the crib room pursuant to s.492 of the Act. The CFMEU argue that in the legislative context of the Act (which regulates very strictly as to when discussions can occur) the 20 minutes the Permit Holders were delayed from using the crib room was significant and amounted to intentionally hindering or obstructing an official exercising their right of entry (as per s.502 of the Act).
Conversely, the respondents say that when the Permit Holders refused to use the Meeting Room, Mr Carlton acted in good faith, resulting in the use of the crib room.
Further, and as an aside to the above, the respondents submit in their outline of submissions that the entry notice given by Mr Heath did not comply with the form prescribed by Fair Work Regulations 2009 (Cth) (the “Regulations”) and was, therefore, invalid.
The resolution of this case will turn on the Court’s determination of whether, in the circumstances, Mr Carlton (and therefore BGC) intentionally hindered or obstructed the Permit Holders from exercising their rights under Part 3-4 of the Act in contravention of s.502(1) of the Act.
This will require an examination of the following issues:
a)whether the entry notice given by Mr Heath was given validly under the Act;
b)the purpose of the Permit Holders entry on Site on 22 October 2015;
c)the parties inability to reach agreement as per s.492 of the Act; and
d)the construction and interpretation of s.502 of the Act.
Evidence
The Court had the following evidence before it:
a)the affidavit of Douglas Heath sworn 19 June 2017;
b)the affidavit of Peter Joshua affirmed 20 June 2017; and
c)the affidavit of Brian John Carlton affirmed 21 February 2018.
During the proceedings Counsel for the applicant tendered an extract from the handwritten notes of Mr Heath (Exhibit 1). Much of the material contained in Exhibit 1 forms part of Mr Heath’s affidavit. Counsel for the respondents took exception to Exhibit 1 not being disclosed to the respondents before the hearing. She argued that it should be given little weight and that the late production of Exhibit 1 should adversely affect Mr Heath’s credibility.
In response, counsel for the CFMEU submitted that the late production to Exhibit 1 does not impact adversely on Mr Heath’s credibility. Further, the reason the notes were produced at the hearing (and not earlier) was because they were provided in response to Mr Carlton’s reference to them in his affidavit, which was filed approximately two weeks prior to the hearing.
The Court has not sought to rely on Exhibit 1 in any meaningful way. In relation to its weight, much of the material in Exhibit 1 forms part of Mr Heath’s affidavit. In the Court’s opinion, the explanation for the late production of Exhibit 1 is reasonable and its late production does not prejudice the respondents. Nor does it negatively affect Mr Heath’s credibility.
The Court also reviewed the transcript of the proceedings (“Transcript”) prior to finalising these Reasons for Judgment.
The Court addresses this evidence below.
Mr Carlton’s Evidence
At the relevant time, Mr Carlton was employed by BGC as the Health, Safety, Environment and Quality Manager at the Site and was responsible for right of entry and security at the Site (Affidavit of Mr Carlton at [9]).
Mr Carlton deposed that, during work hours, workers would stop for breaks at times determined by the subcontractor who was employing them. Mr Carlton stated that he had observed morning breaks on Site being staggered throughout the morning, with the first breaks commencing at approximately 9:00am (Affidavit of Mr Carlton at [23]).
Mr Carlton gave oral evidence that the workers at the Site usually had a morning break and then a lunch break, with morning breaks being approximately 10 to 15 minutes long and lunch breaks being approximately 30 minutes long (Transcript, p43 at 25-35).
In relation to the Meeting Room, Mr Carlton gave evidence that it was in a ‘reasonable state’ and no dirtier than other construction sites (Affidavit of Mr Carlton at [43]). He stated that he would never expect Permit Holders or workers on site to meet in a room which was dirty or unhygienic and that the Meeting Room was supposed to be cleaned regularly (Affidavit of Mr Carlton at [44]).
During cross examination Mr Carlton confirmed that the Meeting Room was:
a)not equipped with any cups, utensils, a kitchenette, a fridge or a microwave (Transcript, p45 at 36-47);
b)approximately 3 meters long and 3 meters wide (Transcript, p45 at 30-31); and
c)empty but for a small table and a couple of chairs (Transcript, p47 at 10-11).
Mr Carlton gave an account of what occurred on the morning of 22 October 2015 at [37] to [69] of his affidavit.
Mr Carlton gave the following account (at [45] to [54]) of what happened when he and Henry Malicia, the Senior Site Manager at BGC, escorted the Permit Holders to the Meeting Room:
45. When we arrived at the Meeting Room, Mr Heath and Mr Joshua took a very brief look inside and I recall Mr Heath saying to me words to the effect of, “This is not acceptable, it’s not the crib room”. Mr Heath and Mr Joshua took only moments to inspect the Meeting Room.
46. I replied to Mr Heath saying words to the effect of, “This is the room that you have been allocated”.
47. I recall Mr Heath then saying words to the effect of, “We are not in agreement. We are not going in there. It is not acceptable to us and we want to go to the crib room”.
48. Neither Mr Heath nor Mr Joshua gave any explanation about why they didn’t think the Meeting Room was acceptable.
49. Mr Heath then turned to Henry and said words to the effect of, “Is this the company’s position?” I recall that Henry replied with, “Yes”.
50. I told Mr Heath words to the effect of, “I have been directed to take you here. You will have to follow me and I will get some advice”. Mr Heath and Mr Joshua continued their protests about not being in agreement and that they wanted to use the Crib Room.
51.I reiterated my instructions to Mr Heath and Mr Joshua and said words to the effect of, “What is going to happen is I am going to escort you back to reception and I am going to get some advice”.
52. Neither Mr Heath nor Mr Joshua appeared to be overly happy with this decision, but they accompanied me back to the Site Office. This only took a minute or so.
53. I wanted to get further advice and confirmation that I should change rooms before I did anything else in relation to the permit holders.
54. When we got back to the Site Office, I led Mr Heath and Mr Joshua into the reception area where I asked them to wait. At this point, I recall observing Mr Heath starting to make notes. He had a paper notepad in a folder of some sort. Henry went back to his desk.
During cross examination, it was put to Mr Carlton that, during his discussion with Mr Heath, he informed Mr Heath at approximately 9:30am that there were workers on a break in the crib room. Mr Carlton vehemently denied this suggestion (Transcript, p54 at 10-40).
Mr Carlton was also asked why he had not asked the Permit Holders why they thought the Meeting Room was unsuitable or unacceptable. Mr Carlton responded that his role was as a “HSE manager”, not the industrial relations manager, and that he needed to get advice from senior managers or legal counsel to determine where the Permit Holders could go (Transcript, p48 at 25-30).
Mr Carlton conceded that, despite this, he was not prevented from having a discussion with the Permit Holders about the suitability of the Meeting Room. He simply stated that he did not discuss those matters as it was not his role. He stated further that:
I don’t discuss - engage in conversation, I guess, as much as possible. I go back and seek legal advice on where we can and can’t go.
(Transcript, p48 at 35-40)
In this regard the following exchange took place between the Court and Mr Carlton during the proceedings:
His Honour: So, Mr Carlton, these gentlemen have said to you, basically, this isn’t good enough. Did you not say something like, “What do you mean?” or “Why not?” or did you just immediately say, “Well, I need to get advice”?
Mr Carlton:No, because in my mind at the time they clearly stated they wanted to go to the crib room, so my instructions had been that this is the meeting room we take the union officials. So in my mind at that time I was following those instructions. I will go back and seek advice as to where we can go.
(Transcript, p48 at 45 to p49 at 5)
During cross examination it was put to Mr Carlton that when Mr Heath attended the Site, Mr Heath held out his hand for Mr Carlton to shake and that Mr Carlton refused to shake hands. Mr Carlton said the reason for this was that he had been in the police force for 10 years and it was a “self-preservation mechanism”. He said he had learned not to shake everybody’s hand because half the time he did not know “where they’ve been, what they’ve been doing”. He said not shaking hands is a usual practice for him (Transcript, p41 at 10-21).
Observing Mr Carlton in the witness box, the Court was struck by his, at times, stand-offish demeanour. By his own admission he does not participate in social niceties (like shaking hands upon greeting others). While giving oral evidence, Mr Carlton appeared to avoid questions posed by counsel that supported the CFMEU’s case, often responding that he simply could not recall things when they were put to him. While the Court is willing to accept that Mr Carlton’s inability to remember might be attributed to the passage of time, his affidavit was affirmed less than a month before the hearing. Mr Carlton appeared to have no difficulty remembering certain facts relating to a particular topic but great difficultly remembering other facts relating to the same topic. His subjective memory is of concern to the Court. His evidence gave the impression that Mr Carlton, at best, had trouble recollecting what occurred at the Site on 22 October 2015 as well as the contents of his affidavit. At worst, his responses can be seen as evasive.
Without corroboration, Mr Carlton’s evidence should be afforded nominal weight.
Mr Heath’s Evidence
During the relevant period, Mr Heath was an Organiser employed by the Western Australian branch of the CFMEU and an official of the CFMEU within the meaning of s.12 of the Act.
Mr Heath gave an account of what occurred during his visit to Site on 22 October 2015 at [22] to [52] of his affidavit and, more specifically, gave an account of the events which led to the 20 minute delay (between approximately 9:32am and 9:52am) at [35] to [43] of his affidavit.
Mr Heath was cross examined and re-examined in relation to this evidence.
At [39] and [40] of his affidavit Mr Heath deposed as follows:
39 I then had a conversation with Mr Carlton at or about 9:29AM in words to the following effect:
Me:I don’t agree with using this room. This meeting room is unsuitable. We want to use the crib room.
Mr Carlton: You cannot go to the crib room. We have to go to the foyer so I can get further instructions.
Me: If you are refusing to let us go to the crib room you are delaying our exercise of our right of entry. I intend to go the crib room.
Mr Carlton: You must come back to the foyer with me.
40 On the way back to the foyer, Mr Carlton and I had a conversation in words to the following effect:
Me: What time is the smoko break?
Mr Carlton: There are various times when the guys take their smoko break.
Me: Is there a break at 9:30AM?
Mr Carlton: Yes, there is, but we need to go back to the foyer now so I can get some legal advice.
Me: Well, I want to go to the crib shed to meet members and potential members now. I don’t want to get delayed. If you insist on us going back to the foyer while you get instructions, you will be hindering and obstructing our right of entry.
Mr Carlton: We need to go back to the foyer.
Mr Heath gave evidence that after he made it clear to Mr Carlton that he and Mr Joshua did not agree to use the Meeting Room, Mr Carlton did not inquire as to why the Permit Holders felt it was unsuitable. When asked by counsel for the respondents why Mr Heath had not given Mr Carlton the reasons why the Meeting Room was unsuitable Mr Heath responded that Mr Carlton had not asked but that he would have been happy to have explained his concerns.
Whilst giving his evidence, Mr Heath appeared confident and honest. He answered questions directly and logically. The Court assessed Mr Heath to be an entirely credible witness.
Mr Joshua’s Evidence
During the relevant period, Mr Joshua was an Organiser employed by the Western Australian branch of the CFMEU and an official of the CFMEU within the meaning of s.12 of the Act.
Mr Joshua gave an account of what occurred during his visit to Site on 22 October 2015 at [15] to [39] of his affidavit. More specifically, he gave an account of the events which led to the 20 minute delay at [28] to [34] of his affidavit.
Mr Joshua’s evidence in this regard largely mirrors Mr Heath’s evidence.
It was put to Mr Joshua during examination-in-chief that he and Mr Heath had made no attempts to come to an agreement with Mr Carlton in respect to the room they would use to have discussions. In response, Mr Joshua said he and Mr Heath had agreed to inspect the Meeting Room to determine whether it was sufficient and that after viewing the Meeting Room and forming the view that it was not sufficient they advised Mr Carlton they wanted to use the crib room. Mr Joshua said Mr Carlton responded that he had to seek advice and took Mr Joshua and Mr Heath back to the foyer (Transcript, p.6 at 4-20).
Whilst giving his evidence, Mr Joshua also appeared confident and honest. He answered questions directly and logically. The Court assessed Mr Joshua to be a credible witness.
Consideration
Was Mr Heath’s Entry Notice Valid?
The respondents contend that the entry notice given by Mr Heath was invalid because it did not contain his middle name. They argue that, as a result, his entry on Site on 22 October 2015 was vitiated.
In this regard it was submitted by the respondents that:
43.Section 521 (a) provides that the Fair Work Regulations 2009 (Cth) (Regulations) may “provide for, and in relation to…the form of…entry notices”. Schedule 3.3 of the Regulations provides for the forms relating to entry on to premises under the FW Act.
44.Form 2 in Schedule 3.3 of the Regulations provides that an entry notice should relevantly state as follows (emphasis added).
I, [full name], of [name of organisation], and having been issued an entry permit under section 512 of the Fair Work Act 2009, give notice that I propose to enter [name and address of premises] on [date of proposed entry].
45.Specifically, the Entry Permit to Enter Premises (Permit) was issued by the Fair Work Commission to “Douglas Charles Heath” (emphasis added). However, the declaration in the entry notice given by Mr Heath for the entry onto the Site on 22 October 2015 only refers to “Douglas Heath.”
46.Judge Vasta in Ramsay v Menso [[2017] FCCA 1416] held that a notice of entry that did not contain the full name of the permit holder did not comply with the requirements set out in the Work Health and Safety Regulation 2011 (Qld), which required the full name of the permit holder to be stated on the entry notice.
47.While the entry rights exercised in Ramsay were different to the present case, the principle is the same: the entry notice given by Mr Heath did not comply with the form prescribed by the Regulations and was, therefore, invalid.
48.On this basis, a breach of s502 cannot arise from the presence of Mr Heath on the Site on 22 October 2015 (notwithstanding the fact that the allegations of a breach of s502 are denied).
49.The Respondents say that the Court ought to consider that the claim against the Respondents has not only been pursued by the Applicant in circumstances where the Officials were not prevented from achieving their ultimate goal (ie holding discussions on Site), but where one of the two Officials had entered Site pursuant to a noncompliant and invalid entry notice.
(citations omitted)
In response, counsel for the CFMEU submitted in his submissions in reply dated 14 March 2018 as follows:
A. Mr Heath’s entry notice
1.The Respondents contend that Mr Heath’s entry notice was invalid because it did not contain his middle name. This, it is said, means that his entry was invalid.
2.The Respondents derive the first proposition from Form 2 which is contained in Schedule 3.3 to the Fair Work Regulations 2009 (Cth) (FW Regulations). Amongst other things, the Form says that an entry notice is to state: “I [full name] of [name of organisation] having been issued a permit under s 512…give notice that I propose to enter [name and address of premises] on [date of proposed entry].
3. Section 487(1) requires a permit holder to give an occupier an ‘entry notice ‘for the entry. Section 487(2) defines an ‘entry notice’ to be a notice that complies with s 518. The requirements for an entry notice in relation to an entry under s 484 are set out in ss 518( 1) and (3). None of these requirements stipulate that the permit holder must include on a notice of entry their middle name (if they have one) or their ‘full name’.
4.Mr Heath gave notice in accordance with ss 487 and 518. The Respondents do not suggest otherwise. Mr Heath therefore complied with the notice requirements necessary to engage the right to enter the First Respondent’s premises. It follows that the non-inclusion of Mr Heath’s middle name on the entry notice did not ‘invalidate’ or vitiate his exercise of entry rights under Part 3-4 of the FW Act.
5.Further, the FW Act and Fair Work Regulations 2009 (Cth) do not impose or purport to impose any duty on a permit holder to include their middle name on a notice of entry. They stand in contradistinction to the provisions of the Work Health and Safety Act 2011 (QLD) (WHS Act) and the Work Health and Safety Regulations 2011 (QLD) (WHS Regulations) considered by Vasta J in Ramsay v Menso [2017] FCCA 1416 (Ramsay v Menso). Section 119(1) of the WHS Act required a permit holder to give notice of entry ‘as prescribed by regulation’. Regulation 27 of the WHS Regulations provided that a notice of entry under Part 7 of the WHS Act must include ‘the full name of the WHS entry permit holder’. No similar direction is given in respect to a notice of entry under the FW Act. The Respondents attempt to rely upon Vasta J’s reasoning is misplaced, given the differences between the statutory regimes and the lack of any requirement under the FW Act or the FW Regulations for a permit holder to include their ‘full name’ on an entry notice.
6.Further and in the alternate, if an entry notice that conforms to Form 2 is required to effect a valid entry to premises, Mr Heath substantially complied with the requirements of Form 2 and, pursuant to s 25C of the Acts Interpretation Act 1901 (Cth), his substantial compliance was sufficient. Section 25C determines that strict compliance with a form is not required and substantial compliance will be sufficient unless legislation evinces a contrary intention. No such intention is evinced by the FW Act or the FW Regulations. The object of an entry notice is to give advanced notice to an occupier that: a permit holder intends to enter premises on a particular day for a particular purpose; to identify the permit holder’s union; and to set out the entitlement of the permit holder’s union to represent the industrial interest of employees who work at the premises. These are matters that enable an occupier to assess whether the permit holder has a right to enter. These objects are more than satisfactorily achieved if the permit holder’s first and last name is included on the notice. They are not undermined if a permit holder’s middle name is not included. There can be no doubt that Mr Heath’s notice achieved those purposes.
7.Moreover, Mr Heath attempted to follow the Form 2 prescribed for an entry notice. All other aspects of the notice he completed corresponded precisely with Form 2. The omission of his middle name did not, in the circumstances, affect the substance of the form. There was no possibility that the First Respondent or any of its managers would be misled that Mr Heath intended to exercise rights of entry under s 484 of the Act on 22 October 2015, that he was an official of the Applicant and that the Applicant was entitled under its rules to represent the industrial interests of employees working at the premises. It is not suggested that the Respondents were in any way misled or confused about any of the above matters. Mr Heath’s notice therefore substantially with Form 2 and is taken by operations 25C of the Acts Interpretation Act to have complied with the form.
8.Assuming that strict compliance with Form 2 is in fact required, there is, in any event, nothing in the terms of the FW Act or FW Regulations that indicates that non-compliance with Form 2 of Schedule 3.3 to the Regulations invalidates exercise of entry powers under s 484.8 This follows from:
11.1the evident purposes of ss 487 and 518 to provide occupiers with advanced notice that a permit holder intends to exercise entry rights on their premises, the identity of the permit holder’s union and that union’s ability to represent the industrial interests of employees working at the premises. Those purposes are not undercut to any degree if the entry notice does not contain the permit holder’s middle name;
11.2the consequences of holding void any acts and conduct engaged in by a permit holder for the sole reason they do not insert their middle name onto an entry notice would do violence to the statutory scheme. The statute is a piece of beneficial legislation designed to benefit employees. It attempts to balance the right of organisations to represent their members in the workplace and hold discussions with potential members, and the right of employees to receive at work information and representation from officials of organisations, with the more limited right of occupiers and employers to go about their business without undue inconvenience. The balance envisaged by s 480 would be undermined if a missing middle name could prevent a permit holder exercising Part 3-4 rights;
11.3it is not a purpose of the statutory scheme under Part 3-4 that entry be invalid if a middle name is not included on an entry notice.
12.The lack of a middle name on Mr Heath’s entry notice did not vitiate his entry to the premises or his exercise of rights under Part 3-4.
The Court agrees with the submissions made by counsel for the CFMEU.
The Court notes that the respondents have relied on Judge Vasta’s decision in Ramsay v Menso [2017] FCCA 1416 (“Ramsay”) to support their claims in relation to the validity of Mr Heath’s notice of entry.
The respondents’ reliance on Ramsay is somewhat perplexing given the legislative context of that case. Judge Vasta’s findings in relation to the validity of a notice of entry relate primarily to the interplay between the Work Health and Safety Act 2011 (QLD) and the Work Health and Safety Regulations 2011 (Qld) which impose a more onerous notice of entry requirement than under the Act (Ramsay at [94] to [118]).
Further, Ramsay was subsequently appealed and, on 10 April 2018, the Full Court handed down its decision in Ramsay v Menso [2018] FCAFC 55 (the “Ramsay Appeal Case”).
Dowsett and Collier J in the Ramsay Appeal Case concluded (at [38]) that a notice of entry which did not strictly comply with reg.27(b)(i) of Work Health and Safety Regulations 2011 (Qld) (concerning the inclusion of the full name of the Work Health and Safety entry permit holder) did not vitiate the right of entry. Their Honours stated (at [39] to [47]):
39.First, as the Full Court recently observed in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 at [15], notwithstanding the closely-regulated environment of industrial and employment legislation, provisions related to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament, practically and with an eye to common sense, so that they can be implemented in a clear way on a day-to-day basis at work sites. A common sense interpretation of “full name” in the context of union officials seeking to access a building site would, for example, encompass “Tony Stott” as well as “Anthony Stott” to identify the second appellant, and “Andrew Ramsay” to identify the first appellant.
…
44.Errors, misdescriptions or material defects in a search warrant may go to its validity, depending on the terms of the legislation pursuant to which it is issued. (See for example the discussions in New South Wales v Corbett [2007] HCA 32 at [29], [77] and Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177 at [34]). Nonetheless, as the Full Court recently pointed out in Caratti, in connection with search warrants:
[34] ... when it comes to mismatches between the information and the search warrant, that feature must not be approached with undue technicality or any requirement for excessive precision. Practical considerations must always be kept steadily in mind ...
45.This observation may readily be applied to the omission of Mr Ramsay’s middle names, and the identification by Mr Stott as “Tony Stott” rather than “Anthony Stott”, on the notices of entry. While the modes of self-identification by Mr Ramsay and Mr Stott as permit holders on the notices were defective, such defects did not go to the validity of the notices.
Compliance with the notice requirements under ss.487 and 518 of the Act is a precondition to a right of entry under s.484: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802 (“ABCC”) at [63], per Bromberg J.
Subsections 518(1) and (3) of the Act set out the requirements for an entry notice in relation to a proposed entry under s.484 of the Act. There is nothing in those provisions which requires a permit holder to include their “full name” on a notice of entry.
Regulation 3.27 of the Regulations provides that for s.521(a) of the Act, the form of an entry notice is set out in Form 2 in Schedule 3.3. The Form 2 in Schedule 3.3 of the Regulations provides that the permit holder’s name, when completing the notice, should be their “full name”.
However, even if the Court were to accept the proposition that there is a requirement that there be strict compliance with the Form 2 in Schedule 3.3, as rightly pointed out by counsel for BGC, there is nothing in the Act or Regulations which indicates that non-compliance would invalidate the entry powers under s.484: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [38].
Further, the Court notes that s.25C of the Acts Interpretation Act 1901 (Cth) provides that where an Act prescribes a form, strict compliance with the form is not required and substantial compliance is sufficient. Despite omitting his middle name, it is clear that Mr Heath substantially complied with the Form 2 in the Regulations, providing all other requisite details: Annexure ‘DH-5’ to the affidavit of Mr Heath and annexure ‘PJ1’ to the affidavit or Mr Joshua.
During the proceedings, counsel for the CFMEU drew the Court’s attention to the Western Australian Supreme Court of Appeal decision in Swann v R [1999] WASCA 106 (“Swann”). Relevantly, (at [30] of the decision) Maclom CJ states:
30… In s 74 of the Interpretation Act (WA) the test is whether the deviation “materially” affects the substance or is “likely to mislead”. In my opinion the form used in this case is such that the omission of the relevant words does not materially affect the substance and was not likely to mislead. The present is a case of the kind contemplated by Sim J in Rex v Haynes at 419 when his Honour said:
“The provision of the Interpretation Act was intended, I think, to cover cases where an attempt had been made to follow the prescribed form, and not to meet cases where that form had been deliberately ignored and something different had been substituted.”
Drawing from the observations in Swann above, the Court finds that omission of Mr Heath’s middle name does not affect the substance of the notice. Nor was it likely to mislead. This is a conclusion supported by the affidavit of Mr Carlton which annexes a Compliance Process and Register for Site Entry report (“BJC-7”). BJC-7 was completed by Mr Carlton. In that document Mr Heath is identified, his permit number is identified, his permit validity date is identified, and Mr Carlton notes:
[Right of entry] attached and previously reviewed by BGC legal counsel. Note the entry notice was produced via iPad.
Mr Carlton recorded in BJC-7 that the right of entry referred to therein ‘complies’.
For the above reasons, it is clearly evident that:
a)Mr Heath complied with the entry notice requirements under ss.487(1)(b) and 518 of the Act;
b)BGC was fully informed of Mr Heath’s entry;
c)Mr Heath substantially complied with the Form 2 in the Regulations; and
d)nothing in Mr Heath’s notice of entry affected its substance or was likely to mislead.
It is clear that the omission of Mr Heath’s middle name from his notice of entry did not vitiate his entry to the Site or his exercise of rights under Part 3-4 of the Act.
The Purpose of the Permit Holders’ Entry
Section 484 of the Act provides that a requirement of a permit holder’s right to enter premises is that they do so for the purpose of holding discussions. As a result, if a permit holder’s “purpose” is something other than an intention to hold discussions then the requirements under s.484 are not met and no right of entry is conferred.
In this regard, the Court notes the comments made by Bromberg J in ABCC at [63] – [64].Relevantly, his Honour states:
[63] Clearly, holding a permit is not of itself sufficient. The right of entry the subject of s 484 is a right to enter particular premises on a particular day as the phrase “the premises” in s 484(a) suggests as well as the accompanying notice requirements spelt out by ss 487 and 518 (see in particular s 518(1)(a) and (b)). Whilst holding a permit is a necessary pre-condition to the conferral of a right of entry to particular premises on a particular day, the mere holding of a permit does not confer a right of entry to those premises.
[64] Another pre-condition to the conferral of the right contemplated by s 484, is that the permit holder hold the prescribed purpose. That requirement is confirmed by the holding by Spencer and Dowsett JJ in CFMEU v John Holland, where it was determined that the requisite purpose had to be subjectively held (Dowsett J at [39]–[40]; Spender J at [3], [7]–[9]).
(emphasis added)
The evidence before this Court is that, after making preliminary enquiries, the Permit Holders formed the view that there were classes of workers working at the Site who fell under the CFMEU’s rules (Affidavit of Mr Heath at [15]-[21] and affidavit of Mr Joshua at [3]-[4] and at [13]).
There is also evidence that the Permit Holders’ purpose for entering the Site on 22 October 2015 was to have discussions with those workers with industrial interests the CFMEU is entitled to represent (Annexure ‘DH-5’ to the affidavit of Mr Heath and Annexure ‘PJ1’ to the affidavit of Mr Joshua).
Counsel for the respondents submitted in closing that there did not seem to be any reliable evidence before the Court that the Permit Holders were attempting to speak to anyone in particular and that Mr Heath and Mr Joshua had given differing accounts of the groups of workers they had intended to speak to at the Site. It was suggested that this called into question their purpose for attending the Site on 22 October 2015. Counsel seemed to be suggesting that the Permit Holders attended the Site for less than sincere motives.
The Court completely rejects this suggestion.
There is no evidence before this Court to suggest that the Permit Holders attended the Site on 22 October 2015 for any purpose other than to hold discussions with workers at the Site in their representative capacity. The Court accepts on the evidence that this was the Permit Holders’ only purpose and finds that the requirements of s.484 of the Act are satisfied.
Inability to Reach Agreement Under s.492 of the Act
It is to be recalled that section 492 of the Act provides for the location of the discussions central to this proceeding. That section reads:
Location of interviews and discussions
(1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.
(2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.
(3)The permit holder may conduct the interview or hold the discussions in any room or area:
(a)in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and
(b)that is provided by the occupier for the purpose of taking meal or other breaks.
Note 1:The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.
Note 2:A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).
In these proceedings it was agreed that the default room for the purposes of s.492 of the Act was the crib room.
It is highlighted that Note 2 to s.492 of the Act provides that a person must not intentionally hinder or obstruct a permit holder exercising rights under that section with reference to s.502 of the Act.
Relevantly, s.502 (discussed further below) provides:
Person must not hinder or obstruct permit holder
(1)A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.
Note:This subsection is a civil remedy provision (see Part 4-1).
(2)To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.
(3)Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.
Before this Court, it was stressed that s.502 of the Act cannot be scrutinised and applied if ss.492(2) and (3) of the Act are not triggered.
The argument was advanced that the Court cannot find that a permit holder and occupier “cannot/did not” agree if they do not make a genuine attempt to agree. It was argued that because Mr Carlton and the Permit Holders never reached a point where they “could not” agree (because, in effect, no one legitimately tried to do so) then the crib room did not become the default room. In this context, the Permit Holders would not be entitled to use the crib room as a default and any delay caused by Mr Carlton in the Permit Holders using the crib room would not contravene s.502 of the Act.
There was considerable disagreement in this case as to whether Mr Carlton and the Permit Holders legitimately attempted to reach agreement about which room to hold discussions. Counsel for the respondents stressed that if no legitimate discussions were held then it cannot be said that the parties reached a point where they “cannot/did not” agree.
In relation to the parties’ inability to reach an agreement as to where the Permit Holders were to conduct discussions, the CFMEU broadly submitted that:
a)the Permit Holders did not attend the Site with a fixed view that they should have discussions in the crib room;
b)the operation of s.492(2) of the Act described by Tracey and Reeves JJ in Central Queensland Services should be preferred to that outlined by Deputy President Gostencnik in Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd [2014] FWC 5407 (Austral Bricks).
The CFMEU said this was because Deputy President Gostencnik’s view that both parties need to genuinely attempt to reach agreement before s 492(2) of the Act is triggered has the potential to lead to the problematic situation where an occupier could prevent a permit holder having discussions in a room or area provided for the purpose taking meal or other breaks by simply not making a genuine attempt to reach agreement;
c)Mr Carlton made no attempt to reach an agreement with the Permit Holders;
d)because the parties could not agree to use the Meeting Room, ss.492 (2) and (3) of the Act were triggered;
e)even though the Permit Holders were ultimately allowed to use the crib room this was not because Mr. Carlton had agreed (statutorily) to the Permit Holders’ request.
The respondents, in turn, contended:
a)the Permit Holders insisted on being taken to the crib room and did not explain why they were not prepared to use the Meeting Room;
b)the approach taken by Deputy President Gostencnik in Austral Bricks requiring the parties to make genuine attempts to agree should be followed by the Court;
c)section 492(3) is not triggered because the Permit Holders did not genuinely attempt to reach agreement with Mr Carlton; and
d)Mr Carlton’s conduct in getting instructions was part of a process of attempting to reach agreement and the Permit Holders were ultimately allowed to use the crib room as a result of that process.
The Court notes the parties’ submissions in relation Deputy President Gostencnik’s approach to s.492 of the Act in Austral Bricks. The Court concludes that the conclusions in Austral Bricks impose a requirement on parties that was never intended by Parliament.
There is nothing in the Act or the Regulations requiring parties to make “genuine attempts” to reach agreement in relation to s.492 of the Act. The only requirement is that they cannot agree.
In this case, the Court finds that the Permit Holders did genuinely attempt reach an agreement with Mr Carlton about what room to use to hold discussions. They advised that the Meeting Room was inappropriate and were then effectively abandoned by Mr Carlton for 20 minutes. Mr Carlton refused to engage and was completely uncooperative.
The Court accepts that the Permit Holders were initially open to the idea of using the Meeting Room (allocated by BGC) to hold discussions. However, after inspecting the Meeting Room (which, on the evidence, was unacceptable), the Permit Holders determined it was unfit for purpose. They advised Mr Carlton of that fact. Rather than ask them “why” the room was inappropriate or engage in any sort of conversation that might resolve the situation, Mr Carlton simply escorted them away. At that point in time, the parties clearly, on the evidence, did not agree.
Mr Heath engaged Mr Carlton in conversation when the Permit Holders refused to use the Meeting Room and while walking back to the foyer (Affidavit of Mr Heath at [39 and [40]). The evidence shows that that the Permit Holders voiced their desire to use the crib room.
The Court accepts that these exchanges were attempts by the Permit Holders to engage Mr Carlton in conversation about the room they needed for the purpose of holding the discussions they were statutorily entitled to have.
Rather than discuss the issue with the Permit Holders (in an attempt to come to some sort of resolution), Mr Carlton instead insisted he needed to get advice. He then led the Permit Holders to the foyer. They were then required to wait for approximately 20 minutes – a not insignificant amount of time given the need for the Permit Holders to meet with workers who had designated break periods. Mr Carlton could, quite easily, have invited the Permit Holders into his office to engage in conversations (in an attempt to at least reach an agreement) with those he says he was attempting to contact by telephone. He did not. In fact, on Mr Carlton’s own evidence he never intended to enter into discussions with the Permit Holders (paragraphs 52 and 53 above). He simply relied on his claimed ignorance of the legal rights and obligations evident in situations like this (situations that are not uncommon and which the Court does not accept would have been foreign to him) to walk away from the Permit Holders and waste valuable contact time with workers the Permit Holders were entitled to meet with.
Mr Carlton’s unwillingness to engage in any discussions whatsoever with the Permit Holders by leaving them in the foyer had the effect of frustrating the desire the Permit Holders clearly had to come to some sort of agreement in a timely manner.
Mr Carlton’s conduct meant that the parties could not reach agreement, even in circumstances where the Permit Holders wanted to.
As the parties could not agree, s.492(2) and s.492(3) of the Act were enlivened and the Permit Holders were, accordingly, entitled to use the crib room to hold discussions.
This then triggers an analysis of section 502 of the Act.
Construction and Interpretation of s.502 of the Act
Much was said by the parties in relation to how the words “hinder” and “obstruct” should be read, as well as how s.502 should be interpreted in the context of the objectives of Part 3-4 of the Act.
The Court has considered the parties’ submissions. The Court thanks both counsel for the quality of their written advocacy. Others would do well to emulate their efforts in this regard.
The Court addresses these written submissions and the parties’ salient contentions on the issue as follows.
CFMEU Outline of Submissions dated 9 March 2018
Counsel for the CFMEU argued that s.502 of the Act is to be viewed in its statutory context and relevantly submitted as follows:
3. Part 3-4 of the FW Act permits officials of trade unions who are issued entry permits to enter premises for a number of defined purposes. The right of entry provisions of Part 3-4 are beneficial in nature and fall to be construed and applied with an eye on the important role trade unions play in the industrial relations system effected [sic] by the FW Act. The provisions of Part 3-4 reflect a number of rights that the Parliament has sought to balance. These include the right of unions to represent their members in the workplace and hold discussions with potential members, and the right of employees to receive, at work, information and representation. These rights are balanced against the more limited right of occupiers of premises and employers to go about their business without undue inconvenience.
…
8.Section 502(1) is a civil remedy provision. It provides that a person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with Part 3-4. A permit holder will be ‘exercising rights in accordance with Part 3-4’ if they have the requisite purpose under s 484 and have complied with the pre-conditions to the exercise of the rights set out by ss 487 and 518. Hindering, for the purposes of s 502(1) involves an act or conduct that makes it more difficult for the permit holder to discharge their functions, whilst obstructing involves an act or conduct that interrupts, blocks or makes more difficult a permit holder’s discharge of their functions. To do something intentionally is to intend to do an act or engage in conduct with knowledge of the circumstances which give an act its character. Something done by accident is not something done intentionally.
9.It is no defence to a charge that a person has contravened s 502(1) that the person was unaware of or mistaken about the requirements of Part 3-4 of the Act, or that they did not set out to contravene the section.
(citations omitted)
In support of the contention that the rights of occupiers of premises are more limited than that of unions to represent, and employees to receive information and representation, the CFMEU relied on Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43 (Central Queensland Services), wherein Tracey and Reeves JJ stated:
[35]The second of BM Alliance’s other contentions is the proposition that one of the purposes or objects of the right of entry provisions in Pt 3-4 of the FWA is to prevent permit holders from interfering with the performance of work when they enter work premises. This contention was advanced in support of the sole or single purpose construction of s 492(3)(b) set out above. It, too, must be rejected. The objects or purposes of Pt 3-4 are stated in s 480 of the FWA. That section identifies a need to balance the rights of four groups: organisations, employees, occupiers of premises and employers. It also identifies the relevant right held by each of those groups. With organisations such as the CFMEU, it is “the right … to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions”. With occupiers of premises and employers such as BM Alliance, it is “the right … to go about their business without undue inconvenience”. Importantly, s 480 makes no mention of preventing persons, when exercising a right of entry under the provisions of Pt 3-4, from interfering with the performance of work at the work premises so entered. Furthermore, it uses the words “undue inconvenience” to describe the nature of the protection occupiers and employers can expect to obtain when their premises are entered. In this respect, it is to be noted that Pt 3-4 contains a number of specific provisions that are obviously designed to reduce the possibility of an occupier experiencing that undue inconvenience. As well as s 492 itself, they include provisions relating to: prior notice before a permit holder enters premises (s 487), the time when a right of entry may be exercised (s 490), and the route that must be taken to reach the location of the interview or discussion (s 492A). It is also necessary to bear in mind that s 492 is intended to apply to two distinct categories of persons and during two different time periods. That is, it includes a circumstance where a union official wishes to have discussions with a union member (s 484), and a situation where a union official wishes to have discussions with any person (not necessarily a member of his/her union) about a suspected contravention of the FWA (s 482(1)(b)). Furthermore, while the former discussions may only be held during meal times or other breaks (s 490(2)), the latter interviews may be held during the whole working day (s 490(1)). In our view, there is therefore no indication in s 480, or in the provisions of Pt 3-4 more broadly, that one of the purposes or objects of that Part of the FWA is to prevent permit holders from interfering with the performance of work when they enter a workplace. That being so, there is no merit in BM Alliance’s contention that s 492(3)(b) should be construed so as to advance that non-existent purpose.
(emphasis added)
In relation to the issue of whether Mr Carlton intended to “hinder” or “obstruct” for the purposes of s.502(1) of the Act, counsel for the CFMEU relied on Darlaston v Parker [2010] FCA 771 (Darlaston). Darlaston dealt with comparable right of entry provisions under legalisation (s.767 of the Workplace Relations Act 1996 (Cth)) which preceded the Act.
In Darlaston, Flick J considered the meaning of “intentionally hinder or obstruct” and stated:
[52]For the purposes of s 767(1) it is considered that the reference to “intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within s 767(1).
Counsel for the CFMEU submitted that Mr Carlton intended to direct the Permit Holders to accompany him back to the foyer and instruct them to wait while he went to his desk and made phone calls. By doing so, it was argued, Mr Carlton’s conduct had the effect of impeding the Permit Holders in their exercise of rights under Part 3-4 because it hindered or obstructed them.
Respondents Outline of Submissions dated 9 March 2018
Counsel for the respondents submitted that s.480 of the Act provides that the object of Part 3-4 is about balancing the competing rights of organisations, employees, occupiers of premises and employers. It was argued that the CFMEU’s reading of s.502 of the Act unfairly favours the right of organisations and employees at the expense of the right of occupiers:
12.The common law has always attached significance to its citizen’s privacy and there is no right to enter without permission at common law.
13.Accordingly, right of entry onto private property is contingent on legislative warrant. Statutory provisions which allow for entry onto private property are “scrutinised carefully and the Courts have shown a propensity to read them down where it is practicable and proper so to do”.
14.Similar considerations apply to industrial right of entry provisions and the Federal Court has stated that “it must be constantly recalled that any conferral of a statutory right to enter premises, be they private premises or business premises, is a serious encroachment upon liberty”. The Court, which was considering the relevantly similar predecessor provisions to s502, went on to state that all statutory provisions which allow for right of entry “must be construed so that the encroachment is no greater than the statute allows, expressly or by necessary implication” (internal quotations omitted).
15.The Applicant’s construction of s502 apparently deems any action by an occupier which causes delay, regardless of the intent behind the action and the overall impact of it, to be a prohibited hindrance or obstruction. The Respondents say this construction fails to account for the common law’s propensity to interpret right of entry provisions in a way which minimises encroachment on an occupier’s rights.
(emphasis added)
Relying on the observations in Darlaston (at [52], as per Flick J), counsel for the respondents also submitted that the Permit Holders’ objective of entering the Site for the purpose of holding discussions was not defeated by any action taken by Mr Carlton because they were not ultimately prevented from holding discussions on 22 October 2015.
Counsel also argued that the clear disagreement between the parties about the interpretation of section 502 indicates ambiguity as to its correct application. It was argued that where the meaning of a provision is ambiguous there should be reference to extrinsic materials. In this regard the respondents relied on s.15AB of the Acts Interpretation Act 1901 (Cth) and s.40A of the Act. The point ultimately made by counsel (after referencing the Explanatory Memorandum to the Fair Work Bill 2009 and the types of conduct which would offend s.502 of the Act) was that Mr Carlton’s actions were not improper or male fide and this was relevant. It was submitted that in the absence of any improper intent the Court ought to find that the Mr Carlton’s actions, and therefore BGC’s action, on 22 October 2015 did not breach s.502 of the Act.
The respondents also argued that the 20 minutes that the Permit Holders were delayed from using the crib room was contributed to by their unwillingness to enter into discussions pursuant to their obligations under s.492(1) of the Act. This too, it was stressed, was relevant within the context of section 502.
It was argued that had the Permit Holders engaged Mr Carlton in discussion then it may have been possible to resolve the concerns they had about using the Meeting Room and avoided the delay in accessing the crib room.
The CFMEU’s Outline of Submissions dated 9 March 2018
Counsel for the CFMEU responded to the matters raised in the respondents’ outline of submissions dated 9 March 2018 in his submission in reply which, relevantly, provide as follows:
13The words ‘hinder’ and ‘obstruct’ in s 502(1) fall to be construed according to their plain and ordinary meaning, the context in which they appear and the purpose and object of s 502(1). ‘Hinder’ and ‘obstruct’ are ordinary English words. To ‘hinder’ means to make it more difficult for someone to do something. To ‘obstruct’ means to block or get in the way of, or to prevent, or to hinder.
14 These verbs must be read in light of the activity hindered or obstructed, being the exercise of rights by the permit holder under Part 3-4.
15 On their ordinary meaning, hindering and obstructing under s 502(1) capture words, acts and conduct that make more difficult, block, get in the way of or otherwise prevent a permit holder exercising rights under Part 3-4 of the Act.
16 The purpose of s 502(1) is to protect permit holders exercising Part 3-4 rights. It is not directed, as many other provisions of Part 3-4 are, to the protection of the limited rights of occupiers and employers to go about their business without undue inconvenience. To suggest, as the Respondents do, that what may amount to hindering or obstructing should be read down by reference to common law property rights misapprehends the object of s 502(1). The canon of construction that common law property rights are not to be modified except by clear and unambiguous words is irrelevant to the construction of s 502(1). It is, with respect, absurd to suggest that what might amount to hindering or obstructing by occupiers, employers and other persons should be so read down.
17 The Respondents also misunderstand the focus of s 502(1). Section 502(1) is not directed, as the Respondents say at [19] of their submissions, to the discharge of functions by union officials. It is directed to the exercise by permit holders of rights under Part 3-4. It is no answer to the Applicant’s claim that the officials were eventually able to talk to employees and therefore ‘ discharged their function’. Section502(1) operates to protect the permit holders exercising rights under Part 3-4 from conduct that makes the exercise of those rights more difficult. Mr Carlton’s positive acts in directing the permit holders that they could not go to the crib room and that they were obliged to go with him to the foyer made their exercise of rights more difficult and appreciably interfered with the exercise of those rights.
18 The Respondents are also wrong to suggest that the Applicant contends that any delay in permit holders exercising rights to hold discussions falls foul of s 502(1). The Applicant does not assert this. The Applicant says that in the circumstances of the present matter when employees had been on meal or other breaks since 9AM and were taking those breaks in a room or area provided for the purpose of taking meal or other breaks, the permit holders were entitled, after not reaching agreement with Mr Carlton, to commence holding discussions with employees in that room or area. Mr Carlton precluded them from doing so for a period exceeding 20 minutes. This hindered and obstructed their exercise of rights.
19 The Respondents are also wrong to suggest that any delay should be measured in light of the working hours of the premises. The right to have discussions as prescribed by s 490(2) and detailed recently by Flick J in Construction, Forestry, Mining and Energy Union v BHP Nickel West Pty Ltd [2017] FCA 991 is limited to times when employees are on meal or other breaks during the course of their shifts. Permit holders are not permitted to have discussions with employees at any time they like during the working hours of the premises. Messrs Heath and Joshua sought to have discussions with employees who were on staggered 15-minute breaks. They were delayed in commencing those discussions by 20 minutes. They missed out on having discussions with some employees for a portion of their breaks, or completely. To say that Mr Carlton’s conduct had no appreciable impact on the exercise of rights is untenable.
C.Intention under s 502(1)
20The Respondents suggest that Mr Carlton’s conduct could not fall under s 502(1) as he had no improper or mala fide intention to obstruct or inhibit the permit holders and that he acted bona fide to ensure compliance with the First Respondent’s legal obligations.
21Mr Carlton’s motive and reasons for acting are irrelevant to whether he intentionally hindered or obstructed the permit holders. To do something intentionally is to intend to do an act or engage in conduct with knowledge of the circumstances which give the act its character. Mr Carlton was aware that by not permitting the permit holders to attend the crib room and by directing them to go to the foyer area he was preventing them from having discussions with employees present in the crib room. His words and acts were intentional. They cannot be said to have been accidental.
22The Respondents submissions, if accepted, would allow people to escape liability from hindering or obstructing permit holders by claiming ignorance of the law or that they hindered or obstructed for some non-malevolent motive. The Respondents’ construction of the intention element under s 502(1) is unprincipled and should be rejected.
(citations omitted)
Having regard to the parties’ submissions above, the Court finds that:
a)Under s.480 of the Act, the right of occupiers is a limited one and s.502 of the Act regulates the conduct of an occupier.
b)Section 502 is designed to protect permit holders and the provisions of Part 3-4 should not be read down because of an interference with apparent common law property rights: Central Queensland Services at [35].
c)The words “hinder” and “obstruct” must be given their ordinary meaning. In Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 153 ALR 490 at [69] McHugh, Gummow, Kirby and Hayne JJ observed:
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
(emphasis added) (citations omitted)
d)The fact that the Permit Holders were eventually able to talk to employees and therefore discharge their function is irrelevant. Section 502(1) operates to protect the permit holders exercising rights under Part 3-4 from conduct that makes the exercise of those rights more difficult. Mr Carlton’s actions made their exercise of rights more difficult and appreciably interfered with the exercise of those rights.
e)Employees had been on meal or other breaks since 9AM. They were taking those breaks in a room or area provided for the purpose of taking meal or other breaks. In that context, the Permit Holders were entitled, after not reaching agreement with Mr Carlton for the purposes of s.492 of the Act, to commence holding discussions with employees in the crib room.
f)Mr Carlton precluded the Permit Holders from meeting with employees for a period exceeding 20 minutes – a not insignificant period of time within the context of this case given the restrictions imposed by s.490 of the Act on when a right of entry may be exercised.
g)Mr Carlton’s motives and reasons for acting the way he did are irrelevant in relation to whether he intentionally hindered or obstructed the permit holders: He Kaw Teh v The Queen (1985) 157 CLR 523 at 569-570. It is no defence to an allegation that a person has contravened s.502(1) of the Act that the person was unaware of or mistaken about the requirements of Part 3-4 of the Act, or that they did not set out to contravene the section. Mr Carlton was aware that by not permitting the permit holders to attend the crib room and by directing them to go to the foyer area he was preventing them from having discussions with any employees present in the crib room – a request that had been specifically put to him. His words and acts were intentional. The fact that he may have done so with the best of intentions (a finding not made by the Court here) is an irrelevance for the purpose of s.502 of the Act. The respondents’ submissions, if accepted, would allow people who hinder or obstruct permit holders to escape liability by simply claiming ignorance of the law or by suggesting that they hindered or obstructed for some non-malevolent motive. Section 502(1) cannot be interpreted in this way.
Conclusion
The Permit Holders and Mr Carlton could not agree in relation to the use of the Meeting Room, even though the Permit Holders legitimately attempted to do so. They ultimately could not agree because Mr Carlton refused to do so. Because the parties could not agree, the Permit Holders were entitled to use the crib pursuant to ss.492(2) and (3) of the Act.
Mr Carlton’s positive acts made the Permit Holders’ exercise of their rights more difficult and appreciably interfered with the exercise of those rights. By not letting the Permit Holders use the crib room for a period of approximately 20 minutes (between 9:32am and 9:52am) on 22 October 2015, Mr Carlton prevented the Permit Holders from exercising their statutorily guaranteed rights under Part 3-4 of the Act.
By doing so, Mr Carlton contravened s.502 of the Act.
Having regard to the above, the Court declares that:
a)The second respondent, Mr Brian Carlton, contravened s.502 of the Act on 22 October 2015 by intentionally hindering or obstructing Mr Douglas Heath and Mr Peter Joshua in exercising rights under Part 3-4 of the Act.
b)The first respondent, BGC POS Pty Ltd, contravened s.502 of Act on 22 October 2015 by the conduct of its employee, Mr Brian Carlton, identified in the declaration above.
The matter is to be listed on a date and time to be fixed for directions concerning any compensation and penalty orders to be made in light of the above findings.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 23 May 2018
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