Construction, Forestry, Maritime, Mining and Energy Union v Laing O'Rourke Australia Construction Pty Ltd T/A Pacific Complete

[2018] FWC 5706

[2018] FWC 5706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
v
Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete
(RE2018/246)

COMMISSIONER SAUNDERS NEWCASTLE, 11 SEPTEMBER 2018

Right of entry dispute – jurisdiction – judicial power – discretion to make orders.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application pursuant to s 505 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with right of entry disputes with Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete (LORAC) (Application).

[2] The disputes relate to a regional infrastructure project that involves the duplication of approximately 155 kilometres of road on the Pacific Highway between Woolgoolga and Ballina to a four-lane divided road (Project). LORAC is the occupier and controller of the premises on which the Project is located. I have dealt with previous right of entry disputes between the CFMMEU and LORAC in relation to the Project. 1

[3] The Application identifies three right of entry disputes between the CFMMEU and LORAC in relation to the Project. I will address each of those disputes once I have described the legislative framework in which the disputes are to be dealt with.

Legislative framework and jurisdiction of the Commission in relation to disputes under Part 3-4 of the Act

[4] Part 3–4 of the Act provides a statutory regime within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

[5] The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. 2

[6] Part 3-4 of the Act confers on a permit holder a statutory right in certain circumstances to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 3 Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right other than that which is necessary to achieve the express or implied statutory purpose of the scheme.4

[7] A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with Part 3-4 of the Act. 5 Further, a person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with Part 3-4 of the Act.6

[8] Section 505 of the Act provides that the Commission may “deal with a dispute about the operation of” Part 3–4 of the Act, including by arbitration. The word “about” in s 505(1) of the Act simply identifies the subject matter of the disputes covered by the provision, namely, the operation of Part 3-4 of the Act. It does not extend the ambit of the section beyond that subject matter. 7

[9] The next issue is the meaning of the expression “operation of this Part” in s 505(1) of the Act. Legislation, or a part of a statute, operates by creating, regulating, changing or abolishing rights, duties, obligations, powers and/or privileges. 8 Accordingly, in my view, a dispute about the operation of Part 3-4 of the Act is a dispute about the rights, duties, obligations, powers and/or privileges which Part 3-4 of the Act creates, regulates, changes or abolishes.

[10] Section 505(1) of the Act includes a non-exhaustive list of disputes about the operation of Part 3-4 of the Act, which the Commission has jurisdiction to deal with. Other disputes about the operation of Part 3-4 of the Act include, without limitation, disputes about whether a permit holder “reasonably suspects that a contravention has occurred, or is occurring”, 9 whether a record or document is “directly relevant to the suspected contravention”,10 whether a permit holder is entitled to represent the “industrial interests” of one or more employees,11 whether a request by an occupier of premises for a permit holder to comply with an occupational health and safety requirement is reasonable,12 whether a room or area in which a permit holder wishes to conduct an interview or hold discussions is a place “in which one or more of the persons who may be interviewed or participate in the discussions ordinary take meal or other breaks”,13 and whether a request by an occupier of premises for a permit holder to take a particular route to reach a room or area is reasonable.14

[11] In determining the scope of the disputes in this matter, the principles which apply when determining the proper characterisation of a dispute in relation to an application for the Commission to resolve a dispute under an enterprise agreement are, in my view, of assistance. Those principles include the following:

•  In characterising the nature of a dispute, the Commission is not confined to the application filed to deal with the dispute. 15

•  The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties. 16

•  Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve. 17

•  It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. 18 However, the relief sought may cast light on the true nature of the dispute in some cases.19

[12] Pursuant to s 505(2) of the Act, the Commission has the discretion to make orders when dealing with a dispute about the operation of Part 3-4 of the Act. The types of orders dealt with in paragraphs 505(2)(a) to (d) of the Act are not relevant to the present matter. While the Commission has the power under s 505(2)(e) of the Act to make “any other order it considers appropriate”, 20 there can be no doubt that the Commission is not required to make orders when dealing with a right of entry dispute under Part 3-4 of the Act. The Commission may exercise its discretion not to make any orders in the circumstances of a particular right of entry dispute.21

[13] It is relevant to note that the Commission cannot exercise judicial power. 22 The exercise by the Commission of its arbitration powers under the Act does not involve the adjudication of existing legal rights and obligations as between the parties to the proceedings. The exercise of an arbitration power involves a determination of what ought to be the respective rights and obligations of the parties in relation to each other in the future.23

[14] Notwithstanding the fact that the Commission cannot use its arbitration powers for the “ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted”, 24 a dispute about the operation of Part 3-4 of the Act may involve examining past conduct of permit holders, occupiers of premises and/or employers in order to determine future rights of entry and how conduct between such parties in relation to future rights of entry ought be regulated.25

[15] In dealing with the disputes which are the subject of these proceedings, I have taken “into account fairness between the parties concerned”. 26 Fairness is determined on the basis of the competing interests and obligations of the parties,27 together with the objects of the Act and Part 3-4.28

Dispute 1 – non-compliance with previous orders

[16] The first dispute concerns the following orders I made on 8 September 2017 in connection with a previous right of entry dispute between the CFMMEU and LORAC in relation to the Project (2017 Orders): 29

“Subject to the parties’ other rights and obligations under the Fair Work Act 2009 (Cth) (FW Act), pursuant to s.505(2)(e) of the FW Act, the Commission orders, in relation to the exercise by CFMEU permit holders of rights of entry to have discussions under s.484 of the FW Act on premises occupied by the Respondent, as they exist from time to time, within the site described as the Pacific Highway between Woolgoolga and Ballina, the following:

[1] The Respondent and its employees, officers and agents allow, and not intentionally hinder or obstruct, permit holders of the Applicant to hold discussions with members and potential members under s.484 of the FW Act during mealtimes or other breaks for such persons, as distinct from at times when meal or other breaks are scheduled to take place or usually take place; and

[2] The Respondent shall place in a prominent position within the site described as the Pacific Highway between Woolgoolga and Ballina, at each crib room and other area where employees usually take their meal or other breaks and are provided for that purpose the annexed Notice.

NOTICE

1. Union officials are entitled under the Fair Work Act to have discussions during mealtimes or other breaks with employees who perform work on the premises, whose industrial interests the union is entitled to represent, and who wish to participate in those discussions. Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete (Pacific Complete) is obliged to allow these discussions to occur and is prohibited by the Fair Work Act from intentionally hindering or obstructing union officials whilst they engage in such discussions with you during your mealtimes or other breaks.

2. If you feel that Pacific Complete managers or supervisors are intentionally hindering or obstructing discussions between yourself and union officials during your mealtimes or other breaks, you should report this to a senior manager or union official.

These orders shall come into force at 6:00am on 11 September 2017 and shall remain in force for a period of 12 months.”

[17] In its Application, the CFMMEU contends that the Notice posted by LORAC in various crib rooms at the Project pursuant to the 2017 Orders “has been photocopied to a reduced size. The current size of the notice has resulted in the notice being almost illegible”. 30

[18] The CFMMEU described the first dispute in the following way in its outline of submissions dated 15 May 2018:

“9. The first issue in dispute concerns the failure of the respondent to fully comply with the requirement contained in the 8 September 2017 orders to display the prescribed notice (the notice) in a prominent place in the crib rooms on the W2B project.

10. The relevant facts are contained in the statement of Mr Fitzpatrick filed in these proceedings. Mr Fitzpatrick’s evidence is supported by photographs annexed to his statement. This evidence establishes that soon after the 8 September 2017 orders were made, the text of the notices displayed in the crib rooms was appropriately sized and clearly legible. However over time, the text size of notices was reduced so that the entire text of the notice was approximately the same size as a standard light switch cover, rendering it barely legible. In addition, the notices were sometimes posted in obscure positions such as behind a coat rack. Further, on numerous occasions the notice was not posted at all in some of the crib rooms, or was only posted immediately prior to the union organisers entering the crib room. Mr Fitzpatrick complained about these matters on numerous occasions to representatives of Laing O’Rourke, however it appears that no action was taken to ensure full compliance with the 8 September 2017 orders in respect of the posting of the notice.

11. The CFMMEU seeks orders to ensure that Laing O’Rourke displays the notice at a size which is clearly legible, and to allow the CFMMEU to ensure that this is occurring.”

[19] The CFMMEU seeks the following orders in relation to the first dispute: 31

“Subject to the parties’ other rights and obligations under the Fair Work Act 2009 (Cth) (FW Act), pursuant to s 595(2) of the FW Act, the Commission orders that in relation to the exercise by CFMMEU permit holders of entry rights on premises occupied by the Respondent, as they exist from time to time, within the site described as the Pacific Highway between Woolgoolga and Ballina:

1. The Respondent is to arrange for the notices referred to in the Orders made by Commissioner Saunders on 8 September 2017 in proceedings numbered RE2017/222 (the previous orders) to be printed on A3 size paper in font of at least 14 point size, and posted otherwise in accordance with the previous orders.

2. Order 1 will remain in force for a period of 12 months from the date of these orders.

3. The previous orders are amended so that they remain in force for a period of 12 months from the date of these orders.

4. On request, the Respondent is to make an officer or employee available to escort CFMMEU entry permit holders to each crib room and other area where employees usually take their meal or other breaks and are provided for the purpose in order to enable the CFMMEU entry permit holders to inspect whether or not the Respondent has complied with and is continuing to comply with Order 1 above.”

[20] The reference to s 595(2) of the Act in the orders sought by the CFMMEU is plainly an error; the power of the Commission to make orders when dealing with a dispute about Part 3-4 of the Act is conferred by s 505(2) of the Act.

[21] The CFMMEU described the first dispute in the following way in its written submissions in reply dated 26 June 2018:

“23. The respondent makes a point that it has recently checked crib rooms identified in these proceedings, and that the complaints made by the applicant in respect of the notice were ‘not substantiated’. The applicant submits that the point of these proceedings is not to establish contraventions of the order made by the Commission in prior proceedings; the point is to deal with the dispute that has arisen. The evidence of the applicant, together with the evidence of the respondent, shows that there is a dispute as to whether the notices are being appropriately displayed.”

[22] The CFMMEU’s closing written submissions filed on 27 July 2018 include the following in relation to the first dispute:

“15. In respect of the notice provided for under the Commission’s earlier orders, the applicant does not seek to enforce the Commissioner’s earlier order. Enforcement of the order would clearly be a judicial function. The applicant asks that additional obligations be imposed on the applicant [sic]:

a. The obligation to display the notice at a particular size.

b. The obligation to display the notice for a further 12 months.

c. The obligation to provide the applicant’s permit holders with an escort to enable them to inspect compliance with the other orders.”

[23] In my view, the Application insofar as it relates to the first dispute cannot succeed for two separate reasons.

[24] First, the dispute is not about the operation of Part 3-4 of the Act, with the result that I do not have jurisdiction to deal with it under s 505(1) of the Act. The dispute about the operation of Part 3-4 of the Act which gave rise to the making of the 2017 Orders under s 505(2) of the Act was whether a CFMMEU permit holder (Mr Rielly) was seeking to hold discussions with employees at the Project during their actual mealtimes and other breaks (as distinct from at times when meal or other breaks were scheduled to take place or usually took place) and, if so, whether LORAC was preventing him from doing so. 32 Importantly, there is no suggestion in these proceedings that this issue has arisen again at the Project since the 2017 Orders were made. An issue that has arisen at the Project since the 2017 Orders were made is whether LORAC has complied with order [2] of the 2017 Orders. Specifically, whether the Notices have been placed in “a prominent position within… each crib room and other area where employees usually take their meal or other breaks” and whether any Notice posted in a crib room has been reduced in size such that it does not meet the description of “the annexed Notice” in order [2] of the 2017 Orders. This is the real character of the first dispute. To say that it is a dispute about the operation of Part 3-4 of the Act because the 2017 Orders were made in proceedings involving an earlier dispute about the operation of Part 3-4 of the Act is a step too far. Part 3-4 of the Act does not create, regulate, change or abolish the rights and/or obligations of Orders already made pursuant to s 505(2). The first dispute is at least one step removed from a dispute about the operation of Part 3-4 of the Act.33 Accordingly, the first dispute is not about the operation of Part 3-4 of the Act.

[25] Secondly, it invites the use of judicial power. 34 The CFMMEU contends in effect that, because LORAC has not complied with order [2] of the 2017 Orders, additional orders should made in the terms set out in paragraph [19] above. That is, the premise of the CFMMEU’s application for relief in relation to the first dispute is an alleged failure by LORAC to comply with order [2] of the 2017 Orders, rather than a new dispute about discussions between union officials and employees at the Project during their actual mealtimes and other breaks.

[26] When regard is had to all the relevant facts and circumstances, including but not limited to the relief sought in these proceedings, it is clear that the proper characterisation of the first dispute is one of compliance with order [2] of the 2017 Orders. What the CFMMEU is seeking is a variation of the 2017 Orders, on the basis of alleged non-compliance with the 2017 Orders. That calls for the adjudication and enforcement of existing legal rights and obligations as between the CFMMEU and LORAC, arising from the 2017 Orders. The enforcement of such orders, albeit by making slightly varied orders to the 2017 Orders, requires the exercise of judicial power, 35 which the Commission does not have. Only a court can enforce an order made by the Commission under s 505(2) of the Act.36

Dispute 2 – right of entry concerning an incident involving an excavator on 7 February 2018

[27] The second dispute concerns entry to the Project by Mr Rielly and Mr Fitzpatrick in relation to an incident involving an excavator on 7 February 2018. There is a jurisdictional issue as to whether the second dispute is “a dispute about the operation of” Part 3-4 of the Act, as is required by s 505(1) of the Act.

[28] The CFMMEU described the second dispute in the following way in the Application: 37

“7. On Thursday, 8 February 2018, Dean Rielly and Paul Fitzpatrick of the Applicant attended the W2B project to investigate an incident involving an excavator turning over on 7 February 2018. A notice issued pursuant to s 117 of the Work Health and Safety Act 2011 was provided to the Respondent on 8 February 2018. Bill Kitching of the Respondent agreed that Mr Rielly and Mr Fitzpatrick could return to the W2B project on a subsequent occasion to see the outcome of the investigation and resulting safety measures put in place.

8. On Monday, 12 February 2018, Mr Fitzpatrick asked Mr Kitching where the responsible contractor was up to in finalising the investigation into the incident. There was a conversation in words to the effect:

Bill Kitching: ‘It’s pretty much complete. You can come and have a look but you need to send an entry notice beforehand.’

Paul Fitzpatrick: ‘But we aren’t coming to see any workers. We are coming to the offices.’

Bill Kitching: ‘Well our expectation is that you put a right of entry into [sic] come and do this.’”

[29] The CFMMEU’s written outline of submissions dated 15 May 2018 described the second dispute as follows:

“The second issue in dispute between the parties goes to a purported requirement made by Bill Kitching of Laing O’Rourke on 12 February 2018 in respect of a proposed entry to the W2B project by CFMMEU organisers Dean Rielly and Paul Fitzpatrick, both holders of entry permits issued under the Act and WHS entry permits issued under the Work Health and Safety Act 2011 (NSW). The salient facts are set out in the statements of Mr Fitzpatrick …”

[30] The CFMMEU’s written submissions in reply dated 26 June 2018 include draft amended orders sought by the CFMMEU, including the following orders in relation to the second dispute:

“5. The Respondent and its employees, agents and officials are not to purport to require CFMMEU WHS entry permit holders to provide advance notice prior to entering the W2B project for the purpose of investigating a suspected contravention of the Work Health and Safety Act 2011.

6. The Respondent and its employees, agents and officials are not to purport to require CFMMEU entry permit holders to provide advance written notice prior to entering the W2B project for the purpose of meeting by arrangement with project management.”

[31] The CFMMEU’s written submissions in reply dated 26 June 2018 include, inter alia, the following submissions in support of these orders:

“31. Draft orders 5 and 6 go to the dispute which occurred between the parties on 12 February 2018.

32. The respondent places some emphasis on a disagreement between the parties as to whether the meeting held on 8 February 2018 had been completed or was interrupted. The applicant submits that this is not a significant. What is significant is that Mr Fitzpatrick considered that his investigation into the suspected safety contravention involving the excavator roll–over was incomplete, and that he wished to return to the project to continue this investigation. For this reason, he spoke to Mr Kitching on 12 February 2018 and told Mr Kitching that he wished to return to the W2B project to look at the investigation of the excavator roll over. Mr Kitching agreed that he could come, but demanded that an entry notice be provided.

33. The respondent now concedes that no advance notice of entry is required by a permit holder exercising rights pursuant to s 117 of the Work Health and Safety Act 2011 (the WHS Act). The respondent has not however conceded that Mr Kitching was incorrect on 12 February 2018 in purporting to make entry to the premises by Mr Fitzpatrick contingent on receiving an advance entry notice. The applicant therefore submits that there remains a dispute as to whether Mr Kitching, or another officer of the respondent, should be permitted to act similarly in the future.

34. Draft order 6 does relate to a dispute about Part 3-4 of the Act, contrary to the submission made by the respondent. Mr Kitching purported to require advance notice, as required by Part 3-4 of the Act in certain circumstances, to be provided in circumstances where no such notice was required by Part 3-4.

35. The applicant submits that proposed orders 5 and 6 are both within jurisdiction, and are reasonable and proportionate in all the circumstances…”

[32] The CFMMEU’s written closing submissions dated 27 July 2018 include, inter alia, the following submissions in relation to the second dispute:

“28. On 12 February 2018, Mr Kitching told Mr Fitzpatrick that he would not be permitted to re-enter the project to continue discussions with managers about a safety incident involving an excavator unless an advance written notice was supplied. Mr Kitching had no right to require an advance written notice. If the intended entry was by invitation, a request for an entry notice was inconsistent. If the entry was pursuant to s 117 of the WHS Act, which the applicant submits was the case, no advance notice was required…

33. The applicant seeks the making of draft orders 5 and 6 to prevent the making of such inappropriate and unreasonable requirements in the future.

34. The applicant submits that the making of these orders would be within jurisdiction, for the reasons stated previously. The draft orders sought would specifically require the respondents to refrain from putting in place notice requirements which are unreasonable in relation to the exercise of rights under Part 3-4 of the FW Act.”

[33] The CFMMEU’s primary contention is that the attempted entry to the Project by Mr Rielly and Mr Fitzpatrick (which is the subject of the second dispute) was pursuant to s 117 of the Work Health and Safety Act 2011 (NSW) (WHS Act), 38 with the result that prior notice was not required to be given of entry to the workplace. I agree with that characterisation of the second dispute. Such a dispute, however, is not a dispute about the operation of Part 3-4 of the Act, because Part 3-4 of the Act does not create, regulate, change or abolish the notice requirements of an entry pursuant to s 117 of the WHS Act.39 The notice requirements of an entry pursuant to s 117 of the WHS Act are governed by s 119 of the WHS Act, which is located within Part 7 of the WHS Act, and regulations 27 and 28 of the Work Health and Safety Regulation 2011 (NSW) (WHS Regulation). Section 119 of the WHS Act provides:

(i) “119 Notice of entry

(1) A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to:

(a) the relevant person conducting a business or undertaking, and

(b) the person with management or control of the workplace.

(2) Subsection (1) does not apply if to give the notice would:

(a) defeat the purpose of the entry to the workplace, or

(b) unreasonably delay the WHS entry permit holder in an urgent case.

(3) Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120.”

[34] Regulations 27 and 28 of the WHS Regulation provide:

“27 Notice of entry--general
A notice of entry under Part 7 of the Act must:

(a) be written, and

(b) include the following:

(i) the full name of the WHS entry permit holder,

(ii) the name of the union that the WHS entry permit holder represents,

(iii) the section of the Act under which the WHS entry permit holder is entering or proposing to enter the workplace,

(iv) the name and address of the workplace entered or proposed to be entered,

(v) the date of entry or proposed entry,

(vi) the additional information and other matters required under clause 28, 29 or 30 (as applicable).

(ii) 28 Additional requirements--entry under section 117

A notice of entry under section 119 of the Act in relation to an entry under section 117 must also include the following:

(a) so far as is practicable, the particulars of the suspected contravention to which the notice relates,

(b) a declaration stating:

(i) that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union, and

(ii) the provision in the union’s rules that entitles the union to represent the industrial interests of that worker, and

(iii) that the suspected contravention relates to, or affects, that worker.”

[35] Accordingly, the second dispute insofar as it concerns the notice requirements of entry to a workplace pursuant to s 117 of the WHS Act, is a dispute about the operation of Part 7 of the WHS Act, not Part 3-4 of the Act. The Industrial Relations Commission of New South Wales has jurisdiction to “deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under” the WHS Act, 40 including by making orders.

[36] I do not accept the CFMMEU’s submission that the second dispute is “about Part 3-4 of the Act, … [because] Mr Kitching purported to require advance notice, as required by Part 3-4 of the Act in certain circumstances, to be provided in circumstances where no such notice was required by Part 3-4”. 41 The fact that Part 3-4 of the Act does require advance notice of entry for particular purposes does not, of itself, convert a dispute about the notice requirements of entry to a workplace pursuant to s 117 of the WHS Act into a dispute about the operation of Part 3-4 of the Act.

[37] The CFMMEU disputes evidence given by Mr Kitching in cross examination to the effect that he believed the CFMMEU permit holders wanted to return to the Project for the purpose of (a) having a look at the investigation report into the safety incident and (b) speaking to “other workers in a more general sense”, 42 and the second of those purposes was why he requested advance notice of entry.43 The CFMMEU’s case is that Mr Kitching was aware that the CFMMEU permit holders wanted to return to the Project for the sole purpose of continuing to make inquiries into a suspected contravention of the WHS Act, with the result that Mr Kitching had no right to request an advance entry notice. The factual dispute about whether Mr Fitzpatrick told Mr Kitching that he wanted to return to the Project to speak to “other workers in a more general sense” and/or whether Mr Kitching requested advance notice of entry for that reason is, I accept, a dispute about the operation of Part 3-4 of the Act. However, regardless of the outcome of this factual dispute, I would not exercise my discretion to make the orders sought by the CFMMEU in relation to the second dispute.44 Those orders do not relate to or deal with a dispute concerning entry to the Project for the purpose of holding discussions with employees during mealtimes or other breaks. Furthermore, both parties agree and understand that advance notice of entry to the Project is required for the purpose of holding discussions with employees during mealtimes or other breaks.45 There is no dispute that CFMMEU permit holders provide advance notice to LORAC when they wish to enter the Project for this purpose.

[38] The CFMMEU’s alternative contention in relation to the second dispute is to the effect that if the intended entry was by invitation, a request for an entry notice was inconsistent with such an invitation. 46 A dispute about the notice requirements, if any, of an entry by invitation to a workplace is not a dispute about the operation of Part 3-4 of the Act, because Part 3-4 of the Act does not create, regulate, change or abolish any notice requirements associated with an entry by invitation to a workplace. Further, LORAC accepts that if there is a “meeting [with permit holders] by arrangement with project management” then advanced written notice is not required.47 Accordingly, there is no dispute between the parties about entries by invitation or prior arrangement.

[39] For the reasons given, the Commission does not, for the most part, have jurisdiction to deal with the second dispute, and to the extent there is such jurisdiction, I am not willing to exercise my discretion to make the orders sought by the CFMMEU in relation to the second dispute.

Dispute 3 – right of entry to investigate an alleged safety issue concerning fatigue and heat exposure on 13 February 2018

[40] There are two parts to the third dispute. First, there is a dispute about whether the entry notice given by Mr Rielly to Mr Kitching pursuant to s 117 of the WHS Act on 13 February 2018 met the requirements of such a notice. The second part of the third dispute is a factual contest about what happened at the Project on 13 February 2018.

[41] The CFMMEU seeks the following orders in relation to the third dispute: 48

“7. The Respondent and its employees, agents and officials are not to refuse to recognise CFMMEU entry permit holders’ entry rights in circumstances where those entry permit holders are unable to identify the particular area of the W2B project where particular workers are working at that point in time.

8. The Respondent and its employees, agents and officials are not to lay hands on or otherwise assault CFMMEU entry permit holders when they attempt to exercise their legislative entry rights at the W2B project.

9. The Respondent and its employees, agents and officials are not to physically or otherwise obstruct CFMMEU entry permit holders as they attempt to exercise their legislative rights at the W2B project.”

[42] As to the first part of the third dispute, it is alleged that Mr Kitching did not accept the entry notice because (a) it did not give “specifics”, including in relation to the location of the workers who were allegedly suffering from fatigue and heat management issues and the suspected contravention of the WHS Act and (b) workers only being given one meal break per day was not a safety issue, but was instead an industrial issue. The question of whether or not the entry notice given by Mr Rielly to Mr Kitching pursuant to s 117 of the WHS Act on 13 February 2018 met the requirements of s 119 of the WHS Act and/or regulations 27 and 28 of the WHS Regulations, including whether the entry notice included “the name and address of the workplace … proposed to be entered”, 49 is a dispute about the operation of Part 7 of the WHS Act, not Part 3-4 of the Act. I do not have jurisdiction to deal with such a dispute or to make draft order 7 sought by the CFMMEU.50

[43] As to the second part of the third dispute, the CFMMEU contends that agents, employees and/or officers of LORAC physically impeded Mr Rielly and Mr Fitzpatrick as they attempted to carry out their investigation into the suspected contravention of the WHS Act and Mr Kelly Brodie, a Superintendent employed by BMD on the Project, pushed his chest against Mr Rielly’s shoulder. LORAC denies that Mr Brodie pushed his chest against Mr Rielly’s shoulder, and instead alleges that Mr Brodie stood his ground and it was Mr Rielly who used his shoulder and elbow to make contact with Mr Brodie. LORAC does not dispute that Mr Rielly and Mr Fitzpatrick were physically blocked from entering part of the Project, but says that Mr Rielly and Mr Fitzpatrick had no right to enter the Project pursuant to s 117 of the WHS Act.

[44] There is no doubt that Mr Rielly and Mr Fitzgerald were seeking to enter the Project on 13 February 2018 pursuant to their right under s 117 of the WHS Act to inquire into a suspected contravention of the WHS Act. In doing so, they were seeking to exercise a “State or Territory OHS right” within the meaning of s 494(2) of the Act. 51 The Act does not create a separate right (additional to the right under the WHS Act) to enter premises for occupational health and safety purposes.52 However, when a permit holder exercises a “State or Territory OHS right” by entering premises pursuant to a right under the WHS Act, they are subject to the obligations imposed in, and entitled to the protection under, Part 3-4 of the Act,53 including not being refused or unduly delayed entry onto premises54 and not having a person intentionally hinder or obstruct them in the exercise of rights in accordance with Part 3-4 of the Act.55 I therefore accept that this part of the third dispute involving the physical altercation at the Project on 13 February 2018 is a dispute about the operation of Part 3-4 of the Act and I have jurisdiction to deal with it pursuant to s 505(1) of the Act.

[45] The fact that the third dispute focuses, in part, on what took place in the physical altercation on 13 February 2018 and whether agents, employees and/or officers of LORAC acted in accordance with their obligations under Part 3-4 of the Act on that day may suggest that the third dispute involves the adjudication of existing legal rights as between the parties and therefore invokes the exercise of judicial power. However, it is apparent from the relief sought by the CFMMEU in connection with the third dispute that its proper characterisation is as a dispute about the future conduct of LORAC, its employees, agents and officers in light of their past conduct. A dispute of that kind involves the exercise of arbitral power, as an incidental step in the proper exercise of the jurisdiction conferred by s 505(1) of the Act, not judicial power. 56

[46] In the present case, even if I determined the factual contests at the heart of the third dispute in favour of the CFMMEU, including the contention that Mr Brodie pushed his chest against Mr Rielly’s shoulder on 13 February 2018, I would not exercise my discretion to make the orders sought by the CFMMEU or any other orders in relation to the third dispute. In exercising my discretion not to make any orders in relation to the third dispute, I have taken into account fairness between the parties concerned, 57 together with all the evidence adduced and submissions made in the proceedings. My reasons for not exercising my discretion to make orders are as follows:

• Draft orders 8 and 9 sought by the CFMMEU would, if made, require LORAC and its “employees, agents and officials” to (a) not “lay hands on or otherwise assault CFMMEU permit holders when they attempt to exercise their legislative entry rights” at the Project and (b) not “physically or otherwise obstruct CFMMEU entry permit holders as they attempt to exercise their legislative rights” at the Project. There is no doubt that if LORAC or any of its employees, agents or officers engaged in such conduct in the future, they would be in breach of their obligations under s 502(1) and/or s 501 of the Act;

• I am satisfied that the relevant employees and agents of LORAC are, and were at the time of the incident on 13 February 2018, aware of their obligations not to intentionally hinder or obstruct a permit holder exercising rights in accordance with Part 3-4 of the Act (s 502(1) of the Act) and not to refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with Part 3-4 of the Act (s 501 of the Act); 58

• The primary issue in relation to the part of the third dispute concerning the physical altercation is whether any employee, officer or agent of LORAC contravened their obligations under s 502(1) and/or s 501 of the Act on 13 February 2018. There is no suggestion in these proceedings that, save for the incident on 13 February 2018, there has been an assault involving a CFMMEU permit holder and a LORAC employee or agent at the Project or that a CFMMEU permit holder has been physically prevented from entering the Project or a part of it by a LORAC employee or agent; 59 and

• In all the circumstances, my view is that this is not a case in which making the orders sought by the CFMMEU in relation to the third dispute, or any alternative orders, would serve to inform, educate or remind relevant persons of their obligations in relation to rights of entry, reduce the prospect of future right of entry disputes at the Project, or serve any other purpose sufficient to warrant such orders being made.

Conclusion

[47] For the reasons given above, I decline to grant any of the relief sought by the CFMMEU and dismiss the Application.

[48] Although I have not taken this into account in deciding not to exercise my discretion to make orders in these proceedings, I note that it is open to the CFMMEU to prosecute a case concerning alleged contraventions of the 2017 Orders, the Act and/or the WHS Act in relation to the three disputes the subject of these proceedings in a competent court and seek appropriate penalties and/or other relief.

COMMISSIONER

Appearances:

Charlson, L for the CFMMEU

Ludeke, P, solicitor, for LORAC

Hearing details:

2018.

Newcastle:

July 4 and 5.

Printed by authority of the Commonwealth Government Printer

<PR700282>

 1   [2017] FWC 3782; [2017] FWC 4467; PR595944; an additional dispute relating to how “premises” on the Project were to be characterised for the purpose of the issue of entry notices pursuant to Part 3-4 of the Act was settled by agreement.

 2   Section 480 of the Act

 3   Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

 4   Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

 5   Section 501 of the Act

 6   Section 502 of the Act

 7   Four Colour Graphics Australia Pty Ltd v Gravitas Communications Pty Ltd [2017] FCA 224 at [27]

 8   Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7

 9   Section 483A(2) of the Act

 10   Section 483B(1)(c) of the Act

 11 Section 484 of the Act

 12   Section 491 of the Act

 13   Section 492(3) of the Act

 14   Section 492A(1) of the Act

 15   AMWU v Holden Limited PR940366 (Holden) at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 (ASP) at [23]

 16   Holden; ASP at [23]

 17   ASP at [19] & [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 (UFU v MFESB)

 18   MUA v Australian Plant Services Pty Ltd PR908236; ASP at [21]-[22]

 19   UFU v MFESB at [20]

 20 Section 505(2)(e) of the Act

 21   JKC Australia LNG Pty Ltd v CFMEU[2016] FWC 536 at [242]-[253]

 22   CFMEU v Laing O’Rourke Australia Construction Pty Ltd[2017] FWC 4467 at [1]-[3] & [7]-[14]

 23   CFMEU v Austral Bricks (Vic) Pty Ltd[2014] FWC 5407 at [41]; Aero-Care Flight Support Pty Limited [2015] FWC 1783 at [14]

 24   Police and Nurses Credit Society Ltd v FSU (2003) 132 IR 13 at [42], applying Waterside Workers Federation of Australia Ltd v JW Alexander Ltd (1918) 25 CLR 434 at 463

 25   CFMEU v Bechtel Construction (Australia) Pty Ltd[2015] FWCFB 946 at [21]

 26   Section 505(4) of the Act

 27   Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd (2012) 221 IR 268 at [26]

 28   Australasian Meat Industry Employees’ Union v Somerville Retail Services[2010] FWA 6737 at [13]

 29   PR595944

 30   Application at [6], page 5 of 9.

 31   CFMMEU outline of submissions dated 26 June 2018, annexure A

 32   [2017] FWC 3782 at [22]; PR595944 order [1].

 33   See, by analogy, United Firefighters’ Union v Metropolitan Fire and Emergency Services Board  PR973884, where the Full Bench held (at [26]-[29]) that the dispute in question concerned the outcome of conciliation, rather than the conciliation process itself.

 34   [2017] FWC 4467 at [7]-[14]

 35   Brandy v HREOC (1995) 183 CLR 245 at 268

 36   Sections 506 and 539 of the Act

 37   Application at [7]-[8], page 5 of 9.

 38   See paragraph [32] (at 28) above.

 39   Ramsay v Sunbuild Pty Ltd [2014] FCA 54 at [51], [82]-[88] & [101]-[102]

 40 Section 142 of the WHS Act.

 41   See paragraph [21] above.

 42   PN1790

 43   PN1779 – PN1795

 44   See paragraph [30] above

 45 See sections 484 and 490(2) of the Act

 46   See paragraph [22] above.

 47   LORAC’s written outline of submissions dated 5 June 2018 at [30]

 48   The balance of the draft orders ([10]-[14]) set out in Annexure A to the CFMMEU’s reply submissions dated 26 June 2018 relate to matters outside the scope of the Application (PN79 – PN82)

 49   Regulation 27(b)(iv) of the Work Health and Safety Regulation 2011

 50   See paragraph [42] above

 51   Ramsay v Sunbuild Pty Ltd [2014] FCA 54 at [51]

 52   Ibid at [82]-[83]

 53   Ibid at [84]-[88] & [101]-[102]

 54   Section 501 of the Act

 55   Section 502(1) of the Act

 56   CFMEU v Bechtel Construction (Australia) Pty Ltd[2015] FWCFB 946 at [21]

 57   Section 505(4) of the Act

 58   PN2019 – PN2024 & PN2971 – PN2974

 59   PN2975 – PN2978