Construction, Forestry, Maritime, Mining & Energy Union v Hanssen Pty Ltd
[2019] FCCA 1664
•17 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION & ORS v HANSSEN PTY LTD & ORS | [2019] FCCA 1664 |
| Catchwords: INDUSTRIAL LAW – Application for declarations under s.566 of the Fair Work Act – whether the respondents contravened s.501 and s.502 of the Fair Work Act – whether the applicants had right of entry – whether the second and third respondents had authority to permit entry – contraventions made out. |
| Legislation: Industrial Relations Act 1979 (WA), ss.49I, 49O Fair Work Act 2009 (Cth), ss.480, 494, 501, 502, 512, 566 Occupation Health and Safety Act 1948 (WA) |
| Cases cited: CEPU (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1127 |
| First Applicant: | CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION |
| Second Applicant: | ROBERT ANTHONY BENKESSER |
| Third Applicant: | PHILIP SHANE KENNEDY |
| Fourth Applicant: | TROY KINGSLEY SMART |
| First Respondent: | HANSSEN PTY LTD |
| Second Respondent | GERARDUS PETER HANSSEN |
| Third Respondent: | DENBY JACKSON |
| File Number: | PEG 391 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 17 June 2019 |
| Date of Last Submission: | 17 June 2019 |
| Delivered at: | Perth |
| Delivered on: | 17 June 2019 |
REPRESENTATION
| Solicitors for the Applicants: | Mr D Scaife Eureka Lawyers |
| Counsel for the Respondents: | Mr J Raftos |
| Solicitors for the Respondents: | Hotchkin Hanly Lawyers |
DECLARATIONS
Under section 545(1) of the Fair Work Act 2009 (Cth) that the second respondent contravened:
(a)section 501 of the Fair Work Act 2009 (Cth); and
(b)section 502 of the Fair Work Act 2009 (Cth).
Under section 545(1) of the Fair Work Act 2009 (Cth) that the third respondent contravened:
(a)section 501 of the Fair Work Act 2009 (Cth); and
(b)section 502 of the Fair Work Act 2009 (Cth).
Under section 545(1) of the Fair Work Act 2009 (Cth) and having regard to the separate conduct of the second and third respondent, the first respondent contravened:
(a)section 501 of the Fair Work Act 2009 (Cth); and
(b)section 502 of the Fair Work Act 2009 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 391 of 2017
| CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION |
First Applicant
| ROBERT ANTHONY BENKESSER |
Second Applicant
| PHILIP SHANE KENNEDY |
Third Applicant
| TROY KINGSLEY SMART |
Fourth Applicant
And
| HANSSEN PTY LTD |
First Respondent
| GERARDUS PETER HANSSEN |
Second Respondent
| DENBY JACKSON |
Third Respondent
REASONS FOR JUDGMENT
This is an application for declarations and relief falling within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of alleged contraventions of ss 501 and 502 of the Act by the respondents.
The first respondent was the occupier of premises in which construction work was being undertaken, known as the Concerto Apartments project at 189 Adelaide Terrace, East Perth. The second respondent was the director and corporate mind of the first respondent. The third respondent was a site manager in respect of that project.
On 8 December 2016, the second applicant received photographs by reason of which he formed a belief or suspicion under s 49I of the Industrial Relations Act 1979 (WA) (“the Industrial Relations Act”), that there were safety contraventions disclosed by those photographs. The photographs were not dated and the second applicant assumed that they were recent. The second applicant explained to the Court the significance of the potential safety concerns in respect of each of the photographs. On this evidence there was a reasonable basis for the suspicion of a breach of the Occupation Health and Safety Act 1948 (WA) falling within s 49O of the Industrial Relations Act.
Both the second and third applicants are permit holders under s 512 of the Act, as well as holding relevant permits under the state legislation. The s 512 permits have not been the subject of any revocation or limitation at the time of the events giving rise to these proceedings.
On 9 December 2016, following the receipt of the photographs, the second and third applicants attempted to enter the said premises. Evidence was given in relation to a conversation at the time that they attended, in which the third respondent was informed by the second applicant:
We want to enter the Premises under section 49I. We have suspicions of safety breaches on the job.
There was an admission as to the scope of authority of the third respondent in the pleading that he had, or purported to have, the authority to control entry onto the premises and that he acted in his capacity as the premises’ site manager within the scope of his actual or apparent authority on the premises, which allegation was admitted in respect of the alleged contraventions, the subject of the further amended statement of claim.
The third respondent asked what the breaches were and it was responded that there was a suspicion in respect of open penetrations and unsecured covers over penetrations, as well as workers had not been provided with fall prevention equipment. The third respondent identified that he could not allow entry and that there would have to be a request made to the second respondent. Given the admission of the authority in the pleading, the Court finds that the third respondent did have, within the scope of his authority, the ability to permit entry onto the premises.
The third respondent identified that there would have to be a communication made to the site manager. In circumstances where the third respondent had authority to permit entry, the imposition of a requirement that the second and third applicants must speak to his director, the second respondent, was effectively a refusal of entry under s 501 of the Act.
There is a potential issue as to the extent to which a person purporting to enter a premises can make out a contravention under s 501 of the Act. On one view, the individual should identify at the time of the attempted entry that they are a permit holder who is entitled to enter the premises in accordance with the Act and that they hold, if it is the case that there is reliance on state legislation, a permit under the relevant state legislation and an identification of the statutory source of the power sought to be exercised. It is clear in the present case that the statutory source of the power sought to be exercised was identified. The response by the third respondent is one in respect of which whether there is any such additional requirement, the Court finds the third respondent was indifferent as to the second and third applicants being permit holders who are entitled to enter the premises in accordance with Part 3 of the Act.
Accordingly, the Court finds that the third respondent, by his conduct, contravened s 501 of the Act. Given the admission in respect of authority, there has equally been a hindrance or obstruction of a permit holder exercising rights in accordance with this part.
For the same reasons, the Court finds the third respondent was indifferent as to whether or not the respective second and third applicants were permit holders exercising rights in accordance with this Part and accordingly, a contravention of s 502 of the Act is made out.
The evidence in relation to the conversation that took place with the second applicant identifies a truculent entrenched position by the second applicant that he was not going to allow entry. There was clearly indifference by the second applicant as to the second and third applicants being permit holders exercising rights in accordance with Part 3-4 of the Act. In these circumstances, the Court finds that the second respondent contravened s 502 of the Act by actually hindering or obstructing a permit holder exercising rights in accordance with this Part.
There was a submission advanced by the respondents that the words “in accordance with this Part” should be given a narrower meaning so as to not pick up rights arising in the present case under s 49O of the Industrial Relations Act. The object of s 480 of the Act is sufficient to identify the reasons why such a construction should not be accepted. It is not necessary to set out those objects. It is crystal clear from the requirement of s 494 of the Act that the relevant official must hold a permit under s 512 of the Act. The scheme of Part 3-4 of the Act provides an ability to cancel or limit the s 512 authority, which is inconsistent with the arguments advanced by the respondents as to the narrow meaning of “in accordance with this Part”. Further, this Court is bound by the decision of Reeves J in Ramsay v Sunbuild Pty Ltd [2014] 221 FCR 315. The fact that it was a stated case does not give rise to any basis upon which one can say there was not a clear ratio identified by the learned Reeves J in respect of the construction of “in accordance with”. This Court is bound by that ratio.
Attention was drawn to a suggestion in CEPU (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1127 at 55(a) that this Court could depart from a decision of the Federal Court that it considered to be plainly wrong. That proposition is itself plainly wrong. This Court has no such power to depart from the binding authority of the Federal Court of Australia. The authority of Reeves J is binding authority on this Court. Further, this Court does not regard the decision of his Honour as is being in any way the subject of doubt, and to construe otherwise would defeat the objects of Part 3-4 of the Act.
To the extent that the respondents submitted that there had been a conclusion by the second and third applicants that there had been breaches that does not in any way undermine there being a reasonable suspicion. To the extent that the photographs were undated does not remove in the circumstances of the present case the reasonable suspicion where there is an ongoing project. There is no proper basis upon which it could be said there was not a reasonable grounds for that suspicion.
Accordingly, the Court finds the respondents contravened ss 501 and 502 of the Act and makes the declarations orders identified.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 19 July 2019
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