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

[2017] FWC 3782

[2017] FWC 3782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

Construction, Forestry, Mining and Energy Union
v
Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete
(RE2017/222)

COMMISSIONER SAUNDERS NEWCASTLE, 8 AUGUST 2017

Right of entry dispute – entry to hold discussions during mealtimes or other breaks

[1] There is a dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) and Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete (LORAC) in relation to entries by CFMEU officials on to premises controlled by LORAC for the purpose of holding discussions with employees.

[2] The CFMEU has made an application pursuant to s.505 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with its right of entry dispute with LORAC (Application). There is no dispute that the Commission has jurisdiction to deal with the dispute pursuant to s.505 of the Act.

[3] The dispute relates to a regional infrastructure project that involves the duplication of approximately 155 kilometres of road on the Pacific Highway between Woolgoolga and Ballina (Project).

[4] Roads and Maritime Services have engaged a consortium comprising LORAC and Parsons Brinckerhoff Australia Pty Limited to deliver the Project.

[5] LORAC is the occupier and controller of the premises on which the work relating to the Project is conducted (Site). Due to its size, the Site is divided into segments. In each segment of the Site there is a compound that has facilities including a car park, toilets, meeting rooms and a crib shed. Relevant to the current dispute are the compounds located at SWC - Avenue Road, Glenugie (The Avenue) and Wave 4 - Gate 129 Pacific Highway, Woodburn (Woodburn).

[6] Following a number of conciliation conferences which I conducted in an attempt to resolve the dispute, I issued a recommendation on 24 March 2017. By letter dated 28 April 2017, I was informed by the CFMEU that its right of entry dispute with LORAC had not been resolved. I acceded to the CFMEU’s request to deal with the dispute by arbitration pursuant to s.505(2) of the Act.

[7] The arbitration took place on 18 July 2017. At the arbitration the CFMEU was represented by Mr Michael Aird, CFMEU National Legal Officer. LORAC was granted permission to be represented by Mr Paul Ludeke, solicitor, of Mills Oakley Lawyers.

[8] The CFMEU adduced evidence from Mr Paul Fitzpatrick, CFMEU Organiser, who was not required for cross examination, and Mr Dean Rielly, CFMEU Organiser, who was cross examined at the arbitration.

[9] At the conclusion of the CFMEU’s evidentiary case LORAC made a no case to answer submission, and in the course of doing so elected not to call any evidence. 1

What is the scope of the dispute?

[10] In light of arguments raised by LORAC in final oral submissions for the first time in these proceedings, it is necessary to give some detailed consideration to the scope of the dispute I have been asked to arbitrate.

Relevant principles

[11] 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, relevant to assist in determining the scope of the dispute in this matter. 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. 2



• The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties. 3



• 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. 4



• 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. 5 However, the relief sought may cast light on the true nature of the dispute in some cases.6

Application for the Commission to Deal with a Right of Entry Dispute

[12] The CFMEU filed the Application on 28 February 2017. In answer to the question, “What is the dispute about?” at section 2.1 of the Application the CFMEU described the “matters in dispute” as follows:

“Background

1. At all material times, the Respondent was engaged with a joint venture partner to deliver a regional infrastructure project for and on behalf of NSW Roads and Maritime Services which involved the duplication of approximately 155 kilometres of road to a four-lane divided road on the Pacific Highway between Woolgoolga and Ballina (the Site). The Respondent is the relevant occupier of premises where work is conducted on the Site.

2. At all material times the Respondent engaged a number of subcontractors to perform building and construction works on the Site. These subcontractors employed employees who were members or were eligible to be members of the Applicant.

3. In or about late September 2016, the Respondent entered into an arrangement with the Applicant following the Applicant instigating proceedings under s 505 of the Fair Work Act 2009 (Cth) (Act) which provided that they would, amongst other things, inform the Applicant of the identity of each 'premises' it said were situated on the Site so the Applicant could detail these on entry notices. Subsequent to this arrangement being entered into, the Respondent has, from time to time, informed the Applicant of the location of what it says are 'premises' where workers perform work or take meal and other breaks, and the Applicant has listed these on its notices of entry under ss 487 and 518 of the Act.

The dispute

4. On 8 February 2017, CFMEU official and permit holder Dean Rielly attended the Site and signed in at a compound known as "The Avenue" pursuant to the Respondent's instructions. He then proceeded to a crib facility located on a part of the Site known as Mitchell's Road and signed in here in accordance with the Respondent's instructions.

5. Mr Rielly arrived at the Mitchell's Road compound at or about 2:00PM. At Mitchell's Road there were a number of employees on a lunch break. These employees were engaged by contractors including Seymour Whyte and Ostwald Brothers and were operators of plant and equipment who fell under the Applicant's rule 2E. Mr Riley commenced discussions with these employees. At or about 2:25PM, Ms Melissa Perkovic, a manager employed by the Respondents, entered the crib room and announced to Mr Rielly and all the workers present words to the effect "you've got 5 minutes left Dean." She then re-entered the crib room and said "your discussions are finished Dean. You've had your 30 minutes. It's time for you to leave." She also said to the employees who were present "why are you all having a break now anyway, smoko was at 10:00AM?" Mr Rielly observed employees appear uncomfortable at being spoken to in this manner by Ms Perkovic and reticent about continuing discussions with him.

6. Mr Rielly informed Ms Perkovic that there were a number of employees who remained on breaks and he was entitled to have discussions with them. He also informed her that workers usually had lunch breaks at either 10:00AM or 2:00PM. Notwithstanding this, Ms Perkovic insisted that Mr Rielly cease discussions and leave. Mr Rielly asked if he could remain for at least 5 more minutes. Ms Perkovic assented to this, left the crib facility and after 5 minutes had elapsed came back into the crib facility and demanded Mr Rielly leave immediately. At the time Mr Rielly was directed to leave, there were a number of workers employed by Seymour Whyte and Ostwald Brothers who were present in the room on their lunch breaks. Mr Rielly apologised to these workers that he was not able to continue his discussions with them as a result of Ms Perkovic’s instructions to him to leave the Site as his time was up.

7. As a result of Ms Perkovic's direction, Mr Rielly missed out on having discussions with a number of employees who were on meal or other breaks.

8. On 17 February 2017, Mr Rielly re-attended the Site and sought to have discussions with employees who were on a meal or other break at a part of the Site known as Mitchell's Road. He arrived at Mitchell's Road at or about 9:55AM and ran into Ms Perkovic, who appeared to have been waiting for him. Mr Rielly saw that employees were currently in the crib room taking a meal or other break. Ms Perkovic told Mr Rielly that he was not allowed to enter the crib room as it was not yet 10:00AM. Mr Rielly reminded her that workers were on a break and he was entitled to have discussions with them during break times. Ms Perkovic informed him that he was not allowed in the crib room untii10:00AM. At 10:00AM, Ms Perkovic allowed Mr Rielly entry to the crib room. At or about 10:30AM, Ms Perkovic came into the crib room and told Mr Rielly his time was up and he had to leave. At this point, a number of employees who the Applicant was able to represent under its rules remained. Mr Rielly observed these workers appear uncomfortable and awkward as a result of Ms Perkovic's intervention. Mr Rielly again reminded Ms Perkovic that he was entitled to have discussions with workers on their meal and other breaks. She, however, directed him to leave.

9. As a result of Ms Perkovic's direction, Mr Rielly missed out on having discussions with a number of employees who were on meal or other breaks.”

[13] The CFMEU sought the following relief in section 3.1 of the Application:

“Orders that:

(a) the Respondent and its employees, agents and officers not direct or instruct permit holders employed by the Applicant to cease having discussions with members and potential members of the Applicant under s 484 of the Fair Work Act 2009 (Cth) whilst such members and potential members are on a meal or other break;

(b) the Respondent and its employees, agents and officers not interrupt, disrupt or otherwise interfere with discussions between permit holders employed by the Applicant and members and potential members of the Applicant whilst such members and potential members are on a meal or other break unless such interruption, disruption or interference relates to a matter falling within s 491 of the Fair Work Act 2009 (Cth);

(c) the Respondent arrange for the posting in a prominent position at each crib room or other area where employees usually take meal or other breaks and that are provided for such purpose a notice stating that:

1. Union officials are entitled under the Fair Work Act to have discussions with employees during their meal or other breaks. Pacific Complete is obliged to allow these discussions to occur and is prohibited by the Fair Work Act from hindering or obstructing union officials whilst they engage in discussions with you during your meal or other breaks.

2. Pacific Complete has directed all its managers and supervisors to ensure that they do not disrupt or interfere with union officials and employees who are involved in legally permitted discussions under the Fair Work Act whilst employees are on meal or other breaks.

3. Pacific Complete recognises employees' rights to be members or not be members of trade unions and cannot and will not take any action against workers who engage with or become members of trade unions or who do not engage with or become members of trade unions.

4. If you feel that Pacific Complete managers and supervisors are interfering with discussions between yourself and union officials during your meal or other breaks, you should report this to a senior manager or union official.”

[14] The CFMEU outlined, in section 3.2 of the Application, the following grounds on which it relied in support of the relief sought:

“1. A dispute has arisen about the operation of Part 3-4 of the Fair Work Act as a result of an apparent misapprehension by managers of the Respondent about the entitlement of permit holders to have discussions with employees during the times set out in s 490(2) of the Act. The Respondent's managers seem to believe that permit holders are able only to have discussions for a specified period of time (being 30 minutes) and between times designated by them. This has resulted in permit holders employed by the Applicant being hindered and obstructed in the exercise of their rights under s 484 of the Act.

2. Orders under s 505 are required to resolve the dispute by controlling the conduct of the Respondents' managers and supervisors in the future in respect to the exercise of rights under s 484 by the Applicant's officials who are permit holders during employees' meal times and other breaks.

3. Further, the Respondent's manager Ms Perkovic's conduct in intervening in discussions between Mr Rielly and employees has been disruptive and intimidating to employees. The orders proposed are designed to ameliorate the harm caused by Ms Perkovic's misguided and abrasive conduct and re-establish the balance envisaged by s 480 of the Act.”

Continuation of the dispute after the filing of the Application

[15] Like many disputes, this dispute continued after the Application was filed. In particular, the CFMEU alleges in its submissions and witness statements that LORAC prevented Mr Rielly from holding discussions with employees on the Site during their actual mealtimes and other breaks on 14 March 2017 and again on 27 April 2017, in addition to the earlier dates dealt with in the Application, namely 9 February 2017 and 17 February 2017. I will hereafter collectively refer to the dates of 9 February 2017, 17 February 2017, 14 March 2017 and 27 April 2017 as the ROE Dates.

[16] In its outline of submissions dated 24 May 2017, the CFMEU described the dispute and the background to it as follows:

“The Dispute

1. The CFMEU seeks orders to resolve a dispute about the operation of Part 3-4 of the Fair Work Act 2009 (Cth) (Act) that has arisen between the CFMEU and Laing O'Rourke. The CFMEU assert that Laing O'Rourke has been acting in breach of its obligation under the Act pursuant to the right of entry it has accorded to CFMEU permit holders. Specifically the CFMEU asserts that Laing O'Rourke has mistakenly and unlawfully misapprehended its legal obligations to allow CFMEU permit holders to hold discussions, with workers who are members or are eligible to be members of the CFMEU, pursuant to a right of entry under section 484 of the Act. Laing O'Rourke has mistakenly asserted, by its actions, that meal times and other breaks, pursuant to section 490 (2), are as Laing O'Rourke schedules or pre-determinedly prescribes them. The CFMEU asserts break times are when the relevant workers are actually on a break. A break time is simply a matter of fact. Tritely, it occurs when it occurs. When a break is occurring a permit holder, pursuant to section 484 and section 490 (2), is entitled to hold discussions. This is fundamental to the objects of Part 3-4, Right of Entry of the Act, see section 480(a).

Background

2. The factual background to the dispute is contained in the statement of Mr Dean Rielly filed in these proceedings. The salient facts establish that;

a) Laing O'Rourke is in a joint venture with Parsons Brinckerhoff trading as Pacific Complete. The Pacific Complete joint venture is undertaking a major civil construction project with the New South Wales Government to upgrade the Pacific Highway from Woolgoolga to Ballina. This involves a number of construction worksites along the 'length and breadth' of the project (the Project).

b) Laing O'Rourke is the controller of the premises/worksites and the principal contractor for the Project.

c) The Project employs, directly, or indirectly through subcontracting supply chains, workers who are or are eligible to be members of the CFMEU. In the facts in this matter the relevant workers are not employees of Laing O'Rourke.

d) Laing O'Rourke has repeatedly and continuously directed CFMEU permit holders, when entering to hold discussion pursuant to section 484 of the Act, to cease discussions, or not to commence discussions, with workers who are members or eligible to be members of the CFMEU, whilst those workers are actually on meal breaks or other breaks pursuant to section 490 (2) of the Act (the Laing O'Rourke direction).

e) The direction, at d) above, is based on the apparent view of Laing O'Rourke that it can direct permit holders to hold discussions during its prescribed and predetermined break times as opposed to workers actual break times.

f) The CFMEU are in dispute with Laing O'Rourke about its interpretation and application of the permit holders right to hold discussions with workers pursuant to section 484 and section 490 (2).

3. To resolve the dispute the CFMEU seeks orders issue as attached to these submissions, headed draft orders and marked 'A'.”

[17] The CFMEU annexed draft orders to its outline of submissions, seeking orders in the following terms:

“[1] 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 recommends that in relation to 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 Respondent and its employees, officers and agents allow permit holders of the Applicant to hold discussions with members and potential members under s.484 of the FW Act whilst such persons are on an actual meal break or other break, 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 in the crib sheds and meal rooms across the Project* the following announcement:

Attention All

We advise that permit holders of the Construction, Forestry, Mining and Energy Union (the CFMEU) are entitled to hold discussions with workers who are members or who are eligible to members of the CFMEU during mealtimes or other breaks.

Laing O'Rourke undertakes to ensure these rights are respected. Should you have a concern in regard to the above you should contact Mr Dean Rielly of the CFMEU on 0455024672 or at [email protected]

* The Project shall mean the worksites entailed in the Pacific Complete project that involves the upgrade of the Pacific Highway from Woolgoolga to Ballina”

[18] LORAC filed a short outline of submissions in the following terms on 13 June 2017:

“1. The CFMEU’s outline of submissions dated 24 May 2017 (CFMEU submission) asserts the present “dispute” to be that Laing O’Rourke Australia Construction Pty Ltd (LORAC) has “mistakenly and unlawfully misapprehended its legal obligations to allow CFMEU permit holders to hold discussions” with relevant persons on the Pacific Complete project (par.[1]).

2. LORAC rejects that assertion. Nevertheless, if the CFMEU intends to rely on an assertion of unlawful conduct to ground the Commission’s involvement in the “dispute”, the CFMEU must address the jurisdictional basis on which it asks the Commission to act. It has not done so.

3. LORAC also rejects the further assertion that the vague statement of Dean Rielly gives the factual background to the “dispute” (par.[2] of the CFMEU submission). LORAC relies on its evidence filed in that regard.

4. LORAC’s evidence demonstrates that it has not given the so-called “Laing O’Rourke direction” in the terms stated in par.[2](d) of the CFMEU submission, nor in any comparable terms.

5. As to the so-called “Laing O’Rourke direction” being “Orwellian” as suggested in par.[6] of the CFMEU submission, even had the direction been made as suggested it would only be those who have not read or not understood Orwell who would make such a submission. The submission is consistent with the CFMEU’s reliance on exaggeration rather than substance throughout this “dispute”.

6. The draft “order” attached to the CFMEU submission is unintelligible and LORAC therefore cannot make any useful submission in response to it.

7. The application should be dismissed.”

[19] The witness statements filed and served by both the CFMEU and LORAC focused almost exclusively on the issue of whether LORAC had prevented CFMEU officials from holding discussions with employees during their actual mealtimes and other breaks, as distinct from the times when those mealtimes and other breaks were scheduled to take place.

[20] Mr Rielly gave the following unchallenged evidence, which I accept, in his first witness statement: 7

“The issue of our coverage of workers on the project has never been raised by anyone from Laing O’Rourke at any time.”

[21] On 29 June 2017, the CFMEU gave notice to the Commission and LORAC that it intended to seek the following relief in the arbitration of this dispute:

“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, 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 permit holders of the Applicant to hold discussions, without interference, with members and potential members under s.484 of the FW Act whilst such persons are on an actual meal break or other break, 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 with employees during their meal or other breaks. Pacific Complete is obliged to allow these discussions to occur and is prohibited by the Fair Work Act from hindering or obstructing union officials whilst they engage in discussions with you during your meal or other breaks.

2. Pacific Complete has directed all its managers and supervisors to ensure that they do not disrupt or interfere with union officials and employees who are involved in legally permitted discussions under the Fair Work Act whilst employees are on meal or other breaks.

3. Pacific Complete recognises employees’ rights to be members or not be members of trade unions and cannot and will not take any action against workers who engage with or become members of trade unions or who do not engage with or become members of trade unions.

4. If you feel that Pacific Complete managers and supervisors are interfering with discussions between yourself and union officials during your meal or other breaks, you should report this to a senior manager or union official.”

Conclusion as to the scope of the dispute

[22] It is clear from the matters set out in paragraphs [12] to [21] above that the dispute I was asked to arbitrate pursuant to s.505(2) of the Act was a dispute about whether Mr Rielly was seeking to hold discussions with employees at the Site during their actual mealtimes and other breaks and, if so, whether LORAC was preventing him from doing so.

[23] Notwithstanding the dispute having such a scope, at the conclusion of the CFMEU’s evidentiary case LORAC made a no case to answer submission, elected not to call any evidence, 8 and submitted that “the union hasn't met the evidentiary burden”.9 In particular, LORAC submitted, in effect, that the CFMEU had not established on the evidence, in respect of each of the ROE Dates, that:10

(a) LORAC gave a direction to a CFMEU permit holder to cease discussions, or not to commence discussions, with employees during their actual mealtimes or other breaks, or otherwise hindered, impeded or frustrated CFMEU officials from holding discussions with employees at such times (ss.484 & 490(2) of the Act);

(b) the particular employees with whom the CFMEU permit holder was holding discussions, or seeking to hold discussions, are employees whose industrial interests the CFMEU was entitled to represent (s.484(b) of the Act); or

(c) the particular employees with whom the CFMEU permit holder was holding discussions, or seeking to hold discussions, wished to participate in those discussions (s.484(c) of the Act).

[24] The submission referred to in subparagraph [23(a)] was clearly within the scope of the dispute. However, the arguments referred to in subparagraphs [23(b)] and [23(c)] above are not within the scope of the dispute. No such argument, issue, or dispute was raised or identified by LORAC at any time prior to the making of final oral submissions on 18 July 2017. 11

[25] It is important to bear in mind that this matter is not a prosecution in a court by the CFMEU of an alleged breach of s.484 of the Act by LORAC. In such a case LORAC would be well within its rights to make final submissions to the effect that the prosecutor had not proven its case on the evidence before the court. However, this matter is of a different kind. It involves the exercise of arbitral powers to deal with a dispute about Part 3-4 of the Act.

[26] The scope of the particular dispute I have been asked to arbitrate is set out in paragraph [22] above. The dispute could have included or been about whether the CFMEU was entitled to represent the employees with whom Mr Rielly was holding, or seeking to hold, discussions. It could also have included or been about whether the particular employees with whom Mr Rielly was holding, and seeking to hold, discussions wished to participate in such discussions. However, in order for the dispute to be about, or evolve to include, such matters, it would be necessary as a matter of natural justice for LORAC to give the CFMEU some prior notice or warning that such matters were in dispute. I am not prepared to, and do not, permit LORAC, at the time of making its final oral submissions, to expand the scope of dispute beyond that set out in paragraph [22] above to include the matters referred to in subparagraphs [23(b)] and [23(c)] above. To do so would be contrary to my obligation under s.505(4) of the Act to take into account fairness between the parties to the dispute when dealing with it. 12

Legislative framework relevant to the dispute

[27] Part 3–4 of the Act provides a framework 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.

[28] 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. 13

[29] Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 14 Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.15

[30] The right of a permit holder to enter premises for the purposes of holding discussions with employees is governed by s.484 of the Act:

“484 Entry to hold discussions

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

(a) who perform work on the premises; and

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

(c) who wish to participate in those discussions.”

[31] The right of entry given to a permit holder under s. 484 of the Act is not a right that is unfettered or untrammelled. 16 Rather, it is subject to express and implied constraints. An implied constraint includes that the right must be exercised so as promote the objects of Part 3–4 of the Act.17 An express constraint includes those contained within s.490 of the Act, which sets out certain limitations on when permit holders may exercise their rights under s.484 of the Act:

“490 When right may be exercised

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

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

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

[32] 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. 18 Further, a person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with Part 3-4 of the Act.19

[33] 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. In dealing with the dispute, the Commission must take into account fairness between the parties concerned. 20

Factual and credit findings

[34] I found Mr Rielly to be a witness of credit. He gave direct and responsive answers to questions put to him in cross examination and made concessions against the CFMEU’s interests. 21 I do not accept the submission made on behalf of LORAC that Mr Rielly’s evidence was vague, and probably deliberately so. I am of the view that any lack of detail provided by Mr Rielly in his evidence is primarily a product of the fact that Mr Rielly’s knowledge about various matters, including whether a particular employee was on a break at a particular time, was limited to what he was told and what he observed.

[35] I accept Mr Rielly’s evidence that LORAC has consistently claimed that (a) breaks on the Site occur between 10am to 10:30am and 2pm to 2:30pm (Scheduled Breaks), and (b) these times are the only times workers are on a break. 22

[36] Both Mr Rielly and Mr Fitzpatrick gave evidence, which I accept, about the nature of the Site and the work undertaken there, together with the impact those matters have on the times at which different employees take breaks at the Site. In particular:

(a) Mr Fitzpatrick gave evidence in his witness statement that:

“7. The sites across the project, including the Woodburn site where See Civil perform work, are all substantially consistent.

8. When I attend the sites workers will be in the crib shed on a break before the scheduled time. For the scheduled 10am break, for example, I have always seen some workers on a break before 10. I would expect to start to see workers there from around 9:45am as the norm. People and groups of workers will stagger in over the next half hour or so.

9. I have never once seen all the workers simply arrive at 10 and leave at 10.30. Not on one occasion. It is just not practical. It just doesn’t occur. I have had 30 years experience in the industry. On major projects workers are under the direction of different leading hands, there are different issues. People will break at different times. I mean workers might be unloading a truck they are not going to stop just because it’s break time. They’ll finish the job. The practical realities are you might have a ‘harder’ or a ‘softer’ leading hand. One might give them a little extra time another might have a stricter approach.

10. On this project there are some huge logistic issues which make it inevitable that breaks will be staggered to at least some extent. As one example; work on this project actually physically moves, it’s roadwork. A workforce or different groups of the workforce can be some distance from the crib shed. I’ve observed workers on this project being around 10 kilometres from a crib shed and having to be dropped off by a supervisor in a ute in multiple trips to the crib shed. Obviously in these circumstances it is just impossible to have everyone arrive at the same time.”

(b) Mr Rielly gave evidence in his witness statement that:

“5. … The project is a joint venture between Laing O’Rourke and Parsons Brinckerhoff with the New South Wales Government (with Roads and Maritime Services, RMS). It involves major road construction from Woolgoolga to Ballina. A press release from Laing O’Rourke about the project and a RMS project map is annexed to this statement and marked DR2.

…

13. It is just frankly just silly to say workers will always break, for every single worker on the site, at the exact specified time for a break. It ignores common sense and the reality of civil construction work. For example a plant operator might be performing a difficult piece of excavation which requires concentration and focus. In these circumstances they may seek to finish the job at hand and take their break 10 minutes late. This type of scenario can of course happen across the board. There can be a host of other reasons why a break may be early or late. There might simply be inadvertence to the time and the break taken a little late. Someone might be fatigued and take a break a little early. None of this of course means they are taking any extra time just that the break time, on occasions, for some individuals, may start a little early or a little late. In these cases of course they will finish the break a little early or a little late. It is also important to note that the employees we have been seeking to have discussions with are not Laing O’Rourke employees but employees of subcontracting companies.”

(c) In his witness statement in reply Mr Rielly gave the following evidence:

“14 …Workers come and go. If a worker has started their crib early they’ll generally get up and leave before the scheduled time. Just as when they come in late generally leave after the half hour mark. These are grown adults they understand their allocated lunchbreak time. Sometimes I might give a brief presentation or have a discussion about an issue for a few minutes but basically I’m then hanging around talking to workers about particular issues often one on one or in small groups. The requirements sought by Ms Perkovic and Mr Krushka to limit my discussions to the prescribed not actual break time prevents me from talking to our members or potential members when they are on the actual break.”

[37] The evidence referred to in the previous paragraph does not, of itself, establish that breaks were taken outside the Scheduled Breaks on any of the ROE Dates or that LORAC hindered, impeded and/or frustrated CFMEU permit holders from holding discussions at the Site with members or potential members during their actual mealtimes or other breaks on any or all of the ROE Dates. However, such evidence is relevant to my assessment of the specific evidence given by Mr Rielly about what happened on each of the ROE Dates. In particular, the nature and size of the Site, together with the nature of work undertaken at the Site, make it likely that employees do, from time to time, have their actual mealtimes and other breaks outside the Scheduled Breaks, and I accept that has happened at the Site.

[38] I will now consider the specific evidence in relation to each of the ROE Dates.

9 February 2017

[39] At 11:58am on 9 February 2017, prior to Mr Rielly’s entry to the Site at about 2pm on that day, Mr Rielly sent an email in the following terms to Ms Sherri Hayward (cc to Mr Philip Boncardo and Mr Dave Kelly) of the CFMEU in relation to what Mr Rielly described in his witness statement as “ongoing behaviour from Laing O’Rourke”: 23

“Hi Sherri

Tried to call, Pacific complete still only allowing me Half an hour for discussion [sic] with workers. I know Phil, we had this issue last year. They are not allowing any further discussions to take place even if workers come in late. Constantly interrupting meetings as well with indicating how long I have left time wise.

Can we do something?

Regards

Dean” 24

[40] On 9 February 2017, Mr Rielly attended The Avenue compound of the Site and entered the crib shed at The Avenue at about 2pm. The purpose of Mr Rielly’s entry to the Site on 9 February 2017 was to hold discussions with employees of Seymour White and Oswald who were either CFMEU members or eligible to be members. 25

[41] The entry notice provided by Mr Rielly to Laing O’Rourke in respect of his entry to the Site on 9 February 2017 refers to a proposed entry on 8 February 2017. Mr Rielly did not in fact enter the Site on 8 February 2017, but instead “entered on 9 February having contacted Laing O’Rourke and advised that I would seek to enter on 9 February rather than 8 February to which they agreed”. 26 The entry notice includes the following declaration by Mr Rielly:

“As the entry is authorised by section 484 of the Fair Work Act 2009 (which deals with entry to hold discussions), I declare that Construction, Forestry, Mining and Energy Union, under Rule 2(A)(A)(3)(i), Rule 2(B) and Rule 2(E) is entitled to represent the industrial interests of an employee who performs work on the premises mentioned above.”

[42] In the crib shed on 9 February 2017 Mr Rielly spoke to “the blokes about various work issues”.

[43] Mr Rielly observed a number of workers enter the crib shed at about 10 minutes after 2pm. 27 Mr Rielly accepted in cross examination that these employees could have been outside on their break prior to entering the crib shed, for example having a cigarette.28 Mr Rielly also accepted that just because a person entered the crib shed after 2pm did not mean that their break started after 2pm.29 However, Mr Rielly said to the workers who entered the crib shed after 2pm, “How’re you going, guys, I’m from the union … Just coming in for a break? … You just started?” and they said, “Yes”.30

[44] Although Mr Rielly accepted, at one point in his cross examination, that he did not “know what time their break started” 31, he later said that he did know “what the break time was for those who entered late”.32 Having regard to the other evidence given by Mr Rielly about the events that took place on 9 February 2017, as set out in paragraphs [40] to [49], I take Mr Rielly’s earlier answer to mean he did not know the precise time at which their break started; he was told by them that they were “just starting” their break when they entered the crib shed.

[45] Mr Rielly did not know the names of the employees who came into the crib shed after 2pm, but he did give evidence that they were labourers and plant operators. 33

[46] At around 2:25pm, Ms Melissa Perkovic, Senior HR/IR Advisor of LORAC, entered the crib shed and stated loudly and aggressively, “You’ve got 5 minutes left Dean.” Ms Perkovic then turned to the workers in the crib shed and stated aggressively, “Why are you having a break now anyway, smoko was 10am?” Mr Rielly responded by saying, “The smoko times are 10 or 2. Some people came in late and are still on a break. I’m entitled to continue to talk with them. I’ll be another 5 minutes.”

[47] Ms Perkovic then asked the employees who had entered the crib shed late why they were late. They responded by saying, “We came in late.” 34 Notwithstanding that Mr Rielly did not include evidence of this conversation in his witness statement, I accept the evidence he gave about it during cross examination. It is consistent with other evidence given by him about what happened on this date.

[48] Ms Perkovic left the room but came back shortly after and said, “Your discussions are finished Dean. You’ve had your 30 minutes it’s time for you to leave.” Mr Rielly then left the crib shed at Ms Perkovic’s direction, but felt that he had been denied the opportunity to continue to talk with workers whilst they were on a break.

[49] At the time Mr Rielly left the crib shed the employees who had entered after 2pm were eating their lunch. 35 There was no indication to Mr Rielly that these employees were working when he left the crib shed. The basis for Mr Rielly’s belief in that regard was the fact they were eating their lunch, the clear delineation between the crib shed and the work site, and the fact that plant operators cannot undertake their operating duties in the crib shed.36

17 February 2017

[50] On 17 February 2017, Mr Rielly attended The Avenue compound of the Site at about 9:15am for the purpose of holding discussions with employees of Seymour White and Oswald. 37

[51] The entry notice provided by Mr Rielly to Laing O’Rourke in respect of his entry to the Site on 17 February 2017 includes the following declaration by Mr Rielly:

“As the entry is authorised by section 484 of the Fair Work Act 2009 (which deals with entry to hold discussions), I declare that Construction, Forestry, Mining and Energy Union, under Rule 2(A)(A)(3)(i), Rule 2(B) and Rule 2(E) is entitled to represent the industrial interests of an employee who performs work on the premises mentioned above.”

[52] When Mr Rielly attended the Site on 17 February 2017 he saw that there were workers in the crib shed who he believed to be on a break. Mr Rielly did not have first-hand knowledge of when the employees in the crib shed started their break. 38 However, he observed the workers in the crib shed talking to each other and laughing.39 Nothing that Mr Rielly observed suggested the workers in the crib shed were undertaking work activities.40

[53] Mr Rielly did not know the names or jobs of the workers he observed in the crib shed when he arrived at Site; he assumed they were civil construction workers. 41

[54] Mr Rielly was on his way to the crib shed to have a discussion “with the blokes” when Ms Perkovic stopped him and they had the following conversation:

Ms Perkovic said: “Hi Dean. It’s not 10am you can not enter until 10am.”

Mr Rielly said: “This is a joke. There are workers in there on a break. I am entitled to talk with workers when they are on a break.”

Ms Perkovic said: “You can not enter the crib shed until 10am. Break time is 10 till 10.30.” 42

Ms Perkovic said: “You have an allocated 30 minutes.” 43

[55] Mr Rielly complied with Ms Perkovic’s direction; they stood together waiting until 10am, at which time Mr Rielly entered the crib shed.

[56] At around 10:30am Mr Rielly was “chatting with the blokes” when Ms Perkovic entered the crib shed and had the following conversation with Mr Rielly:

Ms Perkovic said: “Time is up. You have to leave now Dean.”

Mr Rielly said: “There are some workers still on a break. I am entitled to talk with them.

Ms Perkovic said: “You need to leave now. It’s 10.30. You need to leave.”

[57] When Mr Rielly left the crib shed he observed workers in the crib shed eating, others were reading magazines. 44 Mr Rielly did not observe anything to suggest to him that the workers were working when he was required to leave the crib shed.

[58] On 20 February 2017, Mr Rielly sent an email in the following terms to Mr Philip Boncardo of the CFMEU in relation to his entry to the Site on 17 February 2017:

“Hi Phil

Please see below,

On every occasion that I can recall being on the pacific complete site this has happened to me.

I arrived on site at 915am to go out to ‘Wooli road compound’ which was a offshoot of ‘the Avenue Rd compound’. Understanding that it would take at least 20 mins to drive there and allowing ample time for the PCBU to escort me to site. When I turned up they would not let me sign in as Melissa told me that she had tried to call me to ask where I would be visiting on the day. I explained that I was not able to call and I was not required to provide any info on my arrival time anyway. She asked where did I want to go and had Lee Gillingham with her. I explained to her I had members there and explained that I wanted to visit them as they requested me to come to their compound. Lee and Mel then said that they were not sure if there was a compound in that area, I said that there must be as that is where I have been asked to go to. I then made her aware that time was wasting and I needed to go as it was a distance to drive. They both played stupid and would not allow me to sign in. as [sic] I was getting increasingly frustrated with the treatment I made her aware of my rights and that she best be ringing Jo Whatley to see why 1) they don’t know where a compound is and 2) why are they hindered, delay [sic] and obstructing a union official. By this time it was 9.45 and she said it would be too late to take me to Wooli Rd and that I would need to speak with the workers at Bensons lane, Tyndale but she would arrange to transport workers to me at 2pm at Bensons lane for discussions. As by this time I realised that things were not going to get any better I accepted to see workers at Bensons lane. I could see workers sitting and eating beside a crib shed and it was 947am. I walked over to them and Melissa said you cannot go near them as it is not 10am. I said that I can as I am allowed to speak with workers during breaks. She said no you are allocated half an hour and that is it. So she stopped me by standing in front of me and trying to stop me from walking forward.

I decided to not push on and waited until 10am. At 10am I engaged with workers in discussions that lasted 25 mins when Melissa came into the room abruptly telling me that I only had 5 mins left. I asked her to leave my meeting please and she shut the door. Just after a couple of workers came in for their smoko and I begun to engage in discussions with them, after 5 mins she came in and said that my discussions where [sic] to be completed with the workers and I advised her that they had only just began their break. She then proceeded to quiz them abruptly clearly making them uncomfortable. I began to argue back again telling her that I am allowed to have discussions with workers during breaks. But by this time I could see that the workers were clearly distressed by her tone and I decided to apologise to the workers and leave the site. I left the site at 10.35am.

On my last visit to Mitchells Road compound I had a virtually an identical issue, after holding discussions with Ostwalds bro. workers I stepped outside to some Seymour Whyte and lane watercarts workers and she interrupted with the same stuff again.

Regards

Dean”

14 March 2017

[59] On 14 March 2017, Mr Rielly attended the Woodburn compound of the Site for the purpose of holding discussions with employees of SEE Civil Pty Ltd (SEE Civil), the major subcontractor on the Site. 45

[60] The entry notice provided by Mr Rielly to Laing O’Rourke in respect of his entry to the Site on 14 March 2017 includes the following declaration by Mr Rielly:

“As the entry is authorised by section 484 of the Fair Work Act 2009 (which deals with entry to hold discussions), I declare that Construction, Forestry, Mining and Energy Union, under Rule 2(A)(A)(3)(i), Rule 2(B) and Rule 2(E) is entitled to represent the industrial interests of an employee who performs work on the premises mentioned above.”

[61] Mr Rielly signed in to the Site at about 9:37am. At that time he observed workers in two crib sheds. It was raining heavily and Mr Rielly believed the workers had been “shedded up” in the two crib sheds due to the weather. Mr Rielly observed that some of the workers in the crib sheds had their feet up on the chairs, and one worker was sitting with his back against the wall (leg up on a chair) chatting to another worker. Mr Rielly also observed a head in one of the windows to one of the crib sheds and a table at which two workers were sitting and talking. 46

[62] Mr Rielly had the following conversation with Ms Perkovic and Mr Krushka, SEE Civil Superintendent on the Site, at about 9:40am:

Mr Rielly said: “The workers seem to be on a break. Can I go and speak with them?”

Ms Perkovic said: “No. They’re actually at work.”

Mr Krushka said: “They’ve just come out of a meeting which has finished. I think technically they’re on a break.”

Mr Rielly said: “They’re not in a meeting. They’re sitting in a crib shed. They’re not working. They seem to me to be on a break.”

Ms Perkovic said: “No no, crib time is 10am.”

Mr Rielly said: “They’re not working now are they Brendan?”

Mr Krushka said: “No.”

Mr Rielly said: “So they’re on a break from work?”

Ms Perkovic said: “No. Their break time is 10am remember. You can’t see them until 10am Dean. You’re allowed in there only at 10am.”

[63] Mr Rielly does not know for a fact whether the employees in the shed were on a break prior to 10am, but he believes they were on a break. 47 Mr Rielly accepted in cross examination that he did not know whether the employees in the shed were in training prior to 10am.48

[64] At 10am Mr Rielly was allowed by Ms Perkovic and Mr Krushka to enter the crib shed. Mr Rielly then had discussions with the workers in the crib shed. The workers were from SEE Civil. 49 They told Mr Rielly that they were in the sheds due to wet weather.50 Mr Rielly does not know the names of the workers with whom he spoke in the crib sheds.51

[65] A little bit before 10:30am, while Mr Rielly was still speaking with workers in the crib shed, Ms Perkovic and Mr Krushka entered the crib shed and Ms Perkovic said, “It’s almost 10:30am. Time to round up, Dean.” A couple of minutes later Ms Perkovic said, “That’s all done. You have to go now.”

[66] At the time Mr Rielly was instructed to leave the crib shed there were about 15 to 20 workers in the crib shed. Mr Rielly apologised to them that he had to leave and he then left the crib shed on Ms Perkovic’s instructions. When Mr Rielly left the crib shed he observed the 15 to 20 workers were still in the crib shed; Mr Rielly observed the workers eating, talking and playing cards when he left the crib shed. 52

[67] When Mr Rielly signed out of the Site, he saw that the time was 10:30am. It took Mr Rielly a couple of minutes to walk from the crib shed to the office where he signed out. On that basis Mr Rielly concluded that Ms Perkovic had directed him to leave the crib shed before 10:30am.

[68] After Mr Rielly signed out, he started walking out of the compound towards the car park. A couple of workers approached Mr Rielly and he had a conversation with them about their union membership while they walked together in the direction of the car park. While Mr Rielly was talking to the workers, Ms Perkovic shouted out at them words to the effect, “Stop what you’re doing, Dean. You can’t be talking to workers now. You are finished.” Mr Rielly formed the view that the workers he was talking to looked to be a bit intimidated and taken aback by what Ms Perkovic had said. Mr Rielly and the workers then agreed to cease their discussion.

[69] Mr Rielly had arranged to drop a copy of an enterprise agreement in the passenger seat of the car of one of the workers he had been talking to during his discussions in the crib shed. The worker had told Mr Rielly that his front passenger door was open and to a drop the copy of the enterprise agreement in to the passenger seat on his way out, which Mr Rielly did. Mr Rielly then observed Ms Perkovic charge over and make an inspection of the car. Mr Rielly then left the Site.

[70] At 2:02pm on 14 March 2017 Mr Rielly sent an email in the following terms to Ms Perkovic:

“Dear Melissa

I am writing about what happened this morning at the compound for SEE Civil. When I got to site at about 9:30AM and after we had sorted out the issue about the breathalyser, I saw that the two crib sheds were full of blokes. Brendan said they had been at a toolbox meeting that had finished. The blokes seemed to be on a break from work and had been shedded up because of the rain.

…

Last week on 6 March you kicked me out of the crib rooms at the same compound at 10:30AM even though there were workers still on their breaks. You also interrupted my discussions and told me to finish up.

Melissa, I have a right as a Fair Work Act permit holder to speak to works [sic] while they are on their meal and other breaks. It does not matter if Laing O’Rourke designate break time to be from 10 to 10:30AM. If workers are on breaks before or after these times I am allowed to speak to them.

I’m upset with how you’re infringing my rights Melissa. You’re done this a number of times now and keep doing it even though I’ve told you that I can speak to workers during their meal and other breaks.

Regards

Dean Rielly

North Coast Official

CFMEU NSW”

[71] Ms Whatley sent the following response to Mr Rielly on 21 March 2017:

“Dear Dean,

I refer to your e-mail of 14 March 2017 to Melissa Perkovic. In the email you say that on that day “blokes seemed to be on a break” at approximately 9.30 as they were “shedded up”.

It ought to be obvious to you that what “seemed” to you to be the case has nothing to do with whether employees are on a meal or other break from work, for the purpose of you exercising an entry right to hold discussions with employees during such breaks. I am advised by SEE Civil that its employees’ break on 14 March was at 10 am for 30 minutes, as usual. Therefore the employees were not on a meal or other break from work prior to 10 am on that day and, as a consequence, your allegations against Ms Perkovic are false.

In future, if you wish to communicate with Ms Perkovic or any other Pacific Complete personnel, do so in reliance on facts rather than what “seemed” to be the case.

Furthermore, the tone of your e-mail of 14 March to Ms Perkovic is not acceptable to Pacific Complete, and indicates a disrespectful and bullying attitude reliant on falsehoods. Unless you are prepared to communicate professionally and respectfully to Ms Perkovic or any other Pacific Complete personnel, please do not make further contact with them.

Please advise if you wanted [sic] to discuss.

Regards,

Jo Whatley

Human Resources Director - Pacific Complete

HR, IR, Training & Aboriginal Affairs

Pacific Complete”

27 April 2017

[72] On 27 April 2017, Mr Rielly attended the Woodburn compound of the Site for the purpose of holding discussions with employees of SEE Civil. 53

[73] The entry notice provided by Mr Rielly to Laing O’Rourke in respect of his entry to the Site on 27 April 2017 includes the following declaration by Mr Rielly:

“As the entry is authorised by section 484 of the Fair Work Act 2009 (which deals with entry to hold discussions), I declare that Construction, Forestry, Mining and Energy Union, under Rule 2(A)(A)(3)(i), Rule 2(B) and Rule 2(E) is entitled to represent the industrial interests of an employee who performs work on the premises mentioned above.”

[74] Mr Rielly attended the Woodburn compound of the Site on 27 April 2017 shortly before 10am. He was escorted to the crib shed by Mr Krushka and Mr Tyler O’Connor, a Laing O’Rourke manager.

[75] Mr Rielly spoke to workers in the crib shed and was holding discussions with workers when, at about 10:25am, Mr Krushka attended the crib shed with Mr O’Connor. Mr Rielly then had the following conversation with Mr Krushka:

Mr Krushka said: “Time to wrap it up Dean you have to leave now.”

Mr Rielly said: “There are still workers in a break. Some came in late.”

Mr Krushka said: “Sorry mate its 10.30 time to wrap up and leave now.”

[76] There were about three or four workers in the crib shed when Mr Rielly was directed to leave. Mr Rielly does not know the names of those workers, but he asked them what work they did; 54 it was not the first time Mr Rielly had seen those workers.55 Mr Rielly says they were still on a break at the time he was directed to leave. Mr Rielly gave evidence, which I accept, that when he was directed to leave the crib shed he asked the three to four workers whether they were “still cribbing or eating”, to which they said, “Yes”.56 Mr Rielly complied with the direction from Mr Krushka and left the Site.

LORAC’s No Case to Answer Submission

[77] The basis of LORAC’s no case to answer submission is its contention that the CFMEU’s application has no reasonable prospects of success. LORAC relies on the Commission’s power pursuant to s.587(1)(c) of the Act to dismiss an application that has no reasonable prospects of success. 57

[78] A conclusion that an application has no reasonable prospects of success should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. 58

[79] Where there is a real issue of fact to be determined and that issue is relevant to the resolution of the substantive application, it would be unlikely that a conclusion could be formed that the application has ‘‘no reasonable prospect of success.’’ 59

[80] In the present case, I am satisfied there are a number of real issues of fact to be determined, each of which are relevant to the resolution of the substantive application. The issues relate to whether, on one or more of the ROE Dates, Mr Rielly was seeking to hold discussions with employees at the Site during their actual mealtimes or other breaks and, if so, whether LORAC was preventing him from doing so.

[81] For the reasons set out in paragraphs [82] to [89] below and after considering all the evidence adduced by the CFMEU, I have decided these issues in favour of the CFMEU in respect of some, but not all, of the ROE Dates. It follows that the CFMEU’s application has reasonable prospects of success and LORAC’s no case to answer submission must be rejected.

Consideration

[82] In dealing with the present right of entry dispute between the CFMEU and LORAC, I have taken into account fairness between the parties concerned. 60 Fairness is determined on the basis of the competing interests and obligations of the parties,61 together with the objects of the Act and Part 3-4.62

[83] The CFMEU contends that the ROE Dates are examples of the way in which LORAC has been hindering, impeding or frustrating CFMEU officials from holding discussions with employees during their actual mealtimes or other breaks. However, absent any direct evidence as to what has happened at the Site on days other than the ROE Dates, I am not prepared to, and will not, make any finding to the effect that LORAC has been preventing one or more permit holders from exercising their rights under s.484 of the Act generally or on a date other than one of the ROE Dates. My findings will be limited to what happened on each of the ROE Dates and will be based on the evidence adduced in these proceedings.

[84] As to Mr Rielly’s entry to the Site on 9 February 2017, I am satisfied on the balance of probabilities that Mr Rielly was seeking to hold discussions with employees at the Site during their actual mealtimes or other breaks, which I find for the particular employees in question were from 2:10pm until 2:40pm, and LORAC prevented him from doing so. I rely on a combination of the following facts and circumstances to make these findings:

(a) Some employees entered the crib shed at about 10 minutes after 2pm. They told Mr Rielly that they were just starting their break; 63

(b) At about 2:25pm, Ms Perkovic entered the crib shed and told Mr Rielly, “You’ve got 5 minutes left Dean”; 64

(c) Mr Rielly told Ms Perkovic at about 2:25pm that the employees “came in late and are still on a break. I’m entitled to continue to talk to them”; 65

(d) Ms Perkovic asked the employees why they were late and they told her they “came in late”; 66

(e) At about 2:30pm, Ms Perkovic entered the crib shed and told Mr Rielly, “Your discussions are finished Dean. You’ve had your 30 minutes it’s time for you to leave”; 67

(f) The employees were eating their lunch when Mr Rielly was directed by Ms Perkovic to leave the crib shed; 68 and

(g) I also rely on the evidence referred to in paragraph [36] above in relation to the nature and size of the Site, together with the nature of work undertaken at the Site, for the purpose and reasons given in paragraph [37] above.

[85] As to Mr Rielly’s entry to the Site on 17 February 2017, I am:

(a) not satisfied on the balance of probabilities that Mr Rielly was prevented from holding discussions with employees at the Site during their mealtimes or other breaks by reason of him being instructed by Ms Perkovic not to hold discussions with employees prior to 10am. I am not satisfied on the evidence that the employees with whom Mr Rielly was seeking to hold discussions were on a meal or other break prior to 10am. Mr Rielly said in his witness statement and oral evidence that he observed workers in the crib shed talking to each other and laughing prior to 10am. Mr Rielly asserted the workers were on a break, but no evidence was adduced to support that assertion, save for Mr Rielly’s observations to which I have referred. In particular, Mr Rielly did not adduce any evidence of any discussions he had with the employees when he entered the crib shed at 10am as to what they were doing prior to 10am and whether they were on a break. In addition, in his email sent to Mr Boncardo of the CFMEU on 20 February 2017, three days after his entry to the Site on 17 February 2017, Mr Rielly stated that he “could see workers sitting and eating beside a crib shed and it was 947am. I walked over to them …” 69 No evidence was given by Mr Rielly to explain the inconsistency between his earlier account that he saw the workers beside a crib shed and his later account that he saw them in the crib shed; and

(b) satisfied on the balance of probabilities that Mr Rielly was seeking to hold discussions with employees at the Site during their actual mealtimes or other breaks, which I find for the particular employees in question were continuing when Mr Rielly was directed to leave the crib shed at about 10:30am, and LORAC prevented him from doing so. I rely on a combination of the following facts and circumstances to make these findings:

(i) Mr Rielly entered the crib shed at 10am. 70 He was holding discussions with employees when Ms Perkovic entered the crib shed at about 10:30am and directed him to leave. Mr Rielly responded by telling Ms Perkovic, “There are some workers still on a break. I am entitled to talk to them.” There is no evidence that Ms Perkovic challenged Mr Rielly’s statement that some workers were “still on a break”. Instead, Ms Perkovic responded by saying, “You need to leave now. It’s 10.30. You need to leave.”71 Ms Perkovic’s statement in this regard is consistent with her earlier statement to Mr Rielly prior to 10am, at which time she told Mr Rielly that he had “an allocated 30 minutes”. This suggests that Ms Perkovic told Mr Rielly to leave because he had finished his “allocated 30 minutes”, rather than because the employees in question had finished their break;72

(ii) When Mr Rielly was directed to leave the crib shed he observed workers in the crib shed eating and others were reading magazines; 73

(iii) In his relatively contemporaneous email sent on 20 February 2017, Mr Rielly described his attempt to continue to hold discussions with employees after 10:30am as follows:

“…At 10am I engage with workers in discussions that lasted 25 mins when Melissa came into the room abruptly telling me that I only had five mins left. I asked her to leave my meeting please and she shut the door. Just after a couple of workers came in for their smoko and I begun to engage in discussions with them, after 5 mins she came in and said that my discussions were to be completed with the workers and I advised her that they had only just began their break. She then proceeded to quiz them abruptly clearly making them uncomfortable. I began to argue back again telling her that I am allowed to have discussions with workers during breaks. But by this time I could see that the workers were clearly distressed by her tone and I decided to apologise to the workers and leave the site. I left the site at 10.35am.”

(iv) I also rely on the evidence referred to in paragraph [36] above in relation to the nature and size of the Site, together with the nature of work undertaken at the Site, for the purpose and reasons given in paragraph [37] above.

[86] As to Mr Rielly’s entry to the Site on 14 March 2017, I am satisfied on the balance of probabilities that Mr Rielly was seeking to hold discussions with employees at the Site during their actual mealtimes or other breaks, which I find for the particular employees in question commenced at about 9:40am on 14 March 2017, and LORAC prevented him from doing so. I rely on a combination of the following facts and circumstances to make these findings:

(a) It was raining heavily at the time Mr Rielly attempted to hold discussions with employees and he observed “two crib sheds full of blokes”, 74 some of the workers in the crib sheds had their feet up on the chairs, one worker was sitting with his back against the wall (leg up on a chair) chatting to another worker, and two workers were sitting around a table talking;75

(b) Mr Krushka, the Superintendent for SEE Civil on the Site, admitted to Mr Rielly at about 9:40am that the employees had finished a meeting, were not working, and were on a break. 76 It is clear from these statements by Mr Krushka to Mr Rielly that the break the employees were on was approved by their employer. I am satisfied that it was a mealtime or other break within the meaning of s.490(2) of the Act;

(c) Notwithstanding the admissions made by Mr Krushka in Ms Perkovic’s presence, Ms Perkovic maintained “their break time is 10am remember. You can’t see them until 10am, Dean. You’re allowed in there only at 10am”. 77 In the context of the admissions having been made by Mr Krushka in Ms Perkovic’s presence, these statements by Ms Perkovic suggest that she sought to enforce a system in which Mr Rielly could only hold discussions with employees during the Scheduled Breaks, regardless of when the mealtime or break actually commenced; and

(d) I also rely on the evidence referred to in paragraph [36] above in relation to the nature and size of the Site, together with the nature of work undertaken at the Site, for the purpose and reasons given in paragraph [37] above

[87] I am not satisfied that Mr Rielly was prevented from holding discussions with employees at the Site during their mealtimes or other breaks by reason of him being instructed by Ms Perkovic to leave the crib shed at about 10:30am on 14 March 2017. Although Mr Rielly observed there were about 15 to 20 workers still in the crib shed when he left the crib shed at about 10:30am and those workers were eating, talking and playing cards, 78 there is no evidence as to when those particular employees commenced their break, nor is there evidence to support a finding that their employer had authorised them to take a longer break than the usual 30 minute break at about that time of the day.

[88] As to Mr Rielly’s entry to the Site on 27 April 2017, I am satisfied on the balance of probabilities that Mr Rielly was seeking to hold discussions with employees at the Site during their actual mealtimes or other breaks, which I find for the particular employees in question were continuing when Mr Rielly was directed to leave the crib shed at about 10:30am, and LORAC together with SEE Civil prevented him from doing so. I rely on a combination of the following facts and circumstances to make these findings:

(a) Mr Rielly was in the crib shed from 10am until he was directed to leave at about 10:30am;

(b) Mr Rielly was holding discussions with about three or four employees in the crib shed when he was directed to leave at about 10:30am. 79 When he was directed to leave, Mr Rielly told Mr Krushka and Mr O’Connor, a LORAC manager, that there were “still workers on a break. Some came in late.” There is no evidence to suggest that either Mr Krushka or Mr O’Connor responded by challenging the contention that “some came in late” and were still on a break. Instead, Mr Krushka responded by saying, “Sorry mate its 10.30 time to wrap up and leave now”;80

(c) When Mr Rielly was directed to leave the crib shed he asked the employees with whom he was holding discussions whether they were “still cribbing or eating”, to which they said, “Yes”. 81 Although this evidence is relevant, I place limited weight on it, because the question asked of the employees was ambiguous. It is not clear whether the employees’ affirmative answer to the question was confirmation that they were still “cribbing”, on the one hand, or “eating”, on the other hand. If the employees were still eating, that suggests but does not establish that the employees were on a meal or other break within the meaning of s.490(2) of the Act. Similarly, if the employees believed they were still cribbing, that suggests more persuasively than confirmation that the employees were eating that the employees were on a meal or other break within the meaning of s.490(2) of the Act, but does not establish such a proposition. A break must be permitted by, or required of, the employer to be a “mealtime or other break” within the meaning of s.490(2) of the Act;82 and

(d) I also rely on the evidence referred to in paragraph [36] above in relation to the nature and size of the Site, together with the nature of work undertaken at the Site, for the purpose and reasons given in paragraph [37] above.

[89] In making the findings set out in paragraphs [84] to [88] above, I have had regard to the fact that the evidence on which the CFMEU relies is a mixture of observations by Mr Rielly, hearsay discussions between Mr Rielly and Ms Perkovic and Mr Krushka, and hearsay discussions between Mr Rielly and unidentified employees working on the Site. In this regard, I note that the Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s.577(a) of the Act and although the Commission is not bound by the rules of evidence and procedure, it tends to follow the rules of evidence as a general guide to good procedure. 83

[90] I found Mr Rielly’s evidence of what he observed to be reliable and persuasive.

[91] I am satisfied that what Ms Perkovic and Mr Krushka said to Mr Rielly was admissible under the Evidence Act 1995 (Cth), 84 because it is reasonably open to find that (a) Ms Perkovic was, at the time the representations were made, an employee of LORAC and the representations made by her to Mr Rielly related to matters within the scope of her employment or authority as the Senior HR/IR Advisor of LORAC85 and (b) Mr Krushka was, at the time the representations were made, a person who I am satisfied had authority to make statements on behalf of, or to act for, LORAC, in its capacity as the occupier and controller of the Site, in relation to whether or not employees of SEE Civil were in a mealtime or other break at the Site.86 Mr Krushka’s authority in this regard is established by reason of his position as the SEE Civil Superintendent on the Site, the fact that he made the representations to Mr Rielly at the Site in the presence of Ms Perkovic or Mr O’Connor, another LORAC manager, together with the fact that SEE Civil is a subcontractor to LORAC on the Site. Accordingly, the hearsay rule does not apply to the representations made by Ms Perkovic and Mr Krushka to Mr Rielly.87

[92] I have given evidence of the discussions between Mr Rielly and unidentified employees working on the Site less weight than the other evidence to which I have referred because such evidence is hearsay in nature, and LORAC has not been given the opportunity to test the truthfulness or reliability of the evidence in circumstances where the makers of the representations have not been called to give evidence or identified by name. 88 However, a number of the representations by employees on which the CFMEU relies were made, according to Mr Rielly, in the presence of Ms Perkovic, Mr O’Connor and/or Mr Krushka. LORAC could have called evidence from such witnesses to challenge such representations but elected not to do so.89 In all the circumstances of the present case, I am satisfied that it is fair and just to give some weight to the evidence adduced by Mr Rielly of his discussions with employees working at the Site.

Relief sought by the CFMEU

[93] LORAC has raised a serious issue in relation to the order sought by the CFMEU in these proceedings. In particular, LORAC contends that the Commission does not have jurisdiction to make the order sought by the CFMEU because making such an order would involve the exercise of judicial power. 90 The parties have not yet had an opportunity to make submissions in relation to that issue. Accordingly, I will issue directions for such submissions to be filed and will, in due course, publish a further decision in relation to the question of what, if any, relief ought to be granted.

COMMISSIONER

Appearances:

Mr M Aird, National Legal and Industrial Officer, on behalf of the CFMEU

Mr P Ludeke, solicitor of Mills Oakley Lawyers, on behalf of LORAC

Hearing details:

2017.

Newcastle:

18 July.

 1   Townsley v State of Victoria (Department of Education & Early Childhood Development)[2013] FWCFB 5834 (Townsley) at [17]-[24]

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

 3   Holden; ASP at [23]

 4   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)

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

 6   UFU v MFESB at [20]

 7   Ex A2 at [6]

 8   PN350-363

 9   PN317

 10   PN393-411

 11   PN453-5 & PN634-665; Ex A2 at [6]

 12   See, too, Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 at [33] re ambush not being an acceptable or accepted feature of modern litigation

 13   Section 480 of the Act

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

 15   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] (Darlaston)

 16   Darlaston at 13 [43]

 17   AMIEU v FWA at 405 [56] per Flick J

 18   Section 501 of the Act

 19   Section 502 of the Act

 20 Section 505(4) of the Act

 21   See, for example, PN157-160

 22   Ex A2 at [12]

 23   Ex A3 at [3]

 24   Ex A3 at annexure DR1

 25   Ex A2 at [15]

 26   Ex A3 at [2]

 27   PN269

 28   PN157-8

 29   PN160

 30   PN164-9 & PN269

 31   PN171

 32   PN183

 33   PN161-3 & PN280

 34   PN178

 35   PN275

 36   PN273-281

 37   Ex A2 at [18]

 38   PN201

 39   PN285

 40   PN286

 41   PN197-204

 42   Ex A2 at [19]

 43   Ex A3 at [7]

 44   PN287

 45   Ex A2 at [21]

 46   PN291

 47   PN204-9

 48   PN210

 49   PM228

 50   PN227

 51   PN229-230

 52   PN296

 53   Ex A2 at [40]

 54   PN255

 55   PN256

 56   PN300

 57   Townsley at [19]

 58   Baker v Salva Resources Pty Ltd[2011] FWAFB 4014; (2011) IR 174 at [10]

 59   Wright v Australian Customs Service (2002) 120 IR 346 at [32]

 60 Section 505(4) of the Act

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

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

 63   Paragraph [43] above

 64   Paragraph [46] above

 65   Paragraph [46] above

 66   Paragraph [47] above

 67   Paragraph [48] above

 68   Paragraph [49] above

 69   Paragraph [58] above

 70   Paragraph [55] above

 71   Paragraph [56] above

 72   Paragraph [54] above

 73   Paragraph [57] above

 74   Paragraph [70] above

 75   Paragraph [61] above

 76   Paragraph [62] above

 77   Paragraph [62] above

 78   Paragraph [66] above

 79   Paragraph [76] above

 80   Paragraph [75] above

 81   Paragraph [76] above

 82   ASU v ATO[2007] AIRC 253 at [53]

 83   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [61]-[62]

 84 Sections 81 and 87, together with the definition of “admission” in the Dictionary, of the Evidence Act

 85 Section 87(1)(b) of the Evidence Act

 86 Section 87(1)(a) and (b) of the Evidence Act

 87 Sections 81 and 87 of the Evidence Act

 88   Pollitt v The Queen (1992) 174 CLR 558 at 620

 89   Noting that LORAC filed witness statements by Ms Perkovic and Mr Krushka but elected not to call those (or any) witnesses

 90   CFMEU v BHP Billiton Nickel West Pty Ltd[2017] FWCFB 217

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