Curran, W.J. v Thomas Borthwicks & Sons (Pacific) Ltd

Re: WALTER JAMES CURRAN
And: THOMAS BORTHWICKS & SONS (PACIFIC) LIMITED
No. V I29 of 1989
FED No. 75
Industrial Law
33 IR 6

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - power of entry, inspection and interview by authorised officer of organisation - offence to hinder or obstruct officer - whether officers hindered or obstructed - power "for the purpose of ensuring the observance of an award" - whether purpose objective or subjective - relevance of documents of which inspection sought to observance of award - proviso that officer not hinder or obstruct an employee in the performance of work during working time - effect of proviso - meaning of "hinder or obstruct" - whether mere presence, leading to cessation of work because of antipathy, amounts to hindrance or obstruction.

Words and Phrases - "for the purpose of ensuring the observance of an award" - "hinder or obstruct".

Industrial Relations Act 1988 ss. 286 and 306.

HEARING

MELBOURNE

#DATE 14:3:1990

Counsel for the prosecutor: Mr. P. Heerey Q.C. and Mr. A.J. Kelly

Solicitor for the prosecutor: Ryan Carlisle Needham Thomas

Counsel for the defendant: Mr. R.R.S. Tracey

Solicitor for the defendant: Dunhill Madden Butler

ORDER

The Court orders that the further hearing of the matter is adjourned to a date to be fixed.

Note: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.

JUDGE1

The defendant is charged that on 27th July 1989 it did hinder or obstruct an officer or officers of the Australasian Meat Industry Employees Union in the exercise of a power to inspect documents and records. The power of inspection arises under s. 286 of the Industrial Relations Act 1988 ("the Act"). It is convenient to set out the whole of that section:

"(1) An officer of an organisation authorised in writing by the secretary of the organisation or of a branch of the organisation to act under this subsection may, for the purpose of ensuring the observance of an award or an order of the Commission binding the organisation:

(a) at any time during working hours, but subject to any conditions provided by the award or order, enter prescribed premises that are specified in the authority or occupied by an employer specified in the authority;

(b) inspect or view any work, material, machinery, appliance, article, document or other thing on the prescribed premises; and

(c) interview, on the prescribed premises, an employee who is a member, or is eligible to be a member, of the organisation; but an officer acting under this subsection shall not hinder or obstruct an employee in the performance of work during working time.

(2) If an officer of an organisation proposing to enter, or being on, premises under subsection (1) is required by the occupier to produce evidence of authority to enter or be on the premises, the officer is not entitled to enter or remain on the premises without producing to the occupier the authority referred to in subsection (1).

(3) In this section:

"officer", in relation to an organisation, means a person holding an office in, or employed by, the organisation or a branch of the organisation;

"prescribed premises", in relation to an organisation bound by an award or an order of the Commission, means:

(a) premises in which work to which the award or order applies is being carried on; or

(b) premises occupied by an employer bound by the award or order."

The offence with which the defendant is charged is created by s.306 of the Act, the relevant provisions of which are as follows:

"A person shall not:

(a) hinder or obstruct a person in the exercise of a power under sub-section...286(1)...".

The defendant is a company incorporated in New Zealand and, since 15th July 1985, registered under the Companies (Victoria) Code as a foreign company. It carries on, and has for some time carried on, the business of an abattoir and associated activities at premises situated in Cashmore Road at Portland in Victoria.
Since 7th February 1906, the Australasian Meat Industry Employees Union has been registered as an organisation, first pursuant to the Conciliation and Arbitration Act 1904, and more recently pursuant to the Act. See s.5(1) of the Industrial Relations (Consequential Provisions) Act 1988. The prosecutor in this proceeding is the secretary of the Victorian branch of the Union. Members of the Union are employed by the defendant at its premises in Portland. In 1986, a company known as Australian Meat Holdings was formed by a number of companies previously operating in the meat industry. At a later stage, Australian Meat Holdings purchased all of the shares in the defendant. Some interim restriction was placed upon the management of the defendant by the Trade Practices Commission, because of concern that Australian Meat Holdings would have a monopoly in the slaughtering of cattle for export in North Queensland. The restriction resulted in the operation of the defendant by an interim board. Permission was granted for the board to use the services of John Thomas Hughes, a meatworks supervisor for Australian Meat Holdings, as a consultant to operate the Portland abattoir. In consequence, Mr. Hughes was put in charge of operations at Portland in or about June 1988.
At that time, the defendant was bound by an award made by the Australian Conciliation and Arbitration Commission, pursuant to the Conciliation and Arbitration Act 1904. It had also entered into various agreements and arrangements with the Union and its members in relation to terms and conditions of employment and work practices at the Portland abattoir. After Mr. Hughes became responsible for operations at the Portland abattoir, the view was taken that that plant had been unprofitable for a considerable amount of time, and that changes were necessary to improve its profitability. The defendant joined the Meat and Allied Trades Federation of Australia, an organisation of employers then registered pursuant to the Conciliation and Arbitration Act 1904, and now registered pursuant to the Act. In October 1988, it took steps to bring to an end the award which had previously governed the terms and conditions of employment of those employed at Portland, and all other agreements and arrangements made between the defendant and the Union or its members in relation to the Portland works. The view taken by the defendant was that, once it joined the Meat and Allied Trades Federation of Australia, it became bound by the Federal Meat Industry Award, which it viewed as less restrictive than the combination of the previous Portland award and the other agreements and arrangements.
Work at the abattoir has always been seasonal; during some months of each year, no slaughtering or processing of meat occurs. In November of 1988, the defendant began to re-engage people to operate the abattoir, attempting to embark on a new killing season, and offering employment on terms and conditions that were less favourable than those which had applied previously at Portland.
The Union and a number of persons who had been employed previously by the defendant at Portland took exception to the new terms and conditions. A picket line was established outside the premises in November 1988. This picket line remained in place until June 1989, when the Australian Industrial Relations Commission made a new award under the Act. Persons who chose to accept employment with the defendant on the terms and conditions offered, and who attended at the premises at Portland, were subjected to abuse as they entered and left the premises. This abuse occurred on a daily basis. Some of it was by means of a loud hailer, operated by an official of the Union. To some extent, the nature of the abuse depended upon whether police were present. Much of the abuse involved the application of the term "scab", often with adjectives, suggesting uncleanliness. Some of the abuse was personal, and involved suggestions of sexual immorality on the part of women, and of criminal offences on the part of some persons. Some involved the implication of threats of physical harm to employees or to their property.
One of the officials of the Union who became part of the picketing was Mr. Paul Davey. Mr. Davey is a full time elected organiser with the Victorian branch of the Union, and has been so for some eight years. He first attended at the picket line on 4th, 5th and 6th December 1988, and was present on it for most of January, February and March 1989. After 22nd March, he did not attend the picket line at all, except for a fleeting visit, in conjunction with his attendance at a meeting of members of the Union at Portland, on one day in June. For much of the time when he was on the picket line, Mr. Davey used the loud hailer to abuse those who crossed the picket line in order to work at the abattoir.
On 13th June 1989, the Full Bench of the Australian Industrial Relations Commission made an award entitled the Thomas Borthwick & Sons (Pacific) Limited (Portland) Interim Award 1989 ("the award"). By clause 2, the award is binding on the Union, its officers and its members and on the defendant in respect of all its employees, whether members of the Union or not. The award is expressed to apply to the defendant and its employees to the exclusion of any other award of the Commission. It prescribes terms and conditions of employment for employees at the Portland abattoir. It includes the following relevant clauses:

"6. - PREFERENCE OF EMPLOYMENT

(a) Preference shall be given to members of The Australasian Meat Industry Employees' Union in relation to the matter of engagement for employment under this award, subject to the conditions prescribed by this clause.

(b) In engaging an employee the employer shall give preference to members of The Australasian Meat Industry Employees' Union subject to the following conditions:

(i) Nothing in this clause shall require the employer to engage any person who is not able or competent to perform efficiently the work for which the employer intends to engage an employee.

(ii) Nothing in this clause shall require the employer to engage any particular person who the employer has reasonable grounds to believe would not give satisfactory service. Provided that any dispute concerning a refusal of the employer to engage a particular person pursuant to paragraphs (i) and (ii) of this subclause may, with 14 (fourteen) days of the date of such refusal, be resolved in accordance with the disputes procedure provided for in clause 5 of this Award.

(c) In the event that no financial member of the said union is available in accordance with the conditions of this clause, employment may be offered to a non-member of the union. 35 - SENIORITY

(a) Observance of Seniority

(i) The employer undertakes that, subject to this clause, it will engage employees for regular daily employment covered by this Award and retrench employees from such employment according to their seniority the employer shall determine who shall be engaged or retrenched.

(ii) Nothing in this clause shall require the employer to employ or retain an employee in any position the duties of which he is not able and competent to perform efficiently.

(iii) Nothing in this clause shall require the employer to provide a position within the ability and competence of any particular employee.

(iv) Nothing in this clause shall affect any right which the employer may have at common law or under the Award to suspend or dismiss an employee summarily.

(b) Acquisition of Seniority

(i) An employee shall acquire seniority in a department by completing a qualifying period therein of not less than three months actual employment and/or actual engagement as a regular daily employee in one consecutive period or in broken periods provided such broken periods beyond twelve months from the employee's initial commencement date shall not accrue.

(ii) An employee who is terminated through no fault of the employee before qualifying (as defined in paragraph (i) of this subclause) shall have periods of service prior to the termination, counted as part of the qualifying period provided he returns and accepts employment within seven days of being offered re-employment.

(iii) No period shall count as part of a qualifying period if it is terminated by or followed by an act or event which would, if the employee already had seniority, result in the loss of such seniority.

(c) Ordinary of Seniority (sic.)

(i) An employee shall have seniority according to the month of the calendar year in which he commenced employment.

(ii) All employees entitled to seniority in a department who commenced employment in the same calendr

(sic.) month and have completed their qualifying periods shall be of equal seniority amongst themselves, but shall have seniority over all employees who acquire seniority in subsequent months or who have no seniority.

(iii) All employees who have yearly seniority prior to this Award becoming applicable shall have seniority over all employees who acquire monthly seniority or who have no seniority. ......

(f) Service Prior to Award

(i) For the purpose only of determining the seniority of an employee who has been employed by the employer prior to this Award becoming applicable to his/her employment and has not qualified for seniority, this clause shall be deemed to have operated from the time of his/her employment by the employer.

(ii) The month of seniority so ascertained shall be the month of the year of seniority of the employee for the purposes of this clause t (sic) the commencement thereof. ......

(i) Disputes

Any dispute as to the application of this clause to any employee may, on the application of the Federal Secretary, Branch Secretary or Branch Assistant Secretary of the Union or of the employer, be settled by the Commission."

Following the making of the award, the picket line was disbanded, and work proceeded at the abattoir in the usual way.
On 22nd June, two officials of the Victorian branch of the Union, Messrs. Brunt and Les MacDonald, asserted a right to enter the defendant's Portland premises, pursuant to s.286 of the Act, but were denied entry.
On 25th July 1989, the prosecutor signed a written authority with respect to Mr. Davey, pursuant to s.286 of the Act. That authority was in the following terms:

"AUTHORIZATION PURSUANT TO SECTION 286 OF THE INDUSTRIAL RELATIONS ACT 1988 I, WALTER JAMES CURRAN, Secretary of the Victorian Branch of the Australasian Meat Industry Employees' Union hereby authorize, in writing, PAUL DAVEY, a duly elected Officer of the Victorian Branch of the Union, to enter the premises at Portland, Victoria, occupied by Thomas Borthwick and Sons (Pacific) Pty. Ltd., or in which work to which the Thomas Borthwick and Sons (Pacific) Pty. Ltd. Interim Award 1989 applies is being carried on to inspect or view any work, material, machinery, applicance (sic.), article, document or other thing on the said premises for the purpose of ensuring the observance of the Thomas Borthwick and Sons (Pacific) Pty. Ltd. Interim Award 1989 in particular in relation to Clauses 4 (Contract of Employment), 6 (Preference of Employment), 7 (Wage Rates), 35

(Seniority), 19 (Protective Clothing etc.), 20 (Clothing and Laundering of Working Meat Export Regulations), 22 (Miscellaneous Provisions), 25 (Notice Boards and Posting of Award), 30 (Guarding of Machinery), 36 (Tallies, Slaughtering), 37 (Tallies, Boning and Slicing), 45 (First Aid) of the said Award.

DATED: .....25.7.89........ ........ ........ . SIGNED:.....W.J.CURRAN........ ........ ...... (WALTER JAMES CURRAN) Secretary of the Victorian Branch of the Australasian Meat Industry Employees' Union."

At the same time, the prosecutor also executed an authority in the same terms, in respect of Rodney George Dillon, also a full time elected organiser in the Victorian branch of the Union.

On the same day, the prosecutor wrote a letter to Mr. Keith McDonald, the manager of the defendant's abattoir at Portland, in the following terms:

"I write to advise that 2 Officers of the Victorian Branch of the Australasian Meat Industry Employees' Union authorized in writing by me pursuant to S 286 of the Industrial Relations Act 1988, will enter the premises occupied by Thomas Borthwick & Sons

(Pacific) Pty. Ltd. at Portland or the premises in which work to which the Thomas Borthwick & Sons (Pacific) Pty. Ltd. Interim Award 1989 applies is being carried on, for the purpose of ensuring observance of the said Award.

The Officers will enter the premises on Wednesday 26, Thursday 27 and Friday 28 July 1989.

The 2 Officers are: Mr. Paul Davey Mr. Rod Dillon."

That letter was forwarded by facsimile transmission and was received by the defendant.

On Wednesday 26th July, Mr. Davey and Mr. Dillon drove to Portland in Mr. Davey's car. They arrived at the defendant's abattoir a little after 2.00 p.m. Mr. Davey parked the car close to a building which functions as a gatehouse. They spoke to the person on duty in the gatehouse, who made a telephone call. Shortly thereafter, Mr. Walter Menzies, the personnel manager at the Portland abattoir, Mr. Keith McDonald, the branch manager and a Mr. Lens, another management employee, arrived. There was a conversation in the gatehouse, in the course of which Mr. Davey produced both authorities. He offered to provide copies, but a request was made to photocopy the originals. Mr. Davey agreed to this. Mr. Davey explained that an inspection was desired because it was suspected that the defendant was in breach of certain sections of the award. He made particular reference to those clauses relating to seniority and preference of employment, and also a reference to the provisions of the award relating to contracts of employment. He asked to check the records as to times and wages, and indicated that he and Mr. Dillon desired to see copies of applications for employment and records of such applications. There was also a request for an up-to-date seniority list. Mr Davey also made a request to see various parts of the premises, including the mutton killing floor, the mutton boning room, the beef killing floor, the beef boning room, the skin sheds, the sundries area and the rendering area. Mr. Menzies stated that Mr. Davey and Mr. Dillon would be entitled to some of the things they sought. In the course of the conversation, Mr. Menzies made a request to be allowed to record the conversation on a tape recorder. Mr. Davey objected to this and it was not done.
After the conversation was over, the three management persons left the gatehouse, taking the two authorities with them. They returned a few minutes later, and gave back the originals of the authorities. Mr. Menzies then announced that he intended to tape record the conversation, with or without permission. The party then embarked on an inspection of the premises, with Mr. Menzies holding a small portable tape recorder near Mr. Davey's face as often as he could.
Shortly after the parties set off for the inspection, after they had passed the laundry, there was a discussion as to whether the defendant would supply coats and hats for Mr. Davey and Mr. Dillon. The wearing of coats and hats in some parts of the premises was necessary to satisfy hygiene regulations. Mr. Davey and Mr. Dillon were told that they would not be given hats and coats. They therefore returned to the car, for the purpose of obtaining these items. In the boot of the car were two coats and one hat, so that Mr. Dillon did not have a hat.
The inspection proceeded by a route which seemed to Mr. Davey and Mr. Dillon to be a very round-about one, but which was justified in evidence by Mr. Menzies on the basis that all ground level areas were inspected first, and all upper levels later. When the party was about to enter an area in which hats and coats were necessary, Mr. Menzies took objection to the fact that Mr. Dillon was not wearing a hat. After further discussion, Mr. McDonald told Mr. Lens to go and get another hat. This was done, Mr. Dillon put the hat on, and the inspection proceeded.
During the inspection, in various parts of the premises, groups of employees called out abusive remarks and obscenities to both of the Union officials, but to Mr. Davey in particular. On occasions, he was addressed personally, sometimes by the mispronunciation of his name as "Davies". One employee came close to Mr. Davey and made a quiet threat to kill him if he ever saw Mr. Davey alone on the works. The only reaction of either Mr. Davey or Mr. Dillon to this conduct was on one occasion, when Mr. Davey blew a kiss in the direction of a group of workers who were shouting abuse. In addition, Mr. Davey had some conversation with one employee, who endeavoured to read his notes. The conversation concerned whether abuse of people was justified. In another conversation, with an employee, who approached him and brandished a fist at him, Mr. Davey did say that he knew that this employee came from a family of scabs. In one congested area, Mr. Davey believed he was jostled unnecessarily.
After the inspection of the premises, there was some discussion about when an inspection of documents could take place. Mr. Davey and Mr. Dillon were told that they would have to await the arrival of Mr. Hughes before they would receive answers to their requests to inspect documents. An arrangement was made to meet at 8.30 the next morning.
Mr. Davey and Mr. Dillon left the premises at about knock off time. A lot of employees were leaving, and some more abuse was directed, particularly to Mr. Davey. They reached their car, removed their coats and hats and put them in the boot, and began to drive away. They then discovered that the front left hand tyre was completely flat. Not wishing to remain near the premises while they changed a tyre, they drove some distance away and down a side track, and changed the wheel. In the flat tyre, they discovered a puncture mark close to the wheel rim, consistent with having been made by a knife.
On the following day, 27th July 1989, Mr. Hughes flew from Melbourne to Portland in the morning. His flight was delayed in leaving because of fog. He did not arrive until some time around noon. In the meantime, Mr. Davey and Mr. Dillon went to the defendant's premises and were told that Mr. Hughes had been delayed. They left, and eventually telephoned and made an arrangement to meet at the premises at 1.00 p.m. They were met by Mr. Menzies and Mr. Lens and escorted to the upstairs floor of the administration building. On the way, Mr. Davey received some abuse from employees in the amenities block.
The party reached an area outside the board room, at which point Mr. Menzies was approached by a Mr. Dennis Harris. Mr. Harris was the acting works delegate for the employees. He said something to Mr. Menzies which indicated that the employees had held a meeting and that they did not want Mr. Davey, Mr. Les MacDonald or Mr. Curran (the prosecutor) on the premises. Mr. Menzies suggested to Mr Harris that, as this was a matter of some significance, Mr. Harris should be accompanied by another delegate if he wished to discuss it. Mr. Menzies then entered the board room with Mr. Davey, Mr. Dillon and Mr. Keith McDonald.
There was some delay before Mr. Hughes came into the board room, at which stage Mr. Lens may have been there as well. Mr. Hughes offered some criticism to Mr. Davey of the latter's behaviour on the picket line. There was also a discussion about authority to tape record conversations, and the provision of copies of the tapes. These matters are not of great consequence. They were followed by some discussion of the precise documents or records which Mr. Davey and Mr. Dillon wished to inspect.
Either the first or the second item discussed was a seniority list. Mr. Davey asked for inspection of an up to date seniority list. Mr. Hughes said he did not know whether such a list existed. Mr. Menzies pointed out that one had been prepared, and had been tendered to the Australian Conciliation and Arbitration Commission late in June. A copy had been provided to representatives of the Union at that time. There was then discussion about whether the list could be updated, and Mr. Hughes pointed out some difficulties involved in updating such a list, and the fact that the defendant did not have a need for such constant updating. It is clear on the evidence that, at the time of the request, there did not exist in the defendant's possession an updated seniority list.
Another category of records or documents discussed, either first or second, was applications for employment, and lists of those who had applied orally for employment, in cases where the applicant had not been given employment. Mr. Hughes did not deny the existence of such records, but undoubtedly refused to allow Mr. Davey and Mr. Dillon to see them. He stated several reasons for this refusal. The first was that the defendant had advertised for applications on a confidential basis, and proposed to honour the confidentiality. The second was that records of applicants who had not been given employment were beyond the categories of documents which the officers of the Union were entitled to inspect. The third was a suggestion that Mr. Davey and Mr. Dillon were likely to spread information from the records around the town, and to embarrass people who were in other employment, and who may not have wanted it known that they had applied to the defendant.
The discussions were interrupted by the return of Mr. Harris, accompanied by another delegate of the employees, Mr. Ken Clarke. The two delegates were introduced to Mr. Davey and Mr. Dillon, and Mr. Harris then announced that there had been a general meeting of employees, and that the members had expressed a view that they did not want Mr. Davey, Mr. Les MacDonald or the prosecutor on the premises. There was some evidence about what had gone on at the meeting which was thus reported. It appears that a vote on some question was taken by asking those to whom the presence of Mr. Davey, Mr. Les MacDonald and the prosecutor was acceptable to leave the room, the assumption being that all who remained were not prepared to tolerate those three. The precise question which was put to the meeting is not clear. In particular, it is unclear whether the meeting resolved that work should cease if any of the three were to come onto the premises. The result was, however, reported to the gathering in the board room in those terms, namely that work would cease if any of the three came onto the premises. Mr. Hughes began to negotiate with Mr. Harris. He sought clarification of the decision, as to whether the administration building was regarded as part of the premises, for the purposes of the ban. He endeavoured to persuade Mr. Harris and Mr. Clarke to accept the view that Mr. Davey had a right to be on the premises for the purposes of inspection. Eventually, a compromise was reached, that no action would be taken by the employees to cease work on that day if Mr. Davey remained in the administration building and completed the inspection. This compromise provoked a taunt by Mr. Davey to Mr. Harris to the effect that the latter could not even abide by a resolution of members. Mr. Harris and Mr. Clarke then remained in the board room.
The discussion then turned to the third category of documents or records of which inspection was sought. This was time and wages records. Mr. Hughes asked Mr. Davey to clarify precisely what he wanted to see, and there was some discussion about all of the different pieces of information that went to make up pay records. Eventually, Mr. Davey suggested that if he gave a sample list of names he might inspect the computer records and the pay sheets relating to those persons. This was agreed, and the group went downstairs to the pay office. Mr. Davey and Mr. Dillon were introduced to the paymaster, who was instructed to bring up onto the computer screen the records of the persons named. This process began, and Mr. Davey looked at the computer screen and took notes.
While this inspection was taking place, a management employee came into the pay office and announced that the clerks in the office had stopped work and left the office. Mr. Menzies went to investigate, and found that the clerical staff had gathered in a meeting in the central area of the office. They told Mr. Menzies that they were not prepared to continue to work while Mr. Davey was in the office. The clerical staff then left the administration building. Mr. Menzies returned to the pay office. Mr. Lens came in and announced that the switchboard operator had walked off, and that the defendant had no communications.
Mr. Hughes then told Mr. Davey that he would have to leave. Mr. Davey asked whether Mr. Hughes was refusing to give him or the Union any further information. Mr. Hughes said that Mr. Dillon was welcome to stay and to continue the inspection, but that Mr. Davey would have to leave. After some further short discussion about whether the defendant was refusing to give information, and whether Mr. Dillon would stay on his own, both Mr. Davey and Mr. Dillon left the premises. The clerical staff then returned to work. It is clear that, at the stage when Mr. Davey and Mr. Dillon left, they had not completed the inspection of all of the records of the named persons whose records Mr. Davey had asked to see.
It should be noted that the information, by which this proceeding was commenced, alleges that the defendant hindered or obstructed both Mr. Davey and Mr. Dillon in relation to three classes of documents, namely applications for employment, lists detailing the seniority of employees, and time and wages records. The particulars of the charge, contained in the summons, are largely in narrative form, and do nothing to narrow or make more specific the allegations in the information. Mr. Tracey of counsel, who appeared for the defendant, did not make any complaint as to the form of information, or as to the particulars. No doubt this was because the defendant preferred to face a single charge, rather than separate charges, based on allegations of hindering or obstructing each of Mr. Davey and Mr. Dillon, in respect of each of the classes of documents or records. It follows, however, that if there is proof beyond reasonable doubt of all of the elements of any offence under s. 306(a) of the Act, a conviction must result.
No conviction is possible of any hindering or obstructing of either Mr. Davey or Mr. Dillon with respect to the seniority list. On the evidence, no such list existed at the time when the request was made to inspect it, other than one which had already been produced, and Mr. Davey did not pursue a request to inspect that list. His concern was to see an updated list. As no updated list existed at that time, inspection of it was an impossibility. There was no suggestion on behalf of the prosecutor of any legal obligation on the company to create an updated list for the purpose of inspection. It follows that there was no offence in the defendant failing to make available such a list.
The defendant endeavoured to avail itself of the same defence with respect to the inspection of records of applications by persons to whom employment was not given. It was argued that the existence of such records, on the premises at the time, was not proved. Reliance was placed on evidence of Mr. Menzies that the defendant disposed of application forms in cases where the applicants were not offered employment, and advised those applicants by telephone, but not by letter. A close examination of the evidence of Mr. Menzies does reveal the existence of some records of unsuccessful applicants with respect to persons who were not given employment immediately, but were regarded as suitable for future vacancies, Mr. Menzies said, "We keep some notes, yes". According to him, these notes were on pieces of paper in the employment office. Mr. Menzies also said that records were kept of persons who were considered to be pending applicants. This evidence satisfies me beyond reasonable doubt that some documents were in the possession of the defendant on its premises at Portland, which fell within the category of records of applications for employment by persons who were not employed.
There was a clear refusal, directed to both Mr. Davey and Mr. Dillon, to provide them with access to those records for the purposes of inspection. No statutory basis exists for such a refusal by reason of the alleged confidentiality of the records. It is not open to an employer to evade the right of inspection given by s.286 of the Act by agreeing with some third party to treat documents as confidential. Nor was there any substance in the suggestion by Mr. Hughes that a refusal could be based on the possible use to which information in the records might be put by Mr. Davey, namely making such information public. Again, no statutory basis exists for a refusal on that ground.
The other reason given by Mr. Hughes for refusing to allow inspection of the applications of unsuccessful applicants for employment was that such applications were beyond the categories of documents which the officers of the Union were entitled to inspect. Mr. Hughes seems to have taken the view that a right to inspect existed only with respect to documents dealing with people then employed by the defendant and so employed pursuant to the relevant award. In argument, the defendant sought to bring this argument within s.286(1) of the Act, by contending that the right to inspect could not be exercised otherwise than "for the purpose of ensuring the observance of an award". It was said that this purpose could not be achieved by an inspection of documents relating to persons not employed, or not employed under the award.
Some discussion took place in argument as to whether the purpose referred to in s.286(1) is an objective or a subjective purpose. Mr. Heerey Q.C., who appeared with Mr. Kelly of counsel for the prosecutor, referred to cases in which the word "purpose" has been construed as meaning a subjective purpose. See Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union (1979) 42 FLR 331, at pp 348-349 and Parker Pen (Aust.) Pty. Ltd. v. Export Development Grants Board (1983) 46 ALR 612, at p 621. The question is a difficult one. It is plain from the authorities cited, and from Peate v. Federal Commissioner of Taxation (1964) 111 CLR 443, at p 469 in the judgment of Kitto J., that the word "purpose" may mean either a subjective or an objective purpose, depending upon the context in which it is used. In the context of s.286(1) of the Act, it seems to me to be more likely that the purpose required is objective, i.e. that a particular exercise of a right to enter, inspect or interview can be said to be related with sufficient proximity to the object of ensuring observance of an award. If that were not the case, an honestly held but wholly mistaken belief by an officer of an organisation that he or she was pursuing a course which would result in the observance of an award would be decisive of the right to enter, inspect or interview. It is unlikely that Parliament intended the section to be construed in that manner. Its ultimate purpose is to promote the observance of awards, the giving of rights of entry, inspection and interview being only a means to that end.
On the basis that an objective purpose was required, a question arose as to the nature of the relationship between the article to be inspected and the observance of the award. Mr. Tracey did not contend that it had to be shown that inspection of a particular document would necessarily lead to a better observance of an award. Such a construction of the section would be far removed from the legislative intention. Given that a person seeking to inspect a document will generally be unaware of the contents of the document, it would be impossible in many cases to prove that the contents of the document would disclose a breach of an award, in the event that inspection were denied. In my view, it is enough to show that a reasonable prospect exists that the document or other article of which inspection is sought will constitute some evidence as to the degree of observance or non-observance of a particular award by the employer concerned. If there arises a question of construction of the award, the Court should not have to determine this in a proceeding in which the employer is charged with an offence. Such a question should await determination in a proceeding to enforce the award.

The records of unsuccessful applications for employment, of which inspection was sought in the present case, may be relevant to the observance of the award in two respects. If those records disclosed that financial members of the Union had applied for employment with the defendant, but had not been offered employment at times when non-members of the Union were offered employment, such records might provide evidence of a breach of clause 6 of the award, and especially sub-clause (b) thereof. The obligation under that clause is to give preference to members of the Union in engaging an employee. Further, those records may disclose breaches of clause 35(a)(i) of the Award, especially having regard to the provisions of sub-clause (c)(iii). Mr. Tracey drew attention to a number of difficulties of construction of clause 35. In particular, sub-clause (a)(i) is phrased in terms of an undertaking, and the remaining provisions are capable of being construed as applicable only to the seniority of employees already engaged. He conceded, however, that the clause is arguably applicable at the point of engagement for regular daily employment, and arguably imposes upon the defendant an obligation to employ persons with previous seniority ahead of persons without seniority. It follows that, if the records of unsuccessful applicants disclosed that persons without seniority had been preferred to persons with seniority, non-observances of clause 35 of the award may be disclosed.
The inspection sought by Mr. Davey and Mr. Dillon of records of unsuccessful applications for employment was therefore sought for the purpose prescribed by s.286(1) of the Act, namely the purpose of ensuring the observance of the award. If I am wrong in my conclusion that an objective purpose is required, then the evidence leaves me in no doubt that both Mr. Davey and Mr. Dillon had as a subjective purpose the ensuring of the observance of the award, when they requested inspection of the records of unsuccessful applications for employment.
There is also to be considered the early termination of the inspection of time and wages records. In this respect, questions of construction of s.286 of the Act were raised.
It is to be noted that sub-s. (1) provides for three rights, which may be described conveniently as the rights of entry, inspection and interview. The paragraphs in which these rights are laid down are followed by the words "but an officer acting under this subsection shall not hinder or obstruct an employee in the performance of work during working time." These words are in the nature of a proviso. There is, however, no provision as to the consequences of the application of the proviso. Nowhere in the Act is there to be found a provision creating an offence of hindering or obstructing an employee in the performance of work during working time, whilst exercising any of the rights of entry, inspection or interview. In contrast, s.306 makes it an offence to hinder or obstruct the officer who is exercising any of the rights. There is no provision in s.286, or elsewhere in the Act, revoking expressly any of the rights given in the event that an officer hinders or obstructs an employee. In contrast, s.286(2) contains an express revocation of the rights in the event that the officer exercising them is required by the occupier of premises to produce evidence of authority and fails to do so. Such an express provision makes it all the more difficult to determine the intention of the legislature as to the effect of the proviso in s.286(1). No light is shed upon this question by an examination of the antecedent provision of s.286 (s.42A of the Conciliation and Arbitration Act 1904). Nor is there any authority which assists in resolving the question.
There are several possible constructions of the proviso. It may be intended to operate only by way of exhortation. No one contended for this construction, and it would be unusual for words in a statute to be so construed. Parliament may have intended that the legal consequences of a breach of the proviso should arise outside of the framework of the Act; an employer who suffered loss and damage by the hindering or obstructing of an employee in the performance of work during working time might sue the officer concerned for damages for breach of statutory duty. Such a view would mean that, whatever the nature of the hindrance or obstruction, or the consequences of it, the officer would retain the right to remain on the premises, and to continue inspection and interview, as if no hindrance or obstruction had occurred. It is unlikely that this was the intention. An officer who acted beyond the scope of the rights given to him or her by s.286(1) might well be liable for damages resulting from hindrance or obstruction of employees upon causes of action other than that for breach of statutory duty. In other words, if the only intention was to make the officer liable at common law, the proviso would have been unnecessary. It must therefore have been inserted with a view to curtailing in some respect or other the exercise of the rights given by the section.
Mr. Tracey contended for the position that a breach of the proviso brought about an immediate termination of the authority pursuant to which an officer entered the premises concerned, and exercised the rights of inspection or interview. Such a construction could produce odd results. An authority might be given for a specific visit, for a long term, or on a permanent basis. It would be strange if, whatever the duration of the authority, it were to be revoked entirely by a hindrance or obstruction of an employee on one occasion. It would also be unusual if an authority given by one person (the secretary of an organisation or branch) to a second person (an officer of an organisation) could be terminated by a wrong done by the second person to a third person (the employer of an employee whose work is hindered or obstructed).
On behalf of the prosecutor, Mr. Heerey contended for a construction close to the opposite extreme. He argued that the only effect of a hindrance or obstruction of an employee is to terminate only the right to inspect the particular item (or, presumably, to interview the particular person or persons) then being exercised, but that it did not prevent the inspection of another item (or, presumably, the interviewing of another person or other persons). The example given by Mr. Heerey in argument concerned the inspection of a machine. He postulated that the inspecting officer sought to carry out such inspection by pushing the stop button of the machine, ordering all the employees operating it away, and clambering over it. If the employer then turned out the lights, so as to render it impossible for the officer to examine the machine, this would not amount to a hindering or obstructing by the employer, because there had already been a hindering or obstructing by the inspecting officer. If this view were correct, it would enable an inspecting officer to commit a series of acts which amounted to hindering or obstructing employees in the performance of work, but to remain on the premises, going from place to place, and continuing to create havoc until, in the case of each item inspected, the employer took some action to cause the particular inspection to cease. It is unlikely that this was the legislative intention.
The remaining option for construction of the proviso involves it having an effect on the particular right of entry, as a result of which rights of inspection or interview are being exercised. On this view, if the officer concerned hinders or obstructs an employee in the performance of work, the right of the officer to be on the premises would cease. It would then be open to the occupier of the premises to treat the officer as a trespasser, and require him or her to leave within a reasonable time, unless the occupier elected to grant a licence to remain on the premises. This view may give rise to some anomalies in its practical operation. It would follow that, if ejected, the officer could immediately insist upon a right to re-enter the premises in his or her capacity as an officer authorised under s.286 of the Act. Nothing could be done to prevent such re-entry. This is no more irrational, however than the possibility that a new authority could be granted at any time to replace a revoked one if Mr. Tracey's argument were accepted. A further practical difficulty might arise if the hindrance or obstruction occurred some time before the decision to ask the officer to leave, the employer claiming that a revocable licence existed from the time of the commission of the hindrance or obstruction up to the time when a decision was made to revoke the licence and require the officer to leave. The same problems would arise, however, on the interpretation proposed by Mr. Tracey. I am also conscious of the fact that the construction favouring revocation of the right of entry produces the same result as does s.286(2) in respect of non-production of the authority. Nevertheless, it seems to me to be the most rational of all the possible constructions, and I therefore adopt it. I hold that the effect of the proviso is that, if an officer hinders or obstructs an employee in the performance of work during working hours, the right of the officer to remain on the premises under s.286(1) is thereby revoked.
Mr. Tracey argued that, immediately prior to the request by Mr. Hughes that Mr. Davey leave the premises, the latter had hindered or obstructed employees of the defendant in the performance of work during working time. The hindrance or obstruction was said to have occurred by reason of the clerical staff refusing to work, and the switchboard operator ceasing work, while Mr. Davey remained on the premises. Mr. Tracey could not point to any act done by Mr. Davey on that day, other than his mere presence on the premises, that could amount to a hindrance or obstruction. He was therefore compelled to argue that, having regard to the past conduct of Mr. Davey on the picket line, his mere presence on the premises was so abhorrent to employees of the defendant as to cause them to want to cease work until Mr. Davey left, and that his mere presence therefore amounted to a hindrance or obstruction of those employees in the performance of their work.
To deal with this submission, it is necessary to determine the meaning of the phrase "hinder or obstruct" in the proviso to s.286(1) of the Act. It should be noted that this phrase is identical to the one which is used in the creation of the offence with which the defendant is charged in this case, in s.306(a) of the Act. In the normal course, a phrase used in two related provisions of a statute would be expected to bear the same meaning in each provision. There is potential difficulty in attempting to give to the phrase "hinder or obstruct" the same content in s.286(1) as it bears in s.306. This is because the activities which the two provisions contemplate as being hindered or obstructed are different. In one case, the activity is the work of an employee. In the other, it is the right of an officer to enter, inspect or interview.
The words "hinder" and "obstruct" have often been used in the creation of offences. Well-known examples involve such things as obstructing the highway, and hindering a police officer in the execution of his or her duty. The authorities dealing with those offences recognise the necessary connection between the concept of obstruction or hindering and the nature of the activity obstructed or hindered. For instance, it is plain that every person using a highway is, in a sense, obstructing it; the space occupied from time to time by one single user cannot be occupied simultaneously by any other user. The purpose of the highway, however, is passage and repassage, so that it is recognised that the user of the highway for this purpose will not amount to an obstruction. As the High Court (consisting of Latham C.J., Rich and Dixon JJ.) said in Schubert v. Lee (1946) 71 CLR 589, at p 594:

"Where the alleged obstruction consists in the physical presence of the defendant upon the highway it becomes necessary to reconcile the prohibition of obstruction of a highway with the reasonable user of the highway by members of the public: See Adams v. Horan (1906) 26 NZLR 169. Every user of a highway for the purpose for which a highway is intended may theoretically at least lessen its commodiousness for the use of other members of the public. But that arises from the nature of things. What is not permitted is the lessening in a substantial degree of the commodiousness of the use of the highway for legitimate purposes by using it for purposes other than a highway."

See also Haywood v. Mumford (1908) 7 CLR 133, at p 138 in the judgment of Griffith C.J. Similarly, with respect to the offence of hindering a police officer, it has been recognised that an act which might otherwise amount to a hindering will not do so if there is lawful excuse for it, or if it is reasonable in the circumstances not to regard the police officer as hindered. See Leonard v. Morris (1975) 10 SASR 528, at p 533 in the judgment of Bray C.J., with respect to the question of lawful excuse (advising a person not to answer questions) and at pp 543-544 in the judgment of Wells J., with respect to taking into account all of the circumstances to determine the reasonableness of what might otherwise have been a hindrance.

Applying this approach to the statutory provisions applicable in the present case, it will be seen that the content of the obligation not to hinder or obstruct may differ as between an employer confronted by an officer seeking to exercise the rights of entry, inspection and interview, and the officer exercising those rights whilst employees are carrying out their work during working hours. A few examples may suffice. It may only be possible to inspect a particular part of premises by standing in one spot. That spot may happen to be part of a passageway used for the wheeling of trolleys, which is an essential part of the work of employees on those premises. Trolleys cannot be wheeled through the passageway while an officer is standing inspecting the part of the premises. There will be no hindrance or obstruction of the work of any employee, even if one attempts to wheel a trolley through the passageway and is unable to do so. If remaining in the spot for the legitimate purpose of inspecting amounted to a hindrance or obstruction of the employee, the right to inspect would be negated entirely. In contrast, a refusal to move from the passageway after the completion of the inspection of the particular part of the premises would amount to hindering or obstructing an employee.
Among the obligations of an employer pursuant to s.286 of the Act is an obligation to make available certain documents and records for inspection. If an authorised officer attends at premises, and asks to see certain documents or records which he or she is entitled to inspect, some positive act will usually be required on the part of the employer, or the occupier of the premises, to make those documents and records available. As Mr. Heerey put it in argument, merely to indicate that the relevant documents and records can be found somewhere in a filing cabinet within a large building would amount to a hindrance or obstruction of the right to inspect. The exact content of the positive obligation will depend upon the circumstances. If records are stored in a computer, it may be necessary for an employee with knowledge of the operation of the computer and the relevant codes to make available the relevant records for inspection. Failure to do so will amount to a hindrance or obstruction. The fact that the employee concerned would otherwise be engaged in some other work will not mean that he or she has been hindered or obstructed by the inspecting officer. If that were not so, the right to inspect would be negated. Thus, it is open to the inspecting officer, as Mr. Davey and Mr. Dillon did, to examine a computer screen for the purpose of looking at relevant records, even though the particular computer might otherwise be used for some ordinary work of an employee, without hindering or obstructing that employee.
Some borderline cases were discussed in argument. Where inspection is demanded of a number of items, it may be reasonable for an employer to determine the order in which the items might be inspected, without being guilty of hindering or obstructing. There may come a point at which delay, or fobbing off, amounts to hindering or obstructing. Each case must be determined in the light of the evidence. One question which was not discussed in the present case, and which must therefore be left for subsequent decision, is the question whether a failure or refusal to make available a printout of computerised records can amount to a hindrance or obstruction of the right to inspect those records
The question which arose acutely in the present case was whether an inspecting officer may be held to have hindered or obstructed employees, within the meaning of the proviso to s.286(1), without positive act on his or her part. Mr. Tracey's argument was that, by his conduct on the picket line, Mr. Davey had so incensed employees of the defendant to whom he had directed abuse that they were prepared to refuse to work while he was on the premises. By coming on the premises, he thereby hindered or obstructed those employees in the performance of their work during working hours.
To interpret the proviso to s.286(1) of the Act in this manner would be to destroy significantly the rights of entry, inspection and interview given by the sub-section. Mr. Tracey was forced to concede that, if his argument were accepted, the principle underlying it would be applicable in every case in which any employee declined to work, or to work at normal output, during a visit of an authorised officer pursuant to s.286(1). Further, the refusal of such an employee to continue working at normal pace could be motivated by any desire, rational or irrational. It could be based on political views, racism, sexism or some other form of prejudice. It could even be based on the fact that the authorised officer was an official of a trade union. Opportunities would arise for employers who did not wish to co-operate with authorised officers to encourage their employees to cease work in the event of a visit by an authorised officer. It will be seen that many of these possible events would be destructive of the objects of the act, and particularly of the purposes of s.286. Parliament cannot have intended them.
It follows that the proper construction of the phrase "hinder or obstruct" in the proviso to s.286(1) involves a requirement that the authorised officer do some positive act by way of hindrance or obstruction, or at least decline to move from a place in which he or she is likely to hinder or obstruct an employee. Apart from a failure to move, it is difficult to envisage a hindrance or obstruction that would fall within the proviso to s.286(1) but would not involve some positive conduct on the part of the authorised officer. Even if it is unnecessary to reach this conclusion, I am of the view that the mere presence of an authorised officer who is the subject of violent dislike by one or more employees, to the extent that those employees are prepared to cease work while the authorised officer is on the premises, cannot amount to a hindrance or obstruction by the authorised officer of those employees in the performance of their work.
In any event, it is difficult for the defendant to rely on a defence of this nature in the present case. Mr. Tracey's argument was based on the assumption that Mr. Davey must bear the entire blame for events which occurred on the picket line. It must be remembered that the defendant made a conscious decision to offer employment on less favourable conditions, and at lower remuneration than had applied previously at its premises at Portland. In making that decision, the defendant's management must have realised that it was likely to provoke opposition from the Union, and from some former employees. On the evidence of Mr. Menzies, the picket line was no surprise to the management of the defendant.

Similarly, those who chose to accept employment and to cross the picket line must have done so in the knowledge that they would incur the opprobrium of the picketers, and would receive abuse. Certainly if they had expected to cross the picket line without comment, their expectations would have been destroyed at an early stage. On the evidence before me, the abuse that took place was of a quality and quantity likely to occur in a tense industrial situation, in which there was deep disagreement between groups of people. I was not impressed by the protestations of some witnesses about the extent to which they were affected by bad language, particularly the witness who was very coy about using some words in the witness box, but in an unguarded moment announced that he was "pissed off" by the abuse he received. Further, the witnesses tended to blame Mr. Davey for things which I am satisfied he had not said, even if they were said by someone else. In particular, I am satisfied that Mr. Davey did not call one female witness who had crossed the picket line a baby killer. This witness had had a pregnancy terminated, and believed that Mr. Davey had been given information about her abortion, and used it to insult her when she crossed the picket line. Her evidence indicated, however, that the insult was spoken in May 1989, when Mr. Davey was not on the picket line. Her mistaken belief as to Mr. Davey's conduct only underlines the difficulty of holding that Mr. Davey, by his mere presence, hindered or obstructed employees in the performance of their work. In these circumstances, the antipathy of some employees towards Mr. Davey should not provide the defendant with a defence to a charge under s.306 of the Act.
The defendant therefore had no right to terminate Mr. Davey's inspection of the time and wages records at the stage when Mr. Hughes told Mr. Davey to leave. A refusal to allow the inspection to continue amounted to a hindering or obstructing of the inspection. There was some debate as to whether Mr. Dillon was also hindered or obstructed. It was made clear to him that he could remain on the premises and continue to look at the time and wages records. He declined to do so. He gave evidence that he did not regard himself as having the same level of competence as Mr. Davey in examining such records. In my view, if two authorised officers seek to make inspection a joint task, and an employer wrongly refuses to allow one of them to continue with the inspection, both are hindered or obstructed. The Act does not provide an employer with a right to determine how many authorised officers should conduct an inspection.
I am therefore satisfied beyond reasonable doubt that on 27th July 1989, contrary to s.306(a) of the Act, the defendant did hinder or obstruct both Mr. Davey and Mr. Dillon in the exercise of their power to inspect documents and records, being the records of unsuccessful applicants for employment and the time and wages records. The defendant is therefore guilty of the offence with which it is charged. A date will be fixed for the hearing of any evidence and submissions in relation to sentence.

[1990] FCA 75

14 MARCH 1990