Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union

[2020] QIRC 188

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

PARTIES:

ENCO PRECAST PTY LTD v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] QIRC 188

ENCO PRECAST PTY LTD (ACN 072 772 037)
(Applicant)

v

Construction, Forestry, Maritime, Mining and Energy Union
(First Respondent)

and

Shaun Desmond
(Second Respondent)

and

Beau Seiffert
(Third Respondent)

and

Luke Gibson 
(Fourth Respondent)

and

Anthony Roel Harding 
(Fifth Respondent)

and

Craig Patrick Davidson
(Sixth Respondent)

CASE NO:

WHS/2019/117

PROCEEDING:

Application to deal with a dispute about right of entry

DELIVERED ON:

30 October 2020

HEARD AT:

HEARING DATES: 

Brisbane

2, 3 and 5 December 2019

SUBMISSIONS:

Applicant's supplementary submissions – 5 May 2020
Respondents' supplementary submissions - 12 May 2020

MEMBER:

Hartigan IC

ORDER:

CATCHWORDS:

1.      The application is dismissed.

WORKPLACE HEALTH AND SAFETY – Dispute about right of entry – Whether permit holder held a "reasonable suspicion" – Whether "relevant worker" – Whether workers eligible to be members of union

LEGISLATION:

Work Health and Safety Act 2011 (Qld), s 3, s 116, s 117, s 118, s 119, , s 123, s 124, s 125, s 126, s 128, s 129, s 130, s 132, s 134, s 133, s 142, s 144, s 145, s 146, s 147, s 148

Work Health and Safety Regulations 2011 (Qld), s 28

Industrial Relations Act 2016 (Qld), s 447, s 451, s 453

CASES:

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payment Corporation (1985) 1 NSWLR 561

Australian Building and Construction Commission v Powell [2017] FCAFC 89

Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065

Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor [2017] NSWIRComm 1000

Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206

Co-operative Bulk Handling Ltd v Waterside Workers Federation of Australia (1980) 32 ALR 541

Electrical Trades Union of Australia v Waterside Workers Federation of Australia No 2 (1982) 42 ALR 587

Federated Clerks Union of Australia WA Branch v Cary (1977) 57 WAIG 585

Federated Engine Drivers' & Fireman's Association of Australasia, Re [1958] AR (NSW) 689

George v Rockett (1990) 170 CLR 104

Johnson v Triple C Furniture & Electrical Pty Ltd [2010] QCA 282

Joyce v Christoffersen (1990) FCR 261

Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775

R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 ALR 263; 141 CLR 577

R v Isaac; Ex parte Transport Workers Union of Aust; sub nom Isaac, Re; Ex parte Argyle Diamond Mines Pty Ltd (ALR) (1985) 159 CLR 323

R v Gough; Ex parte Municipal Officers' Association (1975) 133 CLR 59

R v Williams; Ex parte Australian Building, Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402

Ramsay v Menso [2018] FCAFC 55

Re Union of Postal Clerks and Telegraphists; Ex parte Australian Telephone and Phonogram Officers' Association [1986] HCA 45; (1986) 66 ALR 227

Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269

The Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501

APPEARANCES: 

Mr J E Murdoch QC and Mr T Spence of counsel for the applicant, instructed by HopgoodGanim Lawyers

Mr C Massy of counsel for the respondents, instructed by Hall Payne Lawyers

INDEX

1.           Introduction

2.           Relevant statutory framework

3.           Evidence before the Commission

3.1.          Receipt of complaint and subsequent steps taken by the union

3.2.          Attendance at Enco's site on 3 September 2019

3.3.          Attendance at Enco's site on 4 September 2019

3.4.          Attendance at Enco's site on 5 September 2019

4.           Does the Commission have jurisdiction to assist in the resolution of the dispute as described by Enco?

5.           Did the permit holders hold a "reasonable suspicion" that a suspected contravention had occurred, or was occurring, that affected relevant workers

5.1.          Onus – who must establish reasonable suspicion?

5.2.          Consideration of the term "reasonable suspicion" – the authorities

5.3.          Did the right of entry permit holders hold a reasonable suspicion?

5.3.1.     Particulars included in the notice

5.3.2.     Evidence of the permit holders with respect to the formation of suspicion

5.4.          Consideration

6.Were the workers at the site "relevant workers" within the meaning of s 116 of the WHS Act?

6.1.          Construction of union eligibility rules

6.2.          Onus to establish the "relevant worker"

6.3.          The nature of the operations at Enco

6.4.          Rule 2(A)(A)(1)(i) – ("the terrazzo rule")

6.5.          Common elements – cement, water and aggregate

6.6.          Finish of the products

6.8.         Consideration of the expression "preparation and/or erection" in the context of the terrazzo rule

6.9.          Conclusion regarding the terrazzo rule

6.10.        Rule 2E - The FEDFA rule

6.11.        The evidence relating to primary function of the workers

6.12.        The operation of the bobcat skid-steer

6.13.        The work of the boiler attendants

6.14.        The operation of the gantry cranes

6.15.        The operation of the hydraulic pump

7.           Commissioner of Police v Seiffert & Ors ("Seiffert")

8.           Should the relief sought by Enco be granted?

9.           Order

Reasons for Decision

1. Introduction

1. Enco Precast Pty Ltd ("Enco") has applied to the Queensland Industrial Relations Commission ("the Commission") to deal with a dispute about the exercise, or purported exercise, of a right of entry by a Work Health and Safety ("WHS") entry permit holder pursuant to s 142(4)(b) of the Work Health and Safety Act 2011 (Qld) ("WHS Act").

1. The respondents to the application are the Construction, Forestry, Maritime, Mining and Energy Union ("the union") and five individual right of entry permit holders, Mr Seiffert, Mr Desmond, Mr Gibson, Mr Harding and Mr Davidson ("the permit holders'') who sought entry to Enco's premises.

1. Enco describes the dispute[1] as being about an attempted right of entry pursuant to s 117 of the WHS Act on 3, 4 and 5 September 2019. Enco contends that the permit holders did not hold a reasonable suspicion that a suspected contravention had occurred, or was occurring, that affected relevant workers and, further, that the workers were not "relevant workers" within the meaning of s 116 of the WHS Act on the basis that the workers were not eligible to be members of the union.

   [1] Application filed on 13 September 2019.

1. The Commission[2] may deal with a dispute about the exercise, or purported exercise, of a right entry by a WHS entry permit holder under the WHS Act and may make orders[3] in respect of the WHS entry permit including by imposing conditions, suspending or revoking WHS entry permits, or making any order about the future issue of WHS entry permit or any other order the Commission considers appropriate

   [2] Work Health and Safety Act 2011 (Qld) s 142.

   [3] Ibid 142(3).

1. The relief sought by Enco in the application was ultimately framed[4] in the following terms:

   [4] See Exhibit 25.

   The Applicant seeks the following orders pursuant to s 142(e) of the Work Health and Safety Act 2011:

   1.       (a)    That the Notices of Entry of the Second and Third Respondents dated 3 September 2019

   were invalid and of no force and effect for the purposes of the Work Health and Safety    Act 2011; and

   (b)That the Second and Third Respondents were not entitled to enter the Enco precast facility at 73 Counihan Road, Seventeen Mile Rocks, in accordance with section 117 of the Act on 3 September 2019.

2.       (a)   That the Notices of Entry of the Second and Third Respondents dated 4 September 2019

were invalid and of no force and effect for the purposes of the Work health and Safety Act 2011; and

(b)That the Second and Third Respondents were not entitled to enter the Enco precast facility at 73 Counihan Road, Seventeen Mile Rocks, in accordance with section 117 of the Act on 4 September 2019.

3.      (a)    That the Notices of Entry of the Third, Fourth, Fifth and Sixth Respondent dated 5 

September 2019 were invalid and of no force and effect for the purposes of the Work Health and Safety Act 2011; and

(b)That the Third, Fourth, Fifth and Sixth respondent were not entitled to enter the Enco precast facility at 73 Counihan Road, Seventeen Mile Rocks, in accordance with section 117 of the Act on 5 September 2019.

4.       That for the purpose of the Work Health and Safety Act 2011 the First Respondent is not entitled to represent the industrial interests of any worker employed by the Applicant at Enco precast facility at 73 Counihan Road, Seven Mile Rocks.

5.       Any other order the Commission determines appropriate.

1. The respondents resist the relief sought and seek that the application be dismissed.

2. In dealing with the dispute. I will address the following four issues:

   (a)Whether the Commission has jurisdiction to assist in the resolution of the dispute as described by Enco?

   (b)Whether the permit holders held a "reasonable suspicion" that a suspected contravention had occurred, or was occurring, that affected relevant workers?

(c)Whether the workers were "relevant workers" within the meaning of s 116 of the WHS Act on the basis that Enco contends there were not eligible to be members of the union?

(d)Whether the relief sought by Enco should be granted?

1. Relevant statutory framework

1. The main object of the WHS Act[5] is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:

   [5] Work Health and Safety Act 2011 (Qld) s 3.

   (a)protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimalisation of risks arising from work or from particular types of substances of plant;

   (b)providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and

   (c)encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting business or undertakings and workers to achieve a healthier and safer working environment; and

   (d)promoting the provision of advice, information, education and training in relation to work heath and safety; and

   (e)securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

   (f)ensuring appropriate scrutiny and review of actions by persons exercising powers and performing functions under this Act; and

   (g)providing a framework for continuous improvement and progressively higher standards of work health and safety; and

   (h)maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in Queensland.

1. One of the ways in which the object of the WHS Act is to be achieved is by the issuing of WHS permits. A WHS entry permit holder may enter a workplace to inquire into a suspected contravention of the WHS Act.

1. Part 7 of the WHS Act provides for the means of workplace entry by WHS entry permit holders.

1. The Industrial Registrar may issue[6] a WHS entry permit to a person after taking into account:[7]

(a) the objects of the WHS Act; and

(b)     the object of allowing the union right of entry to workplaces for work health and safety purposes.

[6] Work Health and Safety Act 2011 (Qld) s 134.

[7] Ibid s 132.

1. The Industrial Registrar may issue[8] a WHS entry permit to a union official where the industrial registrar is satisfied[9] about the following matters:

(a)      that the official is an official of the union;

(b)      that the official has satisfactorily completed the prescribed training; and

(c) holds, or will hold, an entry permit under the Fair Work Act or an industrial officer authority.

[8] Ibid s 134.

[9] Ibid s 133.

1. WHS permits confer a right on permit holders to enter premises and exercise specified rights[10] whilst on the premises.

   [10] Ibid s 118.

2. A permit holder may enter to inquire into suspected contraventions of the WHS Act as set out in s 117 of the WHS Act, as follows:

   117     Entry to inquire into suspected contraventions

   (1)A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

   (2)The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

3. The meaning of the term "reasonably suspect" referred to in s 117(2) will be considered further within these reasons.

4. Section 117 of the WHS Act refers to the term "relevant worker". Whether the workers at the Enco site were relevant workers is a relevant consideration in this matter. The term is defined[11] to mean, in relation to a workplace, a worker:

   (a)      who is a member, or eligible to be a member, of a relevant union; and

   (b)      whose industrial interests the relevant union is entitled to represent; and

   (c)      who works at that workplace.

   [11] Work Health and Safety Act 2011 (Qld) s 116 (definition of 'relevant worker').

5. A WHS entry permit holder must give a notice of the entry and the suspected contravention, as prescribed by regulation, to the relevant person conducting a business or undertaking and the person with management and control of the workplace.[12]

   [12] Ibid ss 119(1)(a)-(b).

6. Section 28 of the Work Health and Safety Regulations 2011 (Qld) ("the Regulations") is the relevant regulation for the purpose of s 119 and prescribes additional requirements for a notice of entry under s 117 of the WHS Act. Sections 28(a) and (b) of the Regulations provides that the notice of entry must also include the following:

   28     Additional requirements – entry under section 117

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

(b)a declaration stating-

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

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

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

Note-

Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking and may do so only with the consent of the worker.

1. Division 4, Part 7 of the WHS Act provides for requirements for WHS permit holders.

2. Sections 123 to 126 and ss 128 and 129 of the WHS Act are civil penalty provisions and prescribe the obligations on a WHS entry permit holder, including that a WHS entry permit holder:

   (a)     must not contravene a condition imposed on a WHS entry permit;[13]

   [13] Work Health and Safety Act 2011 (Qld) s 123.

   (b)     must not enter a workplace unless he or she holds an entry permit under the Fair Work Act2009 (Cth) ("FW Act") or an industrial officer authority;[14]

   [14] Ibid s 124.

(c)     must at all times that he or she is at a workplace under a right of entry under Division 2 or 3, have his or her WHS entry permit and photographic identification available for inspection by any person on request;[15]

[15] Ibid s 125.

(d)     may only exercise a right under Division 2 or 3 during the usual working hours at the workplace;[16]

[16] Ibid s 126.

(e)     must not exercise a right of entry unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with –

(i)any work health and safety requirement that applies to the workplace;[17] and

(ii)any other legislated requirement that applies to that type of workplace.[18]

[17] Ibid s 128(a).

[18] Ibid s 128(b).

1. Division 7, Part 7 of the WHS Act outlines the following prohibitions:

   (a) a person must not, without a reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under Part 7;[19]

   [19] Ibid s 144.

   (b) a person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace under Part 7;[20]

   [20] Work Health and Safety Act 2011 (Qld) s 145.

(c) a WHS entry permit holder exercising, or seeking to exercise, rights under Part 7 must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper way;[21]

[21] Ibid s 146.

(d) a person must not take action with the intention of giving the impression or reckless as to whether the impression is given that the doing of a thing is authorised by Part 7 if it is not so authorised;[22] and

(e)     a person must not use or disclose information, or a document obtained under Division 2 in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention unless for a reason set out in sub sections (a) to (e).[23]

[22] Ibid s 147.

[23] Ibid s 148.

1. Each of the provisions in Division 7, Part 7 are WHS civil penalty provisions.

2. Relevantly with respect to this matter, Division 6, Part 7 of the WHS Act provides for a means of dealing with disputes about workplace entry by WHS entry permit holders.

1. Section 141 of the WHS Act provides that if a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under the WHS Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute.

1. Section 141A of the WHS Act[24] applies if an inspector is appointed under s 141 of the WHS Act and the dispute is about whether:

   (a)the WHS entry permit holder has a right to enter the workplace under Division 2 or 3; or

   (b)section 119 or 122 has been complied with in relation to notice of the entry or purported entry.

   [24] The Work Health and Safety Act 2011 (Qld) has been amended by the Community Services Industry (Portable Long Service Leave) Act 2020 (Qld) so as to omit s 141A, commencing from 22 June 2020.

2. In such circumstances, the inspector may decide the matters in dispute and, if the inspector is reasonably satisfied the WHS entry permit holder has a right of entry under Division 2 or 3, give the person conducting the business or undertaking a direction, in writing, to immediately allow the WHS entry permit holder to enter the workplace under a stated provision of Division 2 or 3.

3. Such a direction must state the matters referred to in s 141A(3)[25] and a person given such a direction must comply with it.[26]

   [25] Section 141A(3) of the Work Health and Safety Act 2011 (Qld) requires the direction to state that (a) the inspector is reasonably satisfied the WHS entry permit holder has a right to enter the workplace under division 2 or 3; and (b) the reasons the inspector is reasonably satisfied about the right to enter.

   [26] Pursuant to s 141A(4) of the WHS Act which is also a WHS civil penalty provision.

1. This application has been commenced pursuant to s 142 of the WHS Act. Section 142(1) provides that the Commission may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under s 128 is reasonable).

1. Section 142(2) provides that the Commission may deal with the dispute in any way it thinks fit, including by means of mediation, conciliation or arbitration. On the request of the parties, this dispute proceeded to arbitration without the parties participating in a conciliation or mediation.

1. In dealing with a dispute by way of arbitration, the Commission may make one or more of the orders set out in s 142(3) of the WHS Act, as follows:

   (a)      an order imposing conditions on a WHS entry permit;

   (b)      an order suspending a WHS entry permit;

   (c)      an order revoking a WHS entry permit;

   (d)      an order about the future issue of WHS entry permits to 1 or more persons;

   (e)      any other order it considers appropriate.

1. In dealing with a dispute, the Commission must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this part.[27]

   [27] Work Health and Safety Act 2011 (Qld) s 142(5).

2. The form of the draft orders tendered[28] by Enco seek to rely on s 142(e) of the WHS Act for the making of the orders. In submissions,[29] Enco also sought to rely on the Commission's functions as outlined in ss 447(1)(n)(i), (o) and (p) and, its general powers at ss 451 and 453 of the Industrial Relations Act 2016 (Qld) ("IR Act").

   [28] See Exhibit 25.

   [29] T3-37, ll 3-10.

3. Section 447(1) of the IR Act details the following functions of the Commission:

447  Commission's functions

(1)      The commission's functions include the following-

…

(n)     dealing with-

(i)applications brought under this Act or another Act; or

(ii)     claims relating to dismissals;

(o)     making declarations about industrial matters;

(p)     any other function conferred on the commission under this Act or another Act.

1. Section 451 of the IR Act sets out the Commission's general powers, as follows:

   451  General powers

   (1)      The commission has the power to do all things necessary or convenient to be done for the performances of its functions.

   (2)      Without limiting subsection (1), the commission in proceedings may-

   (a)give directions about the hearing of a matter; or

   (b)make a decision it considers appropriate, irrespective of the relief sought by a party; or

   (c)make an order it considers appropriate.

   (3)      The commission may, by general order or for a particular case, delegate to the registrar-

   (a)the working out of a decision of the commission to implement the decision; or

   (b)a function relating to the decision, including, for example-

   (i)the giving of directions; or

   (ii)the making of orders; or

   (iii)the preparation of rosters and schedules; or

(iv)a similar function it considers appropriate.

(4)      The full bench may, to assist in the resolution of proceedings-

(a)refer the whole or part of a question or matter before it to the commission –

(i)for investigation by the commission and the preparation of a report on the investigation; or

(ii)for another action it decides; or

(b)direct 1 or more of its members to carry out an investigation or inspection and prepare a report on the investigation or inspection.

(5)      The commission or member must comply with the reference or direction. 

1. Section 453 of the IR Act provides that this "part does not limit, by implication, another power given to, or possessed by, the Commission under this Act or another Act or law."

2. The statutory framework is relevant to the consideration of the issues in this matter, including whether there is a dispute of such a nature which would enliven the Commission's jurisdiction to make the orders sought by Enco. However, prior to considering this jurisdictional point, it is necessary to address the evidence heard before the Commission.

1. Evidence before the Commission

1. The matter proceeded to hearing over the course of three days.  The evidence in chief of each of the relevant witnesses was in the form of affidavit evidence. The parties respectively relied on expert evidence and the reports of each of the experts were tendered into evidence. The witnesses[30] were cross-examined.  The parties did not have the benefit of the transcript when submissions were made on the final day of hearing. The transcript has subsequently been made available to the Commission.

   [30] Except for Ms Leanne Butkus, an employee of the union, whose affidavit was tendered (see Exhibit 14) without the need for her to be cross-examined.

2. During the course of the hearing, Enco called the following witnesses, who were each senior employees[31] of Enco:

   (a)Mr Steven James, general manager and director;

   (b)Mr Goran Duric, production foreman; and

   (c)Mr Forbes Day, operations manager.

   [31] And shareholders.

3. Additionally, Enco called Mr Alex Milligan, a structural and civil engineer, to provide expert evidence.

4. The respondents called the following witnesses, who were either employees or officials of the union:

   (a)Mr Shaun Desmond;

   (b)Mr Craig Davidson;

   (c)Mr Luke Gibson;

   (d)Mr Anthony Stott;

   (e)Mr Anthony Harding; and

   (f)Mr Beau Seiffert.

5. The respondents relied on the expert evidence of Mr Herzog, a consultant engineer specialising in material engineering. 

6. A component of the evidence dealt with the events on 3, 4 and 5 September 2019. As these factual matters are relevant to my consideration of the issues to be resolved, I will provide a summary of that evidence below.

3.1.   Receipt of complaint and subsequent steps taken by the union

1. The respondents called Mr Stott, who is employed by the union as a compliance officer and who, as part of his duties, managed the union's safety hotline.

2. Mr Stott gave general evidence[32] about how the safety hotline operated, which may be summarised as follows:

   (a)a complaint may be made to the safety hotline by calling the safety hotline telephone number or online by lodging a complaint at The telephone hotline is attended to by a representative of the union between, 7.00am and 4.30pm, Monday to Friday, with an out of hours message service operating for any complaints logged out of hours;

   (b)calls from the hotline go directly to the work telephone number;

   (c)his practice is not to take the name or other identifying information from the complainant;

   (d)at the time of receiving a complaint, Mr Stott makes a note of the information as he receives it and then logs the complaint on the Office of Industrial Relations, Workplace Health and Safety Electrical Safety Office Worker's Compensation Regulator, WorkSafe ("WHSQ") website; and

   (e)after logging the complaint, a computerised receipt from WHSQ of the complaint is then generated by return email.

   [32] Exhibit 15.

1. Mr Stott also gave evidence about the complaint he reports having received on 3 September 2019 in relation to the Enco site. Mr Stott's evidence[33] in relation to his receipt of the complaint, may be summarised as follows:

   [33] Ibid.  

   (a)on 3 September 2019 at about 9.00am, Mr Stott was working in the union's office and received a telephone call through the safety hotline;

   (b)the caller stated that:

   (i)there were "some safety issues on a site" and described them as being:

   Some of the lifting equipment is in poor condition because it is not maintained.  Some of it is very old looking and there is no paint on it.  It has been knocked around and I don't think it is listed on the lift register.

   …

   There is shit everywhere throughout the site. Things are put wherever there is an empty spot and stuff is just chucked in there.  The place is a mess.

   (ii)The site was the "Enco Precast yard at 73 Counihan Road Seventeen Mile Rocks"; and 

   (c)Mr Stott said he made some handwritten notes of the conversation as it occurred and then attempted to submit the information on the WHSQ website but was unable to do so after three attempts.

1. Mr Stott's handwritten notes of the conversation were not in evidence[34] and under cross-examination he indicated that it was likely that he disposed of the notes after he eventually logged the call with WHSQ.[35]

   [34] T1-96, ll 23-45 and T1-97, ll 1-6.

   [35] T1-96, ll 32-33.

1. Mr Stott evidence about what he did following receipt of the complaint may be summarised as follows:

   (a)at about 9.10am, Mr Stott spoke to Mr Jade Ingham, the Assistant Secretary of the union and advised him of the complaint;

   (b)Mr Stott described the issues at the Enco site to Mr Ingham as "[l]ifting devices and register and housekeeping. Also sounds like access and egress";

   (c)Mr Stott describes Mr Ingham as having stated that he would "get some boys to head out there"; and

   (d)Mr Stott indicated that he would continue to try and log the complaint on the WHSQ website. 

1. Mr Stott's evidence was that after speaking to Mr Ingham, he was able to log the complaint on to the WHSQ website.

2. The Department sent an email back to the union, attaching the complaint Mr Stott had submitted at 10.16am. The complaint was allocated register number 42570 by WHSQ.[36]

   [36] Exhibit 15, TS-3.

1. Mr Stott described the issues on the WHSQ form as follows:

   Some of the lifting equipment not maintained and in poor condition and not on lifting equipment register.

   Access & egress through work areas in normal and emergency conditions not satisfactory, stuff just stored anywhere there is some space.

2. Mr Stott forwarded the email receipt from WHSQ to Mr Seiffert and Mr Desmond, copying in Mr Kupsch and Mr Mick Robinson.

3. Mr Stott says that Mr Ingham did not ask him the identity of the caller. 

3.2.   Attendance at Enco's site on 3 September 2019

1. Mr Seiffert, Mr Desmond and Mr James gave evidence about what occurred when Mr Seiffert and Mr Desmond sought entry at the Enco site on 3 September 2019.

2. Mr Seiffert's evidence,[37] may be summarised as follows:

   [37] Exhibit 21.

   (a)on 3 September 2019, he attended a meeting with Mr Desmond and Mr Ingham, during which Mr Ingham advised him that a safety complaint had been received through the union's hotline from a worker at the Enco yard, stating that there were issues with unsafe access and egress to work areas and the rigging gear register was not up-to-date;

   (b)Mr Ingham requested he and Mr Desmond attend on the Enco site in response to the complaint;

   (c)he was aware of the type of work being performed at Enco, as he had previously attended the site and had seen a forklift operating around the yard and several cranes in use;

   (d)he believed that there were riggers and doggers performing work at the site, based on the high-risk nature of the loads that were lifted by the cranes and he believed that those workers were eligible to be members of the union;

   (e)on the basis of the information he had received, that there were potential consequences of the lifting gear failing and he suspected that Enco was not ensuring a safe place and/or safe system of work, as was required pursuant to s 19 of the WHS Act;

   (f)he and Mr Desmond arrived at the site at approximately 10.22am and that he was wearing a body camera which recorded their attendance at site;

   (g)he had completed the Notice of Entry on 3 September 2019,[38] which recorded the details of the suspected contravention as follows:

   [38] Exhibit 21, BS-2, page 2.

   Additional – for entry under section 117

   Details of the suspected contravention to which this notice relates:

   LIFTING REGISTER NOT COMPLETE + UP TO DATE

   ACCESS + EGRESS AROUND SITE NON-COMPLIANT UNDER NORMAL OR EMERGENCY CONDITIONS

   (h)he and Mr Desmond spoke to Mr Steven James, General Manager and Director of Enco, who was with other Enco workers and he advised Mr James that a complaint had been received about the lifting gear not being up-to-date and access and egress being substandard; and

   (i)he states that Mr James advised him that he would not be permitted to enter the site, on the basis that he did not believe that there had been a complaint and that the union was not able to represent workers at the site.

3. Mr Desmond gave evidence which was generally consistent with Mr Seiffert.[39]

   [39] Exhibit 17.

4. An extract of Mr James' evidence[40] of the conversation he had with Mr Seiffert and Mr Desmond is relevantly, as follows:

   [40] Exhibit 2, [43].

   Me:"You don't have coverage of our workers or a reasonable suspicion, you are not permitted to enter"

   Mr Seiffert:"We are going to go and have a look at the safety contravention."

   Me: "I am not going to escort you mate. You are not walking out on the site. You leave the site now. Call WHSQ."

   Mr Seiffert:"You know we can't leave site."

   Me: "You can leave site."

   Mr Seiffert:"We go on every job site."

   Me: "This isn't a job site, this is a manufacturing site."

   Mr Seiffert:"We still have coverage here."

   Me: "You don't"

   Mr Seiffert: "We do. You've still got trades who are doing things we have coverage over."

   Me: "You don't"

   Mr Seiffert:"If you have nothing to worry about, why wouldn't you just let us walk out on site?"

   Me: "You don't have coverage of our workers."                

1. Following this exchange, Mr Seiffert and Mr Desmond sought the assistance of the Work Health and Safety Regulator to attend on site to assist to resolve the dispute about entry. After some initial further discussion, Mr James took Mr Seiffert and Mr Desmond to a meeting room to wait whilst they were there. Three police officers attended the site and spoke to Mr Seiffert and Mr Desmond. The police officers sought Mr Seiffert's and Mr Desmond's details and advised that they were present to keep the peace. The police then left the meeting room and remained in a car park for the rest of the day.[41]

   [41] Exhibit 21, [37] – [41].

1. Whilst Mr Seiffert waited in the meeting room,[42] he could view monitors connected to CCTV that were operating in the crib room, the yard, the car park and on the front gates. The monitor showed workers performing work including pouring concrete into moulds, operating a gantry crane and rigging beams to be moved by the gantry crane.

   [42] Exhibit 21, [42]-[43].

1. At approximately 12.15pm, WHSQ Inspectors Houston, Hogan and Bell attended the site and met with Mr James, Mr Forbes Day (operations manager, Enco), Mr Seiffert and Mr Desmond in Enco's board room.

2. A component of the evidence at hearing dealt with the conversation between the inspectors, Mr Seiffert, Mr Desmond and Mr James about the union's eligibility rules and the identity as to, who had made the complaint. The transcript of that conversation identifies that the parties appear to be at cross-purposes in relation to the identity of the complainant and whether the complainant was a relevant worker. The inspectors expressed a view, on several occasions, that the operation of the WHS Act required that the complaint must be made by a relevant worker. That misapprehension as to the effect of the relevant provision of the WHS Act resulted in an unnecessary line of questioning by the inspectors, during the course of the meeting.

3. At approximately 1.30pm, Inspector Houston expressed a view that the union did not have coverage of the workers at Enco.

1. After further discussions between the parties, the inspectors were seen to have made several telephone calls. The inspectors returned and stated that a view had been formed that the workers at site were eligible to join the union and that Enco should permit the s 117 entry to occur.

1. Mr James disputed the Inspector's view that the union had coverage, as follows:[43]

   They don't have coverage or a reasonable suspicion. A dispute has been lodged with the QIRC to determine this.

   [43] Exhibit 2, [47].

2. Mr James refused to permit Mr Seiffert or Mr Desmond to conduct an inspection. Inspectors Bell and Hogan did enter the site but did not raise any specific safety issues with Mr James.

1. Inspector Houston issued an improvement notice stating that Enco, through Mr James, had refused the entry of Mr Seiffert and Mr Desmond without reasonable cause.[44]

   [44] Exhibit 2, SJ-1, page 19.

1. Mr Desmond and Mr Seiffert then left the site.

3.3.   Attendance at Enco's site on 4 September 2019

1. At approximately 9.30am on 4 September 2019, Mr Seiffert and Mr Desmond attended at the Enco site.

2. Mr Seiffert's evidence was that:

   (a)they attended the site on that occasion to finalise the entry from the previous day; and

   (b)they provided Mr James with Notices of Entry, which were in similar terms[45] as the Notices of Entry provided on 3 September 2019.

   [45] Ibid, pages 21 and 22.

3. Upon attending the site, Mr James, together with other workers, physically positioned themselves in such a way so as to prevent Mr Seiffert and Mr Desmond from entering the gates. 

1. Mr Seiffert stated that he advised Mr James that he and Mr Desmond were attempting to enter the site, pursuant to s 117 of the WHS Act and provided Mr James with a copy of the entry notices pursuant to s 119 of the WHS Act.

2. Mr James refused entry to Mr Seiffert and Mr Desmond and indicated to them that Enco would be seeking to have the matter dealt with urgently in the Commission.

1. Mr Seiffert and Mr Desmond then sought the assistance of WHSQ inspectors, who attended the site. Upon attending the site, the inspectors undertook a safety inspection.

2. During that inspection, it became apparent that the parties had been advised that an interlocutory injunction had been filed in this Commission and that it was listed to be heard at 12.30pm that day. Mr James indicated to the inspectors that he was leaving to attend the hearing of the urgent injunction.

1. The inspectors issued two further improvement notices to Enco, requiring it to allow the permit holders to enter by 11.45am that day.

1. The inspectors then left the site and Mr Seiffert and Mr Desmond left soon after.

1. Later that day, an application for an interlocutory injunction was sought by Enco. That application was heard before me and dismissed.

3.4.   Attendance at Enco's site on 5 September 2019

1. On 5 September 2019, Mr Seiffert and Mr Desmond again attended the site. However, on that occasion, they were in the company of Mr Harding, Mr Davidson and Mr Gibson who were officials of the union. Mr Seiffert again activated his body camera upon attendance at the site.

2. It is uncontested that each of those in attendance were officials of the union and had valid right of entry permits. They each produced notices which were in similar terms to the notices provided by Mr Seiffert and Mr Desmond on 3 and 4 September 2019.

3. Mr Seiffert gave evidence as to the attempted entry, which may be summarised as follows:

   (a)he approached a security guard who was stationed at the entrance to the Enco site;
   
   

   (b)he sought to explain to the security guard that he and the other officials were seeking to enter under s 117 of the WHS Act; and

   (c)the security officer advised that they were not permitted to enter.

4. Mr James then met the union representatives as they approached the site office. Mr James states that the following conversation took place:[46]

   [46] Exhibit 2, [63].

Me: "So I understand you have walked past the security guard."

Mr Seiffert:"We have walked into the gate, yep. I opened the gate."

Me: "So you have had an additional complaint, today?"

Mr Seiffert: "No, this is the same as before. We are here to close out the issues that we haven't been allowed to close out yet."

Me: "So we have additional members addressing the same complaint."

Mr Seiffert:"We haven't closed out the issue from when we first arrived onto site."

Me: "I'm just going to ask you to leave. You pushed through our security, you've entered a closed gate."

Mr Seiffert:"We have a lawful right to enter the worksite." 

Mr Seiffert:"So are you hindering our site visit today under section 117?" 

Me: "Yes. You need to deal with that under the QIRC process."

Mr Seiffert:"Are you going to obstruct us?"

Me:"Yes."

Mr Seiffert:"Mate, I can't stand out here in the sun again like yesterday, so I'm going to head into the site office." 

1. Mr Seiffert's evidence as to the events that then occurred, may be summarised as follows:

   (a)he contacted WHSQ and sought the assistance of WHSQ inspectors;

   (b)as the union officials were waiting for the inspectors to arrive, Mr James returned and advised them that he would take them around the site;

   (c)the entry permit holders were then taken around the site in the company of Mr James and other employees of Enco;

   (d)after completing the inspection with Mr James, the WHSQ Inspectors Houston, Hogan and Stanley arrived at the site;

   (e)a formal safety inspection was then conducted by the Inspectors together with the entry permit holders and representatives of Enco; and

   (f)during the safety inspection several safety issues were identified.

1. Following completion of the safety inspection, the inspectors conducted a meeting with the participants of the inspection to discuss the safety issues that had been identified.

2. Following the conclusion of that meeting, the WHSQ inspectors issued[47] Enco with six separate improvement notices[48] and one infringement notice.[49] In summary, the safety issues identified in the notices were described, as follows:

   [47] On the following days.

   [48] Exhibit 2, SJ-1, pages 29-34.

   [49] Ibid, page 35.

   (a)     Notice No. I2011967: several trip and fall hazards were observed and photographed, including electrical leads, production materials and waste laying in and around the workplace.

   (b)     Notice No. I2011969: Mr Stanley observed and photographed contravention of access to engage lifting equipment to concrete beams, which were stacked "three high". This posed a risk to workers of a falls from one level to another.

   (c)     Notice No. I2011972: lifting equipment (slings) which were not on the lifting equipment register were observed and photographed.

   (d)     Notice No. I2011968: Mr Stanley observed and photographed incompatible chemicals stored together and inadequate chemical bunding was used to store chemicals in the chemical storage area. Hazardous chemicals stored in the area were not on the chemical register and did not have safety data sheets (SDS).

(e)     Notice No. I2011970: electrical leads and equipment that were out of test and tag date were observed and photographed, including electrical leads running through the workshops, production areas without mechanical protection and extension leads "piggy backed" to excessive lengths.

(f)      Notice No. I2011971: Mr Stanley observed and photographed that there were no identified pathways or signage around the site to separate vehicle and plant from the workers under normal working conditions and in an emergency. The fencing that had been installed to prevent access to the travel path of overhead cranes was in ill repair, missing parts and did not have adequate warning signage.

(g)     Infringement Notice I025350: regulation 346(1)(b) of the Regulations was contravened, being the register was not properly maintained to ensure the information in the register is up to date.

1. The respondents contend that because the permit holders were ultimately permitted to enter the site on 5 September 2019 and conduct a safety inspection with WHSQ, that the dispute, at least in so far as it relates to reasonable suspicion, was resolved. 

1. Does the Commission have jurisdiction to assist in the resolution of the dispute as described by Enco?

1. Section 142 of the WHS Act authorises the Commission to exercise wide powers to deal with a dispute about the exercise, or purported exercise, by a WHS entry permit holder of a right of entry under the WHS Act.[50] However, in order to exercise such powers, I must be satisfied that a dispute about entry as described by s 142(1) of the WHS Act exists.

   [50] In Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1000 ("Acciona"), [55], Murphy C described the powers as being "extremely wide".

2. As noted above, two of the issues that I must consider in this matter is whether the permit holders held a reasonable suspicion in the terms of s 117(2) of the WHS Act and whether the workers were "relevant workers" within the meaning of s 116 of the WHS Act.

3. The respondents accept that the dispute, in so far as it relates to whether the workers were "relevant workers" within the meaning of s 116 of the WHS Act, is a dispute which falls within the Commission's powers to deal with a dispute pursuant to s 142 of the WHS Act.[51] The basis of that position is that it is accepted that the parties continue to maintain their respective positions about the eligibility of the workers to be members of the union and that position will continue and effect future attempts to enter the workplace.

   [51] T3-56, ll 35-37.

1. However, with respect to the question as to whether the permit holders held a "reasonable suspicion" on  3, 4 and 5 September 2019,  the respondents submit that that dispute has been resolved by Enco permitting entry on 5 September 2019 and the safety issues having been addressed on that day.

2. This dispute, in so far as it relates to the allegation as to whether the permit holders held a reasonable suspicion, was a live dispute on 3 and 4 September 2019. That is because on each of those days, the permit holders issued a notice of entry wherein they purported to hold a reasonable suspicion about an alleged contravention of the WHS Act. On each of these occasions, the permit holders were refused entry.

3. On 5 September 2019, however, when the permit holders sought entry on the basis that they held a reasonable suspicion[52] they were, ultimately, permitted to enter the site and an inspection subsequently occurred identifying several safety issues which were the subject of improvement notices and one infringement notice.

   [52] The permit holders provided notices of entry and explained that the purpose of the entry was to close out the issues which they had not yet been permitted to close out from 3 September 2019 and 4 September 2019, see Exhibit 2, [63].

4. I do not consider that there is a dispute about whether the permit holders held a reasonable suspicion about the matters required by s 117 before entry, because on 5 September 2019, the permit holders were permitted to enter the site and the entry was affected. Accordingly, the dispute about whether the permit holders held a reasonable suspicion before entry is no longer in dispute.

5. Enco further argues that the "reasonable suspicion" issue is part of the foundation of the dispute, which gives the Commission its jurisdiction to deal with the matter under s 142 of the WHS Act.

6. I do not consider that the dispute, in so far as it relates to whether the entry permit holders held a reasonable suspicion, creates the foundation of the dispute on the basis that the dispute about those matters has been resolved.

7. That is not to say, however, that the Commission does not have jurisdiction pursuant to s 142 of the WHS Act. I consider that the foundation of the dispute is the dispute, which is of an ongoing nature, regarding whether the union is eligible to represent the industrial interests of the "relevant workers". The nature of that dispute is of a kind that remains unaffected by the entry because future entries at the Enco site will require the dispute about the union's eligibility to represent the workers at the site to have been resolved.

1. Finally, Enco submits that if this issue is left unresolved, it will be exposed to penalties for breach of the WHS Act. Presumably, the reference to an exposure to penalty for a breach of the WHS Act is a reference to potential penalties that could be sought arising out Enco's refusal to permit entry on 3 and 4 September 2019 and its alleged non-compliance with the Improvement Notices issued by the inspectors on 3 and 4 September 2019.[53]

   [53] Work Health and Safety Act 2011 (Qld) ss 145 and 146.

2. The proceedings before me do not seek any orders against Enco or its officers and/or employees, including seeking orders for pecuniary penalties. Accordingly, the conduct of Enco and its officers and employees in the context of any potential breach of the WHS Act are not matters that I need consider in this proceeding. In the present circumstances, I do not consider that Enco's possible exposure to penalties for beach of the WHS Act is relevant to the matter, nor does it enliven the jurisdiction of the Commission to deal with the dispute pursuant to s 142 of the WHS Act.

3. In case my conclusion that there is no dispute able to be resolved about "reasonable suspicion" is wrong, I have detailed my reasoning in relation to whether the permit holders held a "reasonable suspicion" further below.  

1. Did the permit holders hold a "reasonable suspicion" that a suspected contravention had occurred, or was occurring, that affected relevant workers

5.1.   Onus – who must establish reasonable suspicion?

1. Enco and the respondents each respectively contend that the onus rests with the other to establish whether there was (or was not) a reasonable suspicion for the purpose of s 117 of the WHS Act on each of the days of the relevant attempted entries.

2. The respondents submitted that Enco bears the onus of establishing that the permit holders did not have a reasonable suspicion,[54] on the basis that Enco is the only party seeking orders.

   [54] Respondents' Final Submissions dated 5 December 2019, [21]. 

1. In the alternative, Enco contends that the onus to prove whether the permit holders held a reasonable suspicion, lies with the permit holder.[55] In support of its position, Enco relied on the Explanatory Notes to the Workplace Health and Safety Bill 2011, which identifies that there is an intention that the permit holder be required to prove the suspicion is reasonable, in the following circumstances:[56]

Subclause 117(2) requires the WHS permit holder to reasonably suspect before entering the workplace that the contravention has occurred or is occurring. If this suspicion is disputed by another party, the onus is on the WHS permit holder to prove that the suspicion is reasonable.

[55] Applicant's Outline of Submissions dated 22 November 2019, [11] – [13].

[56] Explanatory Notes, Work Health and Safety Bill 2011 (Qld), 67. 

1. Further, Enco submits that as the permit holders were the only persons with the ability to know and prove the facts, they bear the onus of establishing a reasonable suspicion.[57]

   [57] Johnson v Triple C Furniture & Electrical Pty Ltd [2010] QCA 282, [52] – [54].

2. It appears, by reference to the Explanatory Notes, that it was parliament's intent that the onus rests with the permit holders to establish reasonable suspicion, if the suspicion is disputed by another party. That intention is consistent with the relevant authorities,[58] in so far as the party who has the ability to know and prove the facts bears the onus of establishing them. Here, it is the permit holders who have the ability to prove the basis of the reasonable suspicion.

   [58] Ibid.

3. Accordingly, it is for the permit holders to discharge the onus to establish that they held a reasonable suspicion, in circumstances where that suspicion is disputed by Enco.

5.2.   Consideration of the term "reasonable suspicion" – the authorities

1. The parties referred to a number of authorities considering the phrase "reasonable suspicion". The context of the phrase, as it appears within s 117(2) of the WHS Act, relevantly, is as follows:

   (1)    A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

   (2)    The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

2. In George v Rockett (1990) 170 CLR 104 at 112, the High Court considered the term "reasonable grounds" for a state of mind including suspicion, as follows:

   When a statute prescribes that there must be "reasonable grounds" for a state of mind – including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[59]

   [59] George v Rockett (1990) 170 CLR 104, 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

3. The New South Wales Industrial Commission in Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor ("Acciona")[60] when considering a similar provision of the Work Health and Safety Act 2011 (NSW),[61] had regard to the following authorities:

   [60] [2017] NSWIRComm 1000, [65]-[66] (Murphy C).

   [61] Work Health and Safety Act 2011 (Nsw) s 117.

   65      In R v Rondo, an authority relied upon by both parties, the Court of Criminal Appeal considered the term "reasonably suspects" in the context of section 357E of the Crimes Act 1990 which was, at the time of those proceedings, in the following terms:

   357E  A member of the police force may stop, search and detain:

   (a)any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence; or

   (b)any vehicle in which he or she reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence.

   66      After considering the authorities cited in Streat v Bauer; Streat v Blanco (unreported, Supreme court, NSW, Smart J, Nos 13686, 13687 of 1996, 16 March 1998) Smart AJ stated as follows at [53]:

   53 These propositions emerge:

   (a)A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create more than a possibility. There must be something which would create in the mind of a reasonable persona an apprehension of fear of one of the state of affairs covered by s. 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

   (b)Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be show. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

   (c)What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.

4. After considering these authorities, the New South Wales Industrial Commission concluded that:[62]

   67 In the present matter, the question to be answered was whether or not there was some factual basis, some material or materials with probative value, which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, s 19 of the WHS Act by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the Site.

   [62] Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor [2017] NSWIRComm 1000, [67].

1. I propose to adopt a similar approach in this matter. I will consider whether or not there was some factual basis or material/s with probative value which would create, in the mind of a reasonable person, a suspicion that Enco had contravened, or was contravening, s 19 of the WHS Act.

5.3.   Did the right of entry permit holders hold a reasonable suspicion?

5.3.1. Particulars included in the notice

1. One of the arguments raised by Enco is that the notices of entry purportedly given, as required by s 119 of WHS, did not describe the suspected contraventions in any meaningful way so as to enable Enco to determine whether they should allow the respondents onto the site.[63] Enco relied on Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd[64] ("ALAEA"), where Justice Flick stated:[65]

   127      …An inability on the part of a permit holder to adequately "specify the particulars" may assist in reaching a conclusion that a permit holder does not "reasonably suspect" that a contravention has occurred or is occurring.

   [63] Applicant's Outline of Submissions in reply dated 22 November 2019, [17].

   [64] Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065.

   [65] Ibid, [127] (Flick J).

2. Enco submitted that the lack of meaningful particulars of the suspected contravention strongly suggests that the permit holders did not reasonably suspect that a contravention had occurred or was occurring.

3. The respondents contend that the reliance on the ALAEA decision is misplaced on the basis that the statutory regime for entry, pursuant to the WHS Act, is materially different to that contained in the FW Act. Relevantly, under the WHS Act, a permit holder does not have to give the occupier notice of the suspected contravention prior to entering, whereas, under the FW Act, the permit holder must give the occupier notice of the suspected contravention prior to entry.

4. I accept the respondents' submissions that the reliance on the passage from the ALAEA decision is misplaced, when considering the statutory regime for entry pursuant to the WHS Act. The requirements for entry under the WHS Act differ to the requirements for entry contained in the FW Act. The differences include that a permit holder under the FW Act,[66] must, before entering, give the occupier of the premises an entry notice for the entry and particulars of the suspected breach must be specified in the entry notice.[67]

   [66] Fair Work Act 2009 (Cth) s 487(1)(a).

   [67] Ibid, s 518(2).

5. The requirements under the WHS Act were considered by the Full Court of the Federal Court of Australia in Ramsay v Menso,[68] as follows:

   42 Fourth, we note that s 125 of the WHS Act requires that the permit holder, at all times that he or she is at a workplace under a right of entry under Divs 2 or 3 of the WHS Act, have his or her WHS entry permit and photographic identification available for inspection by any person on request. It follows that in exercising the right of entry under ss 117 and 119 the permit holder must have the permit and photographic identification with him or her, but not necessarily, the notice of entry. Provided the reasonable suspicion required by s 117 exists, it is the permit and the photographic identification which ensure that the occupier of the site can be satisfied that the person exercising the right of entry is both empowered to do so, and is the person described in the permit. To that extent the logical purpose of the provision of a notice after entry is to create a record of the entry, to inform the occupier of the premises of the nature of the reasonable suspicion held, and to demonstrate the entitlement, under the relevant organisation's rules, to represent the relevant workers.

   [68] Ramsay v Menso [2018] FCAFC 55, [42] (Dowsett and Collier JJ).

6. Accordingly, the purpose of an entry notice under the WHS Act is to create a record of entry and to, inter alia, inform the occupier of the premises the nature of the reasonable suspicion held.

7. I consider that the notices provided by the permit holders on 3, 4 and 5 September 2019 were adequate in so far as they informed Enco of the nature of the reasonable suspicion held. That is, the suspicion related to the lifting register not being complete and up to date and access and egress around the site being non-compliant under normal or emergency situations. Consequently, I am not able to draw the inference sought to be drawn by Enco, that any perceived lack of particulars strongly suggests that the permit holders did not reasonably suspect that a contravention had occurred or is occurring.

1. The respondents submitted that the prestressing procedure is an essential part of Enco's business. Further, it was submitted that Mr Duric's affidavit states that prestressing process takes place for approximately five hours per day. The respondents submitted that the evidence of Mr James and Mr Day in cross examination, was that when prestressing was taking place, the person was required to operate or attend the pump. This required being in physical contact with the pump at all times, whilst it was operating. There was also the worker who was responsible for handling the pumps' connection to the jacks and their gauges.

2. Whilst I accept that the prestressing procedure is an essential part of Enco's business and that the prestressing process is conducted over a large part of the working day, there is no direct or detailed evidence about the individual workers who perform that work. Given the absence of evidence I am unable to undertake a quantitative or qualitative assessment as to whether any worker at the site performs the role of pump attendant as a primary function of their employment.

1. Commissioner of Police v Seiffert & Ors ("Seiffert")[198]

[198] Commissioner of Police v Seiffert & Ors [2020] QDC 50.

1. Following the hearing of this matter, Enco forwarded a copy of the decision of the District Court of Queensland in Seiffert, together with supplementary submissions. I issued Directions providing the respondents with an opportunity to file further supplementary submissions in reply.  

2. In Seiffert, the Commissioner of Police sought to appeal the decision of a magistrate, finding that there was no case to answer against each of the defendants. The defendants in that matter included Mr Seiffert.

3. Mr Seiffert and others had been charged with trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld), when they sought entry into the Enco premises and unlawfully remained on the premises.

4. Mr Seiffert and the other defendants were seeking to exercise a right of entry at Enco under s 118 of the WHS Act. The charge identified the dates of the offence as being 17 December 2018, some many months before the attempted entries and entry considered by me in this matter. I note that during the course of this proceeding and submissions made by the parties, that neither Enco nor the respondents referred to the matter of Seiffert.

5. At first instance, the magistrate determined that upon a proper construction of s 11(3) of the Summary Offences Act 2005 (Qld), an immunity from liability is conferred upon authorised industrial officers who remain at a workplace in order to exercise a right of entry under s 118 of the WHS Act.

6. Rafter DCJ found that the finding of the magistrate ignored the rights of the occupier.[199] Rafter DCJ found[200] that the magistrate erred in ruling that the respondents had no case to answer and ordered that the appeals be allowed and the orders by the magistrate dismissing the charges be set aside. As the charges were dismissed after the close of the prosecution case, Rafter DCJ found that the respondents did not have an opportunity to give or call evidence and accordingly, remitted the matter to the Magistrates Court to proceed according to law. The decision in Seiffert is subject to an appeal to the Court of Appeal.[201]

   [199] Ibid, [59].

   [200] Ibid, [140].

   [201] Respondents' Further Supplementary Submissions dated 12 May 2020.

1. Enco submitted[202] that in relation to the current matter, the right of entry permit holders entered the site and were asked to leave. It was further submitted that when they did not comply with the request to leave, the officials were trespassing on the site and that their continued presence as trespassers is a matter relevant to my deliberation of this dispute.

   [202] Supplementary Submissions of the Applicant filed 7 May 2020, [3].

2. In reliance of its position, Enco referred to several passages[203] of the Seiffert decision, including [75], where Rafter DCJ states:

Although Mr Ryan contended that it was doubtful that s 142 WHS Act applied to a dispute about the right to remain on premises, I consider that the provision does enable the Industrial Commission to deal with such matters. The fact that s 142(5) WHS Act provides that in dealing with a dispute the Industrial Commission must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the entry permit holder, is an indication of the broad role of the Commission: see for example Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acconia Infrastructure Australia Pty Ltd & Ors. The WHS entry permit holder must reasonably suspect that a contravention has occurred or is occurring before entering the workplace. Where that is disputed, the Industrial Commission can deal with the issue under s 142 WHS Act.

(Citations omitted)

[203] Commissioner of Police v Seiffert & Ors [2020] QDC 50, [38] – [75].

1. From the above, it appears that Rafter DCJ expressed a view that a right to remain on premises may be a matter the Commission can deal with pursuant to s 142 of the WHS Act.

2. However, a dispute about whether the officials had a right to remain on the premises did not form part of the subject matter of the dispute filed by Enco in this matter. The notice of the dispute filed on 3 September 2019 was stated to be a dispute about the attempt of right of entry pursuant to s 117 of the WHS Act on 3, 4 and 5 September 2019 based on the union's ability to represent relevant workers as defined by s 116 of the same act, and the existence of a reasonable suspicion that a suspected contravention has occurred, or is occurring, that effects a relevant worker.

3. Accordingly, I do not consider that the matters raised by Enco in its supplementary submissions are relevant to my disposition of this matter. I further note, that in any event, the factual circumstances in this dispute may be able to be distinguished from those in Seiffert, because on 3 and 4 September 2019, the inspectors issued improvement notices to Enco, requiring Enco to, inter alia, permit the entry by the right of entry permit holders.

1. Should the relief sought by Enco be granted?

1. I decline to make the orders sought by Enco and dismiss the application.

2. I determine that the jurisdiction of the Commission to assist in the resolution of the dispute, did not extend to whether the right of entry permit holders held the requisite "reasonable suspicion" pursuant to s 117 of the WHS Act for entry, because entry based on that suspicion was affected on 5 September 2019. In case that conclusion was wrong, I considered whether the right of entry permit holders discharged the onus on them to establish that they held a reasonable suspicion before the entry. I conclude that the onus was discharged.

3. I further conclude that the workers are eligible to be members of the union on the basis of the terrazzo rule. I do not accept that the matters relied on by Enco were of such a nature for me to conclude that the Enco product and terrazzo were not of similar compositions. Relevantly, each product is composed of cement, water, aggregate of varying size and admixes and are able to be reinforced with steel. I do not consider that the finishing process of grinding or honing the concrete for terrazzo alters the composition so that it is no longer similar to the Enco product.

4. With respect to the FEDFA rule, I consider that there is plant and machinery operated by workers in the ordinary course of their duties of the type referred to in the FEDFA rule. I conclude that the evidence adduced by Enco did not discharge the onus resting on Enco to establish that the work performed on the bobcat skid-steer, gantry crane, hydraulic pump and boiler was not a primary function of the workers' employment. Indeed, I consider that there was a body of evidence, particularly with respect to the work undertaken operating the cranes, which suggests that such work may form the primary function of employment for some workers. Although, I ultimately determined, due to the absence of evidence as to the detailed nature of the work of the workers, not to make such a finding.

1. Order

1. The application is dismissed.