Fair Work Commission

[2013] FWC 10168

[2013] FWC 10168 [Note: An appeal pursuant to s.604 (C2014/2631) was lodged against this decision - refer to Full Bench decision dated 24 April 2014 [[2014] FWCFB 2709] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights

Fair Work Commission
(RE2013/1710)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 23 DECEMBER 2013

Consideration of misuse of entry rights - s508 - description of conduct - findings of misuse.

[1] On 11 November 2013 I notified the Construction, Forestry, Mining and Energy Union (CFMEU) and Lend Lease Building Contractors (Lend Lease) that I had decided to initiate action of my motion pursuant to s.508 of the Fair Work Act 2009 (the FW Act) with respect to matters which occurred on 30 October 2013 that were the subject of earlier consideration in a s.418 application made by Lend Lease. The alleged behaviours involved entries by named and unnamed persons, asserted to be CFMEU officials, to various building sites.

[2] The Lend Lease s.418 application was lodged on 31 October 2013 and was resolved through a decision issued on 1 November 2013. 1 In that decision I took into account a series of visits to Lend Lease sites by CFMEU officials. The unchallenged evidence was that no notifications of rights of entry pursuant to s.518 of the FW Act were given. In the course of consideration of that matter I directed the attention of the parties to s.508 of the FW Act and foreshadowed the possibility of this action. I invited the CFMEU to provide some form of undertaking relative to its future behaviour. I concluded the s.418 hearing on the basis that I would have regard to any advice that the CFMEU chose to provide over the following week in deciding whether to further countenance s.508.

[3] No such advice was provided and the notification of 11 November 2013 was forwarded accordingly.

[4] Section 508 of the FW Act states:

“508 FWC may restrict rights if organisation or official has misused rights

(1) The FWC may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if the FWC is satisfied that the organisation, or an official of the organisation, has misused those rights.

Note: Only a Vice President, Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).

(2) The action that the FWC may take under subsection (1) includes the following:

(a) imposing conditions on entry permits;

(b) suspending entry permits;

(c) revoking entry permits;

(d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions;

(e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;

(f) making any order it considers appropriate.

(3) The FWC may take action under subsection (1):

(a) on its own initiative; or

(b) on application by an inspector.

(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:

(a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or

(b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:

(i) because the exercise of the right is excessive in the circumstances; or

(ii) for some other reason.”

[5] The matter was the subject of an initial hearing on 21 November 2013. Mr Reitano of counsel appeared for the CFMEU, Mr Earls of the Master Builders Association of SA appeared for Lend Lease and Mr Dowd, of counsel appeared for Fair Work Building and Construction (FWBC) which had given notice that it sought to be heard pursuant to s.72 of the Fair Work Building and Construction Industry Act 2012 (the FWBC Act). Grants of permission, as appropriate were made pursuant to s.596(2)(a) of the FW Act. I note that in subsequent proceedings Mr Pearce, of counsel appeared for the CFMEU and Mr Roder, of counsel appeared for FWBC.

[6] Various affidavits were filed by both Lend Lease and FWBC prior to this hearing.

[7] At the hearing on 21 November the CFMEU sought that I disqualify myself from further consideration of the matter on the basis of an apprehension of bias. Consideration of the matter was deferred pending my review of the CFMEU position. A decision 2 in this respect was issued on 27 November 2013. In this decision I declined to excuse myself from further consideration of the matter and advised that, on the basis of the additional material provided to me, I proposed to extend my consideration of s.508 such that later events may be taken into account. The matter was relisted for 10 December 2013 and directions were issued which required any objection to these more extensive considerations to be filed and served by 6 December 2013. I note that no advice to this effect was received.

[8] I also note that, on 12 December 2013 the CFMEU lodged an appeal against the apprehended bias decision. No stay of that decision was sought and I subsequently refused a CFMEU submission that further consideration of the matter be deferred pending this appeal. My position in this respect was founded on the material which indicated that the CFMEU approach of 30 October 2013 was continuing and the obligation on the Fair Work Commission (FWC or the Commission) to progress matters quickly and efficiently.

[9] At the commencement of the hearing on 10 December the CFMEU submitted that the matter should not be further pursued on the basis that, firstly s.508 did not provide the FWC with the requisite jurisdiction to embark on what it described as a "roving inquiry", 3 and secondly, that as the matter had the potential to affect the entry rights of a number of named and unnamed persons not represented by the CFMEU, further proceedings without the opportunity for involvement of those persons represented a denial of natural justice. In this respect Mr Pearce confirmed that he represented only the CFMEU and not any of its employees or officials.

[10] In the course of the hearing on 10 December 2013 I issued a decision in which I refused to terminate the proceedings on either ground. That decision has subsequently been issued in written form at the request of the CFMEU. 4

[11] Also on 10 December 2013 I advised the parties that I may have regard to information on the public record with respect to the CFMEU and its officials or employees. I subsequently requested confirmation of that information from the FWC Regulatory Compliance Branch. The information provided to me was made available to the parties in this matter on 12 December 2013. The authenticity of that information has not been challenged by the CFMEU in terms of the names of its officials or permit holders.

[12] I have considered the evidence before me in the context of the Right of Entry provisions of Part 3-4 of the FW Act. Section 478 states:

“478 Guide to this Part

This Part is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws.

Division 2 allows permit holders to enter premises to investigate suspected contraventions of this Act and fair work instruments. The Division makes special provision in relation to TCF award workers. Division 2 also allows permit holders to enter premises to hold discussions with certain employees and TCF award workers. In exercising rights under Division 2, permit holders must comply with the requirements set out in the Division.

Division 3 sets out requirements for exercising rights under State or Territory OHS laws.

Division 4 prohibits certain action in relation to the operation of this Part.

Division 5 sets out powers of the FWC in relation to the operation of this Part.

Division 6 deals with entry permits, entry notices and certificates.”

[13] Section 480 sets out the objects of that Part in the following terms:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”

[14] In the proceedings on 10 and 13 December 2013, Lend Lease called six witnesses in this matter. These witnesses were:

Mr Ising
Mr Gooding
Mr Hay
Mr Crabb
Mr Jackson
Mr Fisher

[15] These witnesses each undertake site management duties at various Lend Lease project sites in South Australia. Their evidence explained the entry arrangements customary with respect to the CFMEU before 30 October 2013. Their evidence went to their various dealings with CFMEU officials on and from 30 October 2013 and the disruption consequent upon behaviours adopted by CFMEU officials after that date. I have not detailed the evidence of these witnesses individually but have instead set out my conclusions about the events which have occurred on The Lend Lease construction sites, being Adelaide Oval, Adelaide Convention Centre, Tonsley Park TAFE Building and Tonsley Park Flinders University Building. In reaching these conclusions I have had regard to the extent to which some of the evidence given was challenged by the CFMEU as opinion and hearsay evidence which should not be relied on. In this respect I have not relied heavily on that particular evidence although I note that no alternative evidence has been provided to me. I have however concluded that, where various officials went to rooms with employees this constituted a meeting, and I have concluded that where officials spoke with employees, this too represented a meeting. In a number of cases the CFMEU officials were known as such to the Lend Lease personnel. I have concluded that each of the entries described below were undertaken by CFMEU officials. These persons were wearing CFMEU attire, signed various visitor’s books on the basis that they were from the CFMEU, behaved in concert with known CFMEU officials and, in a number of cases described themselves as from the CFMEU.

[16] Lend Lease is the principal contractor responsible for the Adelaide Oval redevelopment. The evidence before me confirms that until 30 October 2013 CFMEU officials customarily provided Right of Entry notices 5 and that Lend Lease would respond in writing to these notices, detailing its requirements relative to the proposed entry to the site. These arrangements included escorting of officials for safety purposes.6 Signage on all entry gates to the site confirm the entry requirements, clothing, escort and other requirements. On 30 October 2013 six persons wearing CFMEU attire entered the site. Lend Lease Site Manager Mr Ising knew four of those persons to be CFMEU officials.7 While the officials signed the visitor’s book, they did not provide right of entry notices.8 One official, identified as Mr D Roberts responded to Mr Ising's request for advice of the purpose of the visit by saying: "This is the way of the world until your managers talk with our managers".9

[17] Some of the officials proceeded around the site unescorted. 10 Lend Lease managers saw some of the officials speak with various employees.11 The officials twice met with employees working on the site.12 The officials including Mr Roberts and Mr McDermott made demands of Lend Lease. The evidence is clear13 in that the issues raised were not substantial or immediate safety issues. The officials made a claim for a full time CFMEU delegate on the site.

[18] On 31 October 2013 Mr McDermott, Mr Long and Mr Beattie from the CFMEU entered the site without authorisation and remained on the site despite being told that this was not permitted. 14 The officials indicated that they were following up on the matters from the previous day.15 The officials raised certain issues and were, on occasion, unescorted.16

[19] On 5 November 2013 Mr Cartledge of the CFMEU entered the site without providing notice of entry. 17 Mr Cartledge confirmed that he had not provided notice of entry and advised that he was going to visit a subcontractor's employees. Mr Cartledge did not comply with the normal escort arrangements.18

[20] On 6 November 2013 two persons from the CFMEU entered the site without authorisation or the provision of entry notices. One official, Mr O'Connor confirmed this and responded to a request that he leave the site by saying: "Well we are trespassing then!" 19

[21] Another official was wearing short sleeved clothing in breach of the site and signage instructions. 20 He left the site briefly and returned wearing compliant clothing.

[22] On 12 November 2013 Mr McDermott and Mr Stephenson from the CFMEU entered the site without providing entry notices. One official refused to show Lend Lease his entry permit when asked to do so. 21 The officials refused to leave the site and spoke with some employees.22 They raised issues associated with the conduct of a forthcoming cricket game. Lend Lease understood these matters had been previously addressed by way of protocols.

[23] On 13 November 2013 Mr McDermott from the CFMEU entered the site. He telephoned Mr Jackson of Lend Lease to advise that he was doing so 23 and provided a Work Health and Safety Permit Holder Notice of Entry and spoke to various employees over whether they were concerned about cricket balls while working. The CFMEU official then spoke with ball retrievers engaged by the South Australian Cricket Association before leaving the site. That official later advised that he would be returning to the site that evening to review access, egress, emergency procedures and working at height.24 Mr McDermott and another official, referred to as Mr Jarrett subsequently entered the site without approval and spoke with various employees. They asked these employees about safety procedures and the location of the toilets.25 The officials then met with other employees before leaving the site.

[24] On 13 November 2013 Mr McDermott from the CFMEU provided an entry notice for 14 November 2013. That official entered the site, was escorted and met with employees in accordance with normal practices and the FW Act.

[25] On 14 November 2013 a further entry notice was received by Lend Lease and an entry consistent with this was effected by Mr Stephenson on 15 November 2013.

[26] Lend Lease is the principal contractor and project manager on the Adelaide Convention Centre project. Mr Hay is a Site Supervisor for Lend Lease on that project. His evidence went to events on 30 October 2013 when three CFMEU officials entered that site without providing entry notices. Mr Hay asked one official, a Mr Beattie about the purpose of the visit. His evidence 26 was that Mr Beattie advised: We want to talk with Lend Lease/ Baulderstone members".

[27] Lend Lease is also the principal contractor for two developments at Tonsley Park. Mr Gooding is the Lend Lease Project Manager for the TAFE Building project. His evidence is that Mr Gava of the CFMEU telephoned him on 30 October 2013, asking for a "favour" in that he wanted to bring some interstate officials onto that site without the requisite entry notices. Mr Gooding refused this request and said any entry would be illegal. Mr Gava advised that the officials were coming in any event. On his arrival at the site Mr Gava advised about the purpose of the visit in the following terms: "We are just here to talk to the boys and show the guys the project". 27

[28] Later Mr Gava advised that, relative to entry arrangements: "that the way it’s going to be from now on". 28

[29] Later again Mr Gava advised that the Secretary of the CFMEU had directed that entry notices not be provided in the future. 29

[30] Mr Gooding drew attention to the fact that two of the officials wore short sleeved shirts and the site was a long sleeved site. The officials remained on the site. The officials ultimately left the site after expressing a demand that Lend Lease employ a full time CFMEU site delegate.

[31] On 30 October 2013 four persons from the CFMEU entered the Lend Lease Tonsley Park Flinders University site without providing entry notices. The officials were told to leave but refused to do so. 30 One official, Mr Gava said: "We are not leaving. This is the way it's done now. We are going for a walk on site."31

[32] The officials walked around the site and made various claims, not related to safety issues before meeting with employees in a lunchroom. 32

[33] The officials then made a demand that Lend Lease fly the CFMEU flag from the crane hook. The detail of this demand is set out in my decision of 1 November 2013. They left the site but later returned and one official, identified only as Moe advised that if the flag was not flown as they had directed "we'll bring back ten brothers tomorrow and stop the job". 33

[34] The officials then spoke with employees working in that area and arranged for them to place the flag on the crane hook.

[35] The evidence of the Lend Lease Managers was that the unplanned and unauthorised entries to the site disrupted their work arrangements. 34 The absence of notice of the entries, multiple officials and repeated entries means this disruption was clear and sustained.

[36] In considering the evidence associated with the Lend Lease entries I am aware from matters on the public record, that the following persons were identified by witnesses called by Lend Lease, and that those persons have current right of entry permits issued by FWC:

D Roberts
M McDermott
D Kirner
L Stephenson
A Cartledge
S Long
B Beattie
J O'Connor
M Buchan
M Gava

[37] The evidence of Mr Mathers, whom I am satisfied is an inspector with FWBC confirmed an extensive affidavit provided to me. The FWBC asserted that its capacity to make submissions must logically extend to the capacity to support those submissions with evidence. The CFMEU argued that this evidence should not be taken into account in this matter as the FWBC Act provided no right for FWBC to tender evidence.

[38] Section 72 of that FWBC Act states:

“72 Director may make submissions in FWC proceedings

The Director may, by giving written notice to the General Manager of the FWC, make a submission in a matter before the FWC that arises under the FW Act or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and involves:

(a) a building industry participant; or

(b) building work.”

[39] I have concluded that the capacity to make submissions must extend to a capacity to adduce evidence in support of those submissions. Any refusal to permit evidence in this respect would restrict the capacity of the Commission to consider those submissions against the position of other parties who are obviously able to call evidence in support of their positions. Accordingly I have considered the evidence of Mr Mathers.

[40] That evidence can be simply summarised on the basis that Mr Mathers recounts various of his visits to building and construction projects and his enquiries, based on his inspectorial powers about the exercise of entry rights by the CFMEU from 30 October 2013. Mr Mathers’ evidence was that these enquiries formed part of an investigation being undertaken by FWBC that could underpin a prosecution action relative to the entry behaviours of the CFMEU officials.

[41] I do not consider that the possibility of a prosecution, based on a different standard of proof requires that I exclude the evidence of the FWBC. The FWC is obliged to consider this matter according to its normal principles of equity, good conscience and the substantial merits of the case. The deliberate exclusion of evidence which may be relevant simply because there may be a future prosecution would be inconsistent with those principles.

[42] The nature of Mr Mathers’ evidence is a different issue. The CFMEU submitted that I should discount that evidence as "gross hearsay". In this respect I am not satisfied that Mr Mather's evidence should be completely discounted. There is no evidence before me that disproves the evidence of Mr Mathers. I have adopted the position that Mr Mathers’ evidence is indicative of a pattern of behaviour inherently similar to that which occurred on the Lend Lease sites.

[43] Mr Mathers’ evidence was that he was provided with information and supporting documents about entries by various CFMEU officials on 31 October 2013 to the University SA Learning Centre project site managed by Hindmarsh Construction Pty Ltd. This information indicated that the CFMEU did not provide entry notices consistent with the FW Act for these visits, that the officials refused to leave that site when requested to do so, that at least one official refused to show his entry permit when asked to do so and was then generally abusive toward management personnel.

[44] The extent of any disruption caused by this visit, issues of WHS compliance and the nature of meetings between the officials and employees are not clear to me on the evidence.

[45] Mr Mathers’ evidence was that he was provided with various documents relative to CFMEU entries to a construction site known as Churchill Road North where the project manager is Hansen Yuncken Pty Ltd. This information confirmed entries by four CFMEU officials to this site on 31 October 2013. No entry notices were provided with respect to these visits and the officials did not sign the entry register. Additionally Mr Mathers was advised of a further entry by Mr Cartledge of the CFMEU on 13 November 2013 where no entry notice was provided. The extent of any disruption caused by this visit, whether meetings with employees occurred and matters of compliance with WHS requirements are not clear on the evidence before me.

[46] Mr Mathers’ evidence also went to information provided to him by Hansen Yuncken, the Project Manager for the Regency TAFE Mining College Mining site. This information confirmed that three CFMEU officials entered that site on 31 October 2013 without providing right of entry notices and that they advised that they would return on the same basis. Evidence about the actions of those officials whilst they were on site is not before me.

[47] Finally, Mr Mathers’ evidence went to information provided to him by Hindmarsh Constructions Pty Ltd as the Project Manager on the SA Health and Medical Research Institute project to the effect that CFMEU officials entered that site on 11 November 2013 without providing entry notices. This evidence does not establish sufficient details of the actions of these officials on this site to permit a full understanding of the scope of this incident.

The Submissions

[48] The CFMEU asserts that, on the evidence before the Commission, there is no jurisdiction to further consider the application of s.508, in that I could not be satisfied that the entries to the various sites represented the actual exercise or purported exercise of the rights that are exercisable under Part 3-4 of the FW Act. In this respect, the CFMEU referred me to a range of authorities which dealt with right of entry matters under differing versions of workplace relations legislation over a number of years. 35

[49] The CFMEU asserted that, on the approach in Coal and Allied Operations Pty Ltd v AIRC and Ors 36 the requisite evidence about the use, utilisation or recourse to Part 3-4 rights was not established. In this respect the CFMEU argued that the construction site entries could, on the evidence before me, be for any number of reasons unrelated to Part 3-4. Without limiting such circumstances these reasons included mistaken beliefs, trespassing or entry by invitation.

[50] Notwithstanding this, the CFMEU acknowledged that the rights under s.484 to enter premises and hold discussions with the relevant class of employee could be relevant in this matter. However, it asserted that the evidence was that the preconditions for the exercise of s.484 rights were not satisfied in that notice pursuant to s.518 was not given and permits were not produced.

[51] Whilst differences in the legislative regime now applicable were acknowledged, the CFMEU particularly directed my attention to the Full Bench decision in Ferguson and French v CSR Ltd T/A CSR Humes 37 where the AIRC considered the revocation of entry permits under the then applicable Workplace Relations Act 1996 in the context of a range of behaviours. The Full Bench considered whether these behaviours involved exercising powers under the relevant right of entry provisions. Notwithstanding the conduct of meetings, the display of permits and occupational health and safety inspections, the circumstances of that matter did not establish that those things were done in the exercise of powers under the then applicable right of entry provisions.

[52] In CFMEU & Others v John Holland Pty Ltd & Others a Full Court of the Federal Court considered the extent to which an honest and reasonable belief that particular conduct was not injuring or obstructing a business under the right of entry provisions applicable under the Workplace Relations Act 1996, as it applied in February 2009. Again, leaving aside certain legislative differences, the Court concluded that the purpose of the union official’s actions was relevant.

[53] In Setka v Gregor (No 2) 38 a Full Bench of the Federal Court addressed the issue of whether a union official’s behaviour was of "an improper manner". The Court observed:

“20. Mr Setka relied on certain observations of Spender and Dowsett JJ in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90; (2010) 186 FCR 88. In that case the Court was concerned with the inter-relationship of ss 760 and 767(1) of the Act. Section 760 provided that a permit holder “may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions.” Spender J said (at 92) that:

“In my view, if s 760 is not engaged because the relevant permit holder lacks the prescribed purpose, then s 767(1) has no operation, because it applies, relevantly, only to a permit holder ‘exercising, or seeking to exercise a right under s 760’ of the ... Act. In my view, s 767(1) regulates the way in which a person exercises his or her right of entry pursuant to s 760 ...

For myself, the relevant question under s 760 was whether the permit holder had the prescribed purpose. If the permit holder had that purpose, then it is a question whether there was an actual intentional hindrance or obstruction of any person ...

Alternatively, if the permit holder did not have the prescribed purpose, then s 767 is not engaged ...”

Dowsett J said (at 97-8) that “[i]f s 760 is not engaged (because the permit holder lacks the prescribed purpose) then there are no relevant rights for the purposes of s 767(1).” Mr Setka submitted that, in the absence of evidence that he had attended the site for the purpose of pursuing matters relating to occupational health and safety, s 767(1) could have no operation.”

[54] The Full Court concluded:

“24. Section 140 of the Evidence Act provides that the standard of proof in civil proceedings is the balance of probabilities. Section 140(2) codifies some of the cautionary observations made by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2. It provides that:

“(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”

25.We are satisfied that there was ample evidence before the Federal Magistrate on which he could, consistently with the provisions of s 140, conclude that Mr Setka was, when he engaged in the exchange with the managers, exercising, or seeking to exercise, rights under the OHS Act. That evidence is summarised above at [14]. On this evidence it may readily be inferred that Mr Setka was, at the least, seeking to exercise rights under the OHS Act. He was involved in consultations with employer representatives about health and safety issues.”

[55] In its submissions on 13 December 2013 and subsequent written submissions of 17 December 2013, the CFMEU relied on this approach in support of its position that the evidence did not establish that the entries were for purposes associated with Part 3-4 such that there had been misuse. Relative to each site visit, the CFMEU argued that the evidence confirmed that:

• there was no notice given pursuant to s.518 and/or

• that there was no production of entry as required by s.489 and/or no request to this effect, and/or

• entries in the various "visitors books" were deficient, and/or

• there was a refusal to leave the various sites if the officials were requested to do so, and/or there was, or could be, no purported reliance on an entry permit, and/or the stated purposes of "going for a walk", for a site visit", "show the guys the project" and "to talk with members", were not permitted purposes and/or no attempt was made to comply with s.490 and/or

• the demands made by the officials did not, or were unlikely to pertain to the employment relationship and were not therefore, prescribed purposes of entry, and/or

• safety issues were not identified as the reasons for at least some the visits and/or safety rights were not generally used on a reasonable suspicion and/or the officials walked around various sites unescorted. 39

[56] In its submissions of 17 December 2013 the CFMEU confirmed its position that, consistent with s.69 of the Evidence Act and the FWBC evidence ought not be taken into account.

[57] The Lend Lease position was that the adoption of such a purposive approach to the exercise of entry rights must, in the circumstances detailed before me, lead to a conclusion that the entries by the various union officials were of a similar nature to traditional entries when notices had been given, and that the failure to give notice and behaviours on the sites represented deliberate misuse.

[58] Further, that while there may have been multiple purposes of the visits, it was sufficient that one of these was to hold discussions. Further, that the evidence, such as that attributed to Mr Gava on the two Tonsley Park sites, and Mr Roberts on the Adelaide Oval site, referred to the entry arrangements such that the CFMEU was knowingly adopting these entry practices.

[59] The FWBC position was that the proper application of the general principles of construction of a statute to s.508 40 requires that the section be read in concert with s.480 which set out the objects of Part 3-4. Further, s.508 does not refer to the exercise of rights within that Part but rather to those rights that are "exercisable" under this Part. Accordingly, FWBC asserted that the Commission was obliged to identify rights which are exercisable, then identify officials or organisations involved in the matter before establishing whether, on the evidence before me an official or an organisation has misused those exercisable rights. In this respect it submitted misuse extended to circumstances “where a permit holder entered premises without permission for the requisite purposes but did not comply with all of the conditions governing the manner of the exercise of that right.”41 FWBC asserted that in this regard s.508 contemplated an exercise of rights which are not in accordance with the FW Act. In this respect FWBC referred me to the decision of Lacy SDP in Alfred v Quirk42 and submitted that I should draw an adverse inference pursuant to Jones and Dunkell43 from the failure of the CFMEU to provide any evidence in this matter.

[60] FWBC asserted that all the evidence indicated that the CFMEU had:

• not provided notice on multiple occasions,

• provided reasons for its visits or provided inadequate reasons,

• failed to follow requisite and reasonable instructions,

• hindered the employer’s business operations, and

• acted on the basis that retribution for other issues was the basis for at least some of its actions,

• acted with ulterior motives, and

• refused to produce entry permits when requested to do so.

[61] The FWBC argued that the issue of whether the intention of the entries was not to enter to exercise rights was not the relevant question as the critical issue went to whether rights which were exercisable had been misused Accordingly, FWBC asserted that, on the balance of probabilities, the CFMEU had misused the rights exercisable under Part 3-4.

Findings

[62] I have considered the evidence before me in the context of both the purpose of the visits and the specific provisions of s.508(1). Satisfaction about misuse of the rights that are exercisable under this part by the CFMEU is a prerequisite for any action that may be taken pursuant to this section.

[63] Before setting out my conclusions in this respect it is appropriate that I make some observations about the position adopted by the CFMEU with respect to its officials, referenced in the evidence.

[64] I find on the balance of probabilities, the persons who conducted the various entries were CFMEU officials. The evidence in this regard is telling. In some instances these persons were identified by witnesses on the basis of their past contact, as known CFMEU officials. In other cases the officials identified themselves as such. Finally, in some cases they are identified by the Lend Lease Managers by name and I personally know those persons to be CFMEU officials. This knowledge extends to my knowledge of the CFMEU State Secretary Mr Cartledge. The persons identified by name each hold entry permits under Part 3-4 of the FW Act. That much is clear from the public record to which I have earlier referred.

[65] In other instances, the officials have not been identified by name and/or have declined to provide their names.

[66] The CFMEU did not dispute that the entries to the Lend Lease sites were made by CFMEU officials.

[67] On a number of occasions, the evidence is that the officials advised that they were acting on the direction of the Secretary of the CFMEU in terms of the manner of the entries.

[68] The CFMEU has refused to represent its officials in this matter. Given the evidence that a number of the official’s actions were on the express instructions of the Secretary and the CFMEU's own submissions that adverse findings in this matter could affect the livelihood of certain of its officials, the failure of the CFMEU to arrange for representation of those persons or for them to give evidence in support of its submissions is inconsistent with its expressed concern that further consideration of the matter places the jobs of these people in jeopardy. It also leaves open the capacity for inferences about the behaviours which occurred.

[69] Notwithstanding this, because of the uncertainty about the identity of all the persons who conducted the entries, I am concerned at the potential for inequitable outcomes if the focus of my findings is directed at individual persons rather than the CFMEU generally. I have accordingly directed my attention to the entirety of those entries conducted on behalf of the CFMEU rather than focusing on individual officials. This means that, pursuant to s.508, my enquiry is directed at whether the circumstances in subsection (1) are established with respect to the CFMEU as an organisation.

Lend Lease

[70] I have initially considered the various entries onto the Lend Lease sites.

[71] I have referred to the entries to those sites of 30 and 31 October and 5, 6, 12 and 13 of November 2013 as the "Lend Lease entries". I have excluded from this category, entries to the Adelaide Oval site on 14 and 15 November 2013 on the basis that the evidence establishes these entries occurred following the provision of notices consistent with s.518.

[72] I have considered whether the application of the approach in Setka or Ferguson or, for that matter, the various authorities asserted by the CFMEU support its contention that the evidence does not establish that the entries were for a purpose relevant to Part 304.

[73] Even if the purposive test succinctly summarised in Setka is applied, it seems very clear that the Lend Lease entries included the purposes of holding discussions with employees or investigating safety issues. That the CFMEU officials may have had other intentions is not supported by the evidence before me, but even if it was the case that the officials did have other intentions such as, for example, the intention of simple trespass, it appears to me that any such intentions were combined to a significant extent with the discussions with the employees such that this purpose must be taken into account.

[74] There were numerous occasions when the CFMEU officials stated that the purpose of their visits was to have discussions. 44 Further, and irrespective of any stated purposes, the behaviour of the officials in engaging in discussions with employees categorically establishes this as a purpose of the visits.

[75] Finally, the CFMEU has not provided any evidence that confirms that the purposes of the visits did not include discussions with employees.

[76] The CFMEU contention that, as notices had not been given consistent with s.518, the Part 3-4 entry rights had not been activated is inconsistent with the concept of a balance referred to in s.480 between the right to represent employees and the rights of businesses to operate without undue inconvenience.

[77] The Lend Lease entries were made by persons who were CFMEU officials. That has been agreed by the CFMEU. At least one of the officials engaged in each entry is a current permit holder pursuant to s.512 of the FW Act.

[78] I have considered whether, on the plain words of Part 3-4, the rights that are exercisable have been misused. Misuse, in that context must include a failure to comply with a condition or obligation associated with, or integral to those exercisable rights.

[79] The Explanatory Memorandum provides some guidance to consideration in this respect:

“1918. Division 2 sets out when a permit holder may enter premises and the rights they may exercise while on those premises. Subdivision A allows a permit holder to enter premises for the purpose of investigating a suspected contravention of the Bill or a fair work instrument. Subdivision B allows a permit holder to enter premises for the purpose of holding discussions with members, and people eligible to be members of the permit holder‘s organisation. Subdivision C sets out the mandatory requirements a permit holder must meet when exercising rights under either Subdivision A or B.

1919. This Division gives officials of organisations a statutory right to enter premises and exercise powers provided they satisfy various conditions. It is not intended to codify all of the ways in which entry can occur or provide an exhaustive list of the powers exercisable on the premises. The Division does not affect the ability of an occupier of premises to invite any person onto that premises, e.g., to meet with the employer about a particular matter.”

[80] Section 518 states:

“518 Entry notice requirements

Requirements for all entry notices

(1) An entry notice must specify the following:

(a) the premises that are proposed to be entered;

(b) the day of the entry;

(c) the organisation of which the permit holder for the entry is an official.

Requirements for entry notice for entry to investigate suspected contravention

(2) An entry notice given for an entry under section 481, 483A or 483D must:

(a) specify that section as the provision that authorises the entry; and

(b) unless the entry is a designated outworker terms entry under section 483A—specify the particulars of the suspected contravention, or contraventions; and

(c) for an entry under section 481—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a member, who performs work on the premises, and:

(i) to whom the suspected contravention or contraventions relate; or

(ii) who is affected by the suspected contravention or contraventions; and

(ca) for an entry under section 483A other than a designated outworker terms entry—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF award worker, who performs work on the premises, and:

(i) to whom the suspected contravention or contraventions relate; or

(ii) who is affected by the suspected contravention or contraventions; and

(cb) for a designated outworker terms entry under section 483A—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of TCF award workers; and

(cc) for an entry under section 483D—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF award worker:

(i) to whom the suspected contravention or contraventions relate; or

(ii) who is affected by the suspected contravention or contraventions; and

(d) specify the provision of the organisation’s rules that entitles the organisation to represent the member or TCF award worker.

Requirements for entry notice for entry to hold discussions

(3) An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must:

(a) specify that section as the provision that authorises the entry; and

(b) contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of an employee or TCF award worker who performs work on the premises; and

(c) specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF award worker.

Note: See section 503 (which deals with misrepresentations about things authorised by this Part).”

(The underlining is mine)

[81] The form of the entry notice is referenced in Regulation 3.27 and is set out in Form 2 in Schedule 3.3.

[82] I note that s.590 provides a capacity for exemption of the notice requirement in s.518 when the FWC issues an exemption certificate. That is not relevant to the Lend Lease entries.

[83] The permit holders who participated in the Lend Lease entries have rights to enter premises for specified purposes but equally have corresponding obligations or, as the FWBC argued, “conditions” under Part 3-4. Those obligations or conditions specify the circumstances under which rights can be utilised and the behaviours required of the permit holder.

[84] The entry rights which are exercisable under Part 3-4 are specified in Division 2. Section 481 grants a right to enter premises to investigate a suspected contravention. Sections 482 and 483 establish the rights which may be exercised relative to a suspected contravention. The evidence before me does not enable a conclusion that the Lend Lease entries were of this nature or were for the investigation of suspected contraventions. That was not asserted to be a purpose and contraventions were not subsequently identified.

[85] Section 484 states:

“484 Entry to hold discussions

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

(a) who perform work on the premises; and

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

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

[86] Sections 486 and 487 specify conditions or obligations integral to the right in s.484.

[87] Section 486 states:

“486 Permit holder must not contravene this Subdivision

Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.”

[88] Section 487 states:

“487 Giving entry notice or exemption certificate

Entry under Subdivision A or B

(1) Unless the FWC has issued an exemption certificate for the entry, the permit holder must:

(a) before entering premises under Subdivision A—give the occupier of the premises and any affected employer an entry notice for the entry; and

(b) before entering premises under Subdivision B—give the occupier of the premises an entry notice for the entry.

(2) An entry notice for an entry is a notice that complies with section 518.

(3) An entry notice for an entry under Subdivision A or B must be given during working hours at least 24 hours, but not more than 14 days, before the entry.

(4) If the FWC has issued an exemption certificate for the entry, the permit holder must, either before or as soon as practicable after entering the premises, give a copy of the certificate to:

(a) the occupier of the premises or another person who apparently represents the occupier; and

(b) any affected employer or another person who apparently represents the employer;

if the occupier, employer or other person is present at the premises.

Entry under Subdivision AA

(5) If the permit holder enters premises under Subdivision AA, the permit holder must, either before or as soon as practicable after entering the premises, give an entry notice for the entry to the occupier of the premises or another person who apparently represents the occupier if the occupier or other person is present at the premises.”

[89] As I have already noted, the officials involved in the Lend Lease entries stated on a number of occasions that the entries were for the purposes of discussions with employees. Furthermore, the Lend Lease entries actually involved discussions with individual employees and with collective groups of employees such that, even if the purpose of those entries was not stated to be the holding of discussions, I am satisfied that this was in fact the case. It is patently clear that Lend Lease did not invite the officials on to the sites and on numerous occasions Lend Lease asked them to leave but those requests were refused.

[90] The requirements of ss.486 and 487 were clearly contravened with respect to the Lend Lease entries.

[91] The evidence indicates that these entries were planned. The CFMEU arranged for a number of officials from interstate to attend the sites and introduced them as interstate officials. The evidence confirms that, commencing from 30 October 2013 the officials indicated that the CFMEU did not intend to comply with the traditional practice of providing notice of permit entries and that this reflected an organisational strategy. Two examples of the extent to which the CFMEU approach was planned and reflected a clear strategy are:

• CFMEU official, Mr Robert’s response to a question about the purpose of his visit to the Adelaide Oval site on 30 and October 2013 was: "this is the way of the world until your managers talk with our managers". 45

• CFMEU official, Mr Gava’s advice, on the Tonsley Park site on 30 and October 2013, relative to entry arrangements was that "that is the way it's going to be from now on". 46

[92] In addition, in terms of the Adelaide Oval site Lend Lease entries, the evidence indicates that the entries on 12 November 2013 involved discussions between the CFMEU officials and employees whom the CFMEU was not entitled to represent.

[93] On the balance of probabilities, the Lend Lease entries were not accidental. They involved multiple officials with entry permits. Furthermore they involved officials who have substantial experience with the right of entry requirements under Part 3-4 and clearly and deliberately adopted and sustained a different approach.

[94] Section 490(2) states:

“490 When right may be exercised

....

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

[95] A number of the Lend Lease entries involved discussions between CFMEU officials during work time which was in contravention of this section. The entries to the Adelaide Oval site of 30 October 2013 and 13 November 2013 and the entries to the Tonsley Park Flinders University site on 30 October 2013 are but three of the numerous examples in this respect.

[96] Section 490(3) states:

“490 When right may be exercised

....

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

[97] The permit holders involved in the Lend Lease entries contravened this requirement of the FW Act.

[98] Section 491 states:

“491 Occupational health and safety requirements

The permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises.

Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).”

[99] The evidence indicates that numerous of the permit holders contravened this requirement of the FW Act. This section is not limited in any way and imposes a mandatory requirement upon permit holders, irrespective of the purpose of the visit.

[100] This behaviour is exemplified by the following instances:

• On the Adelaide Oval site, the permit holders did not follow the clear signage instructions regarding site entry on numerous occasions. On a number of occasions they proceeded around the site unescorted. On 6 November 2013, CFMEU official, Mr O'Connor did not comply with the site clothing requirements.

• On the Tonsley Park site, the CFMEU permit holders similarly did not comply with the signage instructions with respect to entry on numerous occasions. On 30 October 2013 two officials remained on the site in contrary to long sleeved clothing instructions that were made clear to them. 47

[101] In each of these instances I am satisfied that the requirements of controlled entry, escort and long sleeved clothing represented reasonable occupational health and safety requirements.

[102] Division 3 of Part 3-4 deals with rights that may be exercised by permit holders who are authorised to exercise rights under State Work Health and Safety legislation.

[103] Information about the South Australian Work Health Safety permit status of the CFMEU officials involved in the Lend Lease entries has not been made available to me.

[104] What is clear however, is that the Lend Lease entries were not stated to be for the purpose of investigating safety issues pursuant to this Division. Notwithstanding this, on various of the Lend Lease entries to the Adelaide Oval and Tonsley Park sites, the officials raised alleged safety issues such that I consider that a purpose of those visits was to identify safety issues.

[105] In these respects, the notice requirements in s.495 were not complied with. On at least one occasion 48 workplace health and safety rights were asserted such that the requisite notice was not given and the official engaged in discussions with persons who I am not satisfied that the CFMEU could represent.

[106] To the extent that a basis for the Lend Lease entries was founded on South Australian Work Health and Safety rights, I consider that the officials’ behaviour contravened the requirements of s.499 relative to occupational health and safety requirements in the same manner addressed relative to s.491.

[107] Section 500 states:

“500 Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note: This section is a civil remedy provision (see Part 4-1).”

[108] The Lend Lease entries represented a clear hindrance of Lend Lease operations. The absence of notice consistent with s.518 meant that Lend Lease managers had no warning of visits and had to stop their normal duties so as to attend to the union officials.

[109] The evidence establishes this behaviour was deliberate, planned and undertaken on the instructions of the CFMEU as distinct from being simply at the initiative of the officials.

[110] Accordingly, I consider that the evidence before me establishes that the Lease entries contravened s.500.

[111] Section 503 states:

“503 Misrepresentations about things authorised by this Part

(1) A person must not take action:

(a) with the intention of giving the impression; or

(b) reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.”

[112] To the extent that the CFMEU officials involved in the Lend Lease entries insisted on exercising normal entry rights when they had not complied with the entry notice requirements, I have concluded that they contravened this section.

[113] Consequently, on a plain reading of Part 3-4 I have concluded that there were numerous, deliberate and sustained contraventions of the rights and associated obligations on the CFMEU permit holders involved in the Lend Lease entries. I have concluded that these contraventions occurred as part of a general CFMEU instruction relative to the actions of its permit holders. On that plain reading, the absence of notice pursuant to s.518, or assertions by the officials that they were trespassing, does not change the character of the entries. Leaving aside the contraventions, the entries were of a nature inherently similar to past entries conducted in accordance with Part 3-4 and the normal Lend Lease practices.

[114] I have reached this conclusion having considered all of the circumstances relevant here. In this respect I do not regard the Full Bench decision in Fergusson, reached as it was, under different legislation, as an authority for the proposition that a set of circumstances such as the Lend Lease entries should be considered on any basis other than its own facts.

[115] The evidence before me confirms that there has been a misuse of rights that are exercisable under this Part of the FW Act. In this respect, those officials of the CFMEU held entry permits and had rights as permit holders under Part 3-4. They then engaged in the Lend Lease entries and consistently failed to use those rights consistent with the requirements of that Part in a manner which I must regard as fundamental misuse.

[116] The reason for the change in the CFMEU right of entry practices relative to Lend Lease on and from 30 October 2013 has not been established to me and it is not appropriate that I speculate on this. Irrespective of whether the primary intention was unrelated to Part 3-4, the fact that the behaviours involved permit holders who had rights exercisable under Part 3-4 but then failed to use those rights in the manner and under the conditions and obligations means that there must be a misuse for the purposes of s.508 in its present form.

Conclusion - Lend Lease entries

[117] I am satisfied that the circumstances of the Lend Lease entries represent serious, deliberate and sustained misuse of entry rights by the CFMEU pursuant to S508(1). These misuses are directly contrary to the objects of this part of the FW Act.

[118] The scope of these misuses, including the extent of disruption of the Lend Lease operations and the extent to which the CFMEU position in this matter is indicative of likely continuation of actions of this nature, are factors which favour the imposition of some form of restriction or action pursuant to s.508(2).

[119] As I have indicated to the parties any restrictions or action under s.508 will be the subject of separate consideration if, as is the case here, a finding of misuse has been made. The matter will be relisted for this purpose.

[120] Notwithstanding that a range of actions may be considered in this situation and I have formed no decision in this regard, I consider it appropriate that I specifically invite submissions on one of the actions that could be taken.

[121] This may involve the indefinite suspension of all entry rights for all CFMEU officials on the Lend Lease Adelaide Oval, Convention Centre and Tonsley Park sites until, or unless the CFMEU satisfies me that it is committed to complying and instructing compliance by its permit holders with all Part 3-4 rights and obligations. That satisfaction might require that further satisfaction about the consequences of non compliance be established. I repeat that I have formed no conclusion as to the actions to be taken.

The FWBC circumstances

[122] I have accepted that the evidence of Mr Mathers represents evidence of behaviours which, in terms of the failure of various CFMEU officials to give notice consistent with s.518, is inherently similar to the Lend Lease entries. In this respect the absence of any evidence contrary to that of Mr Mathers means that this evidence establishes a prima facie case to the effect that misuse of Part 3-4 entry rights has occurred.

[123] However, the evidence before me in this respect does not establish the extent or the effect of that misuse such that I am yet prepared to reach a conclusion relative to s.508(1). In this respect I refer to the nature of my findings relative to the Lend Lease entries.

[124] This decision will be provided to the contractors identified in Mr Mather’s evidence and the matter will be relisted to give Hansen & Yuncken Pty Ltd and Hindmarsh Constructions Pty Ltd, FWBC and the CFMEU a further opportunity to provide submissions and evidence relevant to the events referenced in that evidence, or events, affecting those businesses which may have occurred subsequent to the inquiries undertaken by Mr Mathers. Directions relative to that further hearing will be issued.

Appearances:

R Reitano and M Pearce counsel for the Construction, Forestry, Mining and Energy Union.

T Earls for Lend Lease Building Contractors.

S Dowd and M Roder counsel for Fair Work Building & Construction.

Hearing details:

2013.

Adelaide:

December 10, 13.

 1   [2013] FWC 8659

 2   [2013] FWC 9343

 3   Transcript. 10 December 2013, PN316

 4   [2013] FWC 9860

 5   Exhibit L1, para 5

 6   Exhibit L1, para 8

 7   Exhibit L3, annexure DI1, para 7

 8   Exhibit L3, annexure DI1, para 8

 9   Exhibit L3, annexure DI1, para 10

 10   Exhibit L3, annexure DI1, para 9

 11   Exhibit L1, para 12

 12   Exhibit L3, annexure DI1, paras 11-14

 13   Transcript, 10 December 2013, PN914-926

 14   Exhibit L1, para 18

 15   Exhibit L1, para 19

 16   Exhibit L1, para 21

 17   Exhibit L3, para 4

 18   Exhibit L3, para 7

 19   Exhibit L3, para 33

 20   Exhibit L1, para 35

 21   Exhibit L1, para 43

 22   Exhibit L1, para 44

 23   Exhibit L1, para 52

 24   Exhibit L1, para 64

 25   Exhibit L1, para 71

 26   Exhibit L4, para 10

 27   Exhibit L7, annexure MG1,para 5

 28   Exhibit L7, annexure MG1, para 6

 29   Exhibit L7, annexure MG1, para 10

 30   Exhibit L6, para 7

 31   Exhibit L6, para 7

 32   Exhibit L6, para 10

 33   Exhibit L6, para 15

 34   See, for example Exhibit L1 para 16, 22, 31, 52

 35   Pine v Doyle (2005) 143 IR 98 at [13]-[15] ; Standen v Feehan [2008] FCA 1009; 175 IR 297 ; CFMEU v John Hollands Pty Ltd [2011] FCAFC 90; 195 FCR 203 ; Setka v Gregor (No 2) [2011] FCAFC 90; 195 FCR 203 ; Ferguson & French v CSR Limited PR910502 ; John Hollands Pty Ltd v CFMEU [2011] FCA 770 at [34]; 195 FCR 280 ; Darlaston v Parker [2010] FCA 771; 189 FCR 1 ; Media Entertainment & Arts Alliance v Advertiser Newspapers Limited (1996) IRCA 547 at page 17 of Austli print ; John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645; 178 FCR 461 at [45]; also [50]

 36 [2000] 203 CLR 194 [27]-[28]

 37   PR910502

 38 [2011] FCAFC 90

 39   CFMEU submissions of 17 December 2013

 40   See JJ Richards v TWU (No1)[2010] FWAFB 9963

 41   FWBC submissions of 19 December 2013

 42   [2008] AIRC 781

 43 [1959] HCA 8; (1959) 101 CLR 298

 44   See for example Exhibit L3, para 4 ; Exhibit L4, para 10 ; Exhibit L7, annexure MG1, para 5

 45   Exhibit L3, annexure DI1, para 10

 46   Exhibit L7, para 6 and 10 and Exhibit L6 para 7

 47   Exhibit L7, annexure MG1, para 7

 48   Adelaide Oval site, 13 November 2013

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