Geofabrics Australasia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union and others named in Schedule A
[2018] FWC 6521
•27 NOVEMBER 2018
| [2018] FWC 6521 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Geofabrics Australasia Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union and others named in Schedule A
(RE2018/172)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 27 NOVEMBER 2018 |
Right of entry dispute; whether there is coverage of relevant workers; whether disputes alleged engage with s.505; whether s.508 power should be engaged; interaction between State OHS law and right of entry provision of the Act discussed; coverage dispute resolved; application dismissed.
Introduction
[1] Geofabrics Australasia Pty Ltd (Geofabrics) has applied under s.505 of the Fair Work Act 2009 (the Act)for the Fair Work Commission (Commission) to deal with a right of entry dispute. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) together with the five named permit holders in Schedule A are Respondents to the application. The Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland (CFMEUQ) is an intervenor in the proceedings. The first named Respondent took no part in the hearing of the substantial issues raised by the application. On 13 June 2018, the Applicant discontinued the application against the CFMMEU and says that it is not seeking orders against either the CFMMEU or CFMEUQ. 1 In an email dated 5 July 2018, I was advised by solicitors acting for the CFMMEU that the CFMMEU does not support the making of any orders that in any way remove, restrict, limit or inhibit the rights of entry held by the second to sixth named Respondents.2
[2] Geofabrics operates a business located relevantly in Ormeau (the premises) in Queensland manufacturing geosynthetic textiles including polyester and polypropylene staple fibre non-woven fabric. 3 The application concerns the entries by various of the second to sixth named Respondents to the premises at various times. Geofabrics contends that the second to sixth named Respondents variously engaged in conduct which contravened provisions of the Act as well as Geofabrics’ common law rights.4 Geofabrics requests that the Commission deal with the dispute by making orders under ss.505 and 508 of the Act.5
[3] Each of the second to sixth named Respondents was at the relevant times of the entries an officer or employee of the then Construction, Forestry, Mining and Energy Union (CFMEU), now the CFMMEU, and was and is a permit holder under the Work Health and Safety Act 2011 (WHS Act) and the Act.
[4] Geofabrics has sought the following orders be made:
“1. The entry permits held by the Second and Third Respondents under the Fair Work Act 2009 (C'th) are suspended for a period of 12 months.
2. The entry permits held by the Fourth and Fifth Respondents under the Fair Work Act
2009 (C'th) are suspended for a period of 3 months.
3. The entry permits held by the Second, Third, Fourth, Fifth and Sixth Respondents
under the Fair Work Act 2009 (C'th) are subject to the condition that the permit holder
must not enter, or seek to enter, the South Queensland Manufacturing site of
Geofabrics Australasia Pty Ltd ("Geofabrics") located at 69 Motorway Circuit, Ormeau,
Queensland ("the SQM Site").
4. Subject to paragraph 5 of this Order,
(a) the Construction, Forestry, Mining and Energy Industrial Union of Employees Queensland (CFMEUQ); and
(b) the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU),
must forthwith direct all of their officers that they must not enter, or seek to enter, the SQM Site.
5. Paragraph 4 of this Order does not apply to:
(a) Any officer of the CFMMEU who,
(i) before 27 March 2018 was an officer of the Textile, Clothing and Footwear Union of Australia (TCFUA); and
(ii) at the time of entering or seeking to enter the SQM Site, is an officer of the CFMMEU designated to perform duties in the TCF Sector of the
Manufacturing Division of the CFMMEU; and
(iii) holds a valid entry permit under the Fair Work Act 2009 (C'th) and the Work Health and Safety Act 2011 (Old); or
(b) Any officer of the CFMMEU
(i) designated by the National Secretary of the CFMMEU as having duties
including attending to the needs and interests of CFMMEU members
employed at the SQM Site; and
(ii) holding a valid entry permit under the Fair Work Act 2009 (C'th) and the Work Health and Safety Act 2011 (Qld); or
(c) Any delegate of the CFMMEU employed by Geofabrics Australasia Pty Ltd at the SQM Site.” 6
[5] At the hearing on 13 June 2018, Geofabrics produced the document titled ‘Draft Order 13 June 2018’ which provides as follows:
“1. The entry permits held by the Second and Third Respondents under the Fair Work Act 2009 (C’th) are suspended for a period of 6 months.
2. The entry permits held by the Second, Third, Fourth, Fifth and Sixth Respondents under the Fair Work Act 2009 (C’th) are subject to the condition that the permit holder must not enter, or seek to enter, the South Queensland Manufacturing site of Geofabrics Australasia Pty Ltd (“Geofabrics”) located at 69 Motorway Circuit, Ormeau, Queensland (“the SQM Site”).
3. That all of the entry permits that may in future be issued to officials of the Queensland and Northern Territory Branch of the Construction and General Division of the CFMMEU or the Construction and General Division of the CFMEUQ be subject to the condition that the holders of the permits must not seek to enter the SQM Site of Geofabrics Australasia Pty Ltd.” 7
[6] In the Applicant’s submissions in reply, it contends that if the Commission determines that orders 4 and 5 in [4] above are not appropriate, then the Applicant seeks that in their place an order is made in the following terms:
“An order that all of the entry permits that may in future be issued to officials of the Queensland and Northern Territory Branch of the Construction and General Division of the CFMMEU or the CFMEUQ be subject to the condition that the holders of the permits must not seek to enter the SQM Site of Geofabrics Australasia Pty Ltd.” 8
[7] There has been a considerable volume of evidentiary material on which the parties have variously relied. Much of it concerns conflicting accounts of interactions between various of the second to sixth named Respondents and managerial staff of the Applicant. It has been unnecessary for me to resolve all of the conflicting accounts because in the end I have agreed with the position advanced by the second to sixth named Respondents and the CFMEUQ, which is to the effect that though during the January and February 2018 attendances by officials of the CFMEU, the question whether the CFMEU was entitled to represent the industrial interests of any employee working at the premises was in dispute, that dispute is not a continuing one. The conduct in which the various officials are said to have engaged, and similarly the conduct in which it is alleged the Applicant’s managerial staff have engaged, occurred in the context of that dispute. There is no evidence that the conduct is likely to continue, and as the coverage dispute is now resolved, the likelihood of the kinds of confrontations that the evidence has disclosed reoccurring has significantly diminished.
[8] I will however make this observation. The conduct disclosed in the various video materials of both sides of the debate appears to me to have been big on bravado and short on professionalism. Raised voices were met with raised voices rather than reason. Confrontation was met with reinforcement of numbers, which in turn was met with a lock in and a lockout. Those involved should rightly be embarrassed by the conduct disclosed in the video materials. It is not the kind of conduct conducive to rational or reasoned decision making, nor to the resolution of disputes. There is no place in a modern workplace for the kind of bravado and “chesty bonds” behaviour which the various combatants displayed towards one another.
Background
[9] On 27 March 2018, an amalgamation between the CFMEU, the Maritime Union of Australia (MUA) and the Textile, Clothing and Footwear Union of Australia (TCFUA) took effect. 9 The amalgamated organisation is now the Construction, Forestry, Maritime, Mining and Energy Union. The eligibility rules of the TCFUA, pursuant to the Scheme of Amalgamation,10 became part of the rules of the CFMMEU. That which was formerly the TCFUA became part of the renamed “Manufacturing Division” of the CFMMEU. TCFUA members became members of the CFMMEU and were “attached” to the Manufacturing Division. As a result, the CFMMEU assumed as members, and became eligible to enrol as members, employees who were previously eligible to be members of the TCFUA. In the result the CFMMEU has, since the amalgamation took effect, been entitled to “cover” and represent the industrial interests of employees at the premises, whose interests the TCFUA was able to represent before that date.
[10] The application by Geofabrics concerns five entries by various of the second to sixth named Respondents at the premises on 30 January 2018, 7 February 2018, 8 February 2018, 12 February 2018 and 26 February 2018. Each of the second to sixth named Respondents is and was a permit holder under Part 3-4 of the Act during January and February of 2018. The circumstances of the entries to the premises can be summarised as follows.
Consideration
Prior to 30 January 2018
[11] To begin, it is contended that prior to the entry on 30 January 2018, Mr Arturo Menon had developed that which is said to be a reasonable suspicion that there had been Occupational Health and Safety (OHS) contraventions at the premises in relation to the operation of forklifts, and more specifically a concern that forklifts were operating near pedestrians. 11 The concern was identified when Mr Menon had driven past the premises on several occasions in late 2017 and 2018 and had seen forklifts operating in the same areas as pedestrians.12 Mr John Tucker gave evidence that he can recall Mr Menon expressing the concern about the use of forklifts to him.13
Entry on 30 January 2018
[12] Geofabrics contends that the entry on 30 January 2018 was premeditated by Mr Menon and Mr Tucker and their reason for entry was to speak to employees at the premises to recruit members for the CFMMEU. 14 Geofabrics argues that this is supported by the fact that they had copies of documents including membership application forms and an information sheet about the benefits of membership with CFMEU when they entered the premises.15 However, Mr Menon and Mr Tucker deny that their purpose for entry was to talk to employees but the opportunity presented itself at the time.16 Mr Menon gave evidence that his purpose for their attendance at the premises was to introduce himself to the company prior to the amalgamation of the TCFUA with the CFMEU, which he had been informed was to occur.17 Mr Tucker gave evidence that he and Mr Menon had only made plans to visit on 30 January 2018 the day before.18
[13] On 30 January 2018, Mr Menon, Mr Tucker and Mr Taylor visited the premises as planned. 19 Ms Debbie Turner (Human Resources and Systems Coordinator) advised Mr David Haviland (Production Manager) that three officials were there to introduce themselves and Mr Haviland went to meet the officials in the boardroom.20 Both Ms Turner and Mr Haviland allege that Mr Menon said words to the effect of ‘We want to speak to the boys.’21 That request was refused but an arrangement was made to allow the officials to speak with Mr John Blair Chisholm, delegate for the TCFUA.22 Mr Menon acknowledges that he had asked Mr Haviland if there was any chance they could introduce themselves to the members and ‘say a quick hello’ but this request was denied as they had not been inducted onto site.23 Mr Menon says that the issue was not pressed after permission was denied by Mr Haviland.24An induction was arranged by Mr Haviland to enable any future visits to the premises.25 No-one from Geofabrics suggested that the request was pressed on that day.
[14] Mr Menon gave evidence that during this first visit he made further observations about the work practices at the premises 26 and that he noted the following suspected OHS contraventions:
(a) a concern about falling objects;
(b) a concern about a lack of exclusion zones for pedestrians; and
(c) a concern about the modification of forklifts. 27
[15] Subsequent to this visit, on 2 February 2018, Mr Howard Yen (General Manager Manufacturing of Geofabrics) sent an email to Mr Michael Ravbar of the CFMEU and indicated that the officials did not have a right to enter the premises and that the induction which was organised would not proceed. 28 The text of the email was as follows:
“Hello Michael,
I understand that 3 of your organisers attended Geofabrics Ormeau plant on Tuesday this week. As a textile manufacturer Geofabrics employees are covered by the TCFUA in our Qld facility. Please note that officials of the CFMEU Construction and General Queensland/NT Branch do not have right of entry to our site and will not be provided access to the site. I also understand that plans had been made for your organisers to have an induction to our Ormeau plant next Tuesday. Please be informed that this induction will not proceed.
The organisers were, Arturo Menon, John Tucker and Paul Taylor. Please inform these gent’s of this decision.
Regards,
Howard Yen”
[16] It is apparent from the email that the then CFMEU’s right to “cover” employees at the premises was in issue, with Mr Yen maintaining the TCFUA, and not the CFMEU, had relevant coverage.
[17] It is unnecessary to resolve such conflicts in the evidence as concern the visit to the premises on 30 January 2018. It seems to me to be a conflict of emphasis rather than substance. It is clear that at that time there was an application for the approval of an amalgamation between inter alia the CFMEU and the TCFUA. This is consistent with Mr Menon’s stated purpose of the visit. It also seems to me clear on the evidence that on that date Messrs Menon, Tucker and Taylor neither sought or purported to exercise any entry right under Part 3–4 of the Act. Moreover, no one suggested that the attendance on 30 January 2018 was for the purposes of investigating any OHS contraventions. The evidence at its highest shows that a request to speak to employees was made by Mr Menon but was refused, save for facilitating a discussion with Mr Chisholm. The Applicant sought to establish through the evidence and contended that the permit holders’ purpose for the visit on 30 January 2018 was to speak to and possibly recruit workers at the premises. 29 This purpose was contested, but even if it be correct, by itself it does not establish that any entry right under the Act was sought to be exercised by any of the permit holders attending on 30 January 2018. Apart from the absence of any notice of entry, when the request to speak to employees was denied, there is no evidence of any insistence by any permit holder that they had a right to enter for the purposes of holding discussions with relevant employees.
[18] There is no dispute that the permit holders did not give an entry notice required by the Act. There is no suggestion in the evidence that on that day the permit holders had a right to enter or that they maintained that they had such a right. Putting to one side the question of whether the CFMEU had a right to represent the industrial interests of one or more employees working at the premises, if an entry right was sought to be exercised, the Applicant could have legitimately refused entry on the basis of an absence of a notice. It is difficult to discern any relevant operative dispute about the operation of Part 3–4 of the Act which is raised by the circumstances of the visit to the premises by the permit holders on 30 January 2018.
[19] To the extent that it might be said that at that time there was a dispute as to whether Geofabrics employed persons whose industrial interests the permit holders’ organisation, relevantly at that time the CFMEU, was entitled to represent, that dispute can no longer exist since the date on which the amalgamation, to which reference has already been made, took effect. There can be no dispute that the CFMMEU is, since the amalgamation which took effect on 27 March 2018, entitled to represent the industrial interests of at least some of the persons employed by Geofabrics at the premises.
Entry on 7 February 2018
[20] Mr Menon and Mr Tucker say that they attended the premises again on 7 February 2018 to pursue the concerns in relation to the forklifts by conducting an inquiry under s.117 of the WHS Act. 30 Mr Menon says that it was his ‘curiosity’ which led him to form a reasonable suspicion that contraventions could be occurring.31
[21] Upon arrival, Mr Menon and Mr Tucker asked to speak to Mr Yen and after introducing themselves to Mr Yen, Mr Yen says they requested to speak to the boys, 32 to which he replied that they had no right to be there and refused them entry to speak to employees.33 Mr Menon denies that he asked to speak with the boys upon arrival.34 Mr Yen says that he refused entry to the premises on the basis that the CFMEU had no coverage at the premises.35 Both Mr Tucker and Mr Menon gave evidence that they entered the premises on 7 February 2018 to enquire into OHS concerns arising from matters that they had observed both prior to and on 30 January 2018 and that the purpose was to enquire into suspected contraventions of the WHS Act by entering under s.117 of the WHS Act.36 Both also said that a further concern about a contravention arose when, whilst in the process of entering the premises, they spoke to an employee of Quick Ally Scaffolding and Access Solutions in relation to the absence of an induction.37 Mr Yen says that Mr Menon did not hand him a notice of entry for the purposes of s.117 of the WHS Act until he and Mr Tucker went outside to the car park and then returned inside.38 Mr Haviland also gave evidence that when Mr Menon said “we want to see your guys” he had not seen a right of entry notice presented39 and that Mr Menon and Mr Tucker went outside to the car park for approximately an hour.40 Mr Yen gave evidence that he read the entry notice, thought it was poorly written and could not see how they could “have any suspected knowledge of any suspected contravention because they had never been in the factory.”41 Mr Yen said that he decided to refuse them entry “on the basis of its eligibility.”42 Geofabrics contends that at the time of entry their purpose was to hold discussions with employees but had not given Geofabrics 24 hours’ notice that is required by s.487(3) of the Act.43
[22] The notice of entry under s.117 of the WHS Actgiven to Mr Yen on 7 February 2018 provided the following description as to the suspected contraventions:
“Access & Egress, mobile plant, fall from heights, contractor inductions. Registration of plant.” 44
[23] Mr Menon says that whilst the notice of entry does not specifically state that the visit was regarding safety concerns, the intention was nevertheless conveyed. 45 Further, Mr Menon denies that the notice of entry was prepared following the initial conversation with Mr Yen or that he or Mr Tucker said in conversation, as alleged by Mr Yen,46 “we can do this the hard way or the easy way”.47
[24] During this visit, Mr Tucker recorded part of the confrontation between Mr Menon, Mr Tucker, Mr Haviland and Mr Yen after the officials were refused entry. 48 That which occurred during the confrontation is in dispute. Mr Yen denies that the video shows him pushing Mr Tucker and says that he did not see Mr Haviland hit Mr Tucker’s camera,49 as alleged by Mr Tucker.50 Mr Haviland gave evidence that Mr Tucker shouldered his way past Mr Yen and they made contact.51 Mr Tucker on the other hand says that Mr Haviland tried to knock the camera out of his hand then he said “do not do that.”52
[25] Mr Yen gave evidence that he later gave the instruction for the main gate to be locked 53 and the Police were called three times.54 Further, Mr Yen says that at various times the CFMEU officials (including Mr Parfitt, Mr Gibson and Mr Taylor) were shaking the gates55 but this does not appear to be shown in the CCTV footage which is part of the evidence in this proceeding.56 The footage does however show more than one of the CFMEU officials attempting to open the locked gate. The CCTV footage also shows Mr Yen falling into a garden bed. Mr Yen says he tripped into the garden bed57 however Mr Tucker says that he was asking for Mr Yen to let him out of the gate58 when Mr Yen dived into the garden bed.59 Mr Yen was on the phone to Police when he fell into the garden bed. Mr Tucker was not “asking” Mr Yen to let him out of the gate. It is not in dispute that he was yelling. The reasons for the yelling are disputed but need not be resolved.
[26] Following Police and Work Health and Safety (WHS) inspectors being called entry was then permitted. 60 It appears that the WHS inspectors facilitated the entry of Mr Parfitt, Mr Gibson, Mr Menon and Mr Tucker who accompanied the WHS inspectors during their inspection of the premises.61 The officials and WHS inspectors identified a number of suspected contraventions of the WHS Act and subsequently the WHS inspectors issued prohibition and improvement notices.62
[27] It is to be observed that in Mr Yen’s email to Mr Ravbar of 2 February 2018, Mr Yen disputed the right of the CFMEU to represent the industrial interests of employees of Geofabrics working at the premises. 63 On the evidence, this appears also to be the basis upon which Mr Yen refused entry to the premises on 7 February 2018.64 The issue whether the CFMEU was entitled to represent the industrial interests of any person working at the premises is relevant to both entry under the Act and entry under s.117 of the WHS Act. Entry thereunder is for the purposes of inquiring into a suspected contravention that relates to or affects a relevant worker. A relevant worker is a person who works at the workplace, who is relevantly eligible to be a member of the union of which the permit holder exercising power is an officer or employee, and the union is entitled to represent the industrial interests of that worker.65
[28] None of the permit holders who attended the premises on that day, and in particular neither Mr Menon or Mr Tucker, assert that they were exercising any entry rights under the Act. Much has been made by the Applicant as to the purpose for which entry was sought on 7 February 2018, and in particular, that the purpose was to speak with employees. Mr Menon and Mr Tucker deny that this was their purpose. Indeed, assuming the CFMEU was otherwise entitled to represent the industrial interests of relevant workers, if that were their purpose, it is surprising that an entry notice specifying that entry would be sought by the officials on 7 February 2018 for the purposes of holding discussions with relevant employees under s.484 of the Act was not given. That such a notice was not given is not in dispute. Similarly, putting to one side the question of whether the CFMEU had relevant coverage, neither is it in dispute that on 7 February 2018, Mr Tucker and Mr Menon had no right to enter under s.484 of the Act for the purposes of holding discussions with relevant employees. Even if I were to accept the Applicant’s evidence given by Mr Yen that Mr Menon said to him words to the effect that “we want to speak to the boys”, by itself this amounts to a request to Mr Yen that the officials be given an opportunity to speak to workers. This was denied. There is no suggestion that Mr Menon or anybody else asserted thereafter that they had a right to enter under the Act for the purposes of holding discussions. The asserted entry right was under the WHS Act.
[29] That which was in dispute concerned whether the CFMEU had coverage of relevant workers at the premises in order to allow the permit holders to enter the premises for the purposes of inquiring into a suspected contravention of the WHS Act that related to or affected a relevant worker. Ultimately, as the evidence discloses, entry on that day was facilitated by the WHS inspectors. Entry was thus ultimately permitted. To the extent that there was a dispute as to coverage, that dispute has now been resolved in the sense that since the amalgamation date, there can be no dispute that the CFMMEU has relevant coverage for the purposes of enabling its officials and employees who are permit holders under the Act by the CFMMEU from exercising entry rights under the Act. Neither can be disputed that if such a permit holder is also a permit holder under the WHS Act, that entry to the premises cannot be resisted by reason only of an absence of coverage of the relevant employees.
Entry on 8 February 2018
[30] On 8 February 2018, Mr Menon and Mr Tucker returned to the premises in an attempt to continue the inquiry they initiated on 7 February 2018. 66 Mr Menon gave evidence that prior to the visit on the 8 February 2018 he had received some information about the health risks associated with exposure to silica.67 Mr Menon said that he had previously noticed white dust in and about the Applicant’s premises and that Mr Chisholm had told him that it was bentonite dust.68 Mr Tucker also said that he had noticed white dust at the premises on a previous occasion.69
[31] Mr Yen again refused entry to Mr Menon and Mr Tucker when he says, the officials asked to speak to the boys 70 but eventually entry was allowed. The initial refusal was on the basis of an absence of coverage of workers by the CFMEU.71 WHS inspectors also returned to the premises on this day to continue their investigation72 and Mr Haviland was accompanying the inspectors.73 It appears that a prohibition notice was issued in respect of the work on a fabrication table.74 It is apparent that there remained a dispute about coverage of relevant workers by the CFMEU.
Entry on 12 February 2018
[32] Both Mr Menon and Mr Tucker attended the premises again on 12 February 2018. 75 They were initially refused entry by Mr Yen but then were allowed entry after a telephone call was made.76 Mr Yen states that upon entry Mr Menon again asked to speak to the boys77 but Mr Yen refused the request and after further discussion, a notice of entry78 under s.117 of the WHS Actwas provided to Mr Yen by Mr Menon.79
[33] There was a discussion between Mr Yen and Mr Menon about whether the prohibition notices had been displayed and Mr Yen said that Geofabrics was having continuing discussions with WHS Queensland about the content of the notices and that they had not been displayed. 80 Mr Yen says that the notices were not displayed as some of the issues were resolved and once they have been resolved they do not need to be posted.81
[34] It seems clear from the evidence concerning the attendance at the premises on 12 February 2018 that the principal issue concerning whether entry to the premises would be permitted continued to be the coverage question. On Mr Yen’s evidence he said to Mr Menon on several occasions that “you have no right of entry.” Mr Yen’s evidence was that he said to Mr Menon “you can’t come here with a supposed right of entry wanting to talk to our workers then change the pretext of your visit based on a health and safety issue” and that he also said “you have no right of entry, you have no coverage.”
Entry on 26 February 2018
[35] On 26 February 2018, Mr Menon and Mr Tucker made a fifth visit to the premises based upon the suspected contravention that Geofabrics had failed to display the previous notices that had been issued. 82
[36] Mr Menon says that he approached a security guard at the main gate and showed him the s.117 notice. 83 They were refused entry by security staff until WHS inspectors were called and they were permitted to enter.84 Mr Haviland gave evidence that prior to WHS inspectors facilitating their entry, Mr Tucker entered the premises through the back gate85 and police were called.86 Geofabrics contends that Mr Tucker’s conduct eliminates any common law “implied licence” to enter the premises and he was therefore trespassing.87
[37] It is again clear on the evidence that the central issue in dispute remained that of coverage. When Mr Menon and Mr Tucker were refused entry initially, Mr Haviland told them that it was because the CFMEU did not have coverage of the premises. 88 Moreover, during a subsequent discussion in the boardroom at the Applicant’s premises, it seems clear that the issue of disputed coverage was and remained alive.89
Summary of competing contentions
[38] According to Geofabrics the issues raised by the application are as follows:
“(1) Whether
(a) At times between 30 January 2018 and 26 February 2018 (both inclusive), the Construction, Forestry, Mining and Energy Union ("CFMEU") was entitled to represent the industrial interests of workers employed by Geofabrics at its South Queensland Manufacturing Site at 69 Motorway Circuit, Ormeau ("SQM Site"); and
(b) The Construction, Forestry, Mining and Energy Industrial Union of Employees Queensland ("CFMEUQ") was entitled to represent the industrial interests of workers employed by Geofabrics at its SQM Site.
(2) Whether, on any of 7, 8, 12 and 26 February 2018, any of the Second, Third, Fourth, Fifth and Sixth Respondents ("the Construction Division organisers") had a reasonable suspicion that a contravention of the Work Health and Safety Act 2011 (Qld) ("WHS Act") had occurred or was occurring at the SQM Site.
(3) In respect of each of the entries upon the SQM Site by one or more of the Construction Division organisers on 7, 8, 12 and 26 February 2018, whether such entry was authorised, justified or excused by law.
(4) Whether, contrary to s.499 of the FW Act, any of the Construction Division organisers failed to comply with a reasonable request by Geofabrics to comply with an occupational health and safety requirement that applied to the SQM Site.
(5) Whether, contrary to s.500 of the FW Act, any of the Construction Division organisers exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act acted in an improper manner.
(6) Whether, contrary to s.503 of the FW Act, any of the Construction Division organisers took action with the intention of giving the impression, or reckless as to whether the impression was given, that things they were doing were authorised by Part 3-4 of the FW Act when they were not so authorised.
(7) Whether, contrary to s.508 of the FW Act, any of the parties to this matter (other than the Applicant) misused rights exercisable under Part 3-4 of the FW Act.” 90
[39] Geofabrics contends that under s.505(2)(e) of the Act, the Commission can make an order described in s.508(2)(d) requiring that entry permits issued in the future be subject to specific conditions. 91 The Respondents argue that s.505(2)(e) should not be interpreted to ‘undermine the legislative balance between ss.505 and 508 and the absence of the orders identified in s.508 from s.505 should be perceived as deliberate’.92 Further, the Respondents say that although s.508(2)(d) allows the Commission to grant an order about the future issue of entry permits, the order must be limited to specified persons.93
[40] Geofabrics says that on each of the five visits to the premises, various of the second to sixth named Respondents indicated that the purpose of their entry was to have discussions with employees employed at the premises and claimed that they were entitled to represent the industrial interest of the employees. 94 Geofabrics challenged their right to enter the premises and on four occasions the permit holders then stated that their reason for entry was to investigate a “reasonable suspicion” that a contravention of the WHS Act had occurred or was occurring.95 Geofabrics alleges that the permit holders entered the premises contrary to its direction and request on four of the five occasions.96
[41] The second to sixth named Respondents and the CFMEUQ as intervenor (hereafter for convenience referred to collectively as the “Respondents”) contend that the Commission is only permitted to make an order under s.505 of the Act when the order is directed at resolving a dispute. They contend that the only relevant operative dispute during the period of the visits was one of coverage. That dispute has been resolved. Further, the Respondents say that the orders sought pursuant to s.508 of the Act can only be made upon application by an Inspector or on the Commission’s own initiative 97 and no such application has been made nor was there any reference to s.508 in Geofabrics’ application.98 This last proposition is incorrect as Geofabrics’ application makes reference to s.508 when outlining the relief sought and the grounds upon which the Applicant relies for the orders sought.
[42] The Respondents submit that the application should be dismissed and there is no basis upon which any order could be made within the Commission’s jurisdiction imposing restrictions upon any of the Respondents. 99 In addition, the Respondents submit that it is not the Commission’s responsibility to determine how the CFMMEU should allocate responsibilities within its administrative structure and as such Order 3 sought by Geofabrics has no legal basis. The Respondents suggest that the Commission make an order to the effect that Geofabrics must not refuse to allow a permit holder to exercise their right of entry because they are not an official of a particular division of the CFMMEU.100
Relevant statutory provisions
[43] Section 505 of the Act provides as follows:
“FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:
(a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).
Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.
Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.
Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.
Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.
(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder's organisation;
(iii) an employer;
(iv) an occupier of premises.
(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.
(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:
(a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”
[44] Section 508 of the Act provides as follows:
“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.”
[45] As is plain from the text of s.505, the Commission is empowered to deal with a dispute about “the operation of” Part 3–4 of the Act. The Applicant’s case is that entry was asserted by relevant officials of the CFMEU for the purposes of holding discussions with employees and for WHS purposes.
[46] Section 484 of the Act deals with entry for discussion purposes and provides:
“s. 484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF outworkers:
(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.”
[47] Section 487 of the Act relevantly requires that a compliant entry notice must be given during working hours at least 24 hours before but not more than 14 days before entry under s.484. Section 518 requires that an entry notice specify the premises that are to be entered, the day of the entry, the organisation of which the permit holder for entry is an official and relevantly, for entry under s.484, the notice must specify that s.484 authorises the entry, specify the provision of the organisation’s rules that entitle the organisation to represent an employee who performs work on the premises and must contain a declaration that the permit holder’s organisation is entitled to represent the industrial interests of that employee.
[48] Relevant also is s.494 which provides that an official of an organisation must not exercise State or Territory OHS rights unless the official is a permit holder under the Act. There is no dispute that the entry pursuant to s.117 of the WHS Act by various of the officials at the premises was a purported exercise of State or Territory OHS rights within the meaning of s.494(2) of the Act.
[49] Section 117 of the WHS Act permits a WHS entry permit holder to enter a workplace for the purposes of inquiring into a suspected contravention of the WHS Act that relates to, or affects, a relevant worker. A WHS entry permit holder must reasonably suspect before entering the workplace that a contravention has occurred or is occurring. 101
[50] A WHS entry permit holder is a person who holds a WHS entry permit issued under Part 7 of the WHS Act. 102 Section 133 of the WHS Act sets out the eligibility for the issue of a WHS entry permit and provides that a WHS entry permit must not be issued to an official of a union unless the industrial registrar is satisfied that the official is an official of the union, has satisfactorily completed prescribed training, and holds or will hold, an entry permit under the Actor an industrial officer authority.
[51] “Relevant worker” means a worker who is a member, or eligible to be a member, of a relevant union, whose industrial interests the relevant union is entitled to represent and who works at the workplace. 103 “Official of a union” includes an employee of that union.104 “Union” relevantly includes an employee organisation that is registered under the Fair Work (Registered Organisations) Act 2009 (Cth).105
[52] It should be apparent from the above that entry to premises whether under s.484 of the Act or s.117 of the WHS Act is conditioned inter alia, upon the permit holder’s organisation having the right to represent the industrial interests of employees performing work at the premises at which entry is sought.
[53] During the period at issue in this dispute, that is the period encompassing the occasions on which there are attendances by various of the second to sixth named Respondents at the premises, there is no dispute that the CFMEU was a “union” within the meaning of the WHS Act. There is no dispute that the second to sixth named Respondents who variously attended the premises during this period were officials of the CFMEU. There is no dispute that each held an entry permit under the Act and also held a WHS entry permit.
[54] Relevant also is the fact that the CFMEUQ as intervenor in these proceedings has accepted that it does not have the right to represent the industrial interests of employees of Geofabrics working at the premises because the employees are national system employees. 106 There is thus no dispute about the intervenor’s capacity to cover relevant employees working at the premises.
[55] Therefore, the question whether there were any rights capable of being exercised under the Act and under the WHS Act by the second to sixth named Respondents as officials of the CFMEU during the period turns principally on whether the CFMEU had a right to represent the industrial interests of any of the employees working at the premises.
[56] I return to the right of entry scheme under the Act. Part 3-4 deals with right of entry. Division 2 contains entry rights. Division 3 contains limitations on the exercise of entry rights conferred by State or Territory OHS law, which relevantly for present purposes includes s.117 of the WHS Act. It should be noted that Division 3 of the Act does not regulate the exercise of a State or Territory OHS right under relevant State or Territory law. Rather, the Division places additional conditions upon the exercise of certain rights, namely a right to enter premises, or to inspect or otherwise access an employee record of an employee that is on the premises if that right is conferred by a State or Territory OHS law. Moreover, the restrictions contained in Division 3 will only apply if:
“(a) the premises are occupied or otherwise controlled by any of the following:
(i) a constitutional corporation;
(ii) a body corporate incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth authority; or
(b) the premises are located in a Territory; or
(c) the premises are, or are located in, a Commonwealth place; or
(d) the right relates to requirements to be met, action taken, or activity undertaken or controlled, by any of the following in its capacity as an employer:
(i) a constitutional corporation;
(ii) a body corporate incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth authority; or
(e) the right relates to requirements to be met, action taken, or activity undertaken or controlled, by an employee of, or an independent contractor providing services for, any of the following:
(i) a constitutional corporation;
(ii) a body corporate incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth authority; or
(f) the exercise of the right will have a direct effect on any of the following in its capacity as an employer:
(i) a constitutional corporation;
(ii) a body corporate incorporated in a Territory;
(iii) the Commonwealth;
(g) the exercise of the right will have a direct effect on a person who is employed by, or who is an independent contractor providing services for, any of the following:
(i) a constitutional corporation;
(ii) a body corporate incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth authority.” 107
[57] The relevant restrictions are first, the official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder under the Act. 108 Secondly, a permit holder must not exercise a State or Territory OHS right to inspect or otherwise access an employee record of an employee unless the permit holder has given the occupier of the premises and any affected employer at least 24 hours’ written notice of the intention to exercise the right and the reasons for doing so.109
[58] Thirdly, the permit holder must not contravene any condition that is imposed on the entry permit in the exercise of a State or Territory OHS right. 110 Fourthly, a permit holder must not exercise a State or Territory OHS right unless the permit holder produces, when requested to do so by the occupier of the premises or affected employer, his or her entry permit for inspection.111
[59] Fifthly, a permit holder may only exercise State or Territory OHS rights during working hours. 112 Finally, a permit holder does not exercise a State or Territory OHS right unless the permit holder complies with any reasonable request by the occupier of the premises to comply with an OHS requirement that applies to the premises.113
[60] Importantly, Division 3 does not, relevantly for present purposes, regulate whether the permit holder in exercising an entry right under s.117 of the WHS Act reasonably suspected before entering the workplace that a contravention of the WHS Act has occurred or is occurring. Nor does it regulate whether a notice has been given under s.119 of the WHS Act as soon as is reasonably practicable after entering the workplace or whether the notice complied with the relevant regulation.
[61] There are a number of prohibitions applying to entry under Part 3-4 set out in Divisions 2 and 4, including the requirement under s.487 for an entry notice for a s.484 entry, the requirement under s.491 and s.499 to comply with OHS requirements, the requirement as route to be taken in s.492A and the requirement to produce permit in s.489 and s.497 of the Act.
[62] Section 500 proscribes conduct by a permit holder that intentionally hinders or obstructs any person or prohibits the permit holder from acting in an improper manner while exercising a right of entry. Similar prohibitions affecting persons dealing with a permit holder are to be found in s.501 and s.502 of the Act.
[63] Division 5 confers certain powers on the Commission in respect of certain disputes and entry permits. Section 505 confers on the Commission a power to deal with disputes “about the operation of this part”. The Commission may deal with a dispute by arbitration, including by imposing conditions on a permit, suspending or revoking a permit, making orders about the future issue of permits to persons and making any other order it considers appropriate.
[64] A dispute may be dealt with on the Commission’s own initiative or upon application by, amongst others, an employer or an occupier of premises. Under s.505(4), the Commission is required to take fairness into account when dealing with a dispute.
[65] Section 505(1) contains a non-exhaustive list of the kinds of disputes with which the Commission may deal. Although there is no express reference to a dispute about the operation of s.484, there is little doubt that the Commission is empowered to deal with such a dispute, save that it also seems clear that the Commission cannot, under s.505, deal with a dispute about the frequency of an entry to hold discussions with employees as that matter is properly to be dealt with under s.505A.
[66] A dispute under s.505 may be dealt with by arbitration, however, the Commission has other means by which it may deal with such a dispute. The Commission may deal with the dispute by mediation or conciliation or by making a recommendation or expressing any opinion. 114 If a dispute under s.505 is dealt with by arbitration, the Commission is empowered to make a range of orders,115 but relevantly, in relation to a dispute concerning the operation of s.484, it is not empowered to confer rights of the permit holder that are additional to, or inconsistent with, rights that are exercisable in accordance with Division 2 of Part 3–4.116 An exercise of arbitration powers under the Act does not involve the adjudication of existing legal rights as between the disputants. Rather, the exercise of an arbitration power involves a determination of what rights there should be. The Commission does not exercise judicial power. If that point were necessary to be made good, the terms of s.505(5) serves that purpose. The general power in s.505(2)(e) to make any other order the Commission considers appropriate is to be understood as being so confined.
[67] Section 505(5), as already noted, limits the capacity of the Commission to confer rights on permit holders that are additional to, or inconsistent with, rights of entry for which provision is made, except in the particular enumerated kinds of disputes. These are not presently relevant.
[68] Subdivision C confers power to make orders where an organisation or official has misused rights 117 and the power is only exercisable on application of an inspector or on the Commission’s own initiative. Moreover, the power may only be exercised by a Presidential Member of the Commission or a Full Bench.118
[69] Sections 497, 499, 500, 501 and 502 are civil remedy provisions, and are enforceable by application to the Federal Court or the Federal Circuit Court.
[70] It is uncontroversial that a right of entry under Part 3-4 is both an important means by which an organisation has access to members and potential members, and can investigate suspect contraventions of relevant instruments affecting its members and an imposition on the private rights of the occupier of the premises. As to the latter, it is an encroachment on the right an occupier or employer would otherwise have to determine who is permitted to enter and who may be excluded from entering premises owned or controlled by the occupier or employer. Accordingly, statutory provisions of this kind should be construed so that encroachment is no greater than the statute allows, either expressly or by necessary implication. 119
[71] The operation of s.505 was considered in CFMEU and Others v Bechtel Construction (Australia) Pty Ltd and Another 120 which concerned an appeal from a decision suspending a number of entry permits held by various CFMEU officials arising out of visits to the Curtis Island gas project. Accepting the findings at first instance as to past conduct and that there was a dispute about whether the permit holders would continue to engage in that conduct. The appeal was upheld on the ground that the suspension of the permits was not an order directed at resolving the dispute identified by the Commission. The Full Bench observed:
“Accepting this characterisation of the dispute, the question becomes whether or not a suspension of the relevant individual’s right of entry permits deals with this dispute. In this matter, it is not clear how making an order suspending the permits of the relevant individuals could be said to deal with the dispute at hand. It is clear from her reasoning that the Commissioner determined the length of the suspension for each individual solely on the basis of that individual’s past conduct. What is not clear, however, is the nexus between that past conduct, the ongoing dispute between the parties and the way in which a suspension could deal with that dispute. We are of the view that the suspension of permits, in the circumstances of the dispute before the Commissioner, was intended as a sanction for past conduct as opposed to an order for the purposes of dealing with an ongoing dispute. This is particularly the case given that the suspension of a permit goes beyond the projects that were the subject of the dispute. Given the far-reaching consequences of such an order, significant care is required in order to determine that it is a suitable means of dealing with any dispute that arises under s.505 of the FW Act.” 121
[72] It seems therefore that conduct which has occurred may give rise to a dispute about the operation of Part 3-4 of the Act if the evidence establishes that the relevant conduct is likely to continue. Further, an order that is made in dealing with the dispute by arbitration is to be directed to dealing with an identified dispute.
[73] The Commission’s role under s.505 of the Act may involve an examination of past conduct, but only for the purposes of resolving the dispute by determining what future rights should be and then by crafting an appropriate order to give effect to those future rights. 122
[74] It is thus important to focus on and identify a dispute which can be discerned from the evidence and to which the exercise of arbitral power to making orders which deal with that dispute is to be directed. Any order that is to be made should operate upon the dispute so as to ameliorate or resolve the dispute for the future. An order under s.505 should not operate as, in effect, a penalty for past conduct. This is to be contrasted with s.508 which permits the Commission to take various steps restricting entry rights vis-a-vis an official or an organisation if it is satisfied that the organisation or an official has misused those rights. Other punitive measures are available for past contravening conduct through the civil remedy provisions, but not from the Commission and not under s.505 of the Act.
[75] It is also important, in identifying a dispute that falls within s.505, to understand that which Part 3–4 of the Act regulates because s.505 is confined to empowering the Commission to deal with a dispute about the operation of Part 3–4. So far as the purported exercise of entry rights under the WHS Act by the permit holders is concerned, as I have already observed, Division 3 of the Act is limited in its operation upon those rights. Disputes concerning the exercise of a right under the WHS Act, can only fall within the power in s.505 of the Act if the dispute is about the operation of Division 3 or a provision thereof. Thus, it seems to me that in exercising an entry right under s.117 of the WHS Act, a dispute about whether a permit holder reasonably suspected before entering the workplace that a contravention of the WHS Act has occurred or is occurring, is not one that is capable of resolution under s.505 of the Act since it is not a dispute about the operation of Division 3 or about a provision thereof. Nor is a dispute whether a notice has been given under s.119 of the WHS Act as soon as is reasonably practicable after entering the workplace or whether the notice complied with the relevant regulation, a dispute which engages with s.505 of the Act as it is not a dispute about the operation of Division 3 or about a provision thereof.
The Dispute
[76] At the heart of the dispute, that is the dispute capable of being resolved pursuant to s.505 of the Act, is the issue of coverage. As I have already observed, I am not persuaded that any permit holder sought to exercise an entry right pursuant to s.484 of the Act. Moreover, no such right is asserted by any of the permit holders. There is no dispute (putting coverage to one side) that no permit holder gave notice to enter for discussion purposes for any of the dates at issue and no right under the Act could have been exercised. It also seems uncontroversial that the requirement under s.494(1) that an official of an organisation was not to exercise a State or Territory OHS right unless the official is a permit holder means that the permit holder is an official of an organisation that is entitled to represent the industrial interests of persons employed at the premises at which a State or Territory OHS right is sought to be exercised.
[77] As I have already observed, the issue whether the CFMMEU has coverage of workers employed at the premises can no longer be in dispute since the amalgamation between the CFMEU, MUA and TCFUA took effect. To that extent, as that issue has been conclusively resolved by the amalgamation, there is no relevant ongoing dispute.
[78] The dispute which was alive during the relevant period was whether the CFMEU was entitled to represent the industrial interests of certain persons employed at the premises by reason that such persons were eligible to be members of the CFMEU pursuant to Rule 2(E)(a) of the registered rules of the CFMEU, as then in force. Other than expressing the view that I can readily understand how it is that the dispute arose and that there are credible arguments about the proper construction of the rule advanced by both sides, it would be unwise in the circumstances for me to express any concluded view because as I have already stated, that the CFMMEU is now entitled to represent the industrial interests of a number of persons who are employed at the premises cannot be disputed. Moreover, to the extent that the Applicant made submissions as to which of the various branches or divisions of the CFMMEU should represent employees who are members at the premises, that is not a submission which goes to coverage but rather as to the internal organisation of the CFMMEU and a preference by the Applicant to deal with officials of one branch or division of an organisation rather than another. The exercise of entry rights is conditioned on the permit holder’s organisation being entitled to represent the industrial interests of one or more employees performing work at the premises. Which permit holder of an organisation is deployed to a premises for the purposes of exercising entry rights in connection with persons performing work at the premises whose industrial interests the organisation is entitled to represent is ultimately a matter for the organisation.
[79] So much of the dispute as concerned whether the permit holders were entitled to exercise entry rights under the WHS Act by reason of an entitlement to represent the industrial interests of certain of the employees is also now one that is resolved since the amalgamation. Such connection as the second to sixth named Respondents also have with the CFMEUQ is not relevant since the intervenor does not assert coverage of the relevant employees in any sense relevant to entry rights.
[80] As I have already observed, I do not consider that disputes about whether in the purported exercise of entry right under s.117 of the WHS Act there was a reasonable suspicion of a contravention of the WHS Act, or whether notices given were given as required or complied with the operative regulation, are matters capable of resolution pursuant to s.505 of the Act.
[81] Nevertheless, I will observe that although there were plainly potential WHS Act contraventions identified by the WHS inspectors during their visits, as is evident by the issuing of the various prohibition and improvement notices, I well understand the frustration of Mr Yen in particular as to the information provided by the attending permit holders about the OHS issues of concern. Although it is correct as the Respondents contend, that the issuing of a notice under the WHS Act and the particulars in that notice are not preconditions to entry, it must be said, to the extent that the particulars in the notices variously given by the permit holders to the Applicant disclose the nature of the suspected contravention, they fall well short of the mark. The generalised nature of the items listed in some of the notices, for example “access and egress” and “mobile plant”, say nothing about the suspected contravention. To the extent that the notices might support a conclusion that the permit holder reasonably suspected a contravention before entering a workplace, they do little in that regard because of the absence of greater specificity.
[82] The permit holders would be well served in the future to do that which their own notices suggest they do, that is, to provide “[D]etails of the suspected contravention to which this notice relates”. “Access and egress” and “mobile plant” hardly meet that description. To do otherwise will simply invite disputation in the future.
[83] Before turning to the issues that the Applicant says fall for determination, I should say a little about the Applicant’s objections to certain of the evidence relied upon by some of the Respondents on the basis that it is said to have been unlawfully obtained. 123 The evidence to which objection was taken concern certain video recordings made by Mr Tucker,124 certain photographs taken by Mr Parfitt on 7 February 2018125 and three video recordings made by Mr Menon on 11 June 2018.126 In summary, the Applicant contends that the permit holders did not have any lawful right to be on the Applicant’s premises and were trespassing, and even if they were otherwise entitled to be on the premises, the permit holders were not expressly authorised by the WHS Act to take photographs or to make video recordings.
[84] Ultimately, I allowed the Respondents to tender that material because, as the case that was being advanced against the second to sixth named Respondents discloses, I considered that the material would assist in resolving some factual disputes, the material was highly probative and so outweighed in my view the circumstances in which the material was or might have been obtained.
[85] As things transpired, and as should be obvious given my conclusion, is it is unnecessary to resolve much of the disputed factual matters, as much of the material goes to OHS concerns. To the extent that the material is responsive to conduct in which it is alleged that some of the Respondents engaged, there is no reason to suppose and no evidence to support a conclusion that the conduct alleged would or would likely continue. I consider that the conduct alleged was symptomatic of the underlying and central dispute as to coverage. That dispute is not ongoing.
[86] Turning then to the issues that the Applicant says arise and must be resolved. Issue (1)(a) is unnecessary to decide since it has no bearing on whether the CFMMEU is entitled to represent the industrial interests of workers employed at Geofabrics at the premises. That issue has been resolved by reason of the amalgamation. Issue (1)(b) does not arise since the CFMEUQ does not assert that it was entitled to represent the industrial interests of workers employed by Geofabrics at the premises during the relevant period or at all.
[87] For the reasons earlier stated, issue (2) is not one that can be properly determined under s.505 as it is not a dispute about the operation of Part 3–4 the Act. I have already concluded that the second to sixth named Respondents did not seek to exercise entry right for the purposes of holding discussions with employees. The question whether the entries on 7, 8, 12 and 26 February 2018 were supported by the WHS Act and thus the question whether such entries were authorised, justified or excused by law is linked to whether the entries were supported under the WHS Act and thus cannot be resolved under s.505 of the Act. To the extent that such justification may be supported by a contention that the CFMEU had the right at the time to represent the industrial interests of relevant workers, that issue need not be determined for the reasons earlier stated. Consequently, issue (3) does not require resolution. The conduct alleged which underpins the issues identified in (5) and (6) occurred in the context of the overarching dispute as to coverage. That dispute is not a continuing one. I do not consider that the conduct alleged to have been engaged in during the period in which the coverage dispute was alive, would likely continue to occur. In any event, it would be inappropriate for the Commission exercising arbitral power to conclude, as the Applicant invites, that there has in effect been a contravention of ss.500 and 503. These are civil remedy provisions.
[88] The way in which issue (4) is described also invites a conclusion which is inappropriate to make, that is, whether there has been a contravention of s.499 of the Act which is also a civil remedy provision.
[89] Section 505 allows the Commission to deal with a dispute concerning whether a request under s.499 was reasonable. The operative request on the evidence was that the relevant permit holders undertake an induction. No party suggested that that request was not by itself reasonable. Nonetheless, it is to be borne in mind that because of the dispute over coverage, the arrangements that had been made on 30 January 2018 for Mr Menon and Mr Tucker to receive an induction were rescinded in the email from Mr Yen to Mr Ravbar of 2 February 2018. In any event, it is not in dispute that the requirement that persons attending the premises be inducted applies at the premises or that such a requirement is a reasonable one for the purposes of s.499. Presumably, since coverage is no longer in dispute, appropriate arrangements may be made for permit holders attending the premises to be inducted.
[90] I should also say something briefly about the Applicant’s reliance on s.508. First, the Applicant has no standing to make an application under s.508 since the power there is exercisable only on application by an Inspector or by the Commission acting on its own initiative. 127 I do not consider that it is appropriate to consider whether any powers under s.508 should be exercised in the circumstances of this case for two reasons. First, the power is not an adjunct to the resolution of a dispute brought under s.505. Secondly, the fundamental issue central to the dispute, that is coverage, is no longer in dispute. The hammer that is s.508 is much too large an instrument to wield in cracking the disputed nut that was, but no longer is, coverage.
[91] For the reasons stated, I do not consider that there is any ongoing “justiciable” dispute which would enliven the power to make orders under s.505. I therefore do not propose to make any of the orders sought by the Applicant. Nor do I propose to make the order suggested by the Respondents to which earlier reference is made. The entry refusals, such as they were, occurred for reasons of the coverage dispute. There is no ongoing dispute. The Applicant has acknowledged that coverage is no longer an impediment to entry. 128 The order is unnecessary.
[92] I will however make that which I consider to be an obvious observation. Before the amalgamation, there was no dispute that the TCFUA had coverage of most of the workers engaged at the premises. That there is no dispute about the CFMMEU’s coverage of workers at the premises arises as a consequence of the amalgamation involving the CFMEU and the TCFUA, and the incorporation of the TFCUA’s eligibility rules into the rules of the amalgamated union. The second to sixth named Respondents did not have any history of attending the premises before 30 January 2018. That which was formally the TCFUA is now a division within the CFMMEU. There are horses for courses and the CFMMEU should give serious and proper consideration to whether it is more appropriate to allow the Manufacturing Division and permit holders attached thereto, to exercise entry rights at the premises rather than those who might be attached to another Division or Branch.
Conclusion
[93] For the reasons stated the application is dismissed.
DEPUTY PRESIDENT
Appearances:
S Rinkevich and M Swan of AI Group for the Applicant.
W Friend QC and P Rozen of Counsel for the Respondents.
Hearing details:
2018.
Brisbane:
June 13, 14, 15 and July 26, 27.
Final submissions:
Applicant, 26 July 2018.
Respondents, 26 July 2018.
SCHEDULE A
Mr Arturo Menon
Second Respondent
Mr John Tucker
Third Respondent
Mr Luke Gibson
Fourth Respondent
Mr Matthew Parfitt
Fifth Respondent
Mr Paul Taylor
Sixth Respondent
Printed by authority of the Commonwealth Government Printer
<PR701654>
1 Transcript at PN9-PN11
2 Email from Slater and Gordon dated 5 July 2018
3 Applicant’s outline of submission regarding application for stay of proceedings dated 15 March 2018 at [1]
4 Applicant’s submissions dated 26 July 2018 at [3]
5 Ibid at [1]
6 Applicant’s submissions dated 30 April 2018, Attachment Draft Final Order
7 A copy of the draft orders was produced at the hearing on 13 June 2018
8 Applicant’s submissions in reply dated 20 June 2018 at [4]
9 [2018] FWC 1017 at [237]
10 Exhibit 31
11 Transcript at PN2164; Exhibit 27 at [28]-[30]; Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [26]
12 Exhibit 27 at [27]-[28]
13 Exhibit 33 at [14]; Transcript at PN4029
14 Applicant’s submissions dated 26 July 2018 at [9]-[11]; Transcript at PN2170; Transcript at PN4060
15 Applicant’s submissions dated 26 July 2018 at [12]
16 Transcript at PN2208 and PN4200
17 Ibid at PN2182-PN2185
18 Ibid at PN4060
19 Exhibit 27 at [33]
20 Exhibit 8 at [5]-[7]; Exhibit 6 at [15]-[17]
21 Exhibit 6 at [13]; Exhibit 8 at [12]
22 Transcript at PN4257; Exhibit 27 at [37]; Exhibit 33 at [23]; Exhibit 35 at [16]
23 Exhibit 27 at [36]
24 Transcript at PN2383-PN2385
25 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [31]; Transcript at PN4391
26 Transcript at PN2386-PN2387
27 Exhibit 27 at [46]
28 Exhibit 27, Annexure AM-1; Transcript at PN183-PN184
29 Applicant's submissions dated 26 July 2018 at [12]–[13]
30 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [37]; Exhibit 27 at [50]; Annexure AM-2; Transcript at PN4119; Exhibit 33 at [36]
31 Transcript at PN2678-PN2681
32 Exhibit 1 at [25]
33 Exhibit 6 at [29]-[35]; Transcript at PN971
34 Transcript at PN2538
35 Exhibit 1 at [36]
36 Exhibit 33 at [36] – [39]; Exhibit 27 at [49] – [52]
37 Exhibit 33 at [37]; Exhibit 27 at [55]
38 Exhibit 3 at [51]; Transcript at PN241 and PN270
39 Transcript at PN1041
40 Ibid at PN1158
41 Ibid at PN272-PN273
42 Ibid at PN274-PN275
43 Applicant’s submissions dated 26 July 2018 at [66]
44 Exhibit 1, Annexure HGY-1
45 Transcript at PN2455-PN2457
46 Exhibit 1 at [31]
47 Transcript at PN2732
48 Exhibit 33, Annexure JT-1 and JT-2
49 Transcript at PN331and PN336
50 Exhibit 33 at [63]
51 Transcript at PN1077-PN1078
52 Ibid at PN4639-PN4642
53 Ibid at PN975
54 Ibid at PN349-PN353
55 Ibid at PN385
56 Exhibit 1, Annexure RE2018/172-USB-HGY
57 Transcript at PN379-PN382
58 Ibid at PN4954
59 Ibid at PN5001
60 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [43]
61 Exhibit 38 at [31]; Exhibit 39 at [21]
62 Exhibit 1, Annexure HGY-4 and HGY-6; Transcript at PN397
63 Exhibit 27, Annexure AM – 1
64 See for example Exhibit 1 at [36], [56] and [65]; Transcript at PN274-PN275
65 Work Health and Safety Act2011 s.116
66 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [52]; Transcript at PN621-PN623
67 Exhibit 27 at [94]; Annexure AM-4
68 Ibid at [43]
69 Exhibit 33 at [22]
70 Exhibit 1 at [191]
71 Exhibit 27 at [99]; Exhibit 33 at [102]
72 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [52]; Applicant’s submissions dated 26 July 2018 at [28]
73 Transcript at PN1177
74 Exhibit 1 at [206]; Annexure HGY-6
75 Transcript at PN688
76 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [55]; Exhibit 27 at [114]; Exhibit 33 at [113]
77 Transcript at PN690; Exhibit 1 at [215]
78 Exhibit 1, Annexure HGY-7
79 Applicant’s submissions dated 26 July 2018 at [31] and [33]
80 Transcript at PN706-PN708
81 Ibid at PN713-PN714
82 Exhibit 8 at Annexure DWH-2; Work Health and Safety Act 2011 (Qld) s.210
83 Transcript at PN3787; Exhibit 27 at Annexure AM-7
84 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [57]-[58]
85 Transcript at PN5421
86 Exhibit 8 at [208]-[210]; Transcript at PN1138-PN1139
87 Applicant’s submissions dated 26 July 2018 at [35]
88 Exhibit 8 at [203]
89 Ibid at [273] – [274]
90 Applicant’s submissions dated 26 July 2018 at [2]
91 Applicant’s submissions in reply dated 20 June 2018 at [3]
92 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [9]
93 Ibid
94 Applicant’s submissions dated 26 July 2018 at [6]
95 Ibid at [7]
96 Ibid at [8]
97 Fair Work Act 2009 (Cth) s.508(3)
98 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [3] and [5]
99 Ibid at [118] and [121]
100 Ibid at [119]-[120]
101 Work Health and Safety Act 2011 (Qld) s.117(2)
102 Ibid at Schedule 5
103 Ibid at s.116
104 Ibid
105 Ibid at Schedule 5
106 Transcript at PN6904
107 Fair Work Act 2009 (Cth) s.494(2)
108 Ibid at s.494(1)
109 Ibid at s.495(1)
110 Ibid at s.496
111 Ibid at s.497
112 Ibid at s.498
113 Ibid at s.499
114 See s.595
115 See s.505(2)
116 See s.505(5)
117 Ibid at s.508
118 See ss.612 and 615
119 See Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]
120 [2015] FWCFB 946
121 Ibid at [33]
122 CFMEU v Austral Bricks (Vic) Pty Ltd [2014] FWC 5407 at [42]
123 Transcript at PN309; see also PN408 and PN2472
124 Exhibit 33, Annexure ‘JT1’, ‘JT2’ and ‘JT3’
125 Exhibit 39, Annexure MP-1
126 Exhibit 27, Annexure Menon video 1, 2 and 3
127 Fair Work Act 2009 (Cth) s.505(3)
128 Outline of submissions by the second-sixth respondents and the intervener dated 26 July 2018 at [10(p)]; Transcript at PN742-PN747
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