John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union
[2009] FCA 786
•24 July 2009
FEDERAL COURT OF AUSTRALIA
John Holland Pty Ltd (ACN 004 282 268) v Construction, Forestry, Mining and Energy Union [2009] FCA 786
INDUSTRIAL LAW – consideration of an application for declarations and related relief in connection with a greenfield workplace agreement made between an employer and the Australian Workers’ Union under the Workplace Relations Act 1996 (Cth) – consideration of whether the agreement covers work undertaken as part of an expansion of the Abbot Point Coal Terminal – consideration of whether permit holders under the Act had a right of entry to premises under s 760 of the Act
INDUSTRIAL LAW – consideration of the elements of civil penalty provisions s 767(1) and 768(1) of the Act – consideration of the circumstances in which a permit holder may be taken to act intentionally for the purposes of s 767(1) – consideration of hindering and obstructing for the purposes of s 767(1) – consideration of whether “reasonable grounds” subsisted for a relevant belief for the purposes of s 768(1) of the Act
Workplace Relations Act 1996 (Cth), ss 736, 737, 760, 767, 768
Fair Work Act 2009 (Cth)
Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)George A. Bond & Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 - cited
City of Wanneroo v Holmes (1989) 30 IR 362 - cited
Kucks v CSR Limited (1996) 66 IR 182 - cited
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 - cited
Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 - cited
United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 – cited
Amcor Limited v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 214 ALR 56; (2005) 222 CLR 241 - cited
Briginshaw v Briginshaw (1938) 60 CLR 336 - cited
Pine v Doyle (2005) 143 IR 98; [2005] FCA 977 - cited
Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009 - cited
George v Rockett (1990) 93 ALR 483 - cited
Rema Industries and Services Pty Ltd v Coad & Ors (1992) 107 ALR 374 - cited
O’Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1 - cited
Leonard v Morris (1975) 10 SASR 528 – citedJOHN HOLLAND PTY LTD (ACN 004 282 268) v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, AUTOMOTIVE, FOOD, METALS ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and AUSTRALIAN WORKERS UNION
QUD 63 of 2009
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, ELECTRICAL TRADE UNION OF EMPLOYEES QUEENSLAND BRANCH UNION (ETUQLD), CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CFMEU), TERRY BRADLEY, WILLIAM KANE LOWTH, PETER ONG and MICHAEL ROBINSON v JOHN HOLLAND PTY LTD (ACN 004 282 268)
QUD 66 of 2009GREENWOOD J
24 JULY 2009
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 63 of 2009
BETWEEN: JOHN HOLLAND PTY LTD (ACN 004 282 268)
Applicant
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentTHE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second RespondentAUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Third RespondentAUSTRALIAN WORKERS UNION
Fourth Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
24 JULY 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.Proceeding QUD63 of 2009 shall be listed for further argument in relation to the scope of relief to be the subject of formal orders arising out of the findings and reasons for judgment published on 24 July 2009 at a date to be nominated by the Court.
2.Proceeding QUD66 of 2009 shall be listed together with proceeding QUD63 of 2009 for the hearing of further argument in relation to the disposition of the costs in that proceeding.
3.The costs of the proceeding QUD63 of 2009 are reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 66 of 2009
BETWEEN: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
First ApplicantELECTRICAL TRADE UNION OF EMPLOYEES QUEENSLAND BRANCH UNION (ETUQLD)
Second ApplicantCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CFMEU)
Third ApplicantTERRY BRADLEY
Fourth ApplicantWILLIAM KANE LOWTH
Fifth ApplicantPETER ONG
Sixth ApplicantMICHAEL ROBINSON
Seventh ApplicantAND: JOHN HOLLAND PTY LTD (ACN 004 282 268)
Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
24 JULY 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The proceeding will be listed together with QUD63 of 2009 for further argument in relation to the question of the disposition of the costs in proceeding QUD66 of 2009.
3.The costs in proceeding QUD66 of 2009 are reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 63 of 2009
BETWEEN: JOHN HOLLAND PTY LTD (ACN 004 282 268)
Applicant
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First RespondentTHE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second RespondentAUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Third RespondentAUSTRALIAN WORKERS UNION
Fourth Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 66 of 2009
BETWEEN: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
First ApplicantELECTRICAL TRADE UNION OF EMPLOYEES QUEENSLAND BRANCH UNION (ETUQLD)
Second ApplicantCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CFMEU)
Third ApplicantTERRY BRADLEY
Fourth ApplicantWILLIAM KANE LOWTH
Fifth ApplicantPETER ONG
Sixth ApplicantMICHAEL ROBINSON
Seventh ApplicantAND: JOHN HOLLAND PTY LTD (ACN 004 282 268)
Respondent
JUDGE:
GREENWOOD J
DATE:
24 JULY 2009
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Background and short synopsis of the framework contentions
These proceedings concern two matters which were heard together. Evidence in one has been treated as evidence in the other.
The central question in controversy is whether work done by employees of John Holland Pty Ltd (“John Holland”) at the Abbot Point Coal Terminal (“the Terminal”) located at Abbot Point approximately 30 kilometres north of Bowen, and generally described as the marine or off‑shore expansion works undertaken by the Terminal owner, Ports Corporation Queensland (“PCQ”), by contract with John Holland, as part of works to expand the annual throughput capacity of the Terminal to 50 million tonnes per annum (“50mtpa”) falls, as a matter of construction, within the terms of a greenfields workplace agreement made between John Holland and the Australian Workers’ Union (the “AWU”), described as the John Holland Pty Ltd – Abbots Point Coal Terminal Expansion Workplace Agreement 2008 (referred to in these reasons, alternatively, as the “Workplace Expansion Agreement” or “the Agreement”).
If so, the Agreement covers the work carried out on the relevant premises and is binding upon the AWU for the purposes of s 760 of the Workplace Relations Act 1996 (Cth) (“the Act”) to the exclusion of other Unions with the result that officials of other Unions or Organisations are not entitled to rely upon s 760 of the Act as the source of a right to enter the premises for the purpose of holding discussions with employees performing work under the Workplace Expansion Agreement, although those employees may be eligible to become members of the Union or organisation represented by the relevant officials. Industrial engagement in relation to the relevant work on site is thus a function of the relationship between the employer, the employees and the AWU for the term of the Agreement according to its terms.
The Workplace Expansion Agreement was entered into between 14 and 17 April 2008 and commenced operation on 17 April 2008.
The Automotive, Food, Metals Engineering, Printing and Kindred Industries Union (the “AMWU”); the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the “CEPU’); the Electrical Trade Union of Employees Queensland Branch Union (the “ETU”); and the Construction, Forestry, Mining and Energy Union (the “CFMEU”) (collectively described as “the Unions”) contend that the work undertaken by John Holland employees on an area of Terminal land on the eastern side of the Terminal described as the X50 site (where X signifies expansion) are differentiated from other Terminal expansion works by separate signage, a dividing boundary fence and a separate secure access gate. The Unions contend that the Workplace Expansion Agreement does not apply so as to regulate the terms and conditions of work of John Holland employees at the X50 site for the purposes of s 760 of the Workplace Relations Act 1996 (Cth), because, by the express terms of the Agreement, it is limited in its application to a single expansion project “at the Ports Corporation of Queensland Abbot Point Coal Terminal X25 and X30 Expansion” (cl 4.1 of the Agreement). The Unions give particular emphasis to the word “at” in that phrase as signifying the geographical limitation in the application of the Agreement to a specific site or project which, in the Agreement, was collectively described as the X25 and X30 Expansion.
The “X25 and X30 Expansion” is therefore said to signify a site specific project other than the differentiated X50 project. The Unions contend that the “X25 and X30 Expansion” contemplated by the Workplace Expansion Agreement when entered into in April 2008 comprehended, by the language of the Agreement, an expansion project which, it is said, is undertaken on the western on‑shore side of the Terminal separated from the X50 site by the dividing boundary fence, separate signage and a separate secure point of access.
John Holland contends that it undertakes works at the Terminal under two contracts. One, not relevant to these proceedings, concerns construction work undertaken on the western side of the Terminal to expand throughput capacity from 21mtpa to 25mtpa. The works comprehended by that contract are understood, it is said, as the “X25 Expansion”. The second contract was awarded to John Holland on 29 July 2008 and is described in PCQ’s letter of acceptance as “Contract No. Q08‑004 for the construction of X50 Marine Works”.
John Holland says, put simply, that there is symmetry in the description of the scope of works to be undertaken, between the invitation to tender issued by PCQ on 21 December 2007; Contract Q08‑004 (“the Contract”) by reference to the technical specification defining the works; and the Workplace Expansion Agreement. John Holland says the question of whether the Agreement covers the work carried out by its employees on site is to be determined by examining the content of Appendix 1 to the Workplace Expansion Agreement. Although cl 4.1 contains the phrase given emphasis by the Unions, the term “X25 and X30” in that phrase is immediately followed by the phrase “as outlined in Appendix A”. Although there is no “Appendix A” to the Agreement, John Holland says “Appendix 1” to the Agreement outlines a scope of works which is consistent with the tender description and the Contract, and accurately describes the work its employees are actually performing on site under the Contract. John Holland says the Appendix 1 tasks were to form part of a staged expansion of the Terminal to 30mtpa, which explains the reference to X30 in cl 4.1 of the Agreement. However, John Holland contends that PCQ in response to market demand abandoned a staged approach to expansion of the Terminal through phases X30, X35 and X50 and elected to expand the throughput capacity of the Terminal directly from 25mtpa to 50mtpa with the result, it is said, that the off‑shore marine works described in the tender letter and Appendix 1 to the Agreement came to be described by PCQ as works forming part of its “X50 Expansion”. That description of the expansion project was subsequently adopted in the Contract.
The Unions contend that there is work undertaken on the X50 site that is not within the description contained in Appendix 1 (assuming that Appendix 1 is treated as Appendix A for the purposes of cl 4.1) which suggests that the Contract scope of works finally negotiated after the making of the Workplace Expansion Agreement, goes beyond the scope of works in the Agreement. Moreover, they say that since there is no reference to a separate X50 project or “X50 Expansion” in the Agreement, the parties when describing the expansion project as an X25 and X30 Expansion must be taken, in a practical sense, to have expressed their clear intention that their greenfields workplace engagement was limited to a defined expansion project then contemplated as an expansion to achieve a Terminal throughput capacity of 25mtpa and 30mtpa. They say the PCQ project description “X50 Expansion” was not a descriptive project term used outside PCQ at 17 April 2008 and therefore not a common term of reference used by the parties to the Agreement at April 2008, which informs the proper construction of the Agreement. The Unions also contend that John Holland has failed to adduce the necessary evidence to support the factual foundations for the relief claimed by it and has failed to demonstrate that the work carried out at the X50 site is covered by the Contract, forms part of PCQ’s X50 Expansion project and is comprehensively covered by the Workplace Expansion Agreement.
The Unions also contend that on 3 November 2008, approximately seven months after the Agreement was entered into, John Holland put a proposal to their employees at the X25 and X50 work sites to vary the Agreement so as to, among other things, delete the existing Appendix 1 described as “Definition of Project” and bearing the subheading “The Scope of Works for X30 includes”, and substitute a new Appendix 1 defining the project under a subheading “The Scope of Works for X50 includes the following” with a new textual description of the project works. The proposed amendment was rejected by the employees. The Unions contend that the conduct of proposing the amendment is inconsistent with John Holland’s notion that Appendix 1 of the Agreement as struck on 17 April 2008 clearly describes and thus covers work said to be carried out under the Contract on the X50 site. The Unions further say that the attempt to amend Appendix 1 informed their belief that the Agreement did not cover work carried out on the X50 work site.
The Unions accept that if the proper construction of the Workplace Expansion Agreement is that it applies to work undertaken by John Holland employees at the X50 site under the Contract as part of PCQ’s X50 Expansion program, officials of the Unions are not entitled to enter the site in reliance upon s 760 of the Act for the purpose of holding discussions with John Holland employees carrying out that work, as the Agreement, binding upon the AWU, is not binding upon the AMWU, CEPU, ETU or CFMEU and thus there are no “eligible employees” of John Holland on site for the purposes of s 760 of the Act. Section 760 is in these terms:
760 Right of entry to hold discussions with employees
A permit holder for an organisation may enter premises for the purposes of holding discussions with eligible employees who wish to participate in those discussions. For this purpose, eligible employee means any employee who:
(a)on the premises, carries out work that is covered by an award or collective agreement that is binding on the permit holder’s organisation; and
(b)is a member of the permit holder’s organisation or is eligible to become a member of that organisation.
The Unions however contend that the Agreement does not cover the work and other awards apply in circumstances where some John Holland employees would be eligible to become members of the Unions. The relevant awards are the National Metal and Engineering On‑site Construction Award 2002 (the “Metals Award”), the Electrical Contracting Industry Award 2003 (“the NAPSA”) and the National Building and Construction Industry Award 2000 (“the Construction Award”). John Holland concedes that some of its employees are eligible to become members of the AMWU and the CFMEU, although there are no “eligible employees” in the definitional sense of s 760 of the Act. It says that it has no employees eligible to become members of the CEPU or ETU, and that the NAPSA, as a matter of construction of the Award, has no application to it in any event. A subsidiary question arises in relation to contractors to John Holland whose employees may be undertaking electrical work on the X50 site within the Contract scope of works.
On 19 November 2008, Mr Bradley and Mr Lowth, officials of the AMWU; Mr Ong, an official of the CEPU and ETU; and Mr Robinson, an official of the CFMEU entered the X50 work site. Mr Bradley and Mr Lowth had sent by facsimile an entry notice to John Holland in reliance upon ss 738 and 760 of the Act. On 13 February 2009, Mr Robinson, Mr Lowth, Mr Ong and Mr Bradley entered the site and held discussions with employees of John Holland. They purported to do so under s 760 of the Act having issued notices to John Holland in reliance upon s 738 of the Act. On 5 March 2009, Mr Robinson and Mr Bradley entered the X50 work site and held discussions with John Holland employees having issued notices to John Holland in reliance upon s 738 of the Act so as to exercise a contended right of entry under s 760 of the Act. John Holland contends that each official, acting for and on behalf of the relevant Union, engaged in conduct in contravention of ss 767(1) and 768(1) of the Act. The Unions contend that each official exercised a valid right of entry and in the course of doing so and seeking to conduct discussions with John Holland employees, John Holland by its employees and in particular by Mr Ingham, contravened s 767(3) and s 767(7) of the Act.
Those provisions are, relevantly, in these terms:
767 Hindering, obstruction etc. in relation to this Part
(1) A permit holder exercising, or seeking to exercise, rights:
(a) under section … 760; or
(b) …
must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
…
(3)A person must not refuse or unduly delay entry to premises by a permit holder who is entitled to enter the premises:
(a)under section … 760; or
(b)…
…
(7)A person must not otherwise intentionally hinder or obstruct a permit holder exercising rights:
(a)under section … 760; or
…
(10)Without limiting subsection (7), that subsection:
(a)extends to hindering or obstructing that occurs after the entry notice is given but before the permit holder enters the premises; and
(b)applies whether or not the person who is hindering or obstructing knows at the time which permit holder will be exercising the rights in respect of the entry notice.
768 Misrepresentations about right of entry
(1)A person must not, in the circumstances mentioned in subsection (2), engage in conduct:
(a) with the intention of giving a second person the impression; or
(b)reckless as to whether a second person would get the impression;
that the first person, or a third person, is authorised by this Part to do a particular thing.
(2) The circumstances are:
(a)the first person or the third person (as the case requires) is not authorised by this Part to do that thing; and
(b)the first person knows, or has reasonable grounds to believe, that the first person or the third person (as the case requires) is not authorised by this Part to do that thing.
The relevant Part is Part 15 of the Act which deals with “Right of entry”. Section 760 falls within Division 6 of Part 15. Sections 767(1), 767(3), 767(7) and 768(1) are civil remedy provisions of the Act.
John Holland accepts that by Mr Ingham and other employees, although not by reason of any conduct on the part of security officers employed by a third party or PCQ employees, it sought to prevent the Union officials from entering the X50 site to conduct discussions with its employees and directed the officials to leave the site on the footing that they had no right of entry and their conduct constituted trespass. The Unions assert that their officials entered the X50 site on the footing that they reasonably believed that the Agreement did not cover the work carried out on site by John Holland employees. The basis for these beliefs, the conduct of the parties and whether a person was actuated by an exculpatory honest and reasonable belief, is a further aspect of the controversy.
Finally, a question arises as to whether industrial action was threatened, impending or probable for the purposes of s 39(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (the “BCII Act”).
The Workplace Relations Act 1996 (Cth) continues to apply to conduct that occurred prior to the repeal of the Act, by reason of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).
The two proceedings heard together are these.
In QUD63 of 2009, John Holland by its Further Amended Application filed on 28 April 2009 seeks declarations binding upon the CFMEU, CEPU, AMWU and AWU that the Workplace Expansion Agreement applies to work performed by its employees at PCQ’s Abbot Point site in connection with PCQ’s “X50 Expansion” project; the Workplace Expansion Agreement covers exhaustively all work performed by its employees at PCQ’s Abbot Point site in connection with PCQ’s X50 Expansion project under the Contract to the exclusion of any work which might be performed by members of the CFMEU, CEPU and AMWU; the Workplace Expansion Agreement is not binding on the CFMEU, CEPU and AMWU; and the CFMEU, CEPU and AMWU may not, by their servants, agents or officials enter the Abbot Point site under s 760 of the Act for the purpose of holding discussions with any employee of John Holland performing work under the Agreement.
John Holland also seeks a declaration that Notices issued by the CFMEU and AMWU respectively on 20 November 2008 purporting to initiate a bargaining period in relation to John Holland’s operations at PCQ’s Abbot Point Terminal, pursuant to the X50 Expansion project, are invalid and of no effect; and an injunction restraining the CFMEU, CEPU and AMWU from engaging in industrial action in connection with John Holland’s operations at the Abbot Point Terminal pursuant to the X50 Expansion project.
John Holland seeks an order imposing a pecuniary penalty upon the CFMEU, CEPU and AMWU pursuant to s 769 of the Act in respect of contraventions of ss 767(1) and 768(1) of the Act. In proceeding QUD63 of 2009, John Holland had initially joined and sought relief against the Union officials, Robinson, Ong, Bradley and Lowth. Since each Union has accepted that its official acted within the scope of his authority in relation to all relevant conduct and the Union is thus vicariously liable for any contravention of ss 767(1) or 768(1) of the Act, John Holland by its Further Amended Application discontinued the proceeding against the individuals.
By QUD66 of 2009, the AMWU, ETU and CFMEU and Messrs Bradley, Lowth, Ong and Robinson by their Amended Application filed on 5 May 2009 seek declarations that John Holland has contravened ss 767(3) and 767(7) in respect of conduct on the part of its employees in connection with the exercise by the officials of the Union of their contended right of entry to the site of the X50 Expansion works, on 19 November 2008, 13 February 2009 and 5 March 2009. The applicants in that proceeding seek an order pursuant to s 769 of the Act for the imposition of a pecuniary penalty upon John Holland in respect of each contravention and an order that John Holland pay Messrs Bradley, Lowth, Ong and Robinson compensation as the Court may determine. The applicants in QUD66 of 2009 had joined and sought relief against a second respondent, Mr Stephen Sasse, in the form of declarations that Mr Sasse had engaged in contraventions of ss 767(3) and 767(7) of the Act in respect of conduct on his part 19 November 2008, 13 February 2009 and 5 March 2009; and related relief. By their Amended Application the applicants have discontinued claims for relief against Mr Sasse.
Having regard to the reformulation of the relief sought in each proceeding, the applicant John Holland in QUD63 of 2009 and the applicants in QUD66 of 2009 agreed to file amended applications identifying the specific relief pressed in each proceeding. Rather than amend the Statement of Claim in each proceeding, the parties in each proceeding elected to frame an agreed list of issues for determination in the proceedings, heard together. The agreed list of issues adopts definitional terms at cl 1, most of which are reflected in these reasons, and to the extent that there are other specific definitions, they are set out below. The agreed list of issues together with the “notes” of the parties to issues 5, 8 and 9 are these:
AGREED LIST OF ISSUES
Agreed Definitions
…
(g)Relevant Employees means those persons who have been, are currently, and/or will be employed by [John Holland] to perform work at the X50 work site pursuant to Contract Q08‑004 [and/or Contract Q08‑005];
(h)X25 Expansion Project means the project which PCQ is presently undertaking to expand the Terminal to increase the Terminal’s throughput capacity from 21 Mtpa to 25 Mtpa;
(i)X50 Expansion Project means the project which PCQ is presently undertaking to expand the Terminal to increase the Terminal’s throughput capacity from 25 Mtpa to 50 Mtpa;
(j)X50 work site means the work area on the Eastern side of the Terminal known as the X50 work site where work is performed in connection with PCQ’s X50 Expansion Project;
(k)X25 work site means the work area on the Western side of the Terminal known as the X25 work site where work is performed in connection with PCQ’s X50 Expansion Project
…
Coverage Issues
2.Is the work which John Holland is presently performing for PCQ at the X50 work site pursuant to Contract Q08‑004:
(a)part of PCQ’s X50 Expansion Project; and
(b)covered by the Expansion Agreement [the Agreement].
3.Do the Relevant Employees perform work which is:
(a)covered by the Contract Q08‑004;
(b)part of PCQ’s X50 Expansion Project;
(c)comprehensively covered by the Expansion Agreement.
Right of Entry Issues under s.760 of the Workplace Relations Act 1996 [WR Act]
4.Do any of the Relevant Employees carry out work which is covered by the NAPSA, Metals Award or Construction Award? Can the NAPSA in any event apply to [John Holland]?
5.With respect to those Relevant Employees who were employed by [John Holland] at the time of Mr Ong’s entry on 18 November 2008 [19 November 2008] and 13 February 2009, were any of those persons a member of, or eligible to become a member of the ETU?
[Note [John Holland] concedes that there are Relevant Employees who were at least eligible to become a member of the CFMEU and/or the AMWU]
6.Are any of the Relevant Employees “eligible employees” of the CFMEU, AMWU and/or ETU for the purposes of s.760 of the WR Act?
7.Having regard to the answers to Questions 4, 5 and 6, did Mr Bradley, Mr Lowth, Mr Ong and/or Mr Robinson have a valid right of entry to the X50 work site on 18 November 2008, 13 February 2009, and/or 5 March 2009 pursuant to s.760 of the WR Act?
8.If the answer to Question 7 is no, then did the CFMEU, AMWU and/or CEPU by the conduct of their respective agents, Messrs Bradley, Lowth, Ong and Robinson on 13 February 2009 and/or 5 March 2009 breach:
(a)section 767(1) of the WR Act;
(b)section 768(1) of the WR Act; and/or
[Note, it is conceded by the CFMEU, AMWU and CEPU that the conduct of Messrs Bradley, Lowth, Ong and Robinson was at all times within the scope of their actual or ostensible authority as union officials.]
9.If the answer to Question 7 is yes, then did [John Holland] (by the conduct of its employees or agents) breach:
(a)Section 767(1) of the WR Act; and/or
(b)Section 768(1) of the WR Act;
[Note, it is conceded by [John Holland] that Mr Ingham at all times acted within the scope of his authority as [John Holland’s] lawful agent. However, issues will arise as to whether other persons (such as the unnamed security guard) were [John Holland’s]agent.]
10.Is unlawful industrial action threatened, impending or probable for the purposes of s.39(1) of the BCII Act? If yes, should the Court grant an injunction?
The reference at point 9 of the Agreed Issues to ss 767(1) and 768(1) of the Act should be a reference to ss 767(3) and 767(7) of the Act. The Australian Building and Construction Commissioner (the “ABCC”) has intervened in both proceedings pursuant to s 71 of the Building and Construction Industry Improvement Act 2005 (Cth) (the “BCII Act”) and has made submissions on questions of law and some factual questions. The agreed issues are to be resolved separately from any question of the imposition of a pecuniary penalty arising out of any contravention of ss 767 or 768 of the Act that might be found to have occurred.
The PCQ expansion at the Abbot Point Terminal
Mr Carrick Stokoe gave this evidence.
Mr Stokoe is engaged by PCQ in the role of General Manager Construction. He has been engaged by PCQ since 4 July 2005 and is responsible for all works required to be undertaken to provide the Terminal with throughput capacity of 50mtpa. His responsibilities include the overview of all design phases of the expansion, the advertising and assessment of tenders, the letting of tenders and the overseeing of all construction work to deliver the works involved in the expansion. The Terminal is owned by PCQ and operated by “Abbot Point Bulk Coal”. Over the years, PCQ has undertaken a number of construction projects to increase the capacity of the Terminal. In or around July 2006 when PCQ was originally planning the expansion of the Terminal, those expansions were intended to have several phases. Each phase was intended to represent an expansion of the capacity of the Terminal to facilitate the export of a particular number of million tonnes of coal per annum and the phase of the expansion was designated by an X. Accordingly, there were initial plans for an X21 Project, an X25 Project, an X30 Project and an X35 Project, with the balance of work required to complete the expansion described as the X50 Project.
It became apparent during the construction of the X21 Project in or about January 2008 and shortly after the expansion works for the X25 Project were contracted to John Holland, that there was sufficient capacity demand from users to move directly to the expansion of the Terminal to 50mtpa. Accordingly, PCQ dispensed with the phased intervening expansions of the Terminal between X25 and X50. The work undertaken to expand the capacity of the Terminal beyond 25mtpa became described by reference to two categories of expansion work, namely, the X50 “on‑shore” works and the X50 “off‑shore” works. Mr Stokoe says that the reference to the “X50 off‑shore” works was a reference to work to be carried out under Contract Q08‑004. The tender process for the letting of a contract for these works was overseen by Mr Stokoe. It fell within his responsibility as General Manager Construction.
On 21 December 2007, PCQ issued, by letter, an invitation to short‑listed pre‑qualified companies including John Holland to tender for construction of the off‑shore works described in the invitation letter as the “Marine Works” (the “Invitation to Tender”). Mr Stokoe says the Invitation to Tender refers to the intended X30 expansion and includes within the scope of works to be constructed, the intended X30 and X35 works. The letter enclosed tender documents including a technical specification relating to structural, mechanical and electrical works (Appendix D). The letter provides that the Marine Works comprise the scope of works to be the subject of the proposed contract Q08‑004.
The letter of 21 December 2007 is contextually important and is, relevantly, in these terms:
John Holland Pty Ltd
Ports Corporation of Queensland
Abbot Point Coal Terminal
X30 Expansion
Marine Works
Contract No. Q08‑004
Invitation to Tender1. Background
As you are aware, [PCQ] is undertaking a major expansion of its [Terminal] north of Bowen.
The terminal has recently been expanded from 15Mtpa to 21Mtpa throughput capacity with the completion of the X21 expansion. Further work proposed in 2008 will increase capacity still further to approximately 25Mtpa through:
·Construction of a second rail receival dump station and in‑loading conveyor stream
·Speeding up of existing yard conveyors and the existing out‑loading stream from its current 4,000tph to 6,000tph
This work is defined as the X25 expansion.
Contingent upon construction of the Northern Missing Link (NML) rail link between North Goonyella and Newlands, PCQ is now planning to expand its Abbot Point facility to 50Mpta. The next stage of this expansion comprises construction of the following works:
·Upgrading of Dump Station DS1 and inloading Conveyors C101, C102 and C103
·Construction of a second yard Conveyor C204 on Bund 2 and fourth Stacker/Reclaimer SR4
·Construction of a third bund, Bund 3, yard Conveyors C205 and C206 and additional Stacker/Reclaimer machines SR5 and SR6
·Construction of a second berth offshore, referred to as Berth No. 2 and associated shipping gallery Conveyor C335
·Construction of a second Shiploader SL2
·Construction of a second outloading stream, referred to as CL2
It is PCQ’s intention that the onshore works will be undertaken under separate contracts. Accordingly, the scope of Contract No. Q08‑004 – Marine Works, broadly includes:
Scope of Contract No Q08‑004 – Marine Works
·Construction of Berth 2 to the east of existing Berth 1, approximately 2.85km offshore, including skeletal steel wharf structure, shiploader strong point, berthing dolphins, mooring dolphins and access roadway
·Construction of shipping gallery Conveyor C335 and associated drive tower
·Construction of the second jetty Conveyor C334 complete, including all structural mechanical and electrical works associated with the outloading conveyor
·Modifications at the head end of jetty Conveyor C334 within the existing transfer tower to permit both the existing jetty Conveyor C324 and the new jetty Conveyor C334 to feed each berth
…
Site access for erection will be available from 28 July 2008. Export of first coal over Berth 2 is required by 31 March 2010.
…
2. Description of the works
The proposed second berth, Berth 2, is shown in general arrangement Drawing No’s 664‑4‑X30‑SK010 to SK014. The berth will be constructed to the east of the existing berth and broadly comprise the following features:
·Western strongpoint connected via an access roadway to the existing C324 Drive Tower support platform
·Skeletal steel wharf structure comprising piles, slotted headstocks and shiploader long travel rail girders, and including longitudinal anchor
·Seven independent berthing dolphin structures
·Mooring dolphins and interconnecting walkways
·Precast concrete deck units on the strongpoint, wharf and wharf access roadway
The wharf also supports the wharf shipping Conveyor C335 over its entire length. The structural, mechanical and electrical works associated with this C335 shipping conveyor and C335 Drive Tower will also form part of the scope of works
In addition, the Marine Works Contract shall include the supply and installation of the 2.85km long jetty Conveyor C334. The 24 metre span conveyor gallery trusses will be supported from existing piled headstocks…
A long travelling, luffing, 7,200tph shiploader will also be located on Berth 2 as part of the X50 expansion. At this stage, the shiploader is not included in this Tender but PCQ may later include the supply and installation of the shiploader within the scope of the Contract.
The Invitation to Tender sets out at section 3 the scope of works the subject of the tender, in these terms:
3. Scope of Works
The Scope of Works proposed in this Contract No. Q08‑004 broadly includes, but is not limited to, the following:
·Supply and fabrication of approximately 12.8km of 1,200 diameter steel tube piling
·Delivery to site of this piling and splicing on‑shore at site into the required lengths for driving, including provision of the driving shoe. Two splices will be required at site per pile (ie approximately 480 splices at site producing 240 piles)
·Handling and pitching of approximately 240/1,200 diameter piles
·Driving an estimated quantity of 6,000 metres of piles
·Supply, fabrication, protective treatment, delivery to site and installation of approximately 2,200 tonnes of fabricated steelwork associated with headstocks, rail girders, bracing and access for the marine structures and also the C335 conveyor support trestles
·Manufacture, delivery and installation of approximately 950 precast concrete deck units of varying lengths
·Supply and installation of over 530 metres of A150 shiploader rail
·Supply and installation of other miscellaneous equipment including fenders, mooring hooks, ships access facility, platforms, davits, etc.
Structural steelwork including:
·Jetty Conveyor C334 gallery trusses, each typically spanning 24 metres, supported from existing piled headstocks, (Note, no additional piling is required on the approach jetty). The estimated quantity of fabricated steelwork is 1,050 tonnes.
·Modifications in the C324 Drive Tower
·C335 shipping gallery structure comprising over 260 tonnes of fabricated steelwork
·C335 Drive Tower comprising approximately 45 tonnes of fabricated steelwork
·Extruded aluminium flooring and aluminium floor grating
·Aluminium purlins and girts and cladding in C335 Drive Tower
·Limited concrete flooring
Mechanical works including:
·Jetty Conveyor C334 complete including all pulleys, idlers, drive units, conveyor belt, takeup, chutes, scrapers, sensors, guarding, etc, and modifications as required within the existing C324 Drive Tower
·Wharf Conveyor C335 complete including all pulleys, idles, drive unit, conveyor belt, takeup, chutes, scrapers, sensors, guarding, etc. The diverter chute shall be capable of feeding to either C335 on Berth 2 or existing C325 on Berth 1.
·Modifications to chutework to permit existing Jetty Conveyor C324 to feed to either C325 on Berth 1 or C335 on Berth 2
·Wharf slurry tanks and clean‑up system
·Maintenance hoisting equipment
·Conveyor water services
Electrical works including:
·C334 jetty conveyor complete with electrical/control systems hardware, junction boxes, cabling, testing and commissioning
·C335 shipping conveyor complete with electrical/control systems hardware, junction boxes, cabling, testing and commissioning
·Feed centre to shiploader
·Replacement of existing and the installation of new HV switchgear within the Wharf Substation
·HV cabling between the Main and Wharf Substations
·General lighting & power to wharf & jetty structures
·PA system extension
·Cathodic protection of marine structures
[emphasis other than emphasis in bold, added]
The Invitation to Tender contained a number of key dates applicable to the proposed contract including oral presentations by tenderers on 3 March 2008, the selection of the preferred contractor by 28 March 2008, the formalisation of the Contract by 30 May 2008, access to the site for the establishment of amenities by 7 July 2008, access to the works by 28 July 2008 and practical completion by 31 March 2010.
Mr Stokoe says that by March 2008 the expansion project was known and commonly referred to as the “X50 Expansion Project”.
On 29 July 2008, PCQ issued a Letter of Acceptance of John Holland’s lump sum tender for the Contract. The letter notes that on 28 May 2008, PCQ had issued a “Letter of Intent” to contract with John Holland to enable it to commence early works prior to finalisation of the Contract in order to ensure PCQ’s delivery schedule for the works was maintained.
The letter of 29 July 2008 describes 10 categories of documents comprising the “Contract Documents” including a Technical Specification (Revision 3) dated 4 June 2008, Standard Specifications listed in an appendix to the Technical Specification and particular Drawings. Revision 3 of the Technical Specification is actually dated 3 June 2008 and is Exhibit MD‑2 to the affidavit of Malcolm Davis sworn 5 March 2009. An earlier version of the Technical Specification, Revision 1, dated 30 April 2008, one month prior to the Letter of Intent of 28 May 2008, is Exhibit MD‑3 to Mr Davis’s affidavit of 5 March 2009. The Technical Specification, Revision 3, contains an introductory explanation of the “X50 Expansion” and the scope of works for Contract Q08‑004, in these terms:
1. Introduction
1.1 X50 Expansion
The Abbot Point Coal Terminal (APCT) is owned by Ports Corporation of Queensland (PCQ) and operated by Abbot Point Bulkcoal (APB), hereinafter defined as the “Operator”.
The terminal is located at Abbot Point, approximately 30km by road north of Bowen, on the Central Queensland coast. The site of the proposed works is within the boundaries of the existing operating terminal.
X50 is an expansion stage to increase overall throughput at APCT to a nominal 30 million tonnes per annum. The scope of Contract No. Q08‑004 – Marine Works is part of X50 and includes but is not limited to the following main areas of scope:
1.1.1Berth 2
Berth 2 is a new skeletal steel framed wharf to cater for Cape Size vessels which will be situated to the east of the existing Berth 1. It will have an independent dolphin system and will be connected to the existing transfer tower platform via a new wharf bridge and widening to the transfer tower platform.
1.1.2Conveyor C334
Conveyor C334 will be a new (second) jetty conveyor which will form part of the new Outloading System 2 (OL2) between the new onshore sample plant tower (to be constructed by others) and the existing offshore transfer tower (which will require modification as part of this contract). The conveyor will be supported upon the existing jetty structure, which was originally constructed to support two conveyors.
1.1.3Conveyor C335
Conveyor C335 will be an elevated wharf conveyor servicing Shiploader SL2 (to be constructed, delivered and installed by others) upon the new Berth 2, feeding from the new Conveyor C334 at the offshore transfer tower and finishing at a new drive tower at the eastern end of Berth 2.
Section 2 describes the scope of works, in part, in these terms:
2. Scope of works
The scope of work included in this Contract broadly includes, but is not necessarily limited to, the supply, fabrication, protective treatment, delivery to site, storage at site and installation of concrete, structural steelwork, mechanical equipment and electrical works associated with X50, …
Clause 2.1 summarises the marine structural works in these terms:
The following is provided as a summary of the works to be undertaken:
·280m long Berth 2 wharf with western strongpoint, longitudinal anchor structure and eastern drive tower platform, including structural steel piling, headstocks, rail girders, rails, pre‑stressed concrete deck units, conveyor support structures, associated steelwork and concrete and miscellaneous items;
·Three new mooring dolphins and seven new berthing dolphins, including Mooring Dolphin MD12, Berthing Dolphins BD13 to BD19 inclusive, and Mooring Dolphins MD20 and MD21, including structural steel piling, headstocks, flooring, steelwork, fendering and mooring equipment and interconnecting trusses and walkways;
·Wharf bridge and transfer tower platform extension, providing roadway connection and wharf conveyor support between Berth 2 and the existing transfer tower platform.
The Technical Specification then sets out specific requirements in relation to tubular pile fabrication (2.1.1), hammer and driving system performance (2.1.2), pile testing (2.1.3), pile tension anchors (2.1.4), marine fender systems (including such matters as the Berthing Dolphin Fender Systems and working load tension specifications for chain systems used in association with the Berthing Dolphins) (2.1.5) and quick release mooring hooks (2.2).
The general description of the structural works is in these terms:
2.3 Structural works
Removal and disposal off site of existing steelwork as required and the supply, fabrication, protective treatment (including site restoration of new or existing protective coatings affected by the Works), delivery and erection of all new steelwork, grating and cladding systems as nominated by the Drawings and Specifications, including preparation of shop details and the design and installation of temporary works necessary to complete the Works.
The structural works are then described in this way:
2.3.1 Jetty Conveyor C334
·Tail end conveyor and conveyor walkway support structure, built upon the Sample Plant 2 C334 Tail end floor structure (constructed by others)
·Onshore trestles and conveyor galleries from the Sample Plant 2 tower to Jetty Bent 1, built upon concrete foundations constructed by others.
·Offshore conveyor galleries along the typical jetty, mounted upon new stainless steel plates welded to the existing headstock shoes, including conveyor cross‑over ladders and platforms at approximately 264 metre centres.
·Offshore trestles and conveyor galleries with fully seated flooring at the offshore end of the conveyor where it rises to the existing C324 / C334 drive tower (the offshore transfer tower), including brake platform, and gravity take‑up unit with fall arrester assembly.
·Modifications to the existing C324 / C334 drive tower to accept the new conveyor installation, and head end conveyor support, conveyor access, and chutework support structure within the tower.
2.3.2 Wharf Conveyor C335
· Tail end conveyor support and conveyor access structure.
·Trestles and clad truss conveyor galleries with fully sealed flooring from the tail end structure to the western‑most tripper travel extent adjacent to the Berth 2 strongpoint.
·Continuously welded beam‑type open conveyor galleries for the length of Berth 2, which support the conveyor and provide the running beams for the Shiploader SL2 tripper.
·Break platform, and gravity take‑up unit with fall arrest assembly near the head end.
·Elevated, clad drive tower at the eastern end of Berth 2.
2.3.3 Miscellaneous Structures
·Berth 2 Ship Access Ladder
·Removal and replacement of the existing amenities building, and provision of miscellaneous shelters and platforms.
The mechanical works are described in these terms:
2.4 Mechanical Works
Supply, fabrication, protective treatment, delivery to site, installation, fastening, site welding and touch‑up painting of the following:
2.4.1 Jetty Conveyor C334
The scope of work shall include the supply and installation of the following items:
· Conveyor belting and splice kits
· Storm hold down clamps
· Idler sets (frame and rollers)
· Pulleys complete with bearings and bearing housings
·Installation only of conveyor drive units (primary and secondary) – Principal supplied
·Drive maintenance access platforms
·Take‑up equipment including pulley, suspended box, guide brackets, guide posts, fall arrest and access platforms
·Take‑up lifting winch assembly
·Low speed brake callipers and hydraulic control units at take‑up and tail
·Head chute including deflector plate
·Diverter chute to feed either C325 or C335 including mechanism, gate and actuator
·Transition chutework between diverter outlet and C325 spoon chute
·Transition chutework between diverter outlet and C335 spoon chute
·Feed spoon chute and skirting system at tail end including, skirt plates, skirt clamps, skirt rubbers, skirt covers, shear gate, access platform and ladder, dust sprays and enclosure, etc Contract terminal point is bolted flange at top of spoon chute. Chutework above this flange supplied by others
·Pulley support frames at primary drive, secondary drive, take‑up and tail
·Belt scrapers and return belt ploughs
·Belt rip detectors and other specified protection devices
·Head end belt wash station including underpan, wash rollers, spray bars, nozzles and connecting pipework
·Tail end belt wash station including under underpan, wash rollers, spray bars, nozzles and connecting pipework
·Reticulation of services (air for scapers and water for dust suppression and belt wash)
·Guarding
2.4.2 Wharf Conveyor C335
The scope of work shall include the supply and installation of the following items:
·Conveyor belting and splice kits
·Storm hold down clamps
·Idler sets (frame and rollers)
·Pulleys complete with bearings and bearing housings
·Installation only of conveyor drive units – Principal supplied
·Drive maintenance access platforms
·Take‑up equipment including pulley, suspended box, guide brackets, guide posts, fall arrest and access platforms
·Take‑up lifting winch assembly
·Low speed brake callipers and hydraulic control unit at take‑up
·Head chute including deflector plate
·Feed spoon chute and skirting system at tail end including, feed spoon from C324, feed spoon from C334, skirt plates, skirt clamps, skirt rubbers, skirt covers, shear gate, access platform and ladder, dust sprays and enclosure, etc.
·Pulley support frames at drive, take‑up and tail
·Belt scrapers and return belt ploughs
·Belt rip detectors and other specified protection devices
·Head end belt wash station including underpan, wash rollers, spray bars, nozzles and connecting pipework
·Tail end belt wash station including underpan, wash rollers, spray bars, nozzles and connecting pipework
·Reticulation of services (air for scrapers and water for dust suppression and belt wash)
·Guarding
2.4.3 Existing jetty to wharf transfer C324/C325
The scope of work shall include the supply and installation of the following items:
·Diverter chute to feed either C325 or C335 including mechanism, gate and actuator
·Transition chutework between diverter outlet and C325 spoon chute
·Transition chutework between diverter outlet and C335 spoon chute
·Feed spoon chute and skirting system at tail end of existing C325 including, feed spoon from C324, feed spoon from C334, skirt plates, skirt clamps, skirt rubbers, skirt covers, shear gate, access platform and ladder, dust sprays and enclosure, etc.
2.4.4 Slurry return system
The scope of work shall include the supply and installation of the following items:
·Holding tank and associated pumps, pipework, valves etc at head end of C335
·Holding tanks and associated sumps, pumps, pipework, valves etc at head end of C334
·Sumps, pumps, pipe work, valves, etc at tail end of C334
2.4.5 Services
Particular requirements for services include:
·Water services including all pipework, valves and fittings to service transfer chute dust suppression and slurry return system. This includes connection of new water services into existing pipework.
·Compressed air services for belt scraper air tensioners for C334 and C335. This includes connection of new air services into existing pipework.
The scope of work for the relevant services is then further defined in detail in the specification. The Technical Specification of 30 April 2008 (Revision 1) is in precisely the same terms as those sections of Revision 3 of the Technical Specification of 3 June 2008 quoted at para [35] to para [41].
The electrical works are defined exhaustively at cl 2.5 of the Technical Specification. It is neither useful nor necessary to recite in these reasons the extensive and detailed requirements of the Technical Specification in relation to the electrical works. The works however involve the development and installation of a wharf substation fire suppression system. Clause 2.5.2 sets out the content of the electrical requirements for the wharf substation. Clause 2.5.3 sets out the content of communications network upgrades within the off‑shore and on‑shore substations. Clause 2.5.4 sets out the requirements in relation to the Conveyors including C334 – Jetty Conveyor 2 and C335 – Wharf Conveyor 2. Clause 2.5.5 sets out the requirements for the “Wharf and Berth 2 electrical services”. Clause 2.5.6 describes the switchgear and motor control centre requirements under the heading “Installation of HV switchgear and 415V motor control centre”. Clause 2.5.7 deals with the installation, testing and commissioning of transformers in accordance with the specifications and drawings, and cl 2.5.8 addresses the requirements for classes of PLC cabinets. Clause 2.5.9 addresses the requirements for communications network equipment. The remaining subsections of cl 2.5 address the content of specific electrical requirements all related to the X50 Expansion works. The description of the electrical works in Revision 3 is in precisely the same terms as Revision 1 of the Technical Specification.
Mr Stokoe says that PCQ is presently undertaking an expansion of the Terminal to increase throughput capacity from 21mtpa to 25mtpa known as the “X25 Expansion project” and an expansion to increase the Terminal’s throughput capacity from 25mtpa to 50mtpa known as the “X50 Expansion project”. Mr Stokoe says that all work which is being carried out at the Terminal in connection with the X25 Expansion project is taking place on the Terminal site in areas that are marked by signs and known as the “X25 work site”. Mr Stokoe says that John Holland is engaged to carry out the work necessary to undertake the off‑shore component of PCQ’s X50 Expansion project and that work is taking place on the eastern side of the Terminal in areas marked by signs and collectively known as the “X50 work site”. Mr Stokoe says that all work which has been performed to date by John Holland at the X50 work site forms part of PCQ’s X50 Expansion project pursuant to two contracts between PCQ and John Holland, namely, Contract Q08‑004 and a second contract, Contract Q08‑005, described as the “X50 Expansion Shiploader SL2 Contract” (“the Shiploader Contract”). Mr Stokoe says that at present, John Holland is not performing any work at the X50 work site pursuant to the Shiploader Contract and all works undertaken by John Holland at the X50 work site are undertaken pursuant to Contract Q08‑004.
Mr Stokoe gives this further evidence.
PCQ is the owner of the X50 work site. PCQ is the owner and occupier of the whole of that work site with the exception of three areas described as “Lay Down Area 1”, “Lay Down Area 2” and a third area described as an amenity and administration area comprising buildings erected by John Holland. John Holland is the occupier of these three areas under the Contract. There is no “X30” work site at the Terminal and no “X30” signs have been erected at the Terminal. There is no “X30 Project” in the same sense that there is an X25 Project and an X50 Project. In various planning phases, PCQ did intend to undertake an X30 Expansion project. However, as things evolved, what was intended to be a separate X30 Expansion stage simply became a part of, and to that extent indivisible from, PCQ’s current X50 Expansion project. There was no need to stage the works separately. Instead, PCQ elected to “roll” the intended X30 Expansion works into the off‑shore aspect of the X50 Expansion project.
The Workplace Expansion Agreement
Between 15 April and 17 April 2008, John Holland and the AWU executed the Agreement which came into operation on 17 April 2008. The parties to the Agreement are the AWU, John Holland and all employees of John Holland “engaged in the classifications contained in [the] Agreement, unless excluded by Clause 4.2”. The definition of “Classifications” is set out in Appendix 3. Appendix 2 describes the wages, allowances and escalations applicable to the Classifications. Clause 4.1 is in these terms:
4. APPLICATION AND SCOPE OF AGREEMENT
4.1This Agreement shall apply to the parties at the Ports Corporations of Queensland Abbot Point Coal Terminal X25 and X30 Expansion as outlined in Appendix A for who rates of pay and classifications are provided by this Agreement.
Clause 4.2 recites, so as to “avoid doubt”, that the Agreement does not apply to 12 categories of personnel engaged in particular classes of work and one category of work described as warranty, defects liability, repair and other maintenance work performed by or on behalf of manufacturers etc. Clause 5 sets out the intention of the parties in relation to what is described as the sanctity and operation of the Agreement, in these terms:
5. SANCTITY AND OPERATIONS OF AGREEMENT
This Agreement provides comprehensively the wages and conditions of employment for the Employees covered by the Agreement. This Agreement is stand alone and insular in nature and has been developed by the Parties to reflect and accommodate the specific circumstances of the Project.
The parties agree that this Agreement satisfies all claims against [John Holland] in respect of the employment of the employees whose employment is subject to this Agreement.
It is a term of this Agreement that the parties and each of the employees bound by this Agreement will not support or advance any other or extra claims against [John Holland] for so long as this Agreement remains within its nominal term.
It is also a term of this Agreement that the parties to this Agreement will not engage in any industrial action in support of or for the purpose of advancing any other or extra claims against [John Holland] for so long as this Agreement remains within its nominal term.
This Agreement shall not be used as a precedent by any of the Parties in respect of any other project. The Parties have in drafting this document considered all relevant aspects relating to the employee entitlements.
All other agreements and awards are excluded from having any application to the Employee while performing the work covered by this Agreement.
[emphasis added]
The Agreement operates for three years from 17 April 2008. Clause 8 describes aspects of the engagement of persons on the project including weekly or casual engagement and flexibility and skill levels reflected in wage rates for each classification. Appendix 1 defines the scope of works “for X25” and “for X30”. The scope of works for X25 is uncontroversial. The works consist of works in relation to a “Dump Station” which involves work in relation to “Dump Station 1 and Dump Station 2”. The works also relate to an “In Loading System”, a “Stockyard Upgrade” and an “Out Inloading upgrade”. It is common ground that those works are undertaken on the western side of the Terminal.
Appendix 1 as it relates to other works is in these terms:
APPENDIX 1 – DEFINITION OF PROJECT
The scope of works for X30 includes the following:
·Supply and fabrication of approximately 12.8km of 1,200 diameter steel tube piling
·Delivery to site of this piling and splicing on‑shore at site into the required lengths for driving, including provision of the driving shoe. Two splices will be required at site per pile (i.e. approximately 480 splices at site producing 240 piles)
·Handling and pitching of approximately 240/1,200 diameter piles
·Driving an estimated quantity of 6,000 metres of piles
·Supply, fabrication, protective treatment, delivery to site and installation of approximately 2,200 tonnes of fabricated steelwork associated with headstocks, rail girders, bracing and access for the marine structures and also the C335 conveyor support trestles
·Manufacture, delivery and installation of approximately 1,085 precast concrete deck units of varying lengths
·Supply and installation of over 530 metres of A150 shiploader rail
·Supply and installation of other miscellaneous equipment including fenders, mooring hooks, ships access facility, platforms, davits, etc
Structural steelwork including:
·Jetty Conveyor C334 gallery trusses, each typically spanning 24 metres, supported from existing piled headstocks. (Note, no additional piling is required on the approach jetty). The estimated quantity of fabricated steelwork is 1,050 tonnes.
·Modifications in the C324 Drive Tower
·C335 shipping gallery structure comprising over 260 tonnes of fabricated steelwork
·C335 Drive Tower comprising approximately 45 tonnes of fabricated steelwork
·Extruded aluminium flooring and aluminium floor grating
·Aluminium purlins and girts and cladding in C335 Drive Tower
·Limited concrete flooring
Mechanical works including:
·Jetty Conveyor C334 complete including all pulleys, idlers, drive unit, conveyor belt, take up, chutes, scrapers, sensors, guarding, etc, and modifications as required within the existing C324 Drive Tower. The head chute shall be capable of feeding to either C335 on Berth 2 or existing C325 on Berth 1.
·Wharf Conveyor C335 complete including all pulleys, idlers, drive unit, conveyor belt, take up, chutes, scrapers, sensors, guarding, etc.
·Modifications to chutework to permit existing Jetty Conveyor C324 to feed to either C325 on Berth 1 or C335 on Berth 2
·C335 Tripper structure complete including all pulleys, hold down rollers, scrapers, chute, guards, etc
·Wharf slurry tank and clean‑up system
·Maintenance hoisting equipment
·Conveyor water services
Electrical works including:
·C334 jetty conveyor
·C335 shipping conveyor
·Feed centre to shiploader
·Wharf substation HV switchgear
It can be seen that there is a very substantial degree of reconciliation between the scope of works comprising the “Marine Works” the subject of the proposed Contract Q08‑004 as described in the Invitation to Tender at [30] and [31] particularly having regard to the content of section 3 of the Invitation to Tender, on the one hand, and the description of the scope of works for X30 in Appendix 1 to the Agreement having regard to the content of the structural steelwork, mechanical works and electrical works in Appendix 1; at [50], on the other hand. PCQ issued the Invitation to Tender for work so described in the invitation on 21 December 2007. PCQ contemplated the submission of tenders to undertake those works by 22 February 2008, an oral presentation by the tenderer on 3 March 2008 and the selection of a contractor by 28 March 2008. In April 2008, John Holland and the AWU signed the Workplace Expansion Agreement which closely adopts the description of works reflected in the Invitation to Tender. By 28 May 2008 PCQ had issued a Letter of Intent to contract with John Holland for the expansion works subject to the finalisation of the formal Contract. The acceptance of John Holland’s tender was awarded on 29 July 2008. The Technical Specification incorporated within the Contract recites the content of the detailed specific requirements to be met by John Holland in performing all work required to be undertaken to complete the off‑shore or marine works as part of an expansion of the Terminal to 50mtpa.
Unsurprisingly, the Technical Specification recites with the focused precision of construction lawyers or consulting engineers, the specific burden of the work tasks to be done or functional outcomes to be achieved in respect of each category of activity relating to marine structural works, mechanical works and electrical works concerning Berth 2, Conveyor C334 and Conveyor C335 and associated infrastructure works.
John Holland and the AWU reached an agreement that was to provide comprehensively for the wages and conditions of employment of John Holland employees “to reflect and accommodate the specific circumstances of the Project” as applied to the parties at the X25 and X30 Expansion of the Terminal. Whilst it is true that the Agreement recites that it shall so apply, the content of the terms X25 and X30 are “outlined” by an appendix mis‑described as Appendix A. The relevant appendix “outlining” those expansions for the purposes of the Agreement, can only be Appendix 1. Whilst it is also true that PCQ contemplated a phased expansion of the Terminal transitioning from X25 to X30 as a project distinct from other incremental phases of expansion such as X35 and ultimately X50, Appendix 1, as between the parties to the Agreement, gives qualifying meaning to the reference to “X30 Expansion” by defining the scope of the works comprising the 30mtpa expansion to be undertaken by the employees, described in the Agreement as the “X30 Expansion”. Those works are treated by the Agreement as separate and distinct from the X25 Expansion located on the on‑shore western side of the Terminal. The Agreement treats the works described as the X30 Expansion and defined by Appendix 1 as X30, as off‑shore marine works consistent with the description of the scope of works in the Invitation to Tender.
The off‑shore or Marine Works are undertaken on the eastern side of the Terminal as part of the X50 Expansion. The Technical Specification recites the scope of works to be undertaken, for the purposes of that document, with the detailed and orthodox specificity that such a document requires. The parties to the Workplace Expansion Agreement chose by that document not to record that degree of specificity within the description of the scope of works defining what is meant by “X30 Expansion”. That does not mean that the parties did not intend the Workplace Expansion Agreement to comprehensively cover or regulate the sanctity of their industrial relationship in the performance of the necessary actual work falling within the descriptions or categories of work identified by them by reference to the bullet points they adopted under “Scope of Works for X30” at [50]. It is true that the Agreement uses the terms “the Project” and “Definition of Project” and “other project”. It is also true that the Agreement sites the project at PCQ’s Terminal X25 and X30 Expansion. However, the expansion work must necessarily take place at a place and in this case, the place is PCQ’s infrastructure facility of the Abbot Point Coal Terminal. Some of that work, such as the X25 Expansion work to Dump Stations, an In‑loading system, Stockyard upgrades and other Upgrades occurs on the western on‑shore side of the Terminal and other expansion work to the capacity of the Terminal occurs elsewhere on site. The circumstance that determines the place where work will be done is the nature of the expansion works. In this case, the work described in Appendix 1 to the Agreement under the reference X30 describes, in an inclusive way, expansion works to existing off‑shore assets and the construction of new off‑shore facilities involving a new Berth, a new Jetty Conveyor, an elevated Conveyor and associated works for the integration of those assets with other existing infrastructure assets or new assets to be developed as part of the off‑shore expansion. That work, in fact, occurs on the eastern side of the Terminal.
Mr Stokoe says that he is very familiar with the off‑shore component of the X50 Expansion. He says that he has read Appendix 1 of the Workplace Expansion Agreement. He says that the scope of works for X25 accurately defines the work undertaken by John Holland at the X25 work site pursuant to PCQ’s contract with John Holland for that purpose (Contract Q08‑001). He also says that the scope of works for X30 described at Appendix 1 accurately defines the work which is performed and to be performed by John Holland at the X50 work site pursuant to Contract Q08‑004 in undertaking the off‑shore component of PCQ’s X50 Expansion. Mr Stokoe says that there is no separate X30 Expansion project and no project exists by that name. He asserts in evidence that the intended X30 and X35 phased expansion was abandoned and combined to create the X50 Expansion project.
Mr Steven Ingham gave evidence on behalf of John Holland.
Mr Ingham is employed by John Holland in the role of Employee Relations Manager and has been employed by John Holland since 10 June 2008. Mr Ingham says that he is familiar with the layout of the Terminal and particularly the site of the X25 works carried out on the western on‑shore part of the Terminal and the X50 site where the off‑shore works are undertaken. He says there is no area at the Terminal designated either by PCQ or John Holland as an “X30 work site” although there are areas designated by PCQ and John Holland as the “X25 work site” and “X50 work site”.
Mr Ingham has provided a description of the Terminal and the method of access to the X25 and X50 work sites supported by a number of photographs and a plan marked “SI‑1” to his affidavit sworn 11 March 2009. Mr Ingham says that the Terminal is approached along Abbot Point Road where an access seeker will reach a sign indicating a turnoff to the western access gate to the Terminal, marked “John Holland X25” with an arrow indicating the western direction of travel. The sign is located on the Abbot Point Road before the western access turnoff. The western access road takes an access seeker to the western on‑shore side of the Terminal designated as the X25 work site and a secure access gate to the work site. The X25 work site contains a coal stockpile and a coal conveyor. Work is being undertaken on site in relation to Dump Stations and loading systems. Mr Ingham’s map demonstrates the western inland site of these works. All works undertaken by John Holland in connection with PCQ’s X25 Expansion project are performed within this area.
If the access seeker continues along Abbot Point Road, the access seeker will reach a sign marked “John Holland X50” with an arrow pointing in an easterly direction. There is also a sign marked “Eastern Access” with a sign pointing in an easterly direction. The access seeker will, by following the signs, reach a secure access gate to the site of the off‑shore expansion works forming part of the X50 Expansion. The site is known as the “X50 work site”.
The site consists of three distinct work areas. Work Area 1, known as Lay Down Area 1, is a large area located adjacent to the secure access gate and extending for a significant area into the site. Mr Ingham says that, in Lay Down Area 1, the following works are being or are to be performed by John Holland:
(a) Receipt to site and storage of 1,200 diameter steel tube piling;
(b)Receipt to site and storage of fabricated steelwork associated with headstocks, rail girders, bracing and access for marine structures. The fabricated steelwork is supplied through the John Holland workshop in Richlands, Brisbane;
(c)Receipt to site and storage of precast concrete deck units; and
(d)Receipt to site of other miscellaneous equipment.
Work Area 2 known as Lay Down Area 2 is located approximately two kilometres from the eastern access gate and is north of Lay Down Area 1. Mr Ingham says the following works are performed in this area:
(a) Spicing of piling on‑shore into the required lengths for driving off‑shore; and
(b) Handling of the piling on‑shore in preparation for the piling off‑shore.Work Area 3 is a “hockey stick” shaped off‑shore new berth work area in which Mr Ingham says the following works are performed:
(a) Handling and pitching of piles off‑shore;
(b) Driving of piles off‑shore;(c)Installation of fabricated steelwork associated with headstocks, rail girders, bracing and access to marine structures;
(d)Installation of precast concrete deck units;
(e)Installation of shiploader rail;
(f)Installation of gallery trusses. …;
(g)Modification to a Drive Tower[s];
(h) Installation of a shipping gallery structure …;
(i) Installation of aluminium flooring and grating …;
(j) Mechanical works on jetty conveyors;
(k) Mechanical works on the wharf conveyor;
(l) Modifications to chutework;
(m) Other associated mechanical work; and
(n) Associated electrical works.Mr Ingham says and his photograph shows that materials inwards are collected, stored and stockpiled in Lay Down Area 1 until required for use otherwise, on site. Lay Down Area 2 is also known as the pile splice yard and is located on and close to the coastline. In this area, piles are spliced together for use in the construction of the new berth, Berth 2. Work Area 3 is the construction site for the new berth.
A road approximately two to three kilometres long links the X50 work site secure access gate with Work Areas 1 and 2. Work area 3 is immediately beyond work area 2. Mr Ingham’s map reveals and his evidence describes a fence adjacent to the link road that marks out one boundary of the X25 work site (that is, works undertaken west of the fence) and the X50 work site (that is, works undertaken on the eastern side of the fence). Mr Ingham says the physical arrangement of the work sites at the Terminal provides for two work sites, X25 and X50, and there are signs marked with those descriptions directing access seekers to either of the work sites. Mr Ingham says there is no area marked “X30 Expansion Project” or “X30 Work Site”.
Mr Ingham says that John Holland employs approximately 140 employees on wages to work at the Terminal, all of whom are paid under the terms and conditions of the Workplace Expansion Agreement. He says that approximately 71 employees work at the X50 work site engaged on the X50 Expansion works and the remainder work at the X25 work site. Mr Ingham exhibits to his affidavit sworn 17 April 2009 a document described as John Holland’s “Active Verse Total Workforce Numbers” (SI‑1) which forms part of a “Manning Forecast” for employees required to undertake work tasks for the X50 work site, and a document described as “Project Wages Personnel Manning Plan” for the X50 Project (SI‑2) setting out all X50 wages employees employed by John Holland at the X50 work site and their positions. Mr Ingham says that these wages employees are paid the wages prescribed by the Workplace Expansion Agreement referable to the positions they hold as described in that Agreement. Mr Ingham says the work undertaken by the employees on the X50 work site is work carried out in relation to the matters described in Appendix 1 to the Agreement under the scope of works for X30. Mr Ingham also says that all of the work which John Holland is currently performing for PCQ at the Terminal pursuant to contract Q08‑004 is performed within the areas designated by PCQ and John Holland as the X50 work site, located on the eastern side of the Terminal.
As to the scope of work undertaken on the X50 work site, Mr Bradley (an AMWU official) accepted in cross‑examination that he had looked at work being done at the X50 work site and that the work, at least that he had seen done, was included within the definition of the scope of works for X30 in Appendix 1 to the Agreement (T73, ll 37 to 42). Mr Bradley also accepted that the terms of the Workplace Expansion Agreement, subject to the reference to X30 in the Agreement, do apply to all of the work that he had seen performed at the X50 work site (T74, ll 19 and 20). Mr Bradley also accepted that the entrance signs to the X25 work site refer only to the X25 Project and there is “no reference whatsoever to X30 anywhere” (T71, l 20). Mr Bradley also seemed to place particular emphasis upon the term X50 as a critical point of differentiation in the application of the Workplace Expansion Agreement to work undertaken on the X50 site. Mr Bradley was asked:
Mr Hatcher: If the work is the same, and you’ve agreed with me that the only work that is being done is described in the X30 scope of works, is it just the label X50 that you rely upon?
Mr Bradley:Yes.
Similarly, Mr Robinson (a CFMEU official) seemed to accept that the X50 Project involved the construction of a new coal port terminal, a new conveyor, expansion of an existing conveyor and all work associated with putting in a new berth and that the X30 Project represented the same work (T105, ll 5 to 19). Mr Robinson takes the view that because the Agreement refers to X25 and X30, X50 represents a separate project under a different title and that “make[s] a difference” (T105, ll 27 to 39). Similarly, Mr Ong (an official of the CEPU and ETU) accepted that the work he had seen done on the X50 work site, he guessed, fell within the “very sort of work described in the Appendix 1” (T86, ll 21 to 26). Nevertheless, Mr Ong thought that it was clear to him that X50 was a separate project from an X25/X30 project. Mr Ong also said that he thought he had seen a sign directing an access seeker to either “X30” or possibly “X25 and X30” on the one sign. Mr Ong also gave this evidence:
Mr Ong:At one stage I had a brief conversation with Mr Ingham about work being done on X25 and X30.
Mr Hatcher: Yes, and what do you say was the response?
Mr Ong:The response was he pointed to X25 and – well, I can only truthfully say X25 over there.
The Unions raise a number of objections to the notion that the proper construction of the Workplace Expansion Agreement is that the parties intended it to apply to, that is, cover the scope of work of contract Q08‑004. First, they say that the Contract was made on 29 July 2008, 13 weeks after the making of the Agreement on 17 April 2007 and, having regard to Mr Stokoe’s evidence, the final form of the Contract emerged after many meetings over seven months. Second, Mr Stokoe’s evidence concerning the evolution of the references to “X30 Expansion Project” and “X50 Expansion Project” is no more than “interesting” and cannot be relied upon in construing the Agreement because the factual matters going to PCQ’s abandonment of the phased approach to expansion and the adoption in March 2008 of the description X50 Expansion to describe expansion works going beyond X25, was simply not known to the AWU. The use of the description X50 Expansion or X50 Project was one essentially confined within PCQ. Third, no evidence has been adduced that either John Holland or the AWU intended the scope of work within the Agreement to be identical to the scope of work described in the Invitation to Tender and although the Unions accept that there is almost identical overlapping of terminology in the scope of work for X30 in Appendix 1, certain work identified in the Invitation to Tender is not contained within the Workplace Expansion Agreement. They say that in the absence of evidence as to a consensus in the application of the Invitation to Tender to the Agreement, the Court is not entitled to rely upon the Invitation to Tender in the construction of the Agreement.
I accept that there was a proposal put by John Holland on 3 November 2008 to amend Appendix 1 to insert a reference to X50 and delete the reference to X30. I also accept that the document made textual changes to the description of the scope of works to be inserted under the proposed new subheading “The Scope of Works for X50 includes the following …”. I also accept the evidence of Mr Ingham that there were other aspects of the proposed amendment which influenced the decision to put a proposal for an amendment to Appendix 1 to the employees. Nevertheless, as to the description of the Scope of Works for X30, the amendment proposed a new description of X50 and some textual change. A close comparison of the text of Appendix 1 and the proposed new Appendix 1 shows that there are some dissimilarities but the essential text is faithful to the content of the marine or offshore works of Appendix 1 as it stood.
Nevertheless, I accept that the realisation by Mr Ong and Mr Bradley and through them by Mr Lowth and Mr Robinson that John Holland had proposed an amendment to the title of the expansion work to change “X30” to “X50”, would have reinforced in their minds a differentiation between the description X25 and X30 and activities comprising work to be done under the banner or label X50, whether that distinction was real or not.
The Union officials gave evidence in cross‑examination that they believed the Agreement did not apply to the X50 work site. Mr Ong was pressed about that matter, as the quoted transcript reflects. Mr Robinson and Mr Lowth relied upon the views formed by Mr Bradley and Mr Ong about whether the Agreement applied to work carried out on the X50 work site. The officials emphasised in their evidence that they could see a physical differentiation between the X50 work site and the X25 work site, with each work site isolated by a physical fence. Moreover, the Union officials say they accepted that the Agreement applied to the X25 site. Therefore in their minds they proceeded, they say, in the belief that the X50 work site was necessarily different and apart from the X25 work site and thus the Agreement applied differentially. The Unions further say that the exchanges of correspondence between Mr Sasse and Mr Dettmer and the other Unions did not make plain the contended basis upon which the Agreement was said to cover work carried out on the X50 work site. The Unions also say that the officials believed there were employees who were either members or eligible to become members of the relevant Unions, and since, in their view, the Agreement did not apply to the X50 work site, they enjoyed a right under s 760 of the Act to enter premises and conduct discussions with those employees. In effect, the Unions say that such conduct is the core orthodox business of each Union, and the officials contend that they honestly and reasonably believed they had a right under the Act to do what they did.
The position seems to me to be this.
By the end of the events that took place on 19 November 2008, each Union official understood that John Holland contended that none of the Union officials had a right to enter the X50 work site. That contention was put to the officials on many occasions by Mr Ingham at different points along the continuum of the conduct on that day. The evidence of the officials and of John Holland makes it plain that John Holland did not accept that the officials had a right of entry. John Holland said their conduct was unlawful with the result that they were trespassing. When each official left the site that day they could not have been in any doubt that their contended right of entry was more than controversial, disputed and opposed. What they then knew was that John Holland contended that they had no right of entry. They also knew that to the extent that each official relied upon s 760 of the Act, John Holland contended that no right of entry arose under that section.
It is true that Mr Ingham did not spell out the precise basis upon which John Holland contended that work falling within the Agreement with the AWU was work being undertaken on the X50 work site and that that work had been subsumed within PCQ’s planned X50 Expansion rather than any separate, incremental or phased expansion project.
I accept that when the Union officials entered the site on 19 November 2008 each of them believed that work undertaken on the X50 work site was something other than an X25 and X30 expansion, notwithstanding that none of the officials had considered precisely why that might be so. Each of them made an assumption that because the sign directing access seekers to an X50 site was signage for a site other than the X25 (and possibly, in their mind, X30) site and the location of that site was at a different geographical area of the Terminal, the X50 work site was physically something other than an X25/X30 expansion. Thus, they reasoned, activities on the X50 work site, so distinguished, must be a different project at a different place and thus the Agreement with the AWU had no role to play.
By the end of 19 November 2008, however, each Union official knew that there was a real issue about their right to enter the site. At that point, a Union official acting for and on behalf of his or her Union could not reasonably simply continue to assert a contrary position without seeking to understand whether that position was well placed or not. On 24 November 2008, Mr Sasse wrote to the CFMEU, the AMWU and the CEPU seeking to deal with the notion that any Union official might be entitled to enter the site in reliance upon particular workplace health and safety legislation. Mr Dettmer responded to that letter, dealt with that issue and asserted the right of entry under s 760 of the Act as there was no collective agreement in place. On 3 December 2008, Mr Sasse responded to Mr Dettmer’s notion about s 760 and told him that entry was unavailable on that footing because there were no “eligible employees” for the purposes of s 760 because the Workplace Expansion Agreement applied so as to regulate the “employment of all persons on the project” to the exclusion of any award or agreement. Mr Sasse pointed out that the Agreement was not binding on the AMWU.
Notwithstanding that response, Mr Bradley and Mr Lowth on behalf of the AMWU served notices in reliance upon ss 738 and 760 of the Act for entry to the site on 13 February 2009. Mr Ong and Mr Robinson also served notices in reliance on those provisions for entry on 13 February 2009. On 12 February 2009, the solicitors for John Holland wrote to Mr Dettmer referring to the earlier letter of 3 December 2008. The letter describes the entry notices of Mr Bradley and Mr Lowth as “purported notices” and makes the point that the Agreement comprehensively prescribes conditions of employment of work performed by John Holland’s employees at the Abbot Point Coal Terminal. The letter of 12 February 2009 is addressed to a “skilled addressee”. Mr Dettmer is very experienced and an impressive Union official. Mr Sasse’s letter would, in the ordinary course, have put Mr Dettmer on reasonable enquiry about whether the Agreement had the effect of covering work undertaken by John Holland at the Abbot Point Coal Terminal, as contended by Mr Sasse and John Holland. Mr Dettmer could only reasonably determine that question by looking at and considering the description of the work covered by the Agreement itself as set out in Appendix 1 and asking himself whether that work was the work being done on site at the moment of entry. That was the analytical leadership that was required by the permit holders and officers of the Unions demanding to enter the premises and therefore rejecting John Holland’s objections. Had enquiry been made, those enquiries would most likely have revealed PCQ’s abandonment by March 2008 of the phased X30 and X35 expansions in favour of an X50 expansion, the subsuming of the Appendix 1 work within an X50 expansion and the carrying out of that work on a site described as the X50 work site.
A similar letter was written by Mr Sasse to the CFMEU and the CEPU.
The CEPU responded by asserting that the Agreement applied at PCQ’s Terminal X25 and X30 expansion but did not apply to the X50 project. Mr Dettmer took the same position in his letter of 13 February 2009.
The four officials entered the site on 13 February 2009. Mr Ingham maintained the position that the officials had no right of entry and made that position plain to them again. Mr Ingham asserted that position to the employees at the meeting that day. Mr Ingham notes the content of what was said to the employees in the meetings. The officials told the employees that there was no agreement in place for the site, they had a right of entry and the Unions would fight for an agreement and pursue John Holland industrially and legally.
When Mr Bradley entered the site on 13 February 2009, he placed particular emphasis upon the consideration that X50 was a label or term not used in the Agreement. Mr Bradley accepted that in general terms in determining whether employees fall within the rules of coverage of the Union, the first thing to do is to look at the work the men or women are performing and compare that work or those duties with an award which covers members of Mr Bradley’s Union. Mr Bradley believed that the Agreement did not apply because there was separate signage to a separate area and John Holland had attempted to amend Appendix 1 to the Agreement. Mr Bradley placed particular emphasis upon the separate signage as a differentiating factor. Mr Bradley accepted that he elected to enter the X50 work site in knowing defiance of John Holland’s position simply on the basis of the sign at the front of the work site and the proposed variation. He had no evidence before him that any work other than Appendix 1 work was being carried out at the X50 work site.
Mr Ong believed that X25 and X30 was a different site or a different place and although John Holland asserted that the officials had no right of entry, the officials disagreed with that position. Mr Hatcher asked Mr Ong whether he had a look at the scope of works in the Agreement to determine whether that work was being done on the X50 work site. Mr Ong said that he looked at the title of the Agreement which showed that the scope of works covered X25 and X30 (see clause 4.1). Mr Hatcher put to Mr Ong that it was not Mr Ong’s usual practice to determine whether an industrial instrument applies to members of the CEPU by just looking at the title. Mr Ong agreed that the proper course was to determine whether an agreement applies to CEPU members by its coverage and whether the CEPU is a party to the Agreement. Mr Ong in cross‑examination with Mr Herbert pressed his position that he assumed that the site was divided up and that an agreement had been reached with the AWU as to X25 and X30 and that the CEPU had an opportunity to enter into an agreement with respect to X50. Mr Robinson did not look at the Agreement at all. Nor did Mr Lowth. Mr Dettmer gave evidence of good or best industrial practice and agreed that when a party contends that an agreement applies and the claim is seriously pressed with the threat of legal action, the basis for that claim is something that needs to be enquired into and ought not to just be ignored, for the reason that the claim may be good or bad and the merits of the position should be determined. Mr Dettmer said that he looked at the Agreement but he did not read Appendix 1, which sets out the scope of work the employees would be undertaking on the site to be entered.
In the absence of any careful examination of the content of the Agreement, including Appendix 1, and a proper assessment of the work covered by the Agreement so as to inform a person’s judgement as to whether the work being undertaken on the X50 work site was within the field of that work, the conduct of entering the X50 work site in purported reliance upon s 760 of the Act to conduct discussions with employees of John Holland was not reasonable. On 13 February 2009, the Union officials had reasonable grounds before them for believing that entry to the site was not authorised.
The Abbot Point Coal Terminal is a significant coal loading facility for the export of coal. There is a Workplace Expansion Agreement between the employer, its employees and the AWU which provides for terms and conditions of employment in the performance of work. Entry to such a site by Union officials, who assert a right to engage with employees in the context of encouraging them to the view that the relevant officials might seek to establish another agreement, fly‑in/fly‑out terms or the formulation of a new log of claims, with the resultant potential for dislocation of a settled industrial situation, ought reasonably to only occur in circumstances where those officials and their Unions have reached a considered view about the right of entry after having carefully assessed the claim by the employer that the officials have no right of entry. The election to rely upon a descriptive label or a separate sign or a proposed amendment to Appendix 1, without looking carefully at the Agreement and Appendix 1 to understand clearly the scope of work it covered, is plainly unreasonable conduct.
On 27 February 2009, Herbert Geer sent a lengthy letter to the CFMEU, AMWU and CEPU setting out in 20 pages a detailed analysis of the view that work undertaken by John Holland employees at the X50 work site is covered by the Agreement.
Notwithstanding that letter, Mr Bradley and Mr Robinson served further notices of entry for 5 March 2009. Mr Robinson and Mr Bradley agreed that they had seen the letter. The inference is that Mr Robinson and Mr Bradley elected to enter the site on the footing that they disagreed with that letter. However, Mr Robinson agreed that he did not look at the Agreement. He could not have carefully considered the letter in the context of the Agreement. Mr Lowth agreed that although he knew from November 2008 that all of his members were being paid under the Agreement, he did not look at the Agreement either. Mr Dettmer did not read Appendix 1 to the Agreement. There was simply no focused analysis by the Unions or their officials as to whether the objection made by John Holland might be correct. The clear inference is that the Unions and their officials had already determined that the reference in the Agreement to X25 and X30 necessarily meant that the Agreement could not apply to work done on the X50 work site.
Whether a person has reasonable grounds to believe that entry is not authorised involves an objective assessment of whether facts were before that person sufficient to induce a reasonable person to believe that grounds existed for denying authority to enter. That view is consistent with the approach to the notion of “reasonable grounds” in George v Rockett (1990) 93 ALR 483 and Rema Industries and Services Pty Ltd v Coad & Ors (1992) 107 ALR 374. In determining whether reasonable grounds for a belief exist, there is a relationship between the objective facts that must engender such a belief and the role, standards and duties of the person confronting the relevant facts. In this case, the officials are permit holders under the Act and Mr Dettmer is an experienced State Secretary of the AMWU. In the face of an employer’s objection to entry in the manner of 19 November 2008 and correspondence from the employer pressing that objection, a permit holder and the Unions as organisations, must necessarily give consideration to the merits of the employer’s claims and form a view as to whether the claims are well placed or not. If the Unions and the permit holders are satisfied that the claims are misplaced, the demonstrated consideration of the claims is very likely to suggest that the relevant person when seeking to enter the site had reasonable grounds for believing that entry was authorised even though events may subsequently demonstrate that entry was not authorised. Persons in the position of permit holders or officers of Unions cannot be said to have acted reasonably in the absence of reasonable investigation and enquiry into objections made and strongly pressed denying the very right of entry relied upon by those seeking entry. That follows because statutory rights of entry to premises carry with the exercise of those rights corresponding duties of enquiry to be reasonably satisfied that entry is authorised in the context of the facts and circumstances before the entry seeker. That corresponding duty is not only a function of a balance between rights and obligations but derives from Part 15 of the Act, the objects recited in s 736 of the Act and the regime established for granting permits to enter.
As to s 768(1), I am satisfied that the four Union officials entered the site on 13 February 2009 and engaged in the conduct of holding meetings with John Holland employees with the intention of giving those employees the impression that the officials were authorised by Part 15 of the Act to enter the site for that purpose. I am satisfied that the circumstances prevailing at that time were that the Union officials were not authorised by Part 15 of the Act to enter the site for the purpose of holding those meetings and I am further satisfied that the Union officials had on 13 February 2009 reasonable grounds to believe that they were not authorised by Part 15 of the Act to do so. I am further satisfied that Mr Robinson and Mr Bradley entered the site on 5 March 2009 and engaged in such conduct again with the intention of giving the relevant employees the impression that the officials were authorised by Part 15 of the Act to do so for the relevant purpose. I am further satisfied that entry occurred in circumstances where Mr Robinson and Mr Bradley had reasonable grounds to believe that they were not authorised by Part 15 of the Act to do so.
Accordingly, I am satisfied the contraventions of s 768(1) of the Act have been made out.
As to s 767(1), I am satisfied that Mr Bradley, Mr Robinson and Mr Lowth on 13 February 2009 and Mr Bradley and Mr Robinson on 5 March 2009, purported to exercise rights under s 760 of the Act notwithstanding that no such rights subsisted. I am satisfied that each Union official entered the site for the purpose of and with the intention of seeking to convene a meeting with John Holland’s employees consistently with the notices they had given under ss 738 and 760 of the Act. John Holland accepts that some of its employees were eligible to become members of the CFMEU and the AMWU although there were not “eligible employees” on site for the purposes of s 760. John Holland contends that it has no employees who were eligible to become members of the CEPU/ETU. The position in relation to Mr Ong is a little less clear. As a result of the entry to the site on 19 November 2008 and the conversation he deposes to with Mr Ingham, it seems that it was unclear to Mr Ong whether workers were engaged in electrical work at the X25 work site or the X50 work site. Mr Ingham had made it plain to Mr Ong that John Holland had no employees engaged in electrical work at all on the X50 work site. Mr Ong’s notice of entry seems to be confined to entry for the purpose of holding discussions with employees of John Holland. Nevertheless, for the purposes of s 767(1), I accept that Mr Ong was purporting to exercise rights under s 760 although it may not have been clear to him that there were, in fact, employees of John Holland on site who may have been eligible to become members of the CEPU. The question of whether a person is seeking or purporting to enter premises in reliance on s 760 of the Act is itself a question of fact.
There are three remaining questions.
The first is whether Mr Ingham was hindered or obstructed by the Union officials (that is, a permit holder) on 13 February 2009 or 5 March 2009 as a question of fact (Pine v Doyle; Standen v Feehan; O’Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1). The second is whether the officials engaged in that conduct intentionally. The third is whether the conduct of the officials offended the prohibition upon a permit holder otherwise acting in “an improper manner” and whether that conduct must be engaged in intentionally. There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties. He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland’s objections. He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site. Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts. His election to wait and be present was a function of managing the consequences of unauthorised entry.
I accept that the Union officials did not enter the X50 work site on 19 November 2008 with the intention of hindering or obstructing Mr Ingham or other employees of John Holland. At that time, the officials thought that X25 and X30 meant something different from X50 and they believed John Holland had attempted to change Appendix 1 to introduce a reference to X50. I accept that in a practical sense the understanding of each permit holder that John Holland had taken steps on 3 November 2008 to propose a change to Appendix 1 to introduce a reference to X50 must have suggested to them and reinforced in their mind that John Holland thought the Agreement did not apply to the expansion work on the X50 site. They still thought that when they entered the site on 13 February 2009 because they continued to act on assumptions they had made. However, by 13 February 2009, John Holland had repeatedly made its strong objections clear on 19 November 2008 and correspondence asserting its position had ensued. The officials had not considered the content of the work described in Appendix 1 to the Agreement. Nevertheless and notwithstanding Mr Dettmer’s acceptance that good practice required an examination of John Holland’s claims, the officials entered the site on 13 February 2009 and 5 March 2009 without making enquiries that would have been likely to reveal the subsuming of the Appendix 1 work within the X50 Expansion adopted by PCQ.
The question then is whether the officials are to be taken to intend the natural consequences of their conduct. It must have been plain to the officials that a senior officer of John Holland would be compelled to respond to the events of entry on those days by dealing with the men at the gate, engaging with the men as they continued to walk towards the crib huts and by engaging with them at the crib huts. The officials may not have intended to substantially impede Mr Ingham from performing any of his duties in the ordinary way but equally, they must have been aware that what they were doing by entering the site, progressing along the road and seeking to convene meetings with the employees, was likely to impede Mr Ingham in the course of his normal duties due to the chronology of events. Yet, the officials nevertheless decided to enter the site and continue to maintain a presence on the site until they had completed the things they perceived they were entitled to do. It is unrealistic to think that Mr Ingham in the context of John Holland’s claims, objections and correspondence would simply leave the site to the officials and not engage with them on their right of entry in circumstances where John Holland viewed the matter sufficiently seriously that it would take proceedings about it. Accordingly, it seems to me that the officials must be taken to have intended the natural consequences of their conduct of entry in circumstances where they had not investigated carefully the merits of John Holland’s position and they knew John Holland held strong objections.
Although it is true that Mr Ingham was free to leave the gate and free to choose not to intercept the officials on the road and free to choose not to engage with the officials at the crib huts or be present during the course of their address to the employees, it is unrealistic to think that Mr Ingham would not maintain that degree of engagement on the act and consequences of entry, on behalf of John Holland. The permit holders must be taken to have been aware that entry on 13 February 2009 and 5 March 2009 would impede either Mr Ingham or others in a similar position to Mr Ingham within John Holland and in that knowledge they elected to enter the site.
Accordingly, I find that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner found at [98] to [127] amount to a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland. I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described (Pine v Doyle (supra); Leonard v Morris (1975) 10 SASR 528). Accordingly, I am satisfied that contraventions of s 767(1) occurred on 13 February 2009 and 5 March 2009.
As to the third question, s 767(1) may contemplate that in circumstances where a permit holder acts unreasonably by purporting to exercise a right of entry to premises under s 760, the act of entry is not only unauthorised but may constitute acting in an improper manner. The act of entry may be improper because it is unreasonable as the permit holder has failed to investigate, either alone or in conjunction with his or her Union, whether strongly held and articulated grounds of objection to entry have any merit. Ignoring an obligation to subject those objections to any reasoned assessment before seeking to exercise a contended right of entry seems to suggest that in seeking to exercise a contended right of entry, the permit holder is acting “in an improper manner”.
The conduct satisfying the second limb must be conduct or an act other than the Act of hindering or obstructing a person. Mr Ingham was hindered in the performance of his duties by being required in any practical sense, to deal with the events of unauthorised entry and the determination of the permit holders to meet with and address the employees on site. The section however engages conduct in the course of seeking to exercise a right of entry. The quality of the conduct engaged, is hindering and obstructing any person and the second limb engaging the notion of otherwise acting in an improper manner, takes its character from intentional acts of hindrance and obstruction. In other words, the question asked by the section is what manner of act did the permit holder do or fail to do in the course of seeking to exercise a right of entry? The act of entry itself is not engaged by s 767(1) of the Act. I am not satisfied that any contravention of s 767(1) of the Act has occurred by reason of the second limb of that section.
Issue 9
The question does not arise.
Issue 10
Issue 10 requires a consideration of whether industrial action is threatened, impending or probable for the purposes of s 39(1) of the Building and Construction Industry Improvement Act 2005 (Cth). In the course of evidence it became plain that none of the permit holders nor any of the Unions had sought to enter the X25 work site, on the footing that they accepted that the Agreement plainly enough applied to those premises. It necessarily follows that upon a determination that the Agreement applies to the X50 work site, there is no basis for concluding that either the permit holders or their Unions are or would threaten unlawful industrial action or that such action is impending or probable.
The question of the pecuniary penalty to be imposed in respect of the contraventions of s 767(1) and 768(1) is to be the subject of a separate determination.
On 1 July 2009 the following Commonwealth Acts commenced operation, the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Having regard to the findings, it seems to me that declarations ought to be made in terms of paras 1, 3, 4, 5 and 6 of the Further Amended Application filed by John Holland on 28 April 2009 in proceeding QUD63 of 2009. Paragraph 7 of the Further Amended Application seeks an order for a permanent injunction restraining the CFMEU, AMWU and CEPU from engaging in any industrial action at or in connection with the operation of John Holland at Abbot Point pursuant to PCQ’s X50 Expansion project until further order.
It seems to me that I should entertain further submissions in relation to the scope of relief to be the subject of further orders in proceeding QUD63 of 2009 having regard to whether any of the legislation of the Commonwealth mentioned at [182] has particular application or implications for remedies arising out of conduct that occurred prior to the commencement of the new legislation.
The formal orders in QUD63 of 2009 for present purposes will simply be that the proceeding is to be listed for further argument on the question of the scope of the relief to be the subject of final orders in that proceeding, at a date to be nominated by the Court suitable to counsel for the parties.
The appropriate order in proceeding QUD66 of 2009 is that the Application is dismissed. Although it seems to follow that the costs of that proceeding ought to be ordered against the first to seventh applicants, the question of costs has not been addressed. Accordingly, I am willing to hear the applicants in QUD66 of 2009 on the question of costs. Proceeding QUD66 of 2009 ought to be listed together with QUD63 of 2009 in order that the question of costs might be determined. I will hear the parties in relation to the question of costs in proceeding QUD63 of 2009.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 24 July 2009
Counsel for the Applicant in QUD63 of 2009 and the First Respondent in QUD66 of 2009: Mr G Hatcher SC with Ms S Moody Solicitor for the Applicant in QUD63 of 2009 and the First Respondent in QUD66 of 2009: Mr M Davis, Herbert Geer Lawyers Counsel for the First, Second and Third Respondents in QUD63 of 2009 and the First to Seventh Respondents in QUD66 of 2009: Mr J Pearce Solicitor for the First, Second and Third Respondents in QUD63 of 2009 and the First to Seventh Respondents in QUD66 of 2009: Mr D Quinn, Carne Reidy Herd, Solicitors Counsel for the Eighth Respondent in QUD63 of 2009: Mr A Herbert Solicitor for the Eighth Respondent in QUD63 of 2009: Mr D Pegg, Sciaccas Lawyers Counsel for the Intervener, Australian Building and Construction Commissioner: Mr M Brady Solicitor for the Intervener, Australian Building and Construction Commissioner: Mr M Procter, Deacons Lawyers Date of Hearing: 23 and 24 April 2009 Date of Final Submissions: 19 May 2009 Date of Judgment: 24 July 2009
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