Media Entertainment and Arts Alliance v Advertiser Newspapers Limited

[1994] IRCA 194

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )      No. NI 1197 of 1994
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:         MEDIA ENTERTAINMENT AND
  ARTS ALLIANCE

Prosecutor

AND:           ADVERTISER NEWSPAPERS LTD

Defendant

JUDGE:    Moore J

PLACE:    Sydney

DATE:     21 December 1994

EX TEMPORE REASONS FOR JUDGMENT

On 29 November 1994 an application, so styled, was lodged by the Media Entertainment and Arts Alliance ("the prosecutor") seeking the imposition of a penalty under s306 of the Industrial Relations Act 1988 ("the Act") on Advertiser Newspapers Ltd ("the defendant"). At a directions hearing on 9 December 1994, on the application of the prosecutor, I listed the matter for hearing today as a matter requiring urgent determination. At the hearing no issue has been taken about the form in which the proceedings were commenced though, in any event, an information has been executed and filed in Court.

The prosecutor alleges that representatives of the defendant hindered or obstructed a Joint Federal Secretary of the prosecutor in exercise of a right arising under s286(1) of the Act. That subsection entitles an officer of an organisation authorised in writing by the Secretary of the organisation to act under the section, to enter premises to inspect or view any document on prescribed premises for the purpose of ensuring the observance of an award or order of the Australian Industrial Relations Commission. Prescribed premises are premises in which work to which the award relates is being carried on or is one occupied by an employer bound by the award.

The facts giving rise to the proceedings are neither complex nor seriously in issue.  They are mainly found in two affidavits of Mr C. Warren, a Joint National Secretary of the prosecutor.  The defendant is bound by the Journalists (Metropolitan Daily Newspapers) Award 1991 and that award applies to journalists employed by the defendant.  The prosecutor is a party to that award.  The registered offices of the defendant are in Weymouth Street, Adelaide.  On 15 November 1994 Mr Warren was in Adelaide.  He was engaged in discussions with representatives of the defendant during which he asked to see documents relating to the contracts of employment of employees of the defendant who had signed individual workplace contracts.  This request was made orally at about 2.00pm and the request was to see the documents by 5.00pm.  A letter from Mr Warren to the Managing Director of the defendant was sent at about 4.30pm on 15 November 1994 confirming the request to see the documents though it was, in terms, a request that the defendant "provide" the documents.  The letter was in the following terms:

"15 November 1994

Mr Peter Wylie

Managing Director

Advertiser Newspapers Ltd

GPO Box 339

Adelaide 5001

By facsimile: [phone]

Dear Mr Wylie

In accordance with section 286 of the Industrial Relations Act I wish to confirm my request of today that, in order to ensure the observance of the Journalists (Metropolitan Daily Newspapers) Award 1991, you provide me immediately with any documents concerning the contracts of employment of the following members of the Alliance:

Rae AtkeyKevin Bull

Barry Hailstone           Christopher Mangan

Russell Millard           Richard Mitchell

Anthony Reed              Leo Schlink

Ray TitusJeff Turner

Sean Whittington           Ian Daebeler

Michael Duffy             David Gleeson

William Knevitt           Jackie Tracy

David Schaefer            Mark Robinson

John MarrWayne Thomas

Michael Whitesman          Michelle Weidenhofer

Karen Porter              Leon Mead

Grant Edwards             Carol Ashdown

Andrew Williams           Michael Marschall

Barry O'Brien

I can be contacted on the following mobile telephone number at any time: 018 649 789.

Yours sincerely

Christopher Warren

Joint Federal Secretary"

The letter arose as a result of a phone call Mr Warren made to his Sydney office in which he spoke to Mr Mark Ryan who was described by Mr Warren as an Assistant Federal Secretary of the prosecutor.  It appears Mr Warren had drafted a letter and sent it to his office to have it typed.  It appears it was sent to Mr Wylie by Mr Ryan by facsimile at the request of Mr Warren.  I am not, for present purposes, making findings of fact by reference to the criminal standard of proof.  It is unnecessary for me to do so.  I am simply recounting what is said or implied by Mr Warren in his evidence so as to place in context my consideration of the letter.

These are criminal proceedings. An element of the offence created by s306 is that the power arising under s286 has been sought to be exercised. The power under s286 to enter, inspect and interview arises when the officer of the organisation is authorised in writing by the secretary of the organisation to do so. In these proceedings the defendant takes issue with whether the prosecutor has established that such an authority existed at the relevant times, namely when the request was made at 2.00pm and later at 4.30pm on 15 November 1994.

In view of the desire of both the prosecutor and the defendant for these proceedings to be resolved expeditiously I propose to consider this issue separately notwithstanding that a range of other issues would need to be addressed if the prosecutor were to succeed on this point.

Section 286(1) is in language that does not permit of an exception to the requirement that the officer seeking to exercise the power under s286 need be authorised in writing even if the officer seeking to exercise the power is the officer who would issue the authority. The operation of the section proceeds on the basis that there is such an authority that can be made available if requested: see s286(2). While it may be seen as curious that a person might be required to authorise themselves in writing to do certain things, it is a requirement upon which the operation of s286 depends irrespective of who is undertaking the inspection.

In the present case it is conceded by the prosecutor that there was no written authority at the time the first request was made by Mr Warren orally.  No offence could therefore have arisen in relation to any action those representing the defendant took in response to that request.

The letter of 15 November 1994 does not, in my opinion, constitute an authority in writing of the type contemplated by s286. It does not authorise anyone to do anything. It is true that it makes reference to s286 and the need to ensure observance of the award but that appears to me to have been intended to give greater weight to what the letter, in substance, was, namely a request from Mr Warren that documents be provided to him. An authority to enter, inspect and interview is a document framed so as to indicate, with reasonable clarity, to someone to whom it is shown voluntarily or is shown by operation of s286(2), that the holder of the document is authorised to do what is being sought to be done. The document must be framed in this way given that it has the effect of requiring the person to whom it might be shown to act in a way that is lawful, that is, not in breach of s306.

Moreover the authority must identify directly or indirectly the premises in respect of which it is intended to operate. So much is required by s286(1)(a). It does so directly by naming them or indirectly by naming the employer and thus identifying the premises the employer occupies. It is true that the name of the employer appears in the address in the letter of 15 November 1994. However that, in my opinion, does not constitute specification for the purposes of s286. The identification of the employer appears as part of the identification of the person to whom the letter is written. It is not the specification of the employer as part of an authority authorising entry and inspection.

The prosecutor has failed to establish the existence of a written authority.  It has thus failed to prove an element in the offence.

I dismiss the information.

I certify that this and the preceding six (6) pages are a true copy of the Ex Tempore Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Date:24 February 1995

Solicitor for the Prosecutor:       Ms K. Nomchong of

Media Entertainment

and Arts Alliance

Counsel for the Defendant:     Mr B. Buchanan &

Mr P. Kite

Solicitor for the Defendant:        Minter Ellison Morris

Fletcher

Date of hearing:  21 December 1994

Date of judgment:                   21 December 1994