Ramsay v Sunbuild Pty Ltd

Case [2014] FCA 54

FEDERAL COURT OF AUSTRALIA

Ramsay v Sunbuild Pty Ltd [2014] FCA 54

Citation: Ramsay v Sunbuild Pty Ltd [2014] FCA 54
Parties: ANDREW RAMSAY, MICHAEL HUDDY, SCOTT VINK and DENNIS PETER MITCHELL v SUNBUILD PTY LTD
File number: NTD 9 of 2013
Judge: REEVES J
Date of judgment: 11 February 2014
Catchwords: INDUSTRIAL LAW – determination of separate questions under r 30.01 of the Federal Court Rules – interaction between Fair Work Act 2009 (Cth) (the FWA) and Work Health and Safety (National Uniform Legislation Act (2011) (NT) (the WHS Act) – whether applicants can rely upon ss 501 and 502(1) of the FWA – where applicants had a right of entry under s 117 of the WHS Act and were prevented from entering and/or obstructed after entry to the respondent’s premises – whether an independent right of entry for occupational health and safety purposes exists in Part 3–4 of the FWA, particularly ss 494 and 512 – whether the applicants can rely upon ss 501 and 502(1) if their entitlement to enter stemmed from the WHS Act and not the FWA – where the WHS Act intentionally excludes persons such as the applicants from bringing proceedings under equivalent provisions – whether inconsistency or repugnancy between the WHS Act and the FWA
Legislation: Community Welfare Act 1983 (NT)
Commonwealth of Australia Constitution Act
Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011
Judiciary Act 1903 (Cth)
Northern Territory (Self-Government) Act 1978 (Cth)
Work Health and Safety (National Uniform Legislation) Act 2011 (NT)
Work Health and Safety Act 2011 (Cth)
Workplace Relations Act 1996 (Cth)
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Australian National University v Burns (1982) 64 FLR 166
Chittick v Ackland (1984) 1 FCR 254
Darlaston v Parker (2010) 189 FCR 1; [2010] FCA 771
Evans v Friemann (1981) 53 FLR 229
Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322
H J Heinz Co Australia Ltd v Kotzman [2009] VSC 311
Hogan v Riley (2010) 182 FCR 583; [2010] FCAFC 30
La v Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151 at 158
McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646; [2005] HCA 55
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
New South Wales v Commonwealth of Australia (2006) 229 CLR 1; [2006] HCA 52
Northern Territory v GPAO (1999) 196 CLR 553
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Rockman v Smallridge (2012) 33 NTLR 56; [2012] NTSC 56
Sellars v Woods (1982) 45 ALR 113
Setka v Gregor (No 2) (2011) 195 FCR 203; [2011] FCAFC 90
Walker v Wilson (1991) 172 CLR 195
Winn v Director General of National Parks and Wildlife and…

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AGLC
Ramsay v Sunbuild Pty Ltd [2014] FCA 54
Case
[2014] FCA 54
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court, Ramsay v Sunbuild Pty Ltd presented a dispute concerning the right of entry and conduct of inspections on a worksite. Ramsay, an authorised officer under the Fair Work Act 2009 (Cth) (FWA) and the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (WHS Act), sought to enter Sunbuild's premises to investigate suspected contraventions of the WHS Act. Sunbuild, the respondent, contested Ramsay's right to enter and obstructed him from conducting his inspection. The central legal issues revolved around whether Ramsay could rely on sections 501 and 502(1) of the FWA, given his entitlement to enter under the WHS Act and whether there existed an independent right of entry under the FWA for occupational health and safety purposes. Additionally, the court had to determine if there was any inconsistency or repugnancy between the WHS Act and the FWA.

The court held that sections 501 and 502(1) of the FWA should be construed to provide broad protection to permit holders, extending to conducting inquiries and all matters incidental to entry. The court rejected Sunbuild's argument that the FWA's provisions did not apply because Ramsay's right of entry was derived from the WHS Act. It concluded that Ramsay, being a permit holder under the FWA and having a legitimate purpose to enter under the WHS Act, was entitled to the protections of sections 501 and 502(1) of the FWA. The court found no inconsistency or repugnancy between the WHS Act and the FWA that would prevent Ramsay from relying on the FWA provisions.

The court ordered that the parties provide a set of orders in accordance with the reasons given by 4.00 pm on 14 February 2014.

Orders

Orders of the court

1. The parties provide a set of orders that give effect to these reasons by 4.00 pm on 14 February 2014.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As to context, it is self-evident that s 502(1) of the FWA appears immediately after s 501. This has some significance when one turns to the text of these two provisions. By its terms, s 501 is confined to the entitlement to enter premises and to the particular point in time at which a permit holder seeks to gain that entry. By contrast, the text of s 502(1) refers more broadly to the permit holder “exercising rights”. Properly construed, that must, in my view, extend to conducting the inquiries into the contraventions for which the entry to the premises is being undertaken and all matters incidental thereto. This is partly confirmed by the text of s 502(3), which provides that, without limiting s 502(1), that subsection “extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises”. It follows from its text and context that s 502(1) is directed more generally to all those things that are either integral to, or incidental to, the entry to premises for the purpose of conducting inquiries thereon in relation to the suspected contraventions of State or Territory OHS legislation. For these reasons, I reject Sunbuild’s alternative argument.CONCLUSION – BOTH QUESTIONS SHOULD BE ANSWERED IN THE AFFIRMATIVE In conclusion, it is necessary to apply this construction of ss 501 and 502(1) to the particular circumstances of this matter. For the purposes of s 501, the critical requirement under which Mr Ramsay was entitled to enter Sunbuild’s worksite under s 117 of the WHS Act was that he had complied with the provisions of Part 3–4 of the FWA, including the requirement that he be a permit holder. Since, for the purposes of this application, there is no dispute that Mr Ramsay was a permit holder under the FWA and since there is also no dispute that he held a legitimate purpose to enter Sunbuild’s worksite under s 117 of the WHS Act, viz to investigate his reasonable suspicion of a contravention of the WHS Act due to the presence of asbestos on that site, I consider he was a permit holder who was entitled to enter Sunbuild’s worksite in conformity with, and thus in accordance with, the provisions of Part 3–4 of the FWA. It follows that, if he did comply with all the relevant applicable requirements of Part 3–4, he was entitled to the protection of s 501 of the FWA. Subject to the qualification discussed below, question (a) (see at [1] above) must therefore be answered in the affirmative. As to the second question, once Mr Ramsay complied with the provisions of Part 3–4 and obtained an entry permit under the FWA, he was entitled to inquire into the suspected contraventions of the WHS Act at Sunbuild’s worksite provided that he acted in conformity with all the relevant applicable requirements of that Part. It therefore follows that, if he did comply with all those requirements, he was entitled to rely upon the protection of s 502(1) of the FWA. Again, subject to the qualification discussed below, question (b) (see at [1] above) must be answered in the affirmative.

Ratio Decidendi

Legal Principle Established

These expressions are given an extended meaning by ss 30C and 30D of the FWA, but it is not necessary to consider those provisions for present purposes. The expressions “constitutional corporation”, in paragraph (a) above, and “constitutional trade or commerce”, in paragraph (d) above, are defined in s 12 of the FWA, as follows:constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.constitutional trade or commerce means trade or commerce:(a)between Australia and a place outside Australia; or(b)among the States; or(c)between a State and a Territory; or(d)between 2 Territories; or(e)within a Territory. It is apparent from their terms that these provisions variously rely upon what is commonly described as the corporations power in s 51(xx) of the Constitution (in relation to s 14(1)(a)), the trade and commerce power in s 51(i) of the Constitution (in relation to s 14(1)(d)) and the Territories power in s 122 of the Constitution (in relation to s 14(1)(e) and s 14(1)(f)). Substantially identical provisions to these were considered by the High Court in New South Wales v Commonwealth of Australia (2006) 229 CLR 1; [2006] HCA 52 (the Work Choices case): see at [8]. As its name implies, that case involved the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the Work Choices Act) which was the immediate predecessor to the FWA. In the Work Choices case, all of the plaintiffs’ challenges to the constitutional validity of the Work Choices Act, including provisions that were substantially equivalent to ss 13 and 14 above, were rejected: see at [422]. Specifically, in relation to the reliance on the corporations power, see at [197]–[198] and, in relation to the use of the Territories power, see at [337] and [343]. In addition to founding the FWA on these constitutional heads of power, the FWA contains an express intention on behalf of the Commonwealth Parliament to “cover the field” with this legislation: see Northern Territory v GPAO (1999) 196 CLR 553 (GPAO) at [53], the Work Choices case at [365] and Momcilovic at [475] per Heydon J. It does that in Part 1–3 of Chapter 1 under the heading “Application of this Act”. That Part includes Division 2 (ss 26 to 30) under the heading “Interaction with State and Territory laws”. Section 26(1) provides:This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer. The expression “State or Territory industrial law” is defined quite broadly in s 26(2) to be:(a)a general State industrial law; or(b)an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:(i)regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);(ii)providing for the establishment or enforcement of terms and conditions of employment;(iii)providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;(iv)prohibiting conduct relating to a person’s membership or non‑membership of an industrial association;(v)providing for rights and remedies connected with the termination of employment;(vi)providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or(c)a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or(d)a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or(e)a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or(f)a law of a State or Territory that entitles a representative of a trade union to enter premises; or(g)an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or(h)either of the following:(i) a law that is a law of a State or Territory;(ii) an instrument of a legislative character made under such a law;that is prescribed by the regulations.