FEDERAL COURT OF AUSTRALIA

Construction Forestry Mining and Energy Union v Alfred [2016] FCA 591

ORDERS

THE COURT ORDERS THAT:

1.    The Notice to Produce Records or Documents purportedly issued pursuant to s 712 of the Fair Work Act 2009 (Cth) to the applicant on 11 March 2016 is invalid and of no effect.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 11 March 2016, Mr Gregory Alfred, a Fair Work Building Industry Inspector, appointed under the Fair Work (Building Industry) Act 2012 (Cth) (FWBI Act) signed a notice addressed to the proper officer of the Construction, Forestry, Mining and Energy Union (CFMEU) requiring it to produce, pursuant to s 712 of the Fair Work Act 2009 (Cth) (FWA), documents set out in that notice. That notice was subsequently served on the CFMEU. The notice required compliance by production by 4.00pm on Friday, 1 April 2016. By agreement between the CFMEU and Mr Alfred, the time for compliance has been extended pending the hearing and determination of a challenge which the CFMEU has made to the validity of the notice. That challenge takes the form of an application under s 39B of the Judiciary Act 1903 (Cth) for a declaration that the notice is void and of no effect.

2    Within the FWBI Act, s 59(1) provides:

(1)    The Director may, in writing, appoint as a Fair Work Building Industry Inspector:

(a)    a person who has been appointed, or who is employed, by the Commonwealth; or

(b)    a person who has been appointed, or who is employed, by a State or Territory, or who holds an office or appointment under a law of a State or Territory.

3    Section 59C provides:

(1)    An inspector has the same functions and powers as a Fair Work Inspector.

(2)    However, the functions and powers of an inspector:

(a)    may be performed or exercised only in relation to a building matter; and

(b)    are subject to such conditions and restrictions as are specified in his or her instrument of appointment.

(3)    A matter is a building matter if it relates to a building industry participant.

(4)    For the purposes of the performance of the functions and the exercise of the powers of an inspector in relation to a building matter:

(a)    a reference to an Act to a Fair Work Inspector has effect as if it were a reference to an inspector; and

(b)    a reference to an Act to the Fair Work Ombudsman has effect as if it were a reference to the Director.

(5)    To avoid doubt, this section does not provide for the Fair Work Ombudsman to give directions to an inspector under section 704 or 705 of the FW Act.

4    Section 4 provides:

…

“building association” means an industrial association whose eligibility rules allow membership by at least one of the following groups:

(a)    building employers;

(b)    building employees;

(c)    building contractors;

whether or not those rules also allow membership by other persons.

…

“building industry participant” means any of the following:

(a)    a building employee;

(b)    a building employer;

(c)    a building contractor;

(d)    a person who enters into a contract with a building contractor under which the building contractor agrees to carry out building work or to arrange for building work to be carried out;

(e)    a building association;

(f)    an officer, delegate or other representative of a building association;

(g)    an employee of a building association.

“building matter” has the meaning given by subsection 59C(3).

“building work” has the meaning given by section 5.

…

“industrial association” means:

(a)    an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law (within the meaning of the FW Act); or

(b)    an association of employees, or independent contractors, or both, a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or

(c)    an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment, independent contractors or both;

and includes:

(d)    a branch of such an association; and

(e)    an organisation; and

(f)    a branch of an organisation.

5    Section 5 provides:

Definition of building work

(1)    Subject to subsections (2), (3) and (4), building work means any of the following activities:

(a)    the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent;

(b)    the construction, alteration, extension, restoration, repair, demolition or dismantling of railways (not including rolling stock) or docks;

(c)    the installation in any building, structure or works of fittings forming, or to form, part of land, including heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply, fire protection, security and communications systems;

(d)    any operation that is part of, or is preparatory to, or is for rendering complete, work covered by paragraph (a), (b) or (c), for example:

(i)    site clearance, earth-moving, excavation, tunnelling and boring;

(ii)    the laying of foundations;

(iii)    the erection, maintenance or dismantling of scaffolding;

(iv)    the on-site prefabrication of made-to-order components to form part of any building, structure or works;

(v)    site restoration, landscaping and the provision of roadways and other access works;

but does not include any of the following:

(e)    the drilling for, or extraction of, oil or natural gas;

(f)    the extraction (whether by underground or surface working) of minerals, including tunnelling or boring, or constructing underground works, for that purpose;

(g)    any work that is part of a project for:

(i)    the construction, repair or restoration of a single-dwelling house; or

(ii)    the construction, repair or restoration of any building, structure or work associated with a single-dwelling house; or

(iii)    the alteration or extension of a single-dwelling house, if it remains a single-dwelling house after the alteration or extension.

(2)    Paragraph (1)(g) does not apply if the project is part of a multi-dwelling development that consists of, or includes, the construction of at least 5 single-dwelling houses.

(3)    Subject to subsection (4), building work includes any activity that is prescribed by the regulations for the purposes of this subsection.

(4)    Building work does not include any activity that is prescribed by the regulations for the purposes of this subsection.

(5)    In this section:

“land” includes land beneath water.

6    The information-gathering power, s 712 of the FWA, is in these terms:

Power to require persons to produce records or documents

(1)    An inspector may require a person, by notice, to produce a record or document to the inspector.

(2)    The notice must:

(a)    be in writing; and

(b)    be served on the person; and

(c)    require the person to produce the record or document at a specified place within a specified period of at least 14 days.

The notice may be served by sending the notice to the person’s fax number.

(3)    A person who is served with a notice to produce must not fail to comply with the notice.

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

(4)    Subsection (3) does not apply if the person has a reasonable excuse.

7    A failure without reasonable excuse to comply with the terms of a notice validly given under s 712, exposes the recipient of the notice to a penalty (see s 539(2) and item 32). Also relevant within the FWA, for present purposes, is s 709, which provides:

Powers of inspectors while on premises

The inspector may exercise one or more of the following powers while on the premises:

(a)    inspect any work, process or object;

(b)    interview any person;

(c)    require a person to tell the inspector who has custody of, or access to, a record or document;

(d)    require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises, or within a specified period;

(e)    inspect, and make copies of, any record or document that:

    (i)    is kept on the premises; or

    (ii)    is accessible from a computer that is kept on the premises;

(f)    take samples of any goods or substances in accordance with any procedures prescribed by the regulations.

Note: See also sections 713, 713A and 714 (which deal with self-incrimination and produced documents etc.).

8    Section 703 of the FWA provides that:

Conditions and restrictions on functions and powers

The functions, and powers (compliance powers), conferred on an inspector are subject to such conditions and restrictions as are specified in his or her instrument of appointment.

9    The notice in question was in these terms:

I, Gregory Alfred being a Fair Work Building Industry Inspector appointed under, and having the functions and power specified in, Part 2 of Chapter 7 of the Fair Work (Building Industry) Act 2012 (FWBI Act) require you, Construction, Forestry, Mining and Energy Union (the CFMEU) to produce to me the following records or documents relating to alleged adverse action and misrepresentation at the Hindmarsh Construction (QLD) Pty Ltd Zest Apartments Project at 31 Musk Avenue, Kelvin Grove, Queensland on 28 January 2016.

1.    All documents including application forms, registration forms, renewal notices, letters or agreements relating to the application for, maintenance of, or provision of membership in the CFMEU up to and including 28 January 2016 for the following persons:

(i)    Ciaran Duffy, date of birth 10/6/1988;

(ii)    Wesley Daniel Lee, date of birth 7/1/1985; and

(iii)    Daniel Barker, date of birth 16/4/1978.

2.    All documents relating to the holding of the position of Shop Steward or Site Delegate or Workplace Delegate (however described) including Delegate Registration forms, Delegate identification cards (however described) or documents evidencing appointment to the position of Shop Steward, Site Delegate or Workplace Delegate (however described) of the CFMEU (including documents created before 28 January 2016) for Daniel Barker, date of birth 16/4/1978;

You are required to produce the above records and/or documents at Level 25, 400 George Street, Brisbane, Queensland 4000 by 4:00pm on Friday 1 April 2016.

The production of the above records and/or documents is required for the purpose of:

•    determining whether the Fair Work Act 2009 is being or has been complied with, specifically:

▫    Part 3-1 General Protections

Section 346: it is alleged that a person took adverse action against another person because the second person did not engage in industrial activity within the meaning of paragraph 347(b)(vi) of the Fair Work Act 2009.

Section 349: it is alleged that a person knowingly or recklessly made a false or misleading representation about another person’s obligation to engage in industrial activity.

This Notice seeks the production of original records or documents, or if the original is not available, a copy or duplicate of the record or document.

In this Notice the word “document” includes, but is not limited to:

(a)    any paper or other material on which there is writing, marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(b)    any article or material from which sounds, images or writings are capable of being reproduced;

(c)    any letter, facsimile, email, memorandum, file note, note book, journal, briefing note, recommendation, advice, report, agenda, minutes, form, contract, witness statement, statutory declaration, affidavit, submission, ledger, invoice, account, accounting record, cheque, cheque butt, computer print-out, map, plan, drawing, photograph, audio or video tape, analogue or digital sound or video recording or computer disk.

In this Notice the word “record” includes information stored or recorded by means of a computer. Production of a record requires that you reproduce the information in a form capable of being understood by a Fair Work Building Industry Inspector.

Failure to comply with a Notice to Produce Records or Documents, without reasonable excuse, is a contravention under subsection 712(3) of the Act and may attract a maximum penalty of $54,000 in respect of a body corporate or $10,800 in respect of an individual.

10    The point taken on behalf of the CFMEU in respect of the notice is that a notice of this kind, to be valid, must disclose on its face that it is an exercise of the power which s 712 of the FWA, read with the FWBI Act, confers. Further, it is put on behalf of the CFMEU that the notice must identify the particular matter to which the production requirement relates in a way which provides it as recipient with a point of reference by which to judge whether the notice requires the specified documents to be produced. Those two requirements, so the CFMEU submits, are applicable by analogy to this notice, having regard to observations made by Bowen CJ and Neaves J in their joint judgment in Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581 at 584 (Bannerman v Mildura Fruit Juices).

11    Bannerman v Mildura Fruit Juices was a case in which the validity of a notice given pursuant to s 155 of the Trade Practices Act 1974 (Cth) (TPA) by the chairman of the Trade Practices Commission was challenged. Section 155(1) of that Act, so far as relevant to that case, provided:

Where ... the Chairman ... has reason to believe that a person is capable of furnishing information, producing documents ... relating to a matter that constitutes, or may constitute, a contravention of this Act, a member of the Commission may, by notice in writing served on that person, require that person -

(a)    to furnish to the Commission ... any such information;

(b)    to produce to the Commission ... any such documents;

...

Bowen CJ and Neaves J recorded at 582:

The notice stated that the Chairman had reason to believe that the respondent:

“is capable of furnishing information and producing documents relating to matters that constitute, or may constitute, contraventions by producers of orange juice drink products in Australia, of:

i.    Section 52(1) of the Act, namely that companies supplying orange juice products in trade or commerce have engaged or are engaging in conduct that is misleading or deceptive or is likely to mislead or deceive, namely, representing as orange juice and orange juice concentrate, products which do not consist wholly of juice obtained from oranges; and/or representing as orange juice drink and orange juice drink concentrate, products containing a lesser percentage of juice obtained from oranges than that indicated on containers of the products; or

ii.    Section 53(a) of the Act, namely that companies producing orange juice products, in trade or commerce, in connection with the supply of orange juice, orange juice concentrate, orange juice drink and orange juice drink concentrate, have falsely represented or are falsely representing the products as being of a particular standard, quality, grade or composition; or

iii.    Section 55 of the Act, namely that producers of orange juice products in trade or commerce have engaged or are engaging in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics or the suitability for their purposes, or the quantity, of products labelled and described as orange juice, orange juice concentrate, orange juice drink and orange juice drink concentrate.”

12    In respect of the notice concerned and that provision of the TPA, Bowen CJ and Neaves J observed, at page 584:

The requirement that a notice under sub-section 155(1) identify the matter that constitutes, or may constitute, a contravention of the Act has a twofold purpose. First it is necessary that the notice disclose on its face that it is an exercise of the power which the subsection confers. That power depends upon the existence, objectively determined, of a “matter”, in the sense in which that expression has been explained in earlier decisions of the court, that constitutes, or may constitute, a contravention of the Act and a belief in the person issuing the notice that the recipient is capable of furnishing information or producing documents relating to the matter so identified. Secondly, the identification of the matter that constitutes, or may constitute, a contravention of the Act provides for the recipient the point of reference by which to judge whether the notice validly requires the specified information to be furnished or the specified documents to be produced. It will only validly do so if the information and the documents specified in the notice can be seen, from the face of the notice itself, to be information or documents that relate to a matter of the kind described in the subsection and identified in the notice.

13    The other judge who constituted the Full Court in that case, Davies J, concurred with the reasons for judgment of Bowen CJ and Neaves J but also added some further observations in respect of the operation of s 155 of the TPA in relation to a requirement for the production of documents and statutory production or information-gathering powers generally. His Honour stated, at 588-590:

Provisions of that kind are interpreted as requiring the giver of the notice to identify in the notice, expressly or by necessary inference, the information or documents which are sought and the matter or matters within the concern of the giver of the notice to which the information and documents sought relate. Such identification should enable the recipient of the notice readily to perceive that the giver of the notice is entitled to require the information or documents sought. In Snow v Keating (1978) 19 ALR 373, Burt CJ examined s.264 of the Income Tax Assessment Act 1936 (Cth). His Honour said at 375:

“As it arises upon the wording of that section and specifically upon the wording of sub-s(1)(b) of it, the question simply is whether the Commissioner has been given a general power to be exercised by notice in writing to require a person, in the terms of the notice given in this case, to appear ‘and give evidence’ or whether the power so granted is restricted in that its proper exercise requires that the notice in writing should identify the income or assessment of a specific person as being the subject matter upon which the evidence to be given is to be ‘concerned’.

Once the question is formulated in that way the answer to it would appear to be self evident. The power which is given can only be exercised by ‘notice in writing’ and to be within par (b) of sub-s(1) the Commissioner has been granted the power in that way to ‘require any person ... to attend and give evidence ... concerning his or any other person’s income or assessment’. Those words are words of limitation upon the power which is given, and more particularly upon the means whereby the power which is given can be exercised. A notice requiring a person to appear and give evidence without identifying a subject matter within the subsection with which the evidence to be given is to be concerned is not a notice within the subsection; the notice given in the instant case, which beyond stating that it is given ‘for the purpose of inquiring into or ascertaining liability under any of the provisions of’ the Act, is completely at large and is not such a notice …”

The same view was expressed in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499. At 525, Gibbs ACJ said:

“… To be valid a notice to produce documents under s.264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require.”

At pp.536-537, Mason J said:

“The Commissioner’s power to require production under s.264(1)(b) is limited to documents relating to a person's income or assessment. Consequently, the Commissioner may not legally require the production of all the contents of a specified box or even all the documents therein, but only such of them as relate to a person's income or assessment. For this reason there is a fatal defect in the short form of notice addressed to the Bank dated 23rd February 1977 as it does not describe the documents required to be produced except by reference to their location.

What par.(1)(b) has in mind is that a notice may be given requiring the recipient to produce ‘all books, documents and other papers’ in his custody or control relating thereto, that is, to the income or assessment of the person whose name is stated in the notice. It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty.”

Section 155 of the Trade Practices Act 1974 (Cth) must be given effect in like manner. Not only does the section provide a penalty for breach of the obligation imposed upon the recipient of the notice, but s.155(1) in terms does not empower the chairman to require the recipient of the notice to provide any information whatever or any document whatever but only “such information” and “such documents”, that is to say, information and documents “relating to a matter that constitutes, or may constitute, a contravention of this Act”. The notice will not be a valid notice giving rise to penal consequences for non-compliance unless it identifies what is the matter or matters that constitute or may constitute a contravention of the Act, and the information or documents sought that relate thereto.

Smithers J applied this principle in Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman (No.2) (1979) 40 FLR 428 at 436-437:

“It was submitted by Mr. Goldberg that when a declaration is sought under s.163A(1)(a) in relation to the validity of the notice given to a person under s.155, that being an ‘act or thing done ... under this Act’, the validity of the requirement in such a notice to furnish particular information depends upon it being apparent from the terms of the notice that such information does in fact relate to a relevant matter. I accept this submission as sound. It is in accordance with general principles of administrative law.”

Northrop, Deane and Fisher JJ expressed the same view in Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 at 375-376.

In the present appeal, the following part of the notice was thought by the learned trial judge not adequately to identify a relevant matter:

“... I, Ronald Moore Bannerman, Chairman of the Trade Practices Commission, having reason to believe that Mildura Fruit Juices Pty Ltd (hereinafter referred to as the company) is capable of furnishing information and producing documents relating to matters that constitute, or may constitute, contraventions by producers of orange juice products in Australia, of:

i. Subsection 52(1) of the Act, namely that companies supplying orange juice products in trade or commerce have engaged or are engaging in conduct that is misleading or deceptive or is likely to mislead or deceive, namely, ... representing as orange juice drink and orange juice drink concentrate, products containing a lesser percentage of juice obtained from oranges than that indicated on containers of the products; ...”

14    There is no direct authority in relation to s 712 of the FWA of present relevance.

15    In respect of a predecessor provision in the Workplace Relations Act 1996 (Cth) (WRA) now repealed, both Heerey J at an interlocutory stage and Marshall J at the final hearing, each regarded the observations made in Bannerman v Mildura Fruit Juices as relevant by analogy to the operation of a notice under s 86(1A)(c) of the WRA: see respectively Thorson v Pine [2004] FCA 805 (Heerey J) and Thorson v Pine [2004] FCA 1316 (Marshall J) (Thorson v Pine).

16    I agree that those observations are relevant by analogy, but the submission made on behalf of the inspector is salutary for the reminder in it that the terms of the relevant statutory information-gathering or production power must always be paramount. It would be an error uncritically to apply observations made with respect to a power cast in particular terms to one cast in materially different terms.

17    This is no mere technical quibble. Noncompliance with the notice without reasonable excuse as mentioned would place the CFMEU in jeopardy of a civil penalty. It is quite appropriate for the CFMEU to have adopted the stance of seeking, by an exercise of judicial power, to test the validity of the notice.

18    Looking at the FWBI Act at first, it can be seen that while an inspector has the same powers as a Fair Work Inspector (s 59C(1)), those functions and powers materially may be performed or exercised only in relation to a “building matter” (s 59C(2)(a) – “building matter” as defined by s 59C(3)).

19    That, then, is one qualification on the otherwise bland language found in s 712 of the FWA. Another qualification, flowing from s 706(1)(a) of the FWA, is that it must be apparent on the face of the notice that the production power is being exercised for compliance purposes which are, materially, one or more of those, or each, as set out in s 706(1)(a).

20    It is a feature of the language employed by Parliament in s 706(1)(a) that there is conjoined there a purpose cast in the present continuous tense “is being” and a purpose cast in the past perfect continuous tense “has been”. That is the feature in its breadth which distinguishes s 706(1) of the FWA from s 155(1) of the TPA, which used the language “constitutes or may constitute a contravention”.

21    It is possible to envisage a circumstance where an inspector relied on the “is being” aspect of s 706(1)(a) as the purpose for which production under s 712 was sought. In such a case, it may well be necessary to consider whether the observations made by Marshall J in Thorson v Pine at [38]-[40] as to an inability to “fish through” a person’s records or engage in a “roving inquiry” are apposite with respect to s 712 read with s 706(1)(a). It is not, though, necessary in this case to address that question. That is because, as a matter of construction, it can be seen that the purpose of Mr Alfred in signing this notice was that also offered by s 706(1), namely, “has been complied with”. So much is apparent from the use of the past tense, “took” and “made”, in reference to the “general protections” following “specifically” at the top of p 2 of the notice.

22    Further, regard to what is there specified indicates that the past noncompliance is said to be found in contraventions of s 346 and 349 of the FWA. That being so, the CFMEU’s submission as to the pertinence of the observations made in Bannerman v Mildura Fruit Juice should be upheld. What follows from that, when applied by analogy to the operation of s 712 of the FWA, read in conjunction with s 706(1)(a) of that Act and s 59C(3) of the FWBI Act, is that it must be apparent on the face of the notice that there is, firstly, a “matter”; secondly, that that matter is a building matter, and; thirdly, that the documents the production of which is sought, relate to the foregoing.

23    It may readily be accepted, when one works one’s way through the definitions in the FWBI Act, that the CFMEU is a building industry participant. But the only material reference to the CFMEU in this notice is as the person via its proper officer liable to the production obligation. Such particularity as the notice contains at the top of p 2 makes no reference at all to the CFMEU. Indeed, in my view, having regard to what was said both by Bowen CJ, Neaves and Davies JJ in Bannerman v Mildura Fruit Juice, this notice does not describe a “matter” at all, much less a building matter.

24    The references to general protections at the top of p 2 of the notice are cast at such a level of generality as to make it impossible, reasonably, to ascertain the matter to which production relates. There is no element of contrivance or preciousness in the CFMEU advancing such a submission in the face of this notice. It is woefully deficient in its particularity. That particularity needs to be sufficient to permit a recipient to ascertain the relationship between what is sought and the matter which is the subject of the exercise of the statutory power. An example in the context of s 155(1) of the TPA of the type of identification of a matter which is sufficient is to be found in Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman (No 2) (1979) 41 FLR 428 (Smithers J) at 441.

25    Unless a notice shows on its face that the particular production required is within the authority of an inspector to require, it will be void and of no effect, especially given the exclusion, to the extent set out in s 713 of FWBI Act, of an important privilege applicable at least to individuals, namely, a privilege against self-incrimination, and the penal consequences which can follow noncompliance.

26    This type of statutory inquiry power needs to be exercised with particular precision of language. Unfortunately, that particular message, which is by no means a new one, has been lost on the author of this notice. It follows from the foregoing that the relief sought by way of a declaration that the notice is invalid and of no effect should be granted.

Associate:

Dated:    27 May 2016