FEDERAL COURT OF AUSTRALIA

Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065

ORDERS

THE COURT ORDERS THAT:

1.    The Amended Originating Application and the Second Further Amended Statement of Claim are dismissed.

2.    The proceeding is dismissed.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding is the Australian Licenced Aircraft Engineers Association (the “Association”).

2    There are three Respondents to the proceeding. The First Respondent is Qantas Airways Limited (“Qantas”); the Second Respondent is Mr Christopher Tobin; and the Third Respondent is Mr Nicholas Saunders. At the relevant time, Mr Tobin was employed by Qantas as Manager – Sydney Aircraft Maintenance and Customer Experience; Mr Saunders was employed by Qantas as Senior Manager – Industrial Relations.

3    The proceeding has its origins in a review undertaken by Qantas in December 2015 of the number of surplus licenced aircraft maintenance engineers. It concluded that it had a surplus of 46.5 full time equivalent positions in Sydney.

4    Qantas notified the Association in January 2016 of its conclusions. Mr Stephen Purvinas, the Federal Secretary of the Association, responded by informing Qantas of his belief that there had been a contravention of the consultation requirements imposed by the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 (the “Enterprise Agreement”). Meetings followed. In May 2016 Mr Purvinas repeated his concern to Qantas as to the alleged failure to consult.

5    In June 2016, Mr Purvinas sought to exercise his right of entry as a permit holder to Qantas premises and to seek access to documents. The Entry Notice he provided to Qantas dated 3 June 2016 identified suspected contraventions of cll 47 and 60 of the Enterprise Agreement. Mr Purvinas gained entry to the premises on 7 and 8 June 2016 but no documents were produced on either occasion.

6    In September 2016, the Association filed in this Court an Originating Application seeking declaratory relief against Qantas that it had contravened ss 482 and 502 of the Fair Work Act 2009 (Cth). Declaratory relief was also sought against both Mr Tobin and Mr Saunders as to their contravention of ss 482 and 502. Messrs Tobin and Saunders were said to have been “involved in” the contraventions within the meaning of s 550 of the Fair Work Act. Further relief was also sought, including an order for the imposition of pecuniary penalties.

7    It is concluded that the proceeding should be dismissed. Qantas, it is concluded, was not required to produce and make available for copying the documents Mr Purvinas requested.

THE ENTERPRISE AGREEMENT 

8    The provisions of the Enterprise Agreement which assume relevance are cll 47, 55 and 60.

9    Clause 47 provides as follows:

47.    INTRODUCTION OF CHANGE

47.1    Qantas’ duty to notify

47.1.1    Where Qantas has made a definite decision to introduce major changes, including changes in minor ports, production, program, organisation, structure or technology that are likely to have significant effects on employees, Qantas shall notify the employee who may be affected by the proposed changes and at the request of the affected employee(s) the Association.

47.1.2    “Significant Effects” include termination of employment, major changes in the composition, operation or size of Qantas’ workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities, or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and restructuring of jobs. Provided that where this Agreement makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effects.

47.2    Qantas’ duty to consult

47.2.1    Qantas shall consult with the employees affected and at the request of the affected employee(s) the Association or other employee representative, inter alia, the introduction of the changes referred to in clause 47.1, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their union or other employee representative in relation to the changes.

47.2.2    The consultation shall commence as early as practicable after a firm decision has been made by Qantas to make the changes referred to in clause 47.1.

47.2.3    For the purpose of such consultation, Qantas shall provide to the employee’s concerned and at the request of the affected employee(s) the Association or other employee representative, all relevant information about the changes including the nature of the changes proposed; the expected effects of the changes on the employees and any other matters likely to affect employees provided that Qantas shall not be required to disclose confidential information the disclosure of which would be inimical to his/her interests.

10    Clause 55 is directed to redundancies. That clause provides in part as follows (without alteration):

55.    REDUNDANCY

55.1    The Company recognises the concern expressed by the employees and their representatives relating to job security and will seek to ensure that job security is maintained.

…

55.11    Definitions

55.11.1    “Employee” means a person who has been employed on a full time or part basis for a period of one year or more and does not include persons employed on a fixed term or casual basis.

55.11.2    “Redundancy” means a declaration by Qantas that an employee or employees are surplus to labour requirements because the quantity of their work has diminished.

55.11.3    “Retrenchment” means the termination of employment of an employee by Qantas for reason of redundancy.

55.11.4    “Part time employee” means an employee as defined by clause 13.3 – Permanent part time employee. All benefits of this clause will be paid on a proportionate basis.

11    Clause 60 provides as follows (without alteration):

60.    SURPLUS MANAGEMENT

60.1    During the life of this Agreement, Qantas will, subject to clause 55 of this Agreement, use a program of directed annual leave and long service leave, and voluntary redundancies, as the method for the management of surplus employees covered by the Agreement, before declaring positions covered by the Agreement compulsorily redundant.

60.2    During the life of the Agreement, expressions of interest in voluntary redundancy will be invited on at least two (2) occasions each year to mitigate the effects of any leave burn program that may be in operation from time to time.

60.3    In order to facilitate the program of directed annual leave and long service leave to manage surplus employees during the life of this Agreement:

60.3.1    employees may take, and be directed by the Company to take, single days or other periods of annual leave. Any provision of this Agreement will, to the extent that the clause restricts the taking or direction of annual leave in single days or other periods, be of no effect;

60.3.2    employees may take, and be directed by the Company to take, long service leave in broken periods, including in blocks of 7,8 and/or 15 consecutive calendar days, in accordance with clause 4H.3 of Appendix H of this Agreement. Any provision of this Agreement will, to the extent that the clause restricts the taking or direction of long service leave in blocks of 7, 8 and/or 15 consecutive calendar days, be of no effect; and

60.3.3    the parties agree that Qantas directing employees to take annual leave and long service leave is in these circumstances is reasonable.

60.3.4    the parties will take such steps as are necessary to ensure the program of directed annual leave, long service leave and voluntary redundancies complies with applicable legislation.

THE IMPLEMENTATION OF LEAVE BURN & THE ISSUES CANVASSED

12    Without being exhaustive, the implementation by Qantas of its “leave burn program”, its relevance to the surplus of licenced aircraft maintenance engineers and the concerns raised by Mr Purvinas should be briefly outlined.

13    The issue in the present case can be traced back to a letter dated 5 January 2016 from Mr Tobin to Mr Purvinas, which stated in part as follows:

Dear Steve,

Leave Burn Program (Clause 60 LAME EA 10)

The purpose of this letter is to update you on the Company’s preparations for the 2016 Leave Burn Program.

Number of surplus employees

As you are aware the purpose of the Leave Burn Program is to be a “method for the management of surplus employees” covered by the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10. Accordingly, the Company uses the total number of surplus employees as the basis for setting leave burn targets. For the 2016 Leave Burn Program the company conducted a review of the number of surplus employees in Sydney and Melbourne as at 17 December 2015. We have summarised the changes (including the reasons for the changes) in the table below:

There then followed the assessment as to the “[e]ffective number of surplus employees as at 17 December 2015” in both Sydney and Melbourne. The letter indicated that there was a surplus of 46.5 full time equivalent employees in Sydney and no surplus in Melbourne. The letter continued in part as follows (without alteration):

Calculation of the leave burn target

…

To simplify communications and make leave planning easier for employees we will be repeating our last practice of advising employees of their total individual leave targets for the year (i.e. combined 2016 accrual and leave burn targets). Based on feedback from staff from the 2015 program, the ‘hours’ target will also be converted into a ‘work days’ target. This number will vary by section (based on the length of shifts), but represents the same number of hours for each employee.

Qantas will shortly commence communications with employees about the 2016 Program. We will also work with employees over the course of the year to ensure they meet their individual leave clearance targets. As in 2015, we will periodically review the leave burn requirements and design of the Program and may make changes based on the circumstances of the business at that time.

Should you wish, the company is willing to provide you with a face to face briefing on the 2016 Program. If you would like to accept this offer please advise of your availability to meet.

14    Mr Purvinas responded by way of email on the same day. In its entirety, that email stated as follows:

Hi Nick,

Read your letter. I think you may be breaching the consultation procedures by seeking a meeting with us to discuss leave burn but already advising staff of the outcome of the meeting in the form of time they will need to take off. The figures look incorrect to us, for example we already know that 5 maintenance watch positions are available that will be filled by Sydney LAMEs. You do know that Qantas were already heavily fined for announcing the outcome of consultation before it commenced. That being the case I immediately request that Qantas retract any notifications sent to staff asking them to declare their preferred leave blocks by the date in the communications. I’ve added Chris Nassenstein to the email chain also so should the retraction request be ignored, a judge could again say that the breach was known in advance and at the highest levels of the company.

As for a meeting, is Monday 25th Jan ok?

Cheers

Steve P

15    According to Mr Purvinas, there were “several meetings” between Qantas and the Association between January 2016 and May 2016. There was (for instance) a meeting held on 27 April 2016 when Mr Purvinas, on his account, “again raised [his] concerns that Qantas was contravening the Agreement by directing employees to take annual leave in circumstances where it was not warranted and there had not been consultation about any workplace change that necessitated a leave burn program”. He set forth his concerns in a letter dated 13 May 2016.

16    Qantas provided the following response to Mr Purvinas in a letter dated 27 May 2016 (without alteration):

We refer to your letter dated 13 May 2016 and recent meetings and correspondence with you regarding the leave burn program under the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 (EA 10).

We understand that it has been the position of the ALAEA in recent months that Qantas Airways Limited (Qantas) is not entitled to continue with its leave burn program on the basis that it does not employ a surplus number of LAMEs. Your recent letter however now alleges that Qantas has ‘failed to consult the ALAEA’ and raises concerns about the ‘manner [in which Qantas] has implemented the Leave Burn Program having regard to any surplus and the leave accruals of employees’.

Your allegation that Qantas does not employ a surplus number of LAMEs has already been the subject of extensive correspondence and discussions with you. Accordingly, Qantas does not propose to comment further on this matter in this letter.

In relation to your allegation that Qantas has ‘failed to consult the ALAEA’, can you please detail the basis for your allegation so that we may properly respond, including by identifying the specific matters which the ALAEA consider to be subject to consultation and how Qantas has supposedly failed to consult in relation to each matter.

Similarly, in relation to your allegation regarding the ‘manner’ in which Qantas has implemented the leave burn program ‘having regard to any surplus and the leave accruals’, we ask that you explain what you mean by this and how and why the manner in which Qantas has implemented the leave burn program has given rise to a concern that Qantas has contravened EA 10. In providing your explanation, could you also explain why you consider the directions that have been issued to LAMEs to take period(s) of leave are not reasonable and why the amount of leave that LAMEs have been directed to take is disproportionate to the actual surplus.

Notwithstanding the above and to assist you in responding to the above matters, Qantas confirms the following information:

1    There is currently a surplus of 46.5 LAMEs;

2    All directions to take leave under the leave burn program have been issued only for the purpose of managing the surplus in the number of LAMEs;

3    Qantas is currently directing LAMEs in workgroups affected by the surplus to take period(s) of leave under the leave burn program only if the LAME’s combined annual leave and long service leave balance exceeded 240 hours as at the commencement of the program for 2016. The reason for this is that LAMEs with a lower leave balance were considered to have insufficient leave to participate in the leave burn program in 2016;

4    in determining which LAMEs should be directed to take period(s) of leave, Qantas has had regard to whether the LAME has submitted sufficient leave to fully account for their individual target under the leave burn program for 2016.

In addition, we note your request for a range of different documents. Qantas has considered your request but is of the view that the information requested including in relation to staff lists, work projections, resource allocation methodology, customer contracts and upcoming projects is either commercially sensitive information that Qantas is not in a position to provide or does not appear to be relevant to the allegations that you have made.

We look forward to receiving the information requested at your earliest convenience. Following which we would be happy to meet with you to discuss the additional concerns raised in your recent letter.

17    By the commencement of June 2016, Mr Purvinas maintained that he had “formed a firm view that it was not possible for Qantas to hold a position that Sydney was overstaffed by 46.5 LAMEs”.

18    On 1 June 2016, Mr Purvinas sent a further letter to Qantas referring to the 27 April 2016 meeting and to the 13 and 27 May 2016 correspondence. The 1 June 2016 letter continued in relevant part as follows (without alteration):

You maintain that the alleged surplus warrants what the ALAEA considers to be excessive and unlawful directions to take annual leave.

Our concerns in relation to a failure to consult include in relation to the following:

i.    The missed opportunity for the parties to work together to identify opportunities to source work for ALAEA members working in Sydney.

ii.    The lack of visibility on how Qantas have sourced some new work but have not adjusted the alleged surplus.

iii.    That a combination of the above points may lead to ALAEA members being made redundant when all staff in Sydney exhaust accrued leave balances.

iv.    That the rate at which leave is being exhausted is too great considering the matters that we could have discussed if formal consultation had occurred.

The questions raised in your correspondence are disingenuous having regard to our previous correspondence regarding this matter and our meeting on 27 April 2016.

Your correspondence has failed to allay my reasonable suspicions that Qantas is contravening the EA. Accordingly, unless you indicate by midday Friday 3 June 2016 that you intend to provide the information and documents requested by the ALAEA, I intend to exercise my Right of Entry to inspect documents.

19    There thereafter followed the giving of an Entry Notice and attendance by Mr Purvinas at the Sydney Airport premises of Qantas.

THE ENTRY NOTICE & THE DOCUMENTS SOUGHT

20    The form and content of the Entry Notice relied upon by Mr Purvinas, being that provided to Qantas on 3 June 2016, was relevantly as follows:

21    The documents to which access was sought were identified by Mr Purvinas in his affidavit as follows:

    “The daily workload sheets for Sydney International Terminal for each day of the previous 6 weeks”;

    “The daily workload sheets for Sydney Aircraft Maintenance for each day of the previous 6 weeks”;

    “Maintenance Memo M16-1685 regarding new work for in-flight entertainment systems”;

    “[T]he email sent by a manager David Perks to staff with M16-1685 attached discussing the timeframe for IFE work to be returned to Qantas”;

    “[A]ny memorandum of understanding (MOU) that was in operation for the four original Sydney departments, SAM, SIO, SDO and CE as stood in 2014 when original manning calculations were made to establish how many staff were required post redundancy program”;

    “[A]ny memorandum of understanding (MOU) that was in operation for the four original Sydney departments, SAM, SIO, SDO and CE (including any MOU to cover 737 reconfiguration work) as stood on 5th Jan 2016 when it is claimed that management had calculated the 2016 leave burn overstaffing level to be 46.5 additional staff”;

    “[A]ny memorandum of understanding (MOU) that was in operation for the four original Sydney departments, SAM, SIO, SDO and CE (including any MOU to cover 737 reconfiguration work) on 7th June 2016”;

    “[T]he Budget and Forecast (B&F) documents used by Qantas as referenced at point 1.6 of the 145 Maintenance Exposition (MOE) for all Australian departments where LAMEs work as stood in 2014 when original manning calculations were made to establish how many staff were required post redundancy program”;

    “[T]he Budget and Forecast (B&F) documents used by Qantas as referenced at point 1.6 of the 145 Maintenance Exposition (MOE) for all Australian departments where LAMEs work as stood on 5th Jan 2016 when it is claimed that management had calculated the 2016 leave burn overstaffing level to be 46.5 additional staff”;

    “[T]he Budget and Forecast (B&F) documents used by Qantas as referenced at point 1.6 of the 145 Maintenance Exposition (MOE) for all Australian departments where LAMEs work on 7th June 2016”; and

    “[T]he documents Chris Tobin used to determine that Qantas had 46.5 additional staff to complete the projected work for 2016 as used by him on 5th January 2016”.

Mr Purvinas in his affidavit also set forth the reasons why he sought to inspect each of these classes of documents. Objection was taken to much of this evidence upon the basis that Mr Purvinas was purporting to express an “opinion” about particular matters. But no question during the proceeding was raised as to the above classes of documents being the ones to which access was sought. The objections to evidence have been noted but may be placed to one side. The resolution of the argument as to whether the documents fell within the right conferred by s 482(1)(c) of the Fair Work Act, it is concluded, is to be resolved by reference to the description of the documents provided by Mr Purvinas rather than by reference to what he thought about the relevance of the documents or how those documents could be employed to address his suspicions of contraventions.

22    Having received a copy of the Entry Notice, Qantas responded in a letter dated 6 June 2016. That letter provided in part as follows:

Reasonable suspicion and particulars of the suspected contraventions

We understand from correspondence and discussions with you this year that the ALAEA opposes the leave burn program.

Initially this was on the basis that the ALAEA asserted that a surplus did not exist, but now appears to be on the basis that there have been changes to the surplus, and Qantas has not consulted with the ALAEA in relation to each and every change. Qantas has made a number of requests for you to explain the basis on which the ALAEA makes this assertion, but, to date, no explanation has been forthcoming. Your most recent correspondence of 1 June 2016 and your entry notice of 3 June 2016 do not assist in this regard.

In circumstances where you are now seeking to exercise rights of entry in relation to this matter, it is incumbent on you (at the very least) to detail what you consider to be Qantas’s consultation obligations in relation to the leave burn program, when you say those obligations arose, and why you consider that Qantas has not met these obligations. Simply asserting a failure is not sufficient.

We also note that the ALAEA asserts that the amount of leave that LAMEs are being directed to take under the leave burn program is excessive. Again, despite a number of requests for you to explain why the ALAEA makes this assertion, only superficial explanations have been offered. For example, no attempt has been made to identify the workgroups to which the ALAEA’s concerns relate and why the amount of leave required to be burned by LAMEs in those workgroups is considered to be excessive.

In light of the above, Qantas does not accept that you are entitled to enter the buildings or exercise a right of entry under s.482 of the FW Act on 7 or 8 June 2016.

Inspection of records or documents

Based on recent correspondence, we anticipate that you are seeking to enter the identified buildings to inspect records or documents. As you are aware, you are only entitled to inspect, or make copies of, records or documents that:

1.    are directly relevant to the suspected contraventions; and

2.    are not non-member records or documents,

(s.482(1)(c) of the FW Act).

Given the lack of detail regarding the asserted contraventions, Qantas is presently not in a position to identify whether there are any such documents kept in the identified building (or accessible from a computer in those buildings).

Next steps

Although Qantas does not accept you have a right to enter on this occasion, Qantas is nevertheless prepared to facilitate your entry into the buildings specified in your entry notice on 7 and/or 8 June 2016. When seeking to enter please ensure that you report to security at the entrance to the Jetbase and ask for Chris Tobin, who will accompany you during your entry. Should you wish to interview any LAMEs about the suspected contravention during your entry, please let Chris know upon your arrival so that appropriate arrangements (including arranging a suitable meeting room) can be made to facilitate any such interviews. Please note that Chris will not be in a position to provide access to records or documents during your visit given the issues set out above. However, if there are specific records or documents that you wish to access following your visit, can you please provide me with a notice under s.483 of the FW Act which identifies clearly the records or documents that you are seeking access to and why you consider them to be directly relevant to a suspected contravention of EA10 (noting the issues set out above) so that any access can be facilitated in an appropriate way.

23    Mr Purvinas attended at the Qantas premises on 7 June 2016 at about 10.30am and was granted access. He interviewed some members of the Association about their working hours and the directions to take leave. He requested access to documents. There was a meeting on 7 June 2016 at about 3.00pm between Messrs Purvinas, Tobin and Saunders. According to Mr Tobin, the following conversation took place:

Mr Purvinas:    I do not need to speak to any more employees. And I expect I know the outcome, but I have to ask, can I have access to:

(i)    daily workload sheets for SIT for every day for the last 6 weeks;

(ii)    daily workload sheets for SAM for every day for the last 6 weeks;

(iii)    maintenance memo number M16-1685;

(iv)    the email sent by Dave Perks to staff under his control which relates to IFE, refers to Maintenance memo M16-1685 and sets out a timeline for implement the insourcing;

(v)    any MOUs for cabin experience, SAM, SIO, SDO and whichever MOU covers the 737-800 reconfiguration, as they existed at the time the surplus was first calculated in 2014, at 5 January 2016, and presently;

(vi)    the budget and forecast model referred to in Part 1.6 of the 145 Maintenance exposition for all engineering departments nationally where LAMEs perform work, as these models existed at the time the surplus was first calculated in 2014, at 5 January 2016, and presently; and

(vii)    any documents used by Chris Tobin when preparing his letter of 5 January 2016 to determine that 46.5 was the surplus of staff over what was required to complete the projected work for 2016.

Mr Saunders:    We still don’t have sufficient particulars to properly consider your request and determine what documents you are entitled to.

Mr Purvinas:    Fine, then I am ready to leave.

Mr Saunders gave a substantially similar account of the conversation.

24    Mr Purvinas again attended at the Qantas premises on 8 June 2016, was again granted access and again requested access to the documents. Mr Saunders again denied access to the requested documents. According to Mr Saunders, the following conversation took place at about 9.30am:

Mr Purvinas:    I have to ask you again, will you provide me with the documents I have requested?

Mr Saunders:    You have not provided any further information to put us in a position where we are able to identify which documents might be relevant to any suspected contravention.

Mr Tobin:    Would you like to speak to any LAMEs today?

Mr Purvinas:    Yes. I would like to speak to Bradley Cox and Peter Bacon.

Mr Purvinas then proceeded to interview some persons. At about 11.00am there was then the following conversation between Mr Purvinas and Mr Saunders:

Mr Purvinas:    I have spoken to all of the LAMEs that I wish to speak to today. I suspect that I know the answer, but I am asking again, will you provide me with access to the documents that I have requested?

Mr Saunders:    Qantas’s position has not changed since this morning. You have not provided us with enough information to enable Qantas to properly consider your request and determine which documents you are entitled to, and have provided no further information of the kind requested in Sandra’s letter.

Mr Purvinas:    Ok then, I am finished here.

The reference to “Sandra’s letter” is a reference to the 6 June 2016 letter from Qantas.

25    The accounts given of the conversations on 7 and 8 June 2016 by Messrs Tobin and Saunders are accepted.

THE FAIR WORK ACT

26    The right of entry onto premises is addressed in Pt 3-4 of the Fair Work Act.

27    Within that Part, s 481 confers a right of entry on a permit holder to investigate suspected contraventions of the Fair Work Act or a “fair work instrument” and s 484 confers a right of entry on a permit holder for the purposes of holding discussions with employees. A “fair work instrument” includes an enterprise agreement: Fair Work Act s 12.

28    Section 481, together with a number of other provisions, should be briefly mentioned with a view to setting forth the balance sought to be struck by the Legislature when adjusting the competing rights of those seeking to exercise a statutory right of entry and the rights of occupiers; the purposes of which a statutory right of entry may be exercised; the rights that may be exercised by a permit holder; and the requirements to be satisfied when seeking to exercise those rights.

The balance struck – those seeking entry & the rights of occupiers

29    The statutory rights conferred upon permit holders are rights which diminish the common law rights of occupiers to determine who may enter and remain upon their property.

30    The statutory rights conferred, it is respectfully considered, should thus be construed no more widely than is necessary to give effect to the statutory object and purpose for which the right is conferred. When addressing s 484 of the Fair Work Act in Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85, (2012) 203 FCR 389 at 407, it was there observed:

[63]    … There is much to be said for the view that the statutory right of entry conferred on a permit holder by s 484 should not be construed as conferring any greater right than is necessary to achieve the statutory objective. The common law rights of an occupier, on this approach, are only to be diminished to the extent absolutely necessary to give effect to the right conferred. Subject only to the requirement that an occupier make a “reasonable request”, the balance that the Legislature has sought to achieve between granting a statutory right of access and the consequent diminution of the common law rights of an occupier is thereby struck. An occupier, on this approach, need not be further involved itself in promoting or accommodating the interests of those seeking entry.

Justice Tracey agreed with this reasoning: [2012] FCAFC 85 at [30], (2012) 203 FCR at 400. In developing this approach, it was later observed in Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991, (2017) 268 IR 355 at 364 to 365:

[37]    … Although the rights conferred are “beneficial ones [which] should be construed with an eye on the important role of organisations in protecting their members” (Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140 at [109] per Jessup J), they remain rights which are not “untrammelled” by legislative constraints. This approach to the construction of provisions such as s 484 sits comfortably with the well-accepted proposition that “clear and unambiguous words” are required before common law rights are abolished or modified: cf. Bropho v Western Australia (1990) 171 CLR 1 at 17 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. “Statutory authority to engage in what otherwise would be tortious conduct”, it has been said, “must be clearly expressed in unmistakable and unambiguous language”: Coco v The Queen (1994) 179 CLR 427 at 436 per Mason CJ, Brennan, Gaudron and McHugh JJ. See also: Momcilovic v The Queen (2011) 245 CLR 1 at [43] per French CJ.

31    The need to “balance both the rights of organisations and those of the occupier” was also referred to by Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802, (2017) 252 FCR 198. His Honour there observed (at 209 to 210):

[47]    It is apparent from the objects of Part 3-4 contained in s 480 that, in providing a regime for the exercise of rights of entry, the FW Act seeks to balance both the rights of organisations and those of the occupier: Australian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389 at [59] (Flick J, with whom Tracey J agreed); and Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15 at [15] (North, Flick and Bromberg JJ). That balance is in part reflected in the imposition of various conditions upon the exercise of a right of entry … It is also reflected in the reciprocity apparent in ss 500 and 502 which collectively provide protection to a permit holder from being hindered and obstructed but also prohibit the permit holder from hindering or obstructing another person. In each case, the prohibition is only applicable where the permit holder is “exercising … rights in accordance with [Pt 3-4]” and additionally, but only in relation to s 500, “seeking to exercise … rights in accordance with [Pt 3-4]”.

[48]    On the plain meaning of the provisions, it is only where the right conferred by Pt 3-4 is exercised, that the exercise of that right receives the protection of s 502 and only where the right conferred by Pt 3-4 is, or is sought to be, exercised that that exercise is regulated by and exposed to the sanction of s 500.

The same observations may be made in respect to the right conferred by s 481.

32    The importance of the rights conferred by provisions such as ss 481 and 482 (and their predecessor provisions) and the fundamental role served by such provisions in ensuring compliance with legislative objectives in the industrial law context, has attracted not only the attention of the Courts but also of commentators: e.g., Ford WJ, “Being There: Changing Union Rights of Entry under Federal Industrial Law” (2000) 13 AJLL 1.

Section 481 – the right conferred & purpose

33    Section 481 confers the right on a permit holder to enter premises and specifies the purpose for which that right may be exercised in the following terms (excluding notes):

Entry to investigate suspected contravention

(1)    A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:

(a)    whose industrial interests the organisation is entitled to represent; and

(b)    who performs work on the premises.

(2)    The fair work instrument must apply or have applied to the member.

(3)    The permit holder must reasonably suspect that the contravention has occurred, or is occurring. The burden of proving that the suspicion is reasonable lies on the person asserting that fact.

There has to date been little judicial consideration by this Court of s 481.

34    The “purpose” to which s 481(1) refers is a purpose objectively determined rather than subjectively determined: cf. Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 at 252 to 253. There in issue was s 286(1) of the former Industrial Relations Act 1988 (Cth), which authorised (inter alia) entry upon premises “for the purpose of ensuring the observance of an award or an order of the Commission”. With reference to that provision, Gray J concluded:

Some discussion took place in argument as to whether the purpose referred to in s 286(1) is an objective or a subjective purpose. Mr Heerey QC, who appeared with Mr Kelly of counsel for the prosecutor, referred to cases in which the word “purpose” has been construed as meaning a subjective purpose. See Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 348-349; and Parker Pen (Aust) Pty Ltd v Export Development Grants Board (1983) 67 FLR 234 at 242. The question is a difficult one. It is plain from the authorities cited, and from Peate v Commissioner of Taxation (Cth) (1964) 111 CLR 443 at 469, in the judgment of Kitto J, that the word “purpose” may mean either a subjective or an objective purpose, depending upon the context in which it is used. In the context of s 286(1) of the Act, it seems to me to be more likely that the purpose required is objective, that is that a particular exercise of a right to enter, inspect or interview can be said to be related with sufficient proximity to the object of ensuring observance of an award. If that were not the case, an honestly held but wholly mistaken belief by an officer of an organisation that he or she was pursuing a course which would result in the observance of an award would be decisive of the right to enter, inspect or interview. It is unlikely that Parliament intended the section to be construed in that manner. Its ultimate purpose is to promote the observance of awards, the giving of rights of entry, inspection and interview being only a means to that end.

This view was repeated as follows by his Honour in Australian Federation of Air Pilots v Australian Airlines Ltd (1991) 28 FCR 360 at 372:

In Curran’s case … the question was discussed whether the purpose is a subjective or an objective one; that is, whether it must be shown that the particular authorised officer intended to ensure the observance of the relevant award or order, or whether the right sought to be exercised had a sufficient connection with ensuring the observance of that award or order. It was held that the purpose required is objective.

In the present case, counsel for the defendant sought to challenge the correctness of this view. They argued that an improper or ulterior purpose of the authorised officer concerned would negate the rights of entry, inspection and interview. It is unnecessary to hold that a subjective purpose is required in order to accommodate this argument. For the reasons which I gave in Curran’s case, I am of the view that the purpose contemplated by the section is an objective one. To hold that a subjective purpose is required would be to render it difficult, if not impossible in some cases, for an occupier of premises to know whether an authorised officer was entitled to enter, inspect and interview. If the purpose required is objective, at least the occupier is able to make a rational assessment as to whether the right asserted could, if exercised, lead towards ensuring the observance of a relevant award or order.

There is no reason to take a different view of the meaning of the word “purpose” in s 481(1) of the Fair Work Act.

35    The requirement in s 481(3) of the Fair Work Act that a permit holder “reasonably suspect that the contravention has occurred, or is occurring” requires (at the very least) that there be facts known to the permit holder sufficient to induce a state of suspicion in a reasonable person. The reason for qualification is that s 481(3) and the requirement that a permit holder “reasonably suspects that [a] contravention has occurred”, may permit an inquiry into those facts which the permit holder exercising the right may not be personally aware of but are nevertheless readily available for consideration upon the making of reasonable inquiries. It could well be regarded as not promoting the balance sought to be struck by the Legislature in conferring the rights set forth in Pt 3-4 of the Fair Work Act for a permit holder to confine (either deliberately or inadvertently) the ambit of the factual basis upon which he seeks to exercise such a right. The more limited the presently known facts, the more objectively reasonable a suspicion may be; the more expansive the readily available factual basis may be, the greater the difficulty there may be in demonstrating that any suspicion is “reasonably” held.

36    On any view, however, a totally unsubstantiated state of suspicion in the mind of a permit holder – albeit a state of suspicion which may otherwise be genuinely held – is not sufficient. But a suspicion founded upon an erroneous factual foundation may not mean that it is one which is not “reasonably” held. Left to one side are those circumstances, again, in which a permit holder (either deliberately or inadvertently) may (for example) refrain from making reasonable enquiries to check the correctness of the factual basis of his suspicion lest it deprive him of the right he seeks to exercise.

37    Guidance as to what is meant by a statutory requirement that there be “reasonable grounds” for a person’s belief may be gleaned from the following observations of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in George v Rockett (1990) 170 CLR 104 at 112:

When a statute prescribes that there must be “reasonable grounds” for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

A little later (at 116) their Honours further observed:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

These observations may also be applied to provisions such as s 481 of the Fair Work Act: cf. Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 at [127], (2010) 186 FCR 88 at 124 per Logan J.

38    Relevant to an assessment as to whether “reasonable” grounds exist is the attitude of the occupier and any objections raised by the occupier: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 786, (2009) 186 IR 408 at 461 to 462 per Greenwood J. In the context of s 768 of the Workplace Relations Act 1996 (Cth), Justice Greenwood thus reasoned as follows (at 461 to 462):

[170]    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) 170 CLR 104 and Rema Industries & Services Pty Ltd v Coad (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 Pt 15 of the Act, the objects recited in s 736 of the Act and the regime established for granting permits to enter.

Although an appeal from this decision was allowed by the Full Court (Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90, (2010) 186 FCR 88), these observations of the primary Judge continue to be apposite to s 481(3) of the Fair Work Act. Thus, a permit holder must consider any objections raised by an occupier before seeking to exercise the statutory right of entry under s 481 of the Fair Work Act.

39    Although the exercise of the right depends upon an objective assessment as to the reasonableness of the suspicion on the part of a permit holder – and not the reasonableness of any belief on the part of an occupier – it could equally be suggested that an occupier should reconsider its position of opposition in light of any response provided by the permit holder to the occupier’s objections. An assessment as to the reasonableness of the suspicion held by the permit holder may well be assisted by reference to the bases upon which the permit holder and occupier are advancing their competing positions.

Section 482 – the rights that may be exercised

40    Section 482 of the Fair Work Act sets forth as follows the rights that may be exercised by a permit holder whilst on premises (notes omitted):

Rights that may be exercised while on premises

Rights that may be exercised while on premises

(1)    While on the premises, the permit holder may do the following:

(a)    inspect any work, process or object relevant to the suspected contravention;

(b)    interview any person about the suspected contravention:

(i)    who agrees to be interviewed; and

(ii)    whose industrial interests the permit holder’s organisation is entitled to represent;

(c)    require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly relevant to the suspected contravention and that:

(i)    is kept on the premises; or

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

(1A)    However, an occupier or affected employer is not required under paragraph (1)(c) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Meaning of affected employer

(2)    A person is an affected employer, in relation to an entry onto premises under this Subdivision, if:

(a)    the person employs a member of the permit holder’s organisation whose industrial interests the organisation is entitled to represent; and

(b)    the member performs work on the premises; and

(c)    the suspected contravention relates to, or affects, the member.

Meaning of non-member record or document

(2A)    A non-member record or document is a record or document that:

(a)    relates to the employment of a person who is not a member of the permit holder’s organisation; and

(b)    does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation;

but does not include a record or document that relates only to a person or persons who are not members of the permit holder’s organisation if the person or persons have consented in writing to the record or document being inspected or copied by the permit holder.

Occupier and affected employer must not contravene requirement

(3)    An occupier or affected employer must not contravene a requirement under paragraph (1)(c).

The right conferred by s 482(1)(c), it may be noted at the outset, to require an occupier to allow a permit holder “to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly relevant to the suspected contravention” is a right constrained by its terms to a right to inspect and make copies of any record or document that is “directly relevant” to the suspected contravention.

41    Section 486, which appears in Subdiv C of Div 2 of Pt 3-4, it should also be noted provides as follows:

Permit holder must not contravene this Subdivision

Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.

42    Section 502, it should also be noted, provides as follows (note omitted):

Person must not hinder or obstruct permit holder

(1)    A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

(2)    To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.

(3)    Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.

The requirements to be satisfied – the need for an entry notice

43    Within Subdiv C, s 487 generally requires the giving of an “entry notice for the entry” to the occupier whose premises are sought to be entered. That section provides in part as follows:

Giving entry notice or exemption certificate

Entry under Subdivision A or B

(1)    Unless the FWC has issued an exemption certificate for the entry, the permit holder must:

(a)    before entering premises under Subdivision A—give the occupier of the premises and any affected employer an entry notice for the entry; and

(b)    before entering premises under Subdivision B—give the occupier of the premises an entry notice for the entry.

(2)    An entry notice for an entry is a notice that complies with section 518.

(3)    An entry notice for an entry under Subdivision A or B must be given during working hours at least 24 hours, but not more than 14 days, before the entry.

An entry under s 481 is an entry under Subdiv A.

44    In Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147, Charlesworth J said:

[18]    The combined effect of ss 484, 486 and 487 of the FW Act is that a permit holder who has not complied with the requirements of s 487 is not authorised to enter or remain on premises under s 484 of the FW Act …

Relying upon her Honour’s observations, and with specific reference to s 487, Bromberg J stated in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802, (2017) 252 FCR 198 at 214 that:

[68]    … where the lawful exercise of a right of entry to enter particular premises on a particular day is predicated on the giving of prior notice of the particular entry, the giving of that notice may sensibly be regarded as a precondition of the conferral of the right of entry.

45    Section 518 sets forth what are referred to as “[e]ntry notice requirements”. That section provides in relevant part as follows:

Requirements for all entry notices

(1) An entry notice must specify the following:

(a)    the premises that are proposed to be entered;

(b)    the day of the entry;

(c)    the organisation of which the permit holder for the entry is an official.

Requirements for entry notice for entry to investigate suspected contravention

(2)    An entry notice given for an entry under section 481, 483A or 483D must:

(a)    specify that section as the provision that authorises the entry; and

(b)    unless the entry is a designated outworker terms entry under section 483A—specify the particulars of the suspected contravention, or contraventions; and

(c)    for an entry under section 481—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a member, who performs work on the premises, and:

(i)    to whom the suspected contravention or contraventions relate; or

(ii)    who is affected by the suspected contravention or contraventions; and

…

(d)    specify the provision of the organisation’s rules that entitles the organisation to represent the member or TCF award worker.

Section 518(3) addresses as follows the content required of an entry notice where entry is sought pursuant to s 484:

Requirements for entry notice for entry to hold discussions

(3)    An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must:

(a)    specify that section as the provision that authorises the entry; and

(b)    contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of an employee or TCF award worker who performs work on the premises; and

(c)    specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF award worker.

That sub-section, it will be noted, imposes much the same requirements as s 518(2)(a), (c) and (d).

46    Section 521(a) of the Fair Work Act provides that the regulations may provide for the form of entry notices. Regulation 3.27 of the Fair Work Regulations 2009 (Cth) provides that the “form of an entry notice is set out in Form 2 in Schedule 3.3” of the Regulations. An entry notice gives an occupier or employer “some forewarning of the proposed entry and of its purpose”: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 at [44] per White J. “The required content of an entry notice varies according to the purpose for which the permit holder wishes to enter the premises”: Director of Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [2], (2014) 146 ALD 75 at 76 per White J.

47    When addressing the terms of s 518 in Regional Express Holdings Ltd v Australian Federation of Air Pilots [2016] FCAFC 147, (2016) 244 FCR 344 at 362, Jessup J (North and White JJ agreeing) emphasised the importance of compliance with the mandatory requirements imposed by the term “must” as follows:

[53]    … Under s 518, the notice of entry which the permit holder is required to give must contain a declaration by him or her that his or her organisation is entitled to represent the industrial interests of a member to whom the suspected contravention relates, or who is affected by the suspected contravention, and must “specify the provision of the organisation’s rules that entitles the organisation to represent the member”. By s 484, a permit holder may enter premises for the purposes of holding discussions with employees who perform work on the premises, “whose industrial interests the permit holder’s organisation is entitled to represent” and who wish to participate in those discussions. Here the relevant notice of entry must contain a declaration by the permit holder that his or her organisation is entitled to represent the industrial interests of an employee who performs work on the premises, and must specify the provision of the organisation’s rules that entitles the organisation to represent the employee: s 518(3).

THE FACTS & THE SUSPECTED CONTRAVENTIONS

48    Although Qantas accepts that the facts are “not particularly controversial”, it has identified a cascading series of separate reasons as to why it says the Association is not entitled to relief.

49    In very summary form, it has been concluded that:

    the Entry Notice provided to Qantas on 3 June 2016 did comply with s 518(2)(b) of the Fair Work Act in that it did “specify the particulars of the suspected … contraventions” of cl 60 of the Enterprise Agreement but did not comply with s 518(2)(b) in respect to the suspected contraventions of cl 47 of the Enterprise Agreement.

    Mr Purvinas did in fact hold a suspicion as to contraventions of both cll 47 and 60 of the Enterprise Agreement but the requirement imposed by s 481(3) of the Fair Work Act that that suspicion be reasonable was only satisfied with respect to the suspected contravention of cl 60 – the suspicion held with respect to the suspected contravention of cl 47 was one which could not reasonably be held;

    the Entry Notice provided to Qantas on 3 June 2016 did comply with s 518(2)(c) of the Fair Work Act in that it did contain a declaration that the permit holder’s organisation was “entitled to represent the industrial interests of a member, who performs work on the premises”;

    the Association has failed to establish that any of the documents to which access was sought were “directly relevant” to a suspected contravention of cl 47 of the Enterprise Agreement and has only established that some of the documents sought were “directly relevant” to a suspected contravention of cl 60; and

    when Mr Purvinas entered the Qantas premises on 7 and 8 June 2016 and but for the consent of Qantas, it may well be that he could not have lawfully exercised his “right” to enter those premises pursuant to s 481 but, irrespective of whether he had any such “right”, he had no “right” conferred by s 482(1)(c) to require Qantas to allow him to inspect the documents he sought.

It is the absence of any “right” conferred by s 482(1)(c), however, more so than any non-compliance with s 518(2)(b), which assumes importance.

50    Each of these conclusions should be more fully addressed.

A suspected contravention – the need for particulars

51    The right of entry conferred by s 481 and the exercise of the rights conferred by s 482 are relevantly conditioned upon the permit holder having a reasonable suspicion that there has occurred or is occurring “a suspected contravention of [the Fair Work Act], or a term of a fair work instrument”.

52    Section 481 does not require as a condition precedent to the exercise of the statutory right of entry for a contravention to have in fact occurred; it is sufficient if a permit holder “reasonably suspect[s]” that a contravention has occurred or is occurring. Section 481(1) refers to “the purpose of investigating a suspected contravention of this Act”. The exercise of the statutory right of entry is thus not made unlawful should it later be established that there has in fact been no contravention.

53    The fundamental importance of both the permit holder having a reasonable suspicion and the need for that suspicion to be held in respect to a particular “contravention” as being dual preconditions for the exercise of the right of entry is not only self-evident from the terms of s 481 itself, but is also further reinforced by the requirement in s 518(2)(b) to “specify the particulars of the suspected contravention” in the Entry Notice.

54    There is a degree of precision required by s 518(2)(b). So much is made explicit by both the term “specify” and the identification of that which is to be specified, namely “particulars” of the suspected contravention.

55    It will not be sufficient if an Entry Notice merely states that there is or has been a “suspected contravention” or even that there is or has been a “suspected contravention” of (for example) a particular clause of an enterprise agreement. A permit holder seeking to exercise a right of entry needs to provide further details to an occupier. Section 518(2)(b), it is considered, does not require a permit holder to:

    “specify the particulars” as to the basis upon which the permit holder “reasonably suspect[s]” a contravention to have occurred,

but s 518(2)(b) does require a permit holder to:

    “specify the particulars”, namely set forth the facts, matters and circumstances said to give rise to “the suspected contravention, or contraventions”.

Such a requirement not only imposes a discipline upon the permit holder seeking to exercise the statutory right such that the permit holder is required to focus attention upon those “particulars” which go to the “suspected contravention”; such a requirement also enables an occupier or employer whose common law rights are being displaced by the statutory right of entry to make an informed decision as to whether the statutory right is being lawfully exercised or whether the permit holder is acting in excess of the right conferred.

56    Notwithstanding the central importance of the need to identify the suspected contravention with the requisite degree of specificity, there was considerable uncertainty throughout the hearing as to the suspected contraventions which triggered the exercise of the right on 7 and 8 June 2016.

57    Whatever flexibility there may be as to the manner in which the suspected contravention is identified – and perhaps even flexibility as to whether the suspected contravention could be reformulated even after the right of entry has been exercised – it is the terms of the Entry Notice which assume central importance. The Entry Notice in the present case identified suspected contraventions of:

    clause 47; and

    clause 60

of the Enterprise Agreement.

58    On the facts of the present case, there was a disturbing lack of precision in the Entry Notice in the way in which the “particulars” required by s 518(2)(b) were expressed. Section 518(2)(b) need not be construed as necessarily insisting upon the same degree of precision as may be required of particulars in a pleading filed in a superior court of record. The draftsman of an Entry Notice need not have at his side a copy of Bullen & Leake & Jacob’s Precedents of Pleadings. Although the standard required of particulars in a pleading in a superior court may provide some assistance in construing s 518(2)(b), that provision is to be construed and applied in the industrial context in which rights of entry are conferred by the Fair Work Act. While there should be no insistence that the “particulars” required by s 518(2)(b) be drafted with the precision of an experienced legal practitioner drafting a pleading, the standard of particularisation required by s 518(2)(b) should not be construed with such flexibility as to provide an occupier with little (or no) idea as to whether the right sought to be exercised is a lawful exercise of statutory power.

59    So construed, it is concluded that the Entry Notice dated 3 June 2016:

    properly identifies the suspected contravention in respect to cl 60 of the Enterprise Agreement, that contravention being the statement of suspicion that “Qantas are exercising clause 60 to order directed leave over and above the level they are entitled to”.

Greater reservation is expressed in reaching a conclusion that “particulars” have been provided as required by s 518(2)(b) in respect to:

    the suspected contravention of cl 47 of the Enterprise Agreement.

That reservation arises from the fact that the Entry Notice expresses the suspicion that “Qantas has not complied with consultation requirements in clause 47”. Presumably, there was no suspected contravention of cl 47.1 of the Enterprise Agreement; the suspected contravention is one directed to cl 47.2. Clause 47.2.1 requires consultation with respect to “inter alia, the introduction of the changes referred to in clause 47.1”, namely the introduction of “major changes”. But nowhere in the Entry Notice are those “major changes” expressly identified. That potential deficiency, however, may presently be left to one side. It may presently be accepted that the “major changes” intended to be referred to are what is identified in the Entry Notice as:

    “organisational changes”;

And those “organisational changes”, it may further be presently accepted, is a reference back to:

    the fact that Qantas has “added new work” and the fact that some employees who formed the basis of an earlier surplus calculation are “now working in different departments or undertaking other functions not considered in the surplus calculation”.

60    The two fundamental deficiencies in the Entry Notice and the specification of the “particulars” in respect to the suspected contravention of cl 47.2 are nevertheless to be found in the fact that:

    there is no specification as to whether the suspected contravention is a failure to consult in respect to “the introduction of the changes” or “the effects the changes are likely to have on employees” or “measures to avert or mitigate the adverse effects” etc, being the non-exhaustive list of things specified in cl 47.2.1 with respect to which Qantas is required to consult; and

    there is no specification as to those facts, matters and circumstances relied upon to found the suspicion as to the absence of consultation, whatever may have been the more generally expressed topic with respect to which it was said that Qantas should have consulted. There is no specification (for example) as to whether the suspected contravention is founded upon a failure to disclose information necessary for there to be meaningful consultation or founded upon a failure to “give prompt consideration to matters raised by the employees and/or their union” (cl 47.2.1).

61    With respect to the suspected contravention of cl 47.2 of the Enterprise Agreement, the Entry Notice, it is respectfully concluded, fails to “specify the particulars of the suspected contravention”. The Entry Notice, in substance, merely identifies the clause of the Enterprise Agreement which the permit holder suspects has been contravened; it does not set forth any basis upon which any such suspicion could be formed. The assertion as to a suspected contravention provides the occupier with no notice as to what should have happened or what has not happened which would give rise to the asserted suspicion as to the failure to consult.

62    It is thus concluded that the Entry Notice:

    does “specify the particulars” as required by s 518(2)(b) of the Fair Work Act in respect to the suspected contraventions of cl 60 of the Enterprise Agreement; but

    fails to “specify the particulars” in respect to the suspected contravention of cl 47 of the Enterprise Agreement.

63    Given the conclusion that s 481(3) has not been satisfied (at least in respect to the suspected contravention of cl 47), namely the requirement that a permit holder must “reasonably suspect that the contravention has occurred, or is occurring”, it is unnecessary to consider whether the rights conferred by ss 481 and/or 482 could not lawfully be exercised in the event that there had been non-compliance with s 518(2)(b).

A suspected contravention – the need for a reasonable suspicion?

64    A further argument advanced on behalf of Qantas focussed upon the requirement imposed by s 481(3) as to the need for a permit holder to “reasonably suspect that the contravention has occurred, or is occurring”. This argument had two limbs to it, namely:

    the need for the permit holder, in this case Mr Purvinas, to have in fact held such a suspicion;

and, if Mr Purvinas did in fact hold such a suspicion:

    whether the facts were such that a reasonable person could form a suspicion as to there being a contravention or contraventions.

Section 481(3) of the Fair Work Act, Qantas maintains in its written submissions, “makes it clear that the burden of proving (a) that the suspicion was held (subjective) and (b) that the holding of it was reasonable (objective), lies on the person asserting the fact, being the applicant here”.

65    Each limb to this argument needs to be separately considered.

The subjective suspicion held by Mr Purvinas

66    Mr Purvinas in his affidavit sets forth considerable detail of the exchanges between himself and Qantas going to the assessment made by Qantas as to there being a “surplus” of 46.5 licenced aircraft maintenance engineers in Sydney and the pursuit by Qantas of its “leave burn” program. That detail includes correspondence and an account of meetings held.

67    One thing which clearly emerges from those exchanges is the position being consistently advanced on behalf of Qantas that any assessment as to whether there was a “surplus” of licenced aircraft maintenance engineers over the number required was a matter for Qantas to determine by reference to its “operational requirements”. One letter sent to Mr Purvinas by Qantas dated 8 April 2016 thus stated in relevant part as follows:

I refer to your letter of 1 April 2016.

Qantas does not agree with a number of the assertions contained in your letter.

Specifically, it is the position of Qantas that:

1.    whether there is a surplus in the number of Licensed Aircraft Maintenance Engineers (LAMEs) covered by the LAME EA 10, is a matter to be determined by Qantas by reference to Qantas’s operational requirements;

2.    there is presently a surplus in the number of LAMEs covered by EA 10 (that is, Qantas currently employs more LAMEs than it requires);

3.    regardless of whether it is required to do so under the terms of EA 10, Qantas has consulted with the ALAEA on numerous occasions over the course of 2014, 2015, and 2016 in relation to surpluses, changes in operational requirements, and leave burn;

4.    it is now entitled to direct LAMEs to take period(s) of leave; and

5.    LAMEs who are directed by Qantas to take period(s) of leave are not required to remain on standby for the duration of the directed leave.

68    Whatever the merits of the competing positions being adopted, Mr Purvinas was steadfast in his belief that there was a potential contravention of cll 47 and 60 of the Enterprise Agreement. He expressed this belief at various parts of his affidavit and at various points of time. Paragraph [55] of his affidavit thus stated as follows:

By the start of June 2016, I felt that there was no way to resolve my concerns that Qantas was breaching the Agreement other than to exercise the powers that I hold as a right of entry permit holder under the Fair Work Act. This would allow me to enter the premises, interview members and copy documents that were relevant to my suspicion that Qantas was contravening clauses 47 and 60 of the Agreement.

Mr Purvinas then sets forth the process he then undertook to “review some information I had available from members, to check if I was well founded in my suspicions that Qantas were breaching the Agreement by forcing members on leave as part of a leave burn program” (at para [56]). After having undertaken that “review”, Mr Purvinas concluded as follows:

75.    After this exercise, it was my view that Qantas had made employees redundant and implemented a leave burn program that actually reduced their staffing levels to below those required by the contracts between Qantas Engineering and Qantas Airlines, and as required by CASA. On that basis, and having regard to my discussions with Qantas throughout 2016, I formed the view that its assertion that there were 46.5 surplus LAMEs was inaccurate.

76.    At this point, I decided I had sufficient evidence to at least be able to demonstrate that I had a reasonable suspicion that Qantas was in breach of clauses 60 and 47 of the Agreement.

69    But this evidence, it was submitted on behalf of Qantas, should be rejected.

70    The “unreasonableness” of the stated suspicion, the Respondents submitted, should lead to a finding that Mr Purvinas did not in fact hold his stated suspicion. The evidence relied upon to support the submission as to “unreasonableness” and the matters relied upon as leading to the finding sought were the following:

    the fact that Mr Purvinas did not support “leave burn”;

    the fact that there was what was characterised by the Respondents as an “obvious incentive” for Mr Purvinas to make “leave burn” as difficult for Qantas to administer as possible; and

    an asserted objective on the part of Mr Purvinas of seeking a negotiation as to the “surplus” figure of 46.5 employees.

71    The factual anchor for the submission was the acknowledgement on the part of Mr Purvinas that he did not support “leave burn”. So much is apparent from the following exchange during his cross-examination:

And employees accruing lots of annual leave and long service leave is seen favourably by LAMEs because it provides a good retirement payout?—Some see it that way and some don’t.

Yes. And some LAMEs like to keep those holidays and use them at a time of their choosing?—Some guys like to take their holidays, some guys like to store them.

Okay. And as a general preference, is it your position that you prefer not to see your members have their leave directed upon them?—I don’t know if I can answer that question, really. I haven’t really – I would have to think about it.

You don’t have a view?—Well, if you ask me again maybe in a different way I might be able to give you a more succinct answer.

Is it your preference that your members don’t have annual leave as a general rule, or long service leave, forced upon them by direction?—I would prefer members not be told when to take their leave.

72    The Respondents sought to support their assertion that Mr Purvinas had such a “preference” by reference to (inter alia):

    what the Respondents characterised as attempts made by Mr Purvinas to negotiate a lower surplus figure; and

    an asserted “inherent unreasonableness and illogicality associated with Mr Purvinas’ stated position”.

73    These submissions by the Respondents are rejected.

74    None of the matters identified by Qantas are necessarily inconsistent with the stated suspicion held by Mr Purvinas and certainly none (or all) of them provide any sufficient basis for rejecting the evidence of Mr Purvinas. Whether or not any contravention of cll 47 and 60 of the Enterprise Agreement are ultimately made out, the evidence of Mr Purvinas should be accepted as to his holding the relevant suspicion and his continuing to hold that suspicion after the review undertaken by him immediately prior to seeking to exercise his right of entry.

75    It is concluded that Mr Purvinas did in fact hold a suspicion that cll 47 and 60 of the Enterprise Agreement had been contravened.

76    The rejection of this first limb of the argument advanced by the Respondents nevertheless leaves open the second limb – namely, the submission that a subjectively held suspicion held by Mr Purvinas was not a suspicion which could reasonably be held.

Objective reasonableness

77    It is readily understandable why s 481(3) imposes a requirement that a permit holder who seeks to enter premises pursuant to the statutory right conferred by s 481 must not only in fact hold a suspicion that there has been a contravention – or that any such contravention is continuing – but the additional requirement that the permit holder “must reasonably suspect” that the contravention has occurred or is occurring. Section 481, it is to be recalled, is the conferral of a statutory right which gives rise to a significant and serious erosion of what would otherwise be the common law right of an occupier of premises to unilaterally decide who may enter those premises. The obvious legislative intent in requiring that a permit holder “must reasonably suspect” that a contravention has occurred or is occurring is a constraint upon the statutory right which ensure that the lawfulness of the exercise of the right is not left to the unilateral and subjective judgment of the permit holder.

78    When considering the objective reasonableness of the suspicion held by Mr Purvinas, again the suspicions he held in respect to a contravention of cl 60 of the Enterprise Agreement should be considered separately from his suspicion in respect to a contravention of cl 47.

Objective reasonableness – cl 60 & the use of leave entitlements

79    Not only is it concluded that Mr Purvinas did in fact hold a suspicion as to a contravention of cl 60 of the Enterprise Agreement, it is further concluded that that suspicion was one which could reasonable be held. The very facts relied upon by Mr Purvinas as forming the basis of his subjective suspicion, it is concluded, also support the objective reasonableness of that suspicion.

80    At the core of the suspicion held by Mr Purvinas was his belief that Qantas was erroneous in its assessment that there was a surplus of 46.5 licenced aircraft maintenance engineers in Sydney. In the absence of any such surplus, the path of reasoning was that cl 60 could not be properly invoked by Qantas in order to implement the “leave burn” program.

81    At the core of Qantas’ position were essentially two concerns, namely its submissions:

    that its assessment as to any surplus was unchallengeable. If that be accepted, cl 60 was a means available to Qantas of addressing the surplus; and

    that there was a lack of information available to Mr Purvinas upon which any reasonable suspicion could be founded.

Neither of these two concerns, it is respectfully concluded, defeats the objective reasonableness of the suspicion held by Mr Purvinas.

82    Although it may be accepted for present purposes that Qantas remains free to make commercial decisions as to the scope and extent of its operations, the rights and entitlements of its employees remain those protected by the Enterprise Agreement. Qantas may, for example, ultimately decide that it has a surplus of employees and further decide to make some employees redundant. In such circumstances, Qantas may make a “declaration” that the employees are redundant in accordance with cl 55.11.2 of the Enterprise Agreement and thereafter an employee may exercise the appeal right conferred by cl 55.13.12 of that Agreement.

83    In issue in the present proceeding, however, is not the extent to which Qantas retains an untrammelled commercial right to make such decisions as it sees fit or even, ultimately, its freedom to unilaterally direct employees to take leave. In different proceedings, where the factual context may well be different and where different issues are raised for resolution, the position now being advocated on behalf of Qantas may prove to be correct. About that, nothing is presently said.

84    What is also not in issue in the present proceeding is whether there has in fact been a contravention of cl 60 of the Enterprise Agreement.

85    What does arise for resolution in the present proceeding is the more confined question as to whether the suspicion of Mr Purvinas was one that could be reasonably held.

86    The Respondents submitted that the factual basis upon which Mr Purvinas proceeded was insufficient to give rise to a reasonable suspicion. The Respondents’ submission as to the inadequacy of the factual basis was founded upon (inter alia):

    the fact that Mr Purvinas was only in Sydney part-time and rarely watched how licenced aircraft maintenance engineers worked;

    Mr Purvinas’ limited knowledge of the variables relevant to assessing work requirements;

    Mr Purvinas’ reliance on calculations conducted in 2014 without any knowledge of the changes internal to Qantas since that time or any changes to the calculation methodology; and

    the fact that Mr Purvinas did not accept that the 2014 calculation methodology was correct in the first place and his view that there were potentially multiple methods that could be used to calculate the surplus figure.

87    However, the factual basis upon which Mr Purvinas proceeded also included the fact that Mr Purvinas:

    had available to him and considered a number of documents and information including documents and information provided to him by members of the Association. The material available to him included (inter alia) the 2014 consultation documents, a memorandum of understanding between Qantas Engineering and Qantas Airways and some daily workload documents; and

    had been told by Association members that staffing levels often fell below the staffing levels planned in the 2014 consultation documents.

88    It is, with respect, not to the point that Mr Purvinas could have pursued further inquiries before he reached his stated suspicion. Objectively, further inquiries may indeed have been considered prudent and may in some circumstances be necessary. But what does matter is whether the existing pool of information available to Mr Purvinas was a sufficient basis upon which a reasonable person could reach a state of suspicion as to a contravention of cl 60.

89    In this case, it is concluded that the facts known to Mr Purvinas were sufficient to give rise to a reasonable suspicion that cl 60 of the Enterprise Agreement had been contravened.

Objective reasonableness – cl 47 & a failure to consult

90    Although it has been accepted that Mr Purvinas in fact held a suspicion that there had been a breach of cl 47 of the Enterprise Agreement, the separate question as to the reasonableness of that suspicion remains to be resolved.

91    That question is resolved adversely to Mr Purvinas.

92    An inquiry into the objective reasonableness of a suspicion as to a contravention of cl 47 gets off to a shaky start viewed from his perspective.

93    Uncertainty is generated by a lack of clarity as to what should have been the subject of consultation. At the outset, Mr Purvinas in his email sent on 5 January 2016 seems to have identified the contravention of cl 47 as being the decision to implement the leave burn program without having first consulted with the Association. By 1 June 2016, however, the “concerns in relation to a failure to consult” were expressed in Mr Purvinas’ letter of that date more broadly.

94    Although the objective reasonableness of Mr Purvinas’ suspicion is more appropriately determined closer to the time when the Entry Notice was given, there remains to an objective observer uncertainty as to what was the subject matter about which there was a suspected failure to consult.

95    But such matters can be left to one side.

96    At the core of the concern being voiced by Mr Purvinas was the failure on the part of Qantas to consult on the basis upon which there had been changes to the workplace. So much follows from the very text of the 1 June 2016 letter from Mr Purvinas to Qantas and (for example) the asserted failure to consult in relation to the “lack of visibility on how Qantas have sourced some new work but have not adjusted the alleged surplus”.

97    Mr Purvinas (for example) was concerned about the impact of a decision made by Qantas to bring back “in-house” work that had previously been performed by Panasonic in respect to inflight entertainment. But he had little knowledge of the qualifications of those employees who formerly performed work at Panasonic. But that lack of information did not deter Mr Purvinas from forming a view as to the potential impact it would have upon the work performed by Qantas licenced aircraft maintenance engineers. The lack of information available to Mr Purvinas was exposed in the following exchange during his cross-examination:

And some other examples you give involve a high element of guesswork by you, don’t they?—I disagree.

In-flight entertainment?—Yes.

That was work that used to be performed by Panasonic?—Correct.

And you heard that Panasonic had about 20 employees…?—Yes.

… performing that work. And you simply then said, well, that should – when Qantas brought that work back in-house, that should reduce the surplus by 20?—I said that.

Yes. Now, Panasonic didn’t employ licensed aircraft maintenance engineers, did they?—I’m not sure.

No. Do you know who the employees were of Panasonic?—Not personally, no.

Did you know what skills they had?—They were aircraft engineers.

Do you know how experienced they were?—No.

Did you know how much the licensed aircraft maintenance engineers at Qantas had worked on the in-flight entertainment systems previously?—I don’t know how much, but – no, I don’t know how much they worked on them.

Some LAMEs would have more experience with this sort of facility than others?—I don’t know.

Do you know anything about Panasonic’s industrial arrangements?—Not that I recall, no.

Their work hours?—No.

How long their shifts were?—No.

Their estimated productivity levels?—No.

Do you know anything about how long they took to do the activities performed by Qantas now?—No.

Now, every single one of those questions I’ve just asked you could have an impact on whether 20 Panasonic employees would require 20 licensed aircraft maintenance engineers, wouldn’t they?—They would.

Yes. And you didn’t know any of those things, but you’ve just done a simple 20 for 20 estimation?—That’s correct.

98    The first of two difficulties to be confronted when resolving the objective reasonableness of the suspicion held as to a contravention of cl 47.2 is to be found within the terms of that clause. Clause 47.2 is relevantly confined to the requirement to consult on those changes that have a “significant effect on employees”. “Significant effects” is defined to include “major changes in the composition, operation or size of Qantas’ workforce”.

99    Mr Purvinas formed the suspicions that he did, being suspicions which it has been concluded were in fact held by him, but without directing attention to those matters essential for an objective view to be reached that the requirement to consult imposed by cl 47.2 was in fact triggered by the changes under consideration. It is the identification of those matters to which Mr Purvinas did not direct attention which underlines the lack of objective reasonableness of the suspicions formed. In the absence of consideration being given to matters upon which a suspicion could be reasonably founded, the suspicion itself lacks objectivity and is transformed into a personal and subjective suspicion devoid of any real support.

100    Mr Purvinas, it should be acknowledged, would disagree with such a conclusion. During his cross-examination, there was thus the following exchange:

If I asked you what the major change was over which Qantas was supposed to consult, your answer would be you don’t know, wouldn’t it?—No.

What is the major change?—There are many changes. There are changes that are outlined in my affidavit that amend the amount of staff that Qantas have; that ties in with leave burn and can ultimately lead to redundancies.

Do I understand that to be an allegation that the major change is a collocation of a whole lot of minor changes?—Well, I don’t know what the word “collocation” means, and I’ve never heard it before. But there are a number of triggers that require consultation: redundancy, major work place change. And, in fact, the clause is not limited to the amount of matters that trigger consultation. We had had a letter from Qantas in June – I think it was, 2015, saying if they determine they will have leave burn again in 2016, they will recalculate the surplus. Those matters all are encompassed, on my understanding, of matters that require consultation under clause 47.

Isn’t the point of your allegation that you didn’t know what the changes were because Qantas hadn’t told you. That’s right, isn’t it?—No. I knew what many of the changes were because members had told me.

You knew what the changes were that you relied upon. But you were saying to Qantas, “Well, if you’ve got a different figure, there must be a whole lot of other stuff that I haven’t heard of”. That’s right, isn’t it?—No. I think those matters are clearly outlined in my affidavit.

And your complaint was, “I haven’t heard about these things. Therefore, you’ve failed to consult with me”?—Yes. I said to them on 25 January, that you haven’t consulted about these matters. You’ve made a decision before giving us an opportunity to undertake the steps required in clause 47.

And because you didn’t know what they were, you couldn’t know whether they were a structural change or not, could you?—I outlined at that meeting many structural changes …

No. Just hear my question, please, Mr Purvinas?—Okay.

Because you didn’t know what the changes were, you couldn’t identify whether they were structural or not?—I disagree.

You couldn’t identify whether they were technological or not?—I disagree.

You couldn’t identify whether they were organisational or not?—No. I disagree.

You couldn’t identify whether they were, even, major or not?—I disagree.

Did you ever look at any of the cases on what a major change was for the purpose of consultation?—When?

Before – when formulating your alleged reasonable suspicion?—Before formulating a reasonable suspicion, I had looked at cases about major change.

Yes. Are you are aware of the Full Court, Port Kembla Coal case?—No.

No. Did you look at the cases about what a structural, technological or organisational change was?—No.

Did you look at the TCR case?—The TC …

Termination, Change and Redundancy case from out of the Commission?—I don’t think so.

No. How is it, that a change that might have increased or decreased workload – one that you had never heard of – had never been reported to you by any of your members – amounts to a major change?—It had been reported to me by members.

The whole point of your complaint, Mr Purvinas, was that it hadn’t been reported to you because you didn’t know?—No. My whole – my whole complaint is that Qantas hadn’t consulted over those matters. Members had reported to me that they opened up a complete new section to carry out reconfig work on 737 aircraft. I knew about the changes. Qantas would not consult or provide any further details after we explained to them, explicitly, at the meeting on 25 January that they are required to.

Your allegation, Mr Purvinas, was about the failure to consult with you about changes that you had not heard of. Yes or no?—No.

The cross-examination on the lack of knowledge of the “authorities” may (perhaps) be regarded as a cross-examiner’s flourish; but the balance of the exchange demonstrates that an objective permit holder in the shoes of Mr Purvinas would not have formed a suspicion as to a contravention of cl 47.

101    Care must necessarily be exercised when considering either the subjective or objective character of a suspicion held. The basis of a suspicion may change considerably over time; a suspicion once held may disappear or become more firmly entrenched. It is the reasonableness of the suspicion held, however, at the time when the right conferred by s 481 is exercised that assumes importance. But there is nothing on the facts of the present case to suggest that as at 7 and/or 8 June 2016 Mr Purvinas had any better understanding of any of those matters canvassed in his cross-examination.

102    The second of the two difficulties to be confronted when resolving the question of the objective reasonableness of the suspicion held as to a contravention of cl 47.2 is found in the request made by Qantas on 27 May 2016 for Mr Purvinas to “detail the basis of your allegation” that there had been a failure to consult and the response provided by Mr Purvinas on 1 June 2016. The response provided by Mr Purvinas on that date characterised the Qantas question as “disingenuous”. Even though Mr Purvinas in his 1 June 2016 letter went on to refer to the “previous correspondence … and our meeting on 27 April 2016”, there was no attempt on his part to set forth in his written response any matter which sought to address any of the questions raised by Qantas in its request. On one view, the characterisation of the Qantas request as “disingenuous” was hardly conducive to future meaningful negotiation; but, and more importantly, the failure on Mr Purvinas’ part to respond more meaningfully to the Qantas request goes some way to undermining the objective reasonableness of the suspicions held.

103    A residual difficulty is a concern that Qantas in its letter dated 27 May 2016 left the door open for future discussions and “consultation” with Mr Purvinas and a willingness “to meet with you to discuss the additional concerns”. Such a letter does not sit comfortably with the position sought to be advanced that there was a failure to “consult”. Although it may be accepted that some decisions had already been made by Qantas and that a subsequent opportunity to “consult” is no substitute for prior “consultation”, there unquestionably remained a number of future decisions yet to be made which potentially could have been the subject of meaningful “consultation”. Decisions affecting possible future redundancies and the rate at which leave entitlements were being “burn[ed]” were but two such possibilities. Mr Purvinas in his response, however, does not seem to have made any such distinction. A permit holder, more objectively informed, may well have focussed attention more carefully on that which could more fruitfully have been the subject of discussion. But that residual concern need not be further pursued. On one view, the point had been reached were there was an impasse between the information being sought by Mr Purvinas and the information being provided by Qantas.

104    In assessing the objective reasonableness of the suspicion that Qantas had contravened cl 47 of the Enterprise Agreement, reference has thus been had to (inter alia):

    the state of knowledge – or an absence of knowledge – of matters centrally relevant to an objective assessment as to the nature of work being undertaken;

    the terms of the correspondence between Mr Purvinas and Qantas;

    the terms in which the Entry Notice is itself expressed – and that which it has been concluded has not been specified in the Entry Notice;

    the concerns expressed by Qantas – and the clarification it was seeking – in its letter dated 27 May 2016; and

    the response provided by Mr Purvinas on 1 June 2016.

105    The suspicion that Mr Purvinas held in respect to the suspected contravention of cl 47, it is concluded, was not a suspicion that could be held by a reasonable permit holder (George v Rockett (1990) 170 CLR 104), especially in view of the objections which had been taken on behalf of Qantas and its request for further clarification (John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 786, (2009) 186 IR 408).

Objective reasonableness – clauses 60 and 47

106    It is concluded that the suspicion held by Mr Purvinas as to:

    a contravention of cl 60 of the Enterprise Agreement was one which could reasonably be held; and

    a contravention of cl 47 of the Enterprise Agreement was one which could not reasonably be held.

107    It follows that the requirement imposed by s 481(3) of the Fair Work Act has been met with respect to the suspicion held as to a contravention of cl 60 but not satisfied with respect to the suspicion held as to a contravention of cl 47.

The purpose of the entry & no prospect of contravention

108    A further matter put in issue by the Respondents focussed upon whether any right of entry being exercised by Mr Purvinas was being exercised “for the purpose of investigating a suspected contravention” (s 481(1)) and whether the documents to which access was sought were susceptible of making out a contravention.

109    Although there was some uncertainty as to the submission in fact being advanced on behalf of the Respondents, it was understood to include a submission essentially in the alternative, namely:

    that on the facts “there is and was no prospect of Qantas being held liable to a contravention of either clauses 47 or 60 of the Agreement (or any ‘terms’ within them)”; and/or

    the purpose being pursued was not “for the purpose of investigating a suspected contravention” (s 481(1)) because the documents to which access was sought were objectively not “directly relevant” to any contravention (s 482(1)(c)).

110    The exercise of the power for the “purpose” authorised by s 481(1) (and also the need for a reasonably held suspicion pursuant to s 481(3)) are just as much “precondition[s] to the conferral of the right” conferred by s 481 as the requisite purpose is a precondition to the right conferred by s 484: cf. Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802 at [64], (2017) 252 FCR 198 at 213 per Bromberg J. In “the absence of the requisite purpose” there can be no valid exercise of the right: [2017] FCA 802 at [51], (2017) 252 FCR at 210.

111    The submissions on behalf of the Association did not directly engage with the proposition advanced on behalf of the Respondents that the question of whether the right of entry was exercised for the “purpose” of investigating a suspected contravention was to be assessed objectively: cf. Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 at 252 to 253 per Gray J. But so much was thus understood to be common ground between the parties.

112    Given the conclusion already reached as to the invalidity of the Entry Notice, the argument as to the “purpose” of the entry need not be resolved. But it is prudent to nevertheless express some tentative conclusions.

113    The submission that on the facts “there is and was no prospect of Qantas being held liable to a contravention of either clauses 47 or 60 of the Agreement (or any ‘terms’ within them)” has the potential to impermissibly confine the circumstances in which the right conferred by s 481(1) to “enter premises and exercise a right under section 482” may be exercised. Left to one side for present purposes are those factual circumstances in which an objectively held suspicion could not be reasonably formed by reason of the facts being susceptible of no conceivable contravention. Of present concern are those less extreme cases, and probably the more prevalent cases, in which the fact of contravention is more open to argument – and in need of investigation.

114    Within that factual context, the statutory right, it should be noted, is not conditioned upon the facts and circumstances known to the permit holder – or even the facts and circumstances which a reasonably informed permit holder would know – being of themselves capable of constituting a contravention. The right is conditioned upon a permit holder exercising the right for the purpose of investigating a reasonably held suspicion that a contravention has occurred or is occurring. Section 481 does not impose any further requirement that the facts and circumstances upon which such a suspicion is held be sufficient to make out a contravention.

115    Section 481 should not be construed as testing the “purpose” of the entry or the reasonableness of any suspicion by reference to whether the then known facts and circumstances are sufficient to make out a contravention. The facts and circumstances known at the time the right is exercised may well be sufficient to found a reasonably held suspicion that a contravention has occurred or is occurring. That is a sufficient basis upon which the right may be exercised. The right conferred is conferred for the very purpose of allowing a permit holder to enter premises and access documents to ‘investigate” whether his suspicions can be made good. The exercise of a right of entry is not rendered unlawful by the ultimate factual outcome that the documents produced and subsequently examined prove the suspicion to be ill-founded.

116    To the extent that the present argument seeks to challenge this approach to the exercise of the right conferred by s 481, it is rejected.

117    The alternative way in which Qantas was understood to advance the present argument also has the potential to impermissibly confine the circumstances in which the right conferred by s 482(1)(c) may be exercised. The constraint imposed by s 482(1)(c) that a document be “directly relevant” is a constraint imposed by reference to the document being “directly relevant to the suspected contravention”. That constraint, with respect, cannot be garnered in support of any argument that the identification of the documents as documents said to be “directly relevant” to a suspected contravention – even if existing and produced and having a character consistent with the identification – would not fall within the terms of s 482(1)(c) if they were not capable of making out a contravention.

118    The more generic the description of the documents to which access is sought, and the less specificity with which those documents are identified, the easier may be an inference that the “purpose” sought to be pursued is not a lawful “purpose” but rather an attempt to gain access to documents which may make out a contravention with respect to which a permit holder may not have any presently held “reasonable” suspicion. The right conferred by ss 481 and 482(1)(c) is not a right for a permit holder to conduct an ill-structured audit of an occupier or employers’ records to determine whether any contravention may be uncovered.

119    Conversely, the greater the specificity, the easier may an inference be drawn that the “purpose” is truly the “investigation” of a “suspected” and readily identifiable contravention. But such considerations go more to a factual assessment as to whether the right is being exercised for a permissible purpose rather than any question as to the proper construction of either s 481 or s 482(1)(c).

120    The requirement imposed by ss 481(1) and (3) that a permit holder “must reasonably suspect” that a contravention has occurred or is occurring, it is considered, is not to be interpreted as meaning that a reasonable suspicion cannot be held unless the factual material available and upon which the suspicion is formed is also capable of making out a contravention. The reasonableness of the suspicion is not to be determined by reference solely to whether the available material can objectively of itself make out a contravention. Nor could it be. The legislative objective sought to be achieved by s 481 is to confer a right of entry in those circumstances where a permit holder can reasonably hold the view that the available material is capable of giving rise to a suspicion. That available material may not be sufficient to make out a contravention. But the legislative objective sought to be achieved by conferring the right of entry (s 481) and the right (inter alia) to inspect and make copies of documents (s 482(1)(c)) is to allow the permit holder to investigate whether a contravention has occurred or is occuring. It is the exercise of the right of entry and the rights that may thereafter be exercised pursuant to s 482 that may ultimately shine light upon whether the suspicion was well-founded or misplaced.

121    On such an approach, the fact that the material upon which the “suspicion” is sought to be demonstrated may not ultimately be sufficient to make out a contravention is not sufficient to conclude that the individual permit holder seeking entry – or the more “objective” permit holder – does not genuinely have the stated “purpose”.

122    The gateway to the exercise of the right conferred by s 481 and the exercise thereafter of the rights conferred by s 482 is not demonstrating that the factual material available at the time the permit holder seeks to exercise those rights is capable of constituting a contravention; the gateway is that the permit holder suspects that a contravention has occurred or is occurring and that that suspicion is reasonably held. The more difficult it is for the available material to make out a contravention, the more difficult it may be to prove that any suspicion is reasonably held. But the reverse does not hold true. A suspicion may objectively and reasonably be held even if the available material upon which the suspicion is formed is of an equivocal character or must be supplemented by further material if a contravention is ultimately to be established.

123    An accepted incompleteness in the material available at the time the right is exercised – and thus the inability to make out all of the elements of a contravention – does not deny the prospect of a reasonable suspicion for the purposes of s 481 and the lawful pursuit of entry for “the purpose of investigating a suspected contravention”.

124    To conclude otherwise would be inconsistent with the balance of the competing rights sought to be achieved by the Commonwealth Parliament, namely the balance of the rights of a permit holder against the rights of an occupier or employer. The construction urged upon the Court in the present matter would tilt that balance too far in favour of occupiers and employers.

125    The former manner in which the argument is sought to be advanced on behalf of the Respondents that the “purpose” of the entry was not authorised by s 481 would thus have been rejected had it been necessary to express a concluded view.

126    So, too, would have been the alternative manner in which that argument was sought to be advanced. A specification of documents to which access is sought which is manifestly in excess of that which may be embraced within a genuine exercise of the right conferred by s 482(1)(c) may be relevant to an assessment as to whether the entry was in fact for the “purpose of investigating a suspected contravention” (s 481(1)). But the fact that access is sought to documents in circumstances where it may objectively be open to argument or question as to whether the documents are “directly relevant” to the suspected contravention does not of itself deny the genuineness of the “purpose” sought to be pursued.

127    The purpose served by s 481 and the requirement that a permit holder “must reasonably suspect” that a contravention has occurred or is occurring, it may be finally noted, serves a different – but perhaps related – purpose to that served by s 518 and the requirement that an Entry Notice “specify the particulars of the suspected contravention”. An inability on the part of a permit holder to adequately “specify the particulars” may assist in reaching a conclusion that a permit holder does not “reasonably suspect” that a contravention has occurred or is occurring. But s 481 is intended to place a constraint upon a permit holder exceeding the limits of the statutory powers conferred; s 518 is intended to place an occupier on notice as to those facts, matters and circumstances which have occasioned the exercise of the power conferred by s 481 and to place the occupier in a position where they are able to make an informed decision as to whether they are obliged to yield to the exercise of the right or entitled to resist the exercise of the right.

128    Any argument as to the documents not being susceptible of making out a contravention can, accordingly, be left to one side.

Section 482 & the conferral of rights

129    Section 482, obviously enough, comes after s 481 and it is s 482 which identifies the “[r]ights that may be exercised while on premises”

130    On the facts of the present case, Qantas permitted Mr Purvinas to enter its premises. But it has been concluded (inter alia) that:

    there were deficiencies in the Entry Notice provided to Qantas on 3 June 2016; and

    although Mr Purvinas in fact held a suspicion that could be reasonably held in respect to the suspected contravention of cl 60, his suspicion as to a suspected contravention of cl 47 could not be reasonably held.

But for the consent on the part of Qantas to Mr Purvinas entering its premises on 7 and 8 June 2016, a conclusion could have been reached that there was no authority conferred by s 481 for Mr Purvinas to so enter.

131    If such a conclusion had been reached, a further argument may have presented itself as to whether the rights set forth in s 482 could only have been exercised where there had been compliance with s 481.

132    Section 482, it would seem, assumes that a person has entered the premises pursuant to the right conferred by s 481 and thereafter proceeds to identify the rights that may be exercised once the permit holder has thereby secured entry. Section 482, however, is not subject to any such express statutory constraint.

133    Given the conclusion that Mr Purvinas’ request for access to documents was not in any event authorised by s 482(1)(c), it is unnecessary pursue the present issue any further.

134    It is nevertheless of importance to recognise that the statutory scheme recognises dual requirements to be satisfied by a permit holder seeking to gain access to premises and thereafter exercise rights, namely the need to act within the constraints imposed by both:

    s 481; and

    s 482.

135    Left unanswered in the present case, accordingly, are such further questions as:

    whether Mr Purvinas whilst on the premises, albeit with the consent of Qantas, was subject to the constraints imposed by s 500; and

    whether the Respondents were exposed to the prohibition imposed by s 502.

Section 500, it may presently be noted, is expressed in terms of a permit holder “exercising, or seeking to exercise, rights in accordance with this Part” (cf. Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88 at [86] to [91] per Tracey J (Allsop CJ and White J agreeing)); s 502 is expressed in terms of a prohibition upon the hindrance or obstruction of a permit holder “exercising rights in accordance with this Part”.

136    The manner in which such provisions may be applied in a different factual context than that presently under scrutiny need not be pursued.

The documents sought & direct relevance – s 482(1)(c)

137    Left to be separately resolved is a further discrete issues posed for resolution by Qantas as to whether the documents to which access was sought were “directly relevant” to the suspicions held by Mr Purvinas.

138    Section 482(1)(c) of the Fair Work Act relevantly provides, for the purposes of this argument, that a permit holder may “require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly relevant to the suspected contravention”.

139    The arguments of the Respondents, variously expressed, were that:

    section 482(1)(c) did not confer a right to inspect and make copies of a “class” of documents as opposed to a specific or particular record or document;

    even if the right could be exercised to seek access to a “class” of documents, it was for the Association to demonstrate that “each and every document falling within the class was itself ‘directly relevant’”, which it had failed to do;

    “there [was] no evidence that a single required document was, objectively, directly relevant to any suspected contravention of clauses 47 or 60 of the Agreement”; and

    it was also for the Association to demonstrate that “each and every document failing within the class was … itself not a ‘non-member record or document’”, which it had also failed to do.

Each of these arguments overlap one with the other, particularly with the separate argument directed to the “purpose” being pursued by Mr Purvinas.

140    The documents sought to be inspected, it was common ground, were largely identified by reference to a “class” of documents or documents bearing a common description rather than individual or specific documents. In the absence of specification of a particular document, the Respondents contended that Mr Purvinas could not “require” Qantas to make any document available and that there has been no contravention of “a requirement under paragraph (1)(c)” within the meaning of s 482(3).

141    That argument is rejected.

142    Although it may be accepted that an occupier is entitled to be informed with some degree of certainty as to the “record or document” to which access is being sought – and thereby be in a position to form a view as to whether he is obliged to comply with the request – no construction of s 482(1)(c) should be embraced which forces a permit holder to specify each individual or particular document that he considers “directly relevant” to the suspected contravention by reference to (for example) a particular date (or range of dates). The means of precisely identifying a relevant individual or particular document may only be available to the occupier or employer. A construction of s 482(1)(c) which would permit an occupier or employer to avoid compliance with a request by insisting upon the precise identification of a particular document, in circumstances where that identification may only be known to the occupier, is to be rejected. A “record or document”, accordingly, may be sufficiently identified by reference to a sufficiently precise subject-matter such that an occupier or employer is left with no justifiable uncertainty as to that which is being sought.

143    The Respondents’ argument gains no greater traction by recourse to the Parliamentary drafter’s use of the singular (“record” and “document”) as opposed to the plural (“records” and “documents”) in s 482(1)(c). There is no sufficient contrary intention discernible in s 482 of the Fair Work Act to displace s 23(b) of the Acts Interpretation Act 1901 (Cth).

144    It may equally be accepted that a permit holder is only entitled to “require” the production of documents “directly relevant” to the suspected contravention. A permit holder is not authorised by Pt 3-4 of the Fair Work Act to ostensibly exercise a right of entry otherwise lawfully conferred to “investigate” a suspected contravention and thereafter exceed that authority by seeking access to records or documents potentially going to other contraventions with respect to which the permit holder may not presently hold the requisite reasonable suspicion (s 481(3)). The right to “require” production is a right constrained to the production of documents “directly relevant” to the suspected contravention that is the subject of the reasonable suspicion.

145    Such a constraint upon the exercise of the right, or (in other terms) an identification of the outer limits of the right conferred, follows from the statutory language employed in s 482(1)(c). The use of the term “directly” only serves to reinforce the confined nature of the right conferred.

146    The third argument advanced by the Respondents was that “there is no evidence that a single required document was, objectively, directly relevant to any suspected contravention of clauses 47 or 60 of the Agreement”.

147    It is this strand of the argument that poses the greatest difficulty. The difficulty emerges not so much from the interpretation and application of the phrase “directly relevant” but more so from the facts that:

    Mr Purvinas, it has been concluded, did not hold a reasonable suspicion as to a contravention of cl 47 of the Enterprise Agreement but did hold such a suspicion in respect to cl 60;

    the request made for the inspection of documents did not discriminate between the contraventions sought to be investigated; and

    some – but not all – of the classes of documents sought could potentially be characterised as “directly relevant” to a reasonably held suspicion as to a contravention of cl 60.

148    In resolving the third argument advanced on behalf of Qantas, attention (it is considered) should be separately focussed upon:

    the requirement imposed by s 482(1)(c) of the Fair Work Act that a document or record be “directly relevant”; and

    the nature of the right sought to be exercised by Mr Purvinas.

149    First, s 482(1)(c) does not merely require that a document be “relevant” to a suspected contravention – a requirement which would itself have been construed somewhat restrictively – but the additional constraint that each document be “directly” relevant. That phrase in itself serves as an important constraint upon permit holders who may, however honestly, be overreaching their authority by seeking access to documents beyond those to which they have a statutory right. The use of the term “directly”, on the natural and ordinary meaning of that word as used in s 482(1)(c), serves to emphasise the requirement of relevance.

150    Some further guidance as to the limitations upon the right conferred by s 482(1)(c) may be gleaned from the use of the phrase “directly relevant” in r 20.14(1)(a) of the Federal Court Rules 2011 (Cth) and the use of that same phrase in other Rules of Court. That rule provides that where a party is required to give standard discovery, the party must give discovery of documents that are “directly relevant to the issues raised by the pleadings or in the affidavits”. Within that context, the phrase has been contrasted with permitting discovery of all documents which may lead to a “train of inquiry”: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396 at [33] to [37], (2011) 212 IR 313 at 320 to 321 per Collier J. See also: Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63 at [20], (2012) 201 FCR 321 at 324 per Barker J. Previously, discovery required the production of all documents which may suggest a line of inquiry worthy of investigation: BlueScope Steel Ltd v Dongkuk Steel Mill Co Ltd [2017] FCA 1537 at [22] to [26] per Beach J.

151    The manner in which the phrase “directly relevant” has been applied by this Court – and other superior Courts – when ordering discovery provides some assistance in construing the same phrase when appearing in s 482(1)(c) and suggests that it should be construed in a similarly confined manner.

152    Although it is probably not possible to define exhaustively that which is “directly relevant”, and would in any event be imprudent to attempt to do so given that it is a phrase which is to be applied by reference to the facts and circumstances of each individual case, such guidance as may be gleaned from that line of authority would seem to support a construction of s 482(1)(c) such that:

    the word “directly” is “probably intended to emphasise the requirement of relevance, and … used in the sense of requiring that the document be directly in point, excluding as sufficient indirect relevance which might be established through another linking circumstance” (cf. Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374 at [11] per Doyle CJ);

    a document may remain “directly” relevant even though it “is not itself proof of a fact in issue but is merely a piece of circumstantial evidence tending, along with other evidence, to prove the fact in issue” (cf. Southern Equities Corporation Ltd (In Liq) v Arthur Andersen & Co (No 5) [2001] SASC 335 at [10] per Bleby J);

    a document would be “directly relevant” if it “tends to prove or disprove the allegation in issue” (cf. Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102 at 105 per Demack J); and

    “[i]ndirect relevance” is not enough (cf. Rehn v Australian Football League [2003] SASC 159 at [24] per Doyle CJ).

These authorities, it should be noted out of deference, were largely and helpfully collated by Collier J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396 at [33] to [37], (2011) 212 IR 313 at 320 to 321.

153    So construed, some of the documents requested to be produced may well be characterised as documents “directly relevant” to a suspected contravention of cl 60: e.g., the “Maintenance Memo M16-1685”, the “email sent by a manager David Perks to staff with M16-1685”, and “any memorandum of understanding … when original manning calculations were made”. Other classes of documents which were requested, it is concluded, cannot be so described as being “directly relevant” to either a suspected contravention of cl 60 or (assuming it to be of continuing relevance) cl 47 of the Enterprise Agreement.

154    Separate from the possible characterisation of some of the documents requested by Mr Purvinas as being “directly relevant” to a suspected contravention of cl 60, it should further be recognised that one of other of the “classes” of documents requested by Mr Purvinas on 7 and 8 June 2016 could arguably also have provided some “circumstantial evidence” of a contravention of cl 60 of the Enterprise Agreement. But even should such a characterisation of one or other of those “classes” of documents be available, it was not at all apparent – nor would it have been apparent to Qantas or to a reasonable occupier – how such “circumstantial evidence” could be reasonably placed in a matrix of other facts such that a suspicion could reasonably be formed as to there being a contravention of cl 60. An “indirect” process of speculation as to how a contravention of cl 60 could potentially be the subject of reasonable suspicion is not sufficient to satisfy the requirements of s 482(1)(c).

155    The reasonably informed occupier confronted with such a request – and Qantas, on the facts of this case – would thus be faced with a potential dilemma as to whether it should itself form a view as to what documents should or should not be produced for inspection. The dilemma is the extent to which Qantas is required to yield to a statutory right which is only partially within power. That dilemma, it is concluded, is to be resolved in favour of Qantas. Neither a reasonably informed occupier nor Qantas on the facts of the present case is to be put in the position of itself having to satisfy a request for access to documents in order to make an unauthorised request one that complies the Act.

156    Second, and if attention is shifted to the nature of the right sought to be exercised by Mr Purvinas and the dilemma in which he placed Qantas, on the facts of the present case Qantas was being confronted with a purported exercise of a statutory right being pursued for a single purpose. Mr Purvinas was seeking entry and the production of documents for the purpose of investigating both of the suspected contraventions identified in the Entry Notice provided on 3 June 2016. No distinction was made by him when exercising the rights conferred by ss 481 and 482 as to why he was seeking entry or why he was requesting that the documents be produced. Left to one side are those cases in which it may be possible in a different factual context to construe an exercise of statutory rights as being a series of separate and independent exercises of rights. Even then some reservation is expressed as to whether an occupier should be confronted with a series of different requests and forced to choose which he should yield to and which can be refused.

157    The third argument advanced on behalf of Qantas thus prevails. A request for documents only some of which were “directly relevant”, on the facts of the present case, was a request made in excess of the power conferred by s 482(1)(c).

158    The final argument was also founded upon s 482(1)(c) of the Fair Work Act. The Respondents submitted that the Association had failed “to demonstrate that each and every document falling within the class was … itself not a ‘non-member record or document’, before that particular requirement was valid so as to be capable of contravention”. This final argument, had it been necessary to resolve, would have been rejected. None of the documents or classes of documents to which Mr Purvinas was seeking access called for the production of a “non-member” record or document. To the extent that the documents or classes of documents sought by Mr Purvinas may have satisfied the description of a “non-member record or document”, Qantas would not have been required to allow Mr Purvinas to access or make copies of them. Again, insurmountable difficulties should not be placed in the path of a permit holder. A request for documents should not be held to fall foul of s 482(1)(c) merely because the description of documents provided to an occupier or employer may embrace some “non-member record[s] or document[s]”. Nor should access be denied to documents merely because the manner in which such records or documents have been filed or archived within the administration of the occupier or employer classifies or describes them as “non-member record[s] or document[s]”. Although it remains primarily a matter for the permit holder to confine the documents to which access is sought so as to ensure that “non-member” records or documents are not being called for, an occupier or employer may lawfully decline to produce such records or documents if they have been mistakenly included in any request made.

The consequences of the failure to specify particulars & the unreasonableness of the suspicion

159    The consequence of the conclusions:

    that the Entry Notice failed to comply with s 518(2)(b) of the Fair Work Act in that it did not “specify the particulars” of the suspected contravention of cl 47 of the Enterprise Agreement;

    that the suspicion held by Mr Purvinas in respect to the contravention of cl 47 of the Enterprise Agreement was one which could not reasonably be held, as required by s 481(3) of the Fair Work Act; and

    that the Association has failed to establish that any of the documents to which access was sought were “directly relevant” to the suspected contravention of cl 47 of the Enterprise Agreement and has only established that some of the documents sought were “directly relevant” to a suspected contravention of cl 60 of the Enterprise Agreement,

is that the right of entry and the right to access documents which Mr Purvinas sought to exercise on 7 and 8 June 2016 was not authorised by the Fair Work Act.

160    Although Mr Purvinas could potentially have lawfully exercised the right of entry conferred by s 481(1) and thereafter the right to inspect documents pursuant to s 482(1)(c) had he confined the exercise of the rights conferred to his suspicions as to a contravention of cl 60 of the Enterprise Agreement and confined his request for access to documents, those were not the rights being exercised. Mr Purvinas at all material times sought to exercise the rights conferred by reference to his suspicions as to contraventions of both cll 47 and 60 of the Enterprise Agreement.

161    Qantas was under no obligation to parse and analyse the right sought to be exercised. It was not for Qantas to determine the scope of the more limited rights authorised by the Fair Work Act such that it was obliged to allow Mr Purvinas to enter its premises, which it had in any event allowed, and thereafter itself sift through the documents being sought so as to make available for inspection so many of those documents as were “directly relevant” to a contravention of cl 60 alone.

162    The terms of ss 481 or 482 should not be construed as imposing any obligation on the part of Qantas “to take positive steps to enable [a permit holder] more easily or effectively to enjoy his right of access”: cf. O’Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 41 per Gibbs CJ, Wilson and Dawson JJ (“O’Reilly”). The statutory provision in issue in O’Reilly was s 263 of the Income Tax Assessment Act 1936 (Cth) which conferred upon the Commissioner a right to “full and free access to all buildings, places, books, documents and other papers for any of the purposes of this Act”. Expressed differently, and to adapt the language of Mason, Murphy, Brennan and Deane JJ in O’Reilly, there is nothing in the terms of ss 481 or 482 of the Fair Work Act to “warrant the implication of a positive duty on the part of any person actively to assist [a permit holder] in obtaining … access”: (1983) 153 CLR at 48 to 49. Their Honours continued on to conclude (at 49) that:

[t]o the contrary, the words of the section are quite inappropriate to impose such a duty in that, apart from failing to mention the duty or its content, they fail to identify the range of persons upon whom such an implied duty would be imposed or the occasion on which any such duty would arise.

163    Mr Purvinas had no statutory right to require Qantas to allow him “to inspect, and make copies of” all of the documents which he requested on 7 June 2016 and again on 8 June 2016. Qantas was, accordingly, not required to produce those documents.

164    It should finally be noted that these conclusion do not impose unnecessary formality upon the manner in which rights conferred by Part 3-4 of the Fair Work Act are to be exercised. It is to be expected that common sense would prevail on both sides – on both the side of an occupier or employer and on the side of permit holders. Just as an occupier should not construe an Entry Notice with an eye attuned to the detection of an excess of power so as to avoid the need to comply with lawful requests for entry and access, so too should permit holders focus their attention upon that which is truly the subject of justifiable suspicion and justifiable requests for entry and access to documents or records. The right of entry is a right, like all exercises of statutory power, to be exercised reasonably: cf. Darlaston v Parker [2010] FCA 771 at [44], (2010) 189 FCR 1 at 13. The more unreasonable the approach of an occupier in its response to an Entry Notice, the greater may its conduct be exposed to scrutiny; conversely, the more unreasonable the approach of a permit holder, the greater may be the prospect of a conclusion that the powers conferred by Pt 3-4 have been exceeded and the prospect that the balance sought to be struck by the Legislature has been abused.

The absence of a declaration

165    A further issue posed for resolution by the Respondents focussed upon s 518(2)(c) of the Fair Work Act and the contention that the Entry Notice did not contain the declaration required by that section.

166    Section 518(2)(c) provides as follows:

(2)    An entry notice given for an entry under section 481, 483A or 483D must:

…

(c)    for an entry under section 481—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a member, who performs work on the premises, and:

(i)    to whom the suspected contravention or contraventions relate; or

(ii)    who is affected by the suspected contravention or contraventions; and

…

167    The submission advanced on behalf of the Respondents was that compliance with s 518(2)(c) required that the Entry Notice specify “a particular member or members”.

168    The 3 June 2016 Entry Notice provided to Qantas stated (in summary form) that:

    the Association was “entitled to represent the industrial interests of a member who performs work at the premises” which had been previously identified in the Notice; and

    the “suspected contravention or contraventions relate to or affect [Association] members”.

169    The submission advanced on behalf of Qantas is rejected. Section 518(2)(c) (or, for that matter, s 518(3)(b)) does not expressly require the naming of “a particular member or members”.

170    Whilst mere formulaic repetition of the terms employed by s 518(2)(c) may not be sufficient, there must be some reason to question why the form of Entry Notice provided is not sufficient by reference to the facts and circumstances of any given case. On the facts of the present case, the Entry Notice:

    sets forth the entitlement of the Association to represent the interests of its members who perform work at “the premises”; and

    identifies “the premises” sought to be entered.

Although there may be some situations in which s 518(2)(c) may possibly require the identification of a particular “member” by name, on the facts of the present case it is not considered that s 518(2)(c) requires such specificity. There was no dispute that Mr Purvinas was entitled to represent the industrial interests of members of the Australian Licenced Aircraft Engineers Association and that such members “perform[ed] work on the premises” sought to be entered by Mr Purvinas on 7 and 8 June 2016. Different considerations may apply where (for example) there is a genuine dispute as to the entitlement of a permit holder to represent the “industrial interests” of a particular person(s) or where there is a genuine dispute as to whether any such person(s) “perform[ed] work on the premises.”

171    Although the importance of an Entry Notice containing the requisite declaration is only made more apparent by the statutory requirement that an Entry Notice “must” contain such a declaration – and although there is no self-evident reason why any of the other requirements specified in s 518(2)(a) to (d) are any more or less important – there is no reason to apply s 518(2)(c) to the facts of the present case such that one (or possibly all) of the “members” must be named on the face of the Entry Notice.

172    The present argument relied upon by Qantas is thus rejected. There has been, on the facts of the present case, no non-compliance with s 518(2)(c).

Intentionally hinder or obstruct?

173    Given the conclusion that Mr Purvinas was not lawfully exercising the right conferred by s 481(1) and thereafter could not exercise the right conferred by s 482(1)(c), Qantas was entitled not to produce any or all of the documents to which Mr Purvinas sought access on 7 June 2016 and again on 8 June 2016.

174    No question thus arises as to whether the conduct of Messrs Saunders and/or Tobin contravened s 502 of the Fair Work Act.

CONCLUSIONS

175    Qantas was under no obligation to make available any of the documents requested by Mr Purvinas on 7 and 8 June 2016. No question, accordingly, arose as to whether the refusal to make those documents available constituted any contravention of s 502 of the Fair Work Act.

176    It follows that the relief sought in the Amended Originating Application and the Second Further Amended Statement of Claim should be refused.

177    The proceeding should be dismissed.

THE ORDERS OF THE COURT ARE:

1.    The Amended Originating Application and the Second Further Amended Statement of Claim are dismissed.

2.    The proceeding is dismissed.

Associate:

Dated:    17 July 2018