FEDERAL COURT OF AUSTRALIA

Ramsay v Menso [2018] FCAFC 55

ORDERS

PURSUANT TO S 545 OF THE FAIR WORK ACT 2009 (CTH) (“FW Act”), THE COURT DECLARES THAT:

1.    the first respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to 68 Cordelia Street, South Brisbane (the “site”) on 11 December 2015;

2.    the first respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site in the company of Mr Ian Williamson on 11 December 2015;

3.    the first respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site after the arrival of Sergeant Conrad Greenwood from the Queensland Police Service on 11 December 2015;

4.    the second respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site on 11 December 2015;

5.    the second respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site in the company of Mr Ian Williamson on 11 December 2015; and

6.    the second respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site after the arrival of Sergeant Conrad Greenwood from the Queensland Police Service on 11 December 2015.

AND THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The matter be remitted to the Federal Circuit Court for it to determine questions of penalty and other orders.

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

REASONS FOR JUDGMENT

DOWSETT AND COLLIER JJ:

1    This is an appeal from a decision of a Judge of the Federal Circuit Court. The appellants claimed that various actions by the respondents amounted to breaches of s 501 or alternatively s 502 of the Fair Work Act 2009 (Cth) (FW Act), and sought orders including declarations and pecuniary penalties. His Honour dismissed the application.

Background

2    The facts in this matter are largely undisputed and are set out in detail in the primary judgment.

3    At relevant times the appellants, Andrew Ramsay and Anthony Stott, were officials of the Construction, Forestry, Mining and Energy Union (CFMEU). They held workplace health and safety permits in accordance with the Work Health and Safety Act 2011 (Qld) (WHS Act). On 11 December 2015, the appellants suspected that contraventions of the WHS Act were occurring at a construction site at 68 Cordelia Street, South Brisbane (the site). The first respondent was the sole director and shareholder of the second respondent which occupied the site. The concerns of the appellants apparently arose from a tip off on the CFMEU Facebook page, complaining about safety issues at the site. A number of photographs were attached to the message.

4    The events the subject of the proceeding before his Honour were, in part, video recorded and his Honour reproduced a number of the transcripts of that recording in his judgment.

5    Relevantly, the appellants alleged that on three separate occasions on 11 December 2015, the first respondent refused to allow the appellants access to the site.

6    The first appellant said that he arrived at the site around midday on 11 December 2015. When the appellants sought to enter the site, the first respondent refused them access, citing a requirement for two days’ notice for entry. The encounter was acrimonious, and it was clear that the first respondent would not allow access.

7    The appellants then contacted an official of Work Health and Safety (WHS). Mr Ian Williamson and another officer from WHS arrived at the site. Again, the first respondent refused the appellants access to the site. Mr Williamson assessed the situation and advised the first respondent that if the appellants had a reasonable suspicion that a contravention was occurring and had their paperwork in order, the first respondent was required to allow them access to the site unless she had a reasonable reason to refuse. The first respondent continued to refuse access. As the standoff continued, Mr Williamson advised that if the matter could not be resolved, there would need to be police intervention. The first respondent or her husband called the police at some point after this.

8    Sergeant Conrad Greenwood of the Queensland Police attended the site with another officer. After talking with the police, the first respondent continued to refuse to allow the appellants access to the site. However, following further discussion during which the first respondent inspected the entry permits of both appellants and the photographs they had brought with them, the first respondent allowed the two appellants to enter the site.

9    On attendance at the site the appellants had a notice of entry in their possession, however this notice was never provided to the first respondent or her husband.

10    On 12 April 2016, the appellants filed an application seeking declarations that the first respondent had breached ss 501 or 502 of the FW Act by her actions on 11 December 2011. The appellants sought declarations in respect of all three refusals of entry, that is:

    when the appellants first arrived;

    when the appellants were refused entry after Mr Williamson had attended the site; and

    when entry was refused in the presence of Sergeant Greenwood.

Decision of the primary Judge

11    The primary Judge observed that a WHS entry permit holder must provide a notice of entry under s 119 of the WHS Act when exercising the power under s 117. His Honour explained that the purpose of the notice is to inform the person who has management and control of the premises that the entry is a proper exercise of the power conferred by s 117.

12    Although his Honour noted the first respondent’s contention that the appellants had not given her a notice of entry, his Honour concluded that she would not have accepted any documentation from the appellants, and that the appellants had a notice of entry in their possession on the relevant date (at [99]). However his Honour found that the notice of entry which the appellants had prepared was not valid because of the incorrect description of the names of the appellants in the notice. In particular his Honour said:

101.    However, the notice does not comply with the regulations. The notice, which is annexure AWJR4 to the affidavit of the First Applicant, is clearly deficient. The most basic information required is that the “notice of entry” displays the full name of the entry permit holder.

102.    The First Applicant, both in his affidavit and in evidence before me, testified that his full name is Andrew William John Ramsay. The Second Applicant, both in his affidavit and in evidence before me, testified that his full name is Anthony Lucas Stott.

103.    The notice of entry has the following information entered in the “full name of entry permit holder” section: “Andrew Ramsay/Tony Stott”. Obviously that is not the full name of either of the two Applicants.

104.    As the notice of entry does not comply with the obligations mandated by the regulations, I have no option but to conclude that this was not a valid “notice of entry”.

(Original emphasis.)

13    In finding that the notice of entry was invalid, his Honour concluded that the appellants had not validly exercised the right of entry power. This was because, as his Honour explained at [105]-[119]:

    the right to enter premises does not solely come from s 117 – rather it is a right that is subject to compliance with ss 118, 119 and 120 of the WHS Act;

    there must be compliance with the whole of Div 2 of Pt 7 of the WHS Act before it can be said that there has been compliance with the provisions of Pt 3-4 of the WHS Act;

    a valid notice of entry did not have to be given to the first respondent until there had been an actual entry, however there still had to be a valid notice of entry;

    the power under s 117 cannot be exercised without there being a valid notice of entry under s 119;

    the power to enter premises under the WHS Act must be exercised according to very strict guidelines. A valid notice of entry is mandatory; and

    interpreting the legislation in any other manner would be to suggest that WHS permit holders have more power than police to enter premises.

14    In so finding, his Honour observed:

120.    There may well be a feeling by the Applicants that the First Respondent has escaped censure because of a “technicality”. I can well understand this sentiment. But when the interference of rights to the individual is in issue, “near enough is not good enough”.

Consideration

15    The grounds of appeal on which the appellants rely are as follows:

1.    The primary judge erred in Ramsay & Anor v Menso & Anor [2017] FCCA 1416 (the Decision) by finding at [111] of the Decision that the power conferred by s. 117 of the WHS Act could not be exercised without there being a valid notice of entry, within the meaning of s. 119 of the WHS Act, in existence.

2.    The primary judge erred in finding at [104] and [116] of the Decision that the applicants had not validly sought to enter the site in accordance with s. 117 of the WHS Act on the basis that the notice of entry completed by the applicants did not include their middle names and described the second applicant’s name as “Tony” instead of “Anthony” because:

a.    No such entry notice was required to be completed before entry was attempted;

b.    The refusal, or undue delay, of the entry occurred prior to the requirement that the applicants give notice of the entry; and/or

c.    Such non-compliance with the requirements of s. 119 of the WHS Act did not render the attempt to enter site in accordance with s. 117 of the WHS Act invalid

3.    The primary judge erred in finding at [98] of the Decision that the applicants had not given the first respondent notice of entry in accordance with s. 119 of the Work Health and Safety Act 2011 (Qld) (the WHS Act);

4.    The primary judge erred in failing to find that it was not reasonably practicable for the applicants to give the first respondent a notice of entry in accordance with s. 119 of the Work Health and Safety Act 2011 (Qld) (the WHS Act) in circumstances found at [99] of the Decision;

5.    The primary judge erred at [118] of the Decision in finding that, in circumstances where the applicants had met the requirements of s. 117 of the WHS Act, but had not completed a notice of entry that was in strict compliance with the requirements of s. 119 of the WHS Act, there had not been compliance with Division 2 of Part 7 of the WHS Act which had the consequence that there had not been compliance with Part 3-4 of the Fair Work Act 2009 (Cth) (the FW Act);

6.    The primary judge erred in finding at [58] of the Decision that there was insufficient evidence to conclude that the first respondent was acting on behalf of the second respondent, within the meaning of s. 793 of the FW Act, on 11 December 2015, and should instead have found that the first respondent was so acting on the basis of the admissions and evidence before him;

7.    The primary judge erred in failing to find that the first respondent had contravened s. 501 of the FW Act on three separate occasions by refusing, or unduly delaying the applicants’ entry to the site on 11 December 2015;

8.    The primary judge erred in failing to find that the second respondent had contravened s. 501 of the FW Act on three separate occasions by refusing, or unduly delaying the applicants’ entry to the site on 11 December 2015;

9.    Further and/or in the alternative, the primary judge erred in failing to find that the first respondent had contravened s. 502 on three separate occasions by hindering or obstructing the applicants in the performance of their duties on 11 December 2015;

10.    Further and/or in the alternative, the primary judge erred in failing to find that the second respondent had contravened s. 502 on three separate occasions by hindering or obstructing the applicants in the performance of their duties on 11 December 2015.

16    The appellants sought the following relief:

The Order of the primary judge be set aside and the following Order be made:

1.    A declaration pursuant to s. 545 of the Fair Work Act 2009 (Cth) (the “FW Act”) that the first respondent contravened s. 501 of the FW Act by refusing or unduly delaying the first and second applicants’ entry to the Site on 11 December 2015.

2.    Further and/or alternatively, a declaration pursuant to s. 545 of the FW Act that the first respondent has contravened s. 502 of the Act by hindering or obstructing the first and second applicants on 11 December 2015.

3.    A declaration pursuant to s. 545 of the FW Act that the first respondent contravened s. 501 of the FW Act by refusing or unduly delaying the first and second applicants’ attempt to enter the Site in the company of Mr Ian Williamson on 11 December 2015.

4.     A declaration pursuant to s. 545 of the FW Act that the first respondent contravened s. 502 of the Act by hindering or obstructing the first and second applicants attempt to enter the site in the company of Mr Ian Williamson on 11 December 2015.

5.    A declaration pursuant to s. 545 of the FW Act that the first respondent contravened s. 501 of the FW Act by refusing or unduly delaying the first and second applicants’ attempt to enter the Site after the arrival of Sergeant Conrad Greenwood from the Queensland Police Service on 11 December 2015.

6.    A declaration pursuant to s. 545 of the FW Act that the first respondent contravened s. 502 of the Act by hindering or obstructing the first and second applicants’ attempt to the Site after the arrival of Sergeant Conrad Greenwood from the Queensland Police Service on 11 December 2015.

7.    A declaration pursuant to s. 545 of the FW Act that the second respondent contravened s. 501 of the FW Act by refusing or unduly delaying the first and second applicants’ entry to the Site on 11 December 2015.

8.    A declaration pursuant to s.545 of the FW Act that the second respondent has contravened s.502 of the Act by hindering or obstructing the first and second applicants on 11 December 2015.

9.    A declaration pursuant to s.545 of the FW Act that the second respondent contravened s. 501 of the FW Act by refusing or unduly delaying the first and second applicants’ attempt to enter the Site in the company of Mr Ian Williamson on 11 December 2015.

10.    A declaration pursuant to s. 545 of the FW Act that the second respondent contravened s. 502 of the Act by hindering or obstructing the first and second applicants’ attempt to enter the site in the company of Mr Ian Williamson on 11 December 2015.

11.    A declaration pursuant to s. 545 of the FW Act that the second respondent contravened s. 501 of the FW Act by refusing or unduly delaying the first and second applicants’ attempt to enter the Site after the arrival of Sergeant Conrad Greenwood from the Queensland Police Service on 11 December 2015.

12.    A declaration pursuant to s. 545 of the FW Act that the second respondent contravened s. 502 of the Act by hindering or obstructing the first and second applicants’ attempt to enter the Site after the arrival of Sergeant Conrad Greenwood from the Queensland Police Service on 11 December 2015.

13.    The matter be remitted to the Federal Circuit Court for it to determine the question of penalty.

14.    Such further or other orders as the Court considers appropriate.

17    The appellants made submissions in respect of grounds of appeal 1-6. Mr Friend QC for the appellants submitted that the additional grounds were conclusions that flowed from grounds 1-6 and that all grounds were pressed.

18    The appellants and the respondents agreed that there were two key issues to be determined, namely:

(1)    whether the notice of entry, required by s 119 of the WHS Act, must be completed prior to the entry notwithstanding that there is no requirement to give a copy of the notice prior to, or at the time of entry; and

(2)    whether the failure to include the permit holders’ middle names on any notice completed pursuant to s 119 renders the notice invalid and accordingly vitiates any right of entry under s 117 of the WHS Act.

19    The question whether the second respondent was liable for conduct in contravention of the FW Act as claimed by the appellants raises different issues, which issues we will consider separately.

Legislative context

20    Part 3-4 Div 3 of the FW Act makes provision for right of entry to worksites in accordance with State and Territory occupational health and safety laws. Section 494 of the FW Act provides that an official of an organisation must not exercise a State or Territory occupational health and safety right unless the official is a permit holder. Section 497 of the FW Act requires a permit holder exercising such right to produce his or her entry permit when requested to do so by the occupier of the premises or an affected employer.

21    Obligations with respect to the exercise of rights of entry by holders of permits are imposed on other persons by ss 501 and 502 of the FW Act. Section 501 provides that a person must not refuse or unduly delay entry on to premises by a permit holder who is entitled to enter the premises in accordance with that Part. Section 502(1) provides that a person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with that Part. Contraventions of these provisions incur a civil penalty.

22    Part 1-3 Div 2 of the FW Act concerns the interaction of the FW Act with State and Territory laws. Section 26 of the FW Act provides that the FW Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer. However, s 27(1)(c) provides that the FW Act does not apply to the law of a State or Territory so far as the law deals with “non-excluded matters”. “Non-excluded matters” are defined by s 27(2)(c) of the FW Act as including occupational health and safety.

23    In Ramsay v Sunbuild Pty Ltd [2014] FCA 54 at [9]-[71] Reeves J examined in detail the statutory framework involving right of entry, and the interplay between the FW Act and the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). We respectfully acknowledge his Honour’s learned analysis of the application of the right of entry provisions under the FW Act and rights of entry under State and Territory occupational health and safety laws. Like the Northern Territory statute considered by Reeves J in Sunbuild, the WHS Act deals with occupational health and safety, being a non-excluded matter under s 27(2)(c), and is therefore not caught by the provisions of s 26. It is not in dispute in this case that the FW Act and the WHS Act are intended to operate interactively in relation to rights of entry.

24    The relevant provisions of the WHS Act for the purposes of this proceeding are as follows:

117    Entry to inquire into suspected contraventions

(1)    A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

(2)    The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

…

119    Notice of entry

(1)    A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this division, give notice of the entry and the suspected contravention, as prescribed by regulation, to:

(a)    the relevant person conducting a business or undertaking; and

(b)    the person with management or control of the workplace.

(2)    Subsection (1) does not apply if to give the notice would:

(a)    defeat the purpose of the entry to the workplace; or

(b)    unreasonably delay the WHS entry permit holder in an urgent case.

(3)    Subsection (1) does not apply to an entry to a workplace under this division to inspect or make copies of documents mentioned in section 120.

25    Regulations 27 and 28 of the Work Health and Safety Regulations 2011 (Qld) (WHS Regulations) prescribe information which must be part of any valid notice under s 119:

27    Notice of entry—general

A notice of entry under part 7 of the Act must —

(a)    be written; and

(b)     include the following—

(i)    the full name of the WHS entry permit holder;

(ii)    the name of the union that the WHS entry permit holder represents;

(iii)    the section of the Act under which the WHS entry permit holder is entering or proposing to enter the workplace;

(iv)    the name and address of the workplace entered or proposed to be entered;

(v)    the date of entry or proposed entry;

(vi)    the additional information and other matters required under section 28, 29 or 30 (as applicable).

28    Additional requirements —entry under section 117

A notice of entry under section 119 of the Act in relation to an entry under section 117 of the Act must also include the following —

(a)    so far as is practicable, the particulars of the suspected contravention to which the notice relates;

(b)    a declaration stating —

(i)    that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union; and

(ii)    the provision in the union’s rules that entitles the union to represent the industrial interests of that worker; and

(iii)    that the suspected contravention relates to, or affects, that worker.

Note—

Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.

26    We now turn to the issues falling for determination in this case.

1.    Whether the notice of entry required by s 119 of the WHS Act must be completed prior to entry

27    Turning to the first issue raised by the parties, relating to the first ground of appeal, we do not consider that a notice of entry required by s 119 of the WHS Act must be completed or provided by the permit holder to anyone prior to the exercise of the right of entry.

28    A permit holder may enter premises pursuant to s 117 of the WHS Act where:

    the person is a permit holder;

    the person reasonably suspects a breach of the WHS Act; and

    the reasonable suspicion relates to a worker who is a member or who is eligible to be a member of the permit holder’s organisation.

29    At the hearing Ms Menso submitted that evidence in the case demonstrated that the appellants did not have a reasonable suspicion that a breach of the WHS Act had occurred, because they or a member of the CFMEU had, in effect, sabotaged her building site (thus creating a workplace health and safety incident). We note that, before his Honour, this issue was the subject of questions during cross-examination of Mr Calvin Fredrickson, a witness called by the respondents. His Honour analysed Mr Fredrickson’s evidence at [79]-[89] of the primary judgment. However, his Honour found that, notwithstanding the evidence of Mr Fredrickson, there was sufficient evidence before the Court to establish that, at the time the appellants sought to enter the site, they had the reasonable suspicion required by s 117(2) of the WHS Act (see [78] and [88] of the primary judgment). This finding was plainly open on the evidence, notwithstanding assertions by Ms Menso at the hearing of the appeal. There was no cross-appeal by the respondents in respect of this finding. Accordingly, it is not contested that each of the criteria mandated by s 117 of the WHS Act was satisfied in this case.

30    We agree with his Honour that the right of entry under the WHS Act is subject to strict guidelines. However, contrary to his Honour’s findings, neither the completion nor the provision of a notice of entry by the permit holder to the person conducting a business, or undertaking, or the person with control or management of the workplace, is a prerequisite to the exercise of the right of entry.

31    The respondents submit that ss 117 and 119 should be read together. This is correct. However, s 119(1) clearly states that the permit holder must give a notice to the occupier as soon as reasonably practicable after entry. We reject the submission that a notice of entry must be completed (and provided) prior to, or at the time of, entry on to a site. The legislation simply does not support the interpretation advanced by the respondents and favoured by his Honour. As a practical matter, a notice of entry is not likely to be a simple document. It is to contain a description of the suspected contraventions as well as other matters. Such a document could not usually be produced in two or three minutes. Given the requirement that it be given to the relevant recipient as soon as is reasonably practicable after entry, one might infer that an entrant in good faith would prepare such document in advance of entry.

32    The evidence before the Court at first instance demonstrated that the first respondent had refused to allow the appellants access to the relevant site, notwithstanding that the three criteria mandated by s 117 had been satisfied. In refusing the appellants access the first respondent contravened the FW Act, irrespective of the contents of any notice of entry completed by the appellants. In failing so to find, his Honour erred.

33    This error is a sufficient basis for upholding grounds 1, 2, 5, 7 and 9.

2.    Whether the failure to include the permit holders’ middle names on any notice completed pursuant to s 119 renders the notice invalid and vitiates any right of entry under s 117 of the WHS Act

34    A key finding of the primary Judge in this case was that the notice of entry which had been completed by the appellants prior to seeking entry on to the premises was invalid because it mis-stated their names (namely by omission of their respective middle names, and reference to the first name of the second appellant as “Tony” rather than “Anthony”). Critically, his Honour went on to find that because the notice of entry was invalid, the invalidity vitiated the right of entry of the appellants, and for that reason would have entitled Ms Menso to refuse them entry on to the site.

35    Regulations 27 and 28 of the WHS Regulations state that a notice of entry must comply with the requirements set out therein. Regulation 27(b)(i) requires the notice of entry to include the full name of the WHS entry permit holder.

36    In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 McHugh, Gummow, Kirby and Hayne JJ said:

91.    An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition …

37    For present purposes, namely determining whether there has been a contravention of the FW Act, the question is not as to the intention of the Queensland Parliament in enacting the WHS Act, but that of the Federal Parliament in enacting s 501 of the FW Act. However, the proper construction of the WHS Act also depends upon the application of the decision in Project Blue Sky.

38    We are satisfied that a notice of entry which does not strictly comply with reg 27(b)(i) (concerning the inclusion of the full name of the WHS entry permit holder) does not vitiate the right of entry of a permit holder under s 117 of the WHS Act, for the following reasons.

39    First, as the Full Court recently observed in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 at [15], notwithstanding the closely-regulated environment of industrial and employment legislation, provisions related to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament, practically and with an eye to common sense, so that they can be implemented in a clear way on a day-to-day basis at work sites. A common sense interpretation of “full name” in the context of union officials seeking to access a building site would, for example, encompass “Tony Stott” as well as “Anthony Stott” to identify the second appellant, and “Andrew Ramsay” to identify the first appellant.

40    Second, we have already observed that the permit holder is required to provide the notice of entry under ss 117 and 119 as soon as reasonably practicable after entry has occurred. In view of this timing, it is unlikely that Parliament would have intended that a lack of strict compliance in a notice given after the entry was effected would determine whether the prior entry was valid or invalid.

41    Third, the objects of the WHS Act set out in subss 3(1)(a) and (2) of the statute indicate that the overriding focus in the statute is on the prevention of risks to workers rather than the content of the notice of entry. These objects are:

(1)    The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by-

(a)    protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and

…

(2)    In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable.

42    Fourth, we note that s 125 of the WHS Act requires that the permit holder, at all times that he or she is at a workplace under a right of entry under Divs 2 or 3 of the WHS Act, have his or her WHS entry permit and photographic identification available for inspection by any person on request. It follows that in exercising the right of entry under ss 117 and 119 the permit holder must have the permit and photographic identification with him or her, but not necessarily, the notice of entry. Provided the reasonable suspicion required by s 117 exists, it is the permit and the photographic identification which ensure that the occupier of the site can be satisfied that the person exercising the right of entry is both empowered to do so, and is the person described in the permit. To that extent the logical purpose of the provision of a notice after entry is to create a record of the entry, to inform the occupier of the premises of the nature of the reasonable suspicion held, and to demonstrate the entitlement, under the relevant organisation’s rules, to represent the relevant workers.

43    In this respect we do not agree with the analogy drawn by the primary Judge between notices of entry under the WHS Act, and search warrants executed by police officers. While entry on to premises of a third party is a serious matter, and regulated by relevant legislation both in respect of notices of entry and search warrants, the right of a permit holder to enter premises pursuant to s 117 is free standing where the criteria prescribed by ss 117 and 119 are satisfied. This can be contrasted with the usual requirement that applications for search warrants must be made to judicial officers (for example in accordance with s 150 of the Police Powers and Responsibilities Act 2000 (Qld) or pursuant to s 3E of the Crimes Act 1914 (Cth)).

44    Errors, misdescriptions or material defects in a search warrant may go to its validity, depending on the terms of the legislation pursuant to which it is issued. (See for example the discussions in New South Wales v Corbett [2007] HCA 32 at [29], [77] and Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177 at [34]). Nonetheless, as the Full Court recently pointed out in Caratti, in connection with search warrants:

[34]    … when it comes to mismatches between the information and the search warrant, that feature must not be approached with undue technicality or any requirement for excessive precision. Practical considerations must always be kept steadily in mind …

45    This observation may readily be applied to the omission of Mr Ramsay’s middle names, and the identification by Mr Stott as “Tony Stott” rather than “Anthony Stott”, on the notices of entry. While the modes of self-identification by Mr Ramsay and Mr Stott as permit holders on the notices were defective, such defects did not go to the validity of the notices.

46    Finally, any abuse by a permit holder of the requirement that he or she include his or her full name on the notice of entry by, for example, use of a false name or complete omission of a name, may contravene s 500 of the FW Act, being improper conduct. Section 500 is a civil penalty provision.

47    In passing, we note that a question arose as to the validity of a notice of entry which identified two permit holders as seeking access, rather than one. This matter was not the subject of a ground of appeal. However even if this be an irregularity we do not consider that it would vitiate the right of entry.

The second respondent

48    We turn to the question of the second respondent’s liability. Section 793(1) of the FW Act provides:

Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

49    The question is whether the first respondent, as director of the second respondent, was acting on its behalf when she engaged in the conduct which is the subject of these proceedings, and was acting within her actual or apparent authority. In the amended statement of claim, the appellants pleaded at para 6 that:

In December 2015 the second respondent was engaged in construction work at the Site.

50    At paras 53, 54 and 55 the appellants pleaded that:

53.    The conduct of the first respondent pleaded at paragraphs 3, 7, 16, 20, 21, 23, 24, 31, 32, 34, 35, 39, 40, 42, 43 and 44 was engaged in on behalf of the second respondent.

54.    The conduct of the first respondent in paragraphs 3, 7, 16, 20, 21, 23, 24, 31, 32, 34, 35, 39, 40, 42, 43 and 44 was within the scope of the first respondent’s actual or apparent authority.

55.    By reason of s. 793 of the [Fair Work Act] and the matters pleaded in paragraphs 1 to 24 and 53 to 54 the second respondent has contravened s.501 by refusing or unduly delaying the first and second [appellants’] entry to the Site.

51    The second respondent’s position in these proceedings is complicated by the fact that two documents, apparently raising grounds of defence, were purportedly filed by the first respondent on behalf of both respondents. As far as we can see, these proceedings have been conducted upon the basis that those documents comprised the second respondent’s defence.

52    The two documents were filed on 5 May 2016, apparently in response to the original statement of claim. The two documents were respectively entitled “Response – General Federal Law” (the response) and “Points of Defence” (the points of defence). We shall refer to the two documents collectively as the defence.

53    The response:

    admitted the allegations in paras 1, 2 and 3 of the original statement of claim;

    did not contest the allegations in paras 4, 5 6, 8 and 9; and

    denied the allegations in paras 7, 10, 11 and 12.

54    Both the response and the points of defence make extensive assertions which have no relationship to the issues in the case. They rather reflect the first respondent’s views, as expressed by her in the course of the appeal hearing, including allegations concerning:

    past industrial bullying;

    the absence of any reasonable suspicion justifying entry to her site;

    industrial sabotage and photographs said to show such sabotage;

    conspiracy by the CFMEU against her;

    the identity of the builder on site at the time of the attempted entry;

    the prior inspection of the site by Workplace Health and Safety; and

    other associated matters.

55    However the only arguably relevant issues raised by the respondents concerned the notice of entry and the identity of the builder on site at the time of the entry.

56    An amended statement of claim was filed on 24 May 2016, but there was no further pleading by the respondents. The appellants filed a reply on 12 May 2016. The amended statement of claim is marked with underlining, presumably to identify the amendments made to the original statement of claim. The amendments are not extensive. The defence refers to paragraphs in the statement of claim. Those paragraphs appear, unamended, in the amended statement of claim, and with the same paragraph numbers.

57    At the hearing, the primary Judge refused to allow the first respondent to appear for the second respondent. Rule 9.04 of the Federal Circuit Court Rules 2001 (Cth) (the Circuit Court Rules) provides that:

Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.

58    As against the second respondent, the matter proceeded at first instance upon the basis that it was “an undefended hearing”. Pursuant to r 13.03C(1)(e) of the Circuit Court Rules, when a respondent does not appear at a hearing, the Court may proceed with the hearing. However the Court may also proceed pursuant to r 13.03C(2). That rule provides that if a party is absent from a hearing, the Court may make an order of the kind mentioned in rr 13.03B(1), (2) or (4), “or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just”. Rule 13.03B(2) provides:

(2)    If a respondent is in default, the Court may:

(a)    order that a step in the proceeding be taken within the time limited in the order; or

(b)    if the claim against the respondent is for a debt or liquidated damages—grant leave to the applicant to enter judgment against the respondent for:

(i)    the debt or liquidated damages; and

(ii)    if appropriate—costs; or

(c)    if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that:

(i)    the applicant appears entitled to on the statement of claim; and

(ii)    the Court is satisfied it has power to grant; or

(d)    give judgment or make any other order against the respondent; or

(e)    make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.

59    In this case an order pursuant to r 13.03B(c) or r 13.03B(d) may have been appropriate. However it seems clear that the primary Judge proceeded pursuant to r 13.03C(1) of the Circuit Court Rules, deciding the matter, having regarding to both parties’ pleadings and the evidence. The appellants have not challenged the correctness of that approach. Hence the question is whether the pleaded case was made out against the second respondent. That case depends upon paras 6, 53 and 54 of the amended statement of claim.

60    Pursuant to r 1.05(2) and Sch 3 Pt 2 of the Circuit Court Rules, rr 16.03-16.12 of the Federal Court Rules 2011 (the Federal Court Rules) apply in the Federal Circuit Court. Rules 16.07 and 16.08 of the Federal Court Rules provide:

16.07    Admissions, denials and deemed admissions

(1)    A party pleading to an allegation of fact in another party’s pleading must specifically admit or deny every allegation of fact in the pleading.

(2)    Allegations that are not specifically denied are taken to be admitted.

(3)    However, a party may state that the party does not know and therefore cannot admit a particular fact.

(4)    If a party makes a statement mentioned in subrule (3), the particular fact is taken to be denied.

...

16.08    Matters that must be expressly pleaded

In a pleading subsequent to a statement of claim, a party must expressly plead a matter of fact or point of law that:

(a)    raises an issue not arising out of the earlier pleading; or

(b)    if not expressly pleaded, might take another party by surprise if later pleaded; or

(c)    the party alleges makes another party’s claim or defence not maintainable.

61    Given that these are penalty proceedings, questions of privilege against exposure to a penalty might have arisen, but did not, in the sense that no such point was taken by either respondent. In any event, pursuant to s 187 of the Evidence Act 1995 (Cth) a corporation may no longer claim such privilege. It follows that pursuant to r 16.07 of the Federal Court Rules, the second respondent is taken to have admitted all matters pleaded in the amended statement of claim which were not denied. Hence all but paras 7, 10, 11 and 12 of the amended statement of claim have been admitted. This includes paras 6, 53, 54 and 55. The primary Judge seems to have considered that the respondents had denied paras 53-55 of the amended statement of claim. We do not so read either the response or the points of defence. As far as we can see, the respondents expressly pleaded only to paras 1-12 of the statement of claim.

62    Paragraphs 7, 10, 11 and 12 of the amended statement of claim deal with the circumstances in which a permit holder under the WHS Act may enter a workplace. In denying the facts alleged in para 12 of the amended statement of claim, the second respondent denied that the site was a workplace. However the evidence from the appellants’ witnesses, and from the first respondent indicates that it was a workplace as defined in s 8 of the WHS Act. By denying the facts alleged in para 7, the second respondent denied that persons employed on the site were engaged to perform construction work on the site, that such employees were eligible to be members of the CFMEU and that the CFMEU was entitled to represent such persons. However it was inherent in para 18 of Mr Ramsay’s affidavit dated 7 July 2016 that he believed that there were workers on the site whom the CFMEU was entitled to represent. Section 117 required only a reasonable suspicion that there had been a contravention relating to, or affecting such a worker. Mr Ramsay’s evidence was sufficient to establish those matters, particularly when taken in conjunction with the other evidence. Hence the evidence established the allegations in paras 7, 10, 11 and 12, which allegations were denied by the second respondent.

63    The primary Judge considered that para 6 of the statement of claim had alleged only that “(i)n December 2015 the second respondent was engaged in construction work at the site”. His Honour considered that “ ... the claim is not that such engagement was for the whole of December but simply some time in December 2015”. Further, there was no claim that the second respondent was, “the corporate entity in charge of the construction”, and there was, “ ... no particularity as to the claim that the second respondent was engaged in construction work at the site”. The second respondent “did not contest” the allegations in para 6.

64    We do not accept the assertion, apparently accepted by the primary Judge, that the deemed admission of para 6 did not constitute an admission that the second respondent was engaged in construction work at the site on and before 11 December 2015. When para 6 is read in the context of the pleading as a whole, it is clear that the appellants were pleading that the suspected contraventions had occurred whilst the second respondent was on the site. In any event, if the respondents meant to defend the case on the basis that the second respondent was on site during December but not on relevant dates, then it should have so pleaded as required by r 16.08 of the Federal Court Rules.

65    The deemed admission of the facts alleged in paras 53, 54 and 55 of the amended statement of claim, in effect, admitted that the first respondent’s engagement in the conduct particularized in para 53 was on behalf of the second respondent and within the scope of the first respondent’s actual or apparent authority as an officer of the second respondent.

66    As counsel for the appellants submitted, a company not in occupation of premises may still offend against s 501 of the FW Act. It need only be able to refuse or delay such entry. On the basis that the case was conducted on the pleadings, the findings against the first respondent, and the second respondent’s deemed admissions of the matters pleaded in paras 53-55 led inevitably to a finding that the second respondent infringed s 501.

67    However it seems that the hearing was not conducted on the pleadings, at least to the extent that it concerned the first respondent. She was allowed to lead evidence which suggested that the building works on the site were, at relevant times, being carried out by another company, Z Group 1 Pty Ltd. On appeal the appellants have not asserted that they objected to that departure from the pleadings. The evidence was apparently accepted by the primary Judge at [50]-[55]. Had the appellants objected at the trial, the first respondent would have had to seek an amendment. See Dare v Pulham (1982) 148 CLR 658 at 664. See also Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666, per Barwick CJ (dissenting) at 668, and per Stephen, Mason and Jacobs JJ, at 668-9. However, because the primary Judge had refused to allow the first respondent to appear for the second respondent, the actions of the former could not lead to a change in the issues joined between the appellants and the second respondent. Technically, it would have been possible for the first respondent, as sole director, to cause the second respondent to make decisions as to the conduct of the matter. However she seems not to have done so. Thus, as against the second respondent, the proceedings were conducted in accordance with the pleadings.

68    In those circumstances, the appellants have the benefit of the finding by the primary Judge that the first respondent contravened s 501 and the deemed admission that as a director of the second respondent, she engaged in the relevant conduct on its behalf, and within the scope of her actual or apparent authority. In our view, as against the second respondent, the appeal must be allowed and the judgment below, set aside.

Appropriate relief

69    Sections 501 and 502 of the FW Act provide:

501.    Person must not refuse or delay entry

A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

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

502.    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.

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

(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.

70    That the first respondent refused the appellants access to the site on each of the three occasions that they allege is not in dispute. Further, the primary Judge found as much. This conduct contravened s 501 of the FW Act. The appellants are entitled to declarations to that effect.

71    We are not persuaded that the Court should also declare that the first respondent’s conduct contravened s 502 on the basis that she hindered or obstructed their access to the site. The FW Act distinguishes between “refuse or unduly delay entry” in s 501 and “hinder or obstruct” in s 502. In the present case, the conduct falls more readily within s 501 than s 502. The Court’s findings and the ensuing declarations should reflect that approach.

72    The matter should be remitted to the Federal Circuit Court for consideration of appropriate penalties in respect of the contraventions.

73    In our view the following orders are appropriate:

PURSUANT TO S 545 OF THE FAIR WORK ACT 2009 (CTH) (“FW Act”), THE COURT DECLARES THAT:

1.    the first respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to 68 Cordelia Street, South Brisbane (the “site”) on 11 December 2015;

2.    the first respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site in the company of Mr Ian Williamson on 11 December 2015;

3.    the first respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site after the arrival of Sergeant Conrad Greenwood from the Queensland Police Service on 11 December 2015;

4.    the second respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site on 11 December 2015;

5.    the second respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site in the company of Mr Ian Williamson on 11 December 2015; and

6.    the second respondent contravened s 501 of the FW Act by refusing or unduly delaying the first and second appellants’ entry to the site after the arrival of Sergeant Conrad Greenwood from the Queensland Police Service on 11 December 2015.

AND THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The matter be remitted to the Federal Circuit Court for it to determine questions of penalty and other orders.

Associate:

Dated:    10 April 2018

REASONS FOR JUDGMENT

O’CALLAGHAN J:

74    I have read in draft the joint reasons of Dowsett and Collier JJ. I agree with those reasons and with the terms of the declarations and orders they propose.

Associate:

Dated:    10 April 2018