FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 2 made by the primary judge on 17 July 2017 be set aside and the matter be remitted to him for further hearing in accordance with these reasons.

3.    The cross-appeal be dismissed.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have read the reasons for judgment of Tracey J to be published. I agree with the orders proposed in those reasons. I also agree with his Honour’s reasons, with the exception of two matters – the meaning of “in accordance with” in ss 501 and 502 of the Fair Work Act 2009 (Cth) and the relationship between impropriety or the phrase “improper manner” and a failure to satisfy statutory obligations.

“in accordance with”

2    For the reasons given by Tracey J, the phrase “in accordance with” should not be given a meaning that leads to the result in s 500 that the right is being exercised or sought to be exercised only when it is being done in complete conformity with the requirements of the Act. Were that to be so, as his Honour says, no balance called for by s 480 would be achieved, and the clear division of permissions or rights to enter by ss 481, 483A and 484, on the one hand, and requirements in connection with those permissions or rights in Subdivision C, on the other, would be blurred.

3    In Ramsay v Sunbuild Pty Ltd [2014] FCA 54; 221 FCR 315, Reeves J was concerned with the meaning of the phrase “in accordance with” in ss 501 and 502 of the Act. His Honour concluded that one needed to comply with all the provisions of Div 3 of Part 3-4 to be “in accordance with this Part”. If this is correct and if the interpretation of the phrase in s 500 favoured by Tracey J is also correct, the same expression is being differently used in closely proximate provisions of the Act. This would mean that there was something about the different contexts and purposes of the same phrase in s 500 and ss 501 and 502 which would explain the difference in meaning. The consistency of meaning of the same word or phrase in a statute is a sensible working hypothesis which can be rebutted, by context, purpose, or surrounding text: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Registrar of Titles (WA) v Franzon [1975] HCA 41; 132 CLR 611 at 618; Secretary, Department of Social Security v Copping [1987] FCA 280; 73 ALR 343 at 347-348; Minister v Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154; 145 FCR 523 at 529-530 [14]; and Queensland v Forest [2008] FCAFC 96; 168 FCR 532 at 540-541 [41].

4    Another alternative is that the conclusion of Reeves J is incorrect. How ss 501 and 502 would operate with a lesser meaning for “in accordance with” was not explored in argument.

5    I would not express a view about the phrase in ss 501 and 502 in the absence of full argument. I am persuaded, however, of the correctness of the view of the phrase in s 500 favoured by Tracey J.

“improper manner” in s 500

6    I would express the relationship between acting in an improper manner for s 500 and the failure to comply with statutory obligations in a way similar to White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [173]-[174] where his Honour said:

173    Counsel for the respondents commenced with a submission to the effect that an entry on to premises for the s 484 purpose without the prior provision of a s 487 notice should not be regarded as improper because s 487 is not itself a civil remedy provision.

174    I do not accept that submission. Section 487 is directed to that which a permit holder must do before entering premises, and not to the consequence of the permit holder entering without having provided notice of entry in accordance with its terms. Further, I am not able to identify any reason why an entry on to premises without there having been antecedent compliance with s 487 may not, in conjunction with other circumstances, amount to improper conduct for the purposes of s 500.

7    What is improper is an evaluative conclusion by way of characterisation. An accidental oversight leading to a failure to comply with a statutory obligation may well not be capable of being characterised as improper. An egregious, flagrant and defiant flouting of the statute is likely to be so characterised. I do not consider, however, that impropriety is always to be found in the failure to satisfy statutory obligations. Were it so it would necessarily convert each of the requirements in Subdivision C into penalty provisions through s 500.

8    I do not, however, disagree with the conclusions of Tracey J in this case on improper manner and s 500.

Associate:

Dated:    14 June 2018

REASONS FOR JUDGMENT

TRACEY J:

9    This appeal is principally concerned with the construction of s 500 of the Fair Work Act 2009 (Cth) (“the FW Act”) and related provisions in Part 3-4 of that Act.

10    The construction issues arose in a proceeding brought by the Australian Building and Construction Commissioner (“the Commissioner”) against the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and two of its officials, Mr Drew MacDonald and Mr Stephen Long. In that proceeding the Commissioner sought declarations and the imposition of civil penalties against the respondents for alleged contraventions of, relevantly, ss 500 and 340 of the FW Act.

11    The contravening conduct was alleged to have occurred in the course of a series of entries to construction sites in Melbourne, Victoria, in February and March 2014. The premises were located in Laverton North and Cheltenham. The head contractor on both sites was Qanstruct (Aust) Pty Ltd (“Qanstruct”). The entries were identified by the primary judge as follows:

    Mr MacDonald entered premises in Laverton North (“the Laverton North premises”) on 20 February 2014 (“the first entry”);

    Mr MacDonald entered the Laverton North premises on 21 February 2014 (“the second entry”);

    Mr Long entered premises at Cheltenham (“the Cheltenham premises”) on 27 February 2014 (“the third entry”);

    Messrs MacDonald and Long entered the Cheltenham premises on 5 March 2014 (“the fourth entry”); and

    Messrs MacDonald and Long entered the Laverton North premises on 5 March 2014 (“the fifth entry”).

12    The Commissioner’s case was that, on each occasion, the officials involved had failed to give notice of their proposed entry in accordance with s 487 of the FW Act and had failed, on request, to produce their entry permits as required by s 489. The Commissioner alleged that these failures constituted acting in an “improper manner” in contravention of s 500 of the FW Act. He further alleged that, in the course of the third entry, Mr Long had contravened s 500 by making a threat to a site manager.

13    That threat was also said to have given rise to a contravention of s 340(1) of the FW Act.

14    The primary judge found that the alleged contraventions of ss 340 and 500 had not been established: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198; [2017] FCA 802.

15    Most of the appeal grounds relate to the construction of s 500 and its related provisions. It will be convenient to deal with those grounds and the issues to which they give rise first and then to return to consider the s 340(1) issues.

THE LEGISLATION

16    Part 3-4 of the FW Act is entitled “Right of entry”. Section 6(5) records what the Part is “about”:

Part 3-4 is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act … . In exercising those rights, permit holders must comply with the requirements set out in the Part.

The Part deals, among other things, with “the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under [the] Act”: see s 478.

17    The object of the Part is set out at s 480 as follows:

480    Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a)    the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i)    this Act and fair work instruments; and

(ii)    State or Territory OHS laws; and

(b)    the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c)    the right of occupiers of premises and employers to go about their business without undue inconvenience.

18    The term “permit holder” is defined, in s 12, to mean “a person who holds an entry permit”. Such permits are issued to union officials by the Fair Work Commission under s 512 of the FW Act.

19    Entry permits entitle their holders to enter premises for various purposes. One of those purposes, dealt with in s 484, is the holding of discussions with employees. Section 484 is the sole section in Subdivision B of Division 2 of Part 3-4 of the FW Act. That section provides:

Subdivision B — Entry to hold discussions

484    Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a)    who perform work on the premises; and

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

(c)    who wish to participate in those discussions.

20    Subdivision C of Division 2 imposes various requirements on permit holders. One of these requirements is the giving of notice. Section 487 relevantly provides:

Subdivision C — Requirements for permit holders

…

487    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.

…

21    Section 518 of the FW Act prescribes the requirements which must be complied with in respect to the contents of all entry notices (s 518(1)) and those which must be complied with for entry notices given for the purposes of s 484 (s 518(3)).

22    Another requirement is provided for in s 489, which relevantly provides:

489    Producing authority documents

(1)    If the permit holder has entered premises under Subdivision A or AA, the permit holder must produce his or her authority documents for inspection by the occupier of the premises, or an affected employer:

(a)    on request; and

…

(2)    If the permit holder has entered premises under Subdivision B, the permit holder must produce his or her authority documents for inspection by the occupier of the premises on request.

(3)    Authority documents, for an entry under Subdivision A, AA or B, means:

(a)    the permit holder’s entry permit; and

(b)    either:

(i)    a copy of the entry notice for the entry; or

(ii)    if the FWC has issued an exemption certificate for the entry—the certificate.

23    Section 486, the first section in Subdivision C of Division 2, deals with some of the consequences of a failure to comply with other provisions of that Subdivision, such as ss 487 and 489. It provides that:

486    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.

24    Section 500, which is the critical provision for the purposes of this appeal, provides that:

500    Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

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

Note 2:    A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3:    A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).

25    “Action” is defined, in s 12, to include an omission.

26    Sections 501 and 502 of the FW Act provide protection for permit holders who are entitled to enter premises pursuant to Part 3-4.

27    Section 501 provides that a person must not refuse or unduly delay entry by a permit holder who is entitled to enter the premises “in accordance with this Part”. It is a civil remedy provision.

28    Section 502 goes further. Relevantly, it provides that:

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).

…

(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 BACKGROUND FACTS

29    The first entry occurred on 20 February 2014. Mr MacDonald attended at the Laverton North premises. When Mr MacDonald arrived at the site compound (the area containing the site administration offices and the facilities for employees), the site manager asked him about the purpose of his visit. Mr MacDonald responded that he wanted to talk to his workers. The manager asked Mr MacDonald if he had given 24 hours’ notice and if he had his entry permit with him. Mr MacDonald responded: “We don’t do that. I don’t need one of those. Have you got … something to hide?” The manager told Mr MacDonald that he could not walk on the construction site and that if he did so he would be trespassing. Despite this Mr MacDonald entered the construction site and had a series of conversations with workers.

30    Mr MacDonald returned to the site compound on the following day. This was the second entry. He had not given 24 hours’ notice of his entry and he did not produce his permit when requested to do so. The site manager asked Mr MacDonald what his purpose in visiting the site was. Mr MacDonald replied that he wanted to talk to some concreters about a site allowance. When asked to produce his permit Mr MacDonald said: “You know we don’t do that … if I want to … talk to the guys I will.” The manager warned Mr MacDonald that, if he entered the construction site, he would be trespassing. After a tentative move to enter the site, Mr MacDonald appeared to have second thoughts and returned to the manager’s office, not having entered the construction site.

31    The third entry occurred on 27 February 2014 at the Cheltenham premises. Mr Long attended the site without having given notice of his proposed entry. When asked by a manager in the administration office why he was there Mr Long said that he was going “to see the guys”. The manager asked for his permit. Mr Long responded: “We’re not going down that path, are we? … Even if I’ve got a permit, that’s our policy that we don’t show it.” The manager advised Mr Long that if he ventured on to the site the police would be called. In the course of a verbal confrontation Mr Long told the manager: “You … don’t want to be the dog who calls the cops on a union official … [W]e won’t forget this low act. We won’t forget that you did this.” Mr Long then said that he was going on to the site “to service my men”. He went on to the construction site and spoke to a group of concreters and form workers. Having done so Mr Long returned to the site compound and asked the manager with whom he had had the exchange if he had called the police. When told that the police had been called Mr Long had said, in a raised voice, that: “We will have 500 blokes on site here tomorrow, we won’t sign an EBA with you, next year you guys will be on nothing. Your wages will drop and you blokes will be on nothing.” After this conversation Mr Long went back on to the construction site. The police arrived and had a conversation with Mr Long who subsequently left the site.

32    The fourth entry took place on 5 March 2014 at the Cheltenham premises. Both Messrs MacDonald and Long entered the administration area site. Neither had given notice of their proposed entry. They spoke to the site manager. Mr Long said that he was there “to go and see … his men.” When told that they would not be permitted to enter the site without having given notice of entry and producing their entry permits, Mr Long told the manager that: “You’re on the top of our hit list.” Mr Long said that he was “going on to site to service [his] men”. Messrs Long and MacDonald then entered the construction site. They were observed to have been in the company of a worker and engaged in a conversation with him. The police were called. After they arrived and spoke to Messrs MacDonald and Long, the two officials left the site.

33    Messrs MacDonald and Long made the fifth entry at the Laverton North premises. Neither had provided 24 hours’ notice of their attendance. Neither produced his entry permit when requested to do so. Despite being warned that they would be trespassing, both entered the construction site and conducted conversations with workers engaged there.

THE TRIAL JUDGE’S FINDINGS

34    On the basis of this evidence the primary judge made the following uncontroversial findings:

    That, at relevant times, Messrs MacDonald and Long were “permit holder[s]” within the meaning of s 500 (at [2], [104]).

    The avowed purpose of each entry made by Messrs MacDonald and Long was to hold discussions with employees (at [111], [114], [117], [120], [122]). This was one of the purposes comprehended by s 484.

    On no relevant occasion did either Messrs MacDonald or Long give notice of their proposed entry in accordance with s 487 (at [13], [18], [23], [29], [32]).

    On no relevant occasion did either show his entry permit on request in compliance with s 489 (at [13], [18], [23], [29], [32]).

35    As a result of uncontroversial findings the issues which ultimately fell to be determined by the primary judge, under s 500, were:

    first, whether the officials, as permit holders, were “exercising, or seeking to exercise, rights in accordance with [Part 3-4 of the FW Act]” when they undertook the various entries (see [56]-[73], [74]-[102] and [103]-[126]); and

    secondly, whether the conduct of the two officials, on entering the sites, involved them in acting in an “improper manner” (see [127]-[146]).

36    In dealing with the first issue the primary judge held that no contravention of s 500 had occurred because neither Mr MacDonald nor Mr Long was, at relevant times, “exercising, or seeking to exercise, rights in accordance with [Part 3-4]” of the FW Act. That was because he considered (at [72]) that an official “may only be said to be ‘exercising’ rights under Part 3-4 when doing so in compliance with the requirements made by that Part.” Messrs MacDonald and Long had deliberately failed to give notice of their proposed entry on each occasion ([107]). The giving of notice, under s 487, was a precondition to the conferral of any right of entry for the purposes of s 484 (at [68]). Absent such notice any right conferred on the officials by s 484 was neither held nor “put into action practice or use” at relevant times (at [70]).

37    As to the second issue his Honour found (with some reservations arising from the Commissioner’s pleaded case) that the failure of Messrs MacDonald and Long, on each occasion, to give notice of their attendance at the sites and to produce their entry permits upon request constituted acting in an “improper manner” for the purposes of s 500 (at [146]).

38    The second finding was not challenged in this appeal but the Commissioner complains that the primary judge did not also find that the “500 blokes on site” threat, made by Mr Long in the course of the third entry, did not also constitute acting in an improper manner. He had not done so because he found that the Commissioner’s pleaded case did not allege that the threat constituted acting in an improper manner within the meaning of s 500 (at [133]). On this appeal the respondents conceded the Commissioner had put them on notice, prior to trial, that he intended to rely on the making of the threat as constituting acting in an improper manner under s 500. This led to the further concession in the respondents’ written submissions that:

The Respondents therefore accept that if it is held on Appeal that s 500 has the construction contended for by the Commissioner (contrary to the Respondents’ primary submission on construction, Appeal Grounds 1 to 5) and that the trial judge erred in failing to find that the second and third Respondents were seeking to exercise their rights of entry in accordance with Part 3-4 (contrary to the Respondents’ submissions on Appeal Grounds 6 to 8), then this Court will be bound also to find that the Commissioner was entitled to rely as part of his pleaded case on the making of a threat by Long during the third entry as constituting acting in an “improper manner” within the meaning of s 500 of the FW Act. In that event, it is also accepted that there was evidence at trial capable of sustaining a finding of contravention of s 500 on the occasion of the third entry by Long.

THE TRIAL JUDGE’S REASONING ON THE FIRST ISSUE

39    The primary judge gave separate consideration to the questions of whether Messrs MacDonald and Long had exercised rights under Part 3-4 of the FW Act and whether they had been seeking to exercise such rights.

40    The essential elements of his Honour’s reasoning on the “exercising” point were:

    Unless the officials had entered for a purpose prescribed by s 484 of the FW Act they could not be found to be exercising or seeking to exercise rights in accordance with Part 3-4 (at [57]-[59], [64]).

    Mr MacDonald and Mr Long had, on each occasion, entered for a purpose prescribed by s 484, namely for the purpose of holding discussions with employees (at [111], [114], [117], [120] and [122]).

    Whether or not a permit holder is, at relevant times, “exercising … rights” is a mixed question of law and fact (at [60]).

    Exercising a right involves, first, holding the right and, secondly, putting it into effect (at [61]).

    The mere holding of an entry permit does not confer a right of entry to premises although holding a permit is a necessary precondition to the conferral of that right (at [63]).

    The giving of notice under s 487 is a precondition to the conferral of any right of entry under s 484 (at [68]).

    Even if the giving of notice under s 487 is not a precondition for the conferral of the right, unless and until notice is given under s 487 any right of entry under s 484 cannot be said to be being “exercised” in the sense of being put into action, practice or use (at [70]-[71]).

    “[A] person may be only said to be ‘exercising’ rights under Part 3-4 when doing so in compliance with the requirements made by that Part” (at [72]).

    It was common ground that neither Mr MacDonald nor Mr Long gave notice of any of their entries (at [73]).

    As a result the Commissioner had failed to establish that either official was exercising a right of entry on any relevant occasion (at [73]).

41    As to the alternative basis on which the Commissioner had relied (“seeking to exercise a right of entry”) his Honour’s reasoning proceeded as follows:

    In Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46; [2016] FCAFC 64 the Full Court had drawn a distinction between the concepts of purporting to exercise rights and seeking to exercise rights. Only the latter was comprehended by s 500 (at [76]).

    Unlike “purporting”, “seeking” connoted a subjectively held intent on the part of the actor to pursue a particular result (at [77]).

    The subjective purpose of an actor is to be objectively assessed taking into account all of the circumstances, not only evidence given by the actor as to his or her intent (at [82]).

    It was unlikely that s 500, as a civil remedy provision, was intended to apply to a person who did not have a relevant right or who did not intend to exercise such a right (at [79]).

    A permit holder who has deliberately not complied with s 487 and other regulatory provisions such as ss 489 and 490 cannot be said to be “seeking to exercise rights in accordance with [Part 3-4]” (at [85]).

    The phrase “seeking to exercise, rights in accordance with this Part” comprehended no more than “an intended but legally flawed exercise of a right” or an “unintended or inadvertent non-compliance with the requirements for the exercise of a right” (at [79]-[80] and [84]).

    The phrase “in accordance with this Part” is to be construed as meaning “in conformity with” the requirements of the Part (at [88]).

42    His Honour examined the circumstances of each of the five entries. He noted that neither Mr MacDonald nor Mr Long had given evidence but accepted the evidence of witnesses called by the Commissioner relating to the officials’ conduct on each occasion (at [103]). It was a common feature of each entry that the official concerned held an entry permit but had given effect to a CFMEU policy that he was free to enter construction sites to confer with members without having provided any prior notice of his intention to do so (at [105]). As a result the primary judge held that the Commissioner had, in respect of each entry, not established that the relevant official was seeking to exercise rights in accordance with Part 3-4 of the FW Act (at [111], [114], [117], [120] and [122]).

43    The primary judge emphasised that, although s 500 was not, in his view, engaged in the circumstances of the present case, the Parliament can be taken to have intended that any penalties for unlawful entries to sites were to be dealt with under laws of general application, including the criminal law (at [91]).

THE COMMISSIONER’S APPEAL

44    In his further amended notice of appeal the Commissioner contended that the primary judge had erred in his construction of s 500 of the FW Act. He submitted that the two officials had been exercising a right of entry under s 484 even though no notice of the entry had been given pursuant to s 487. The Commissioner also challenged the primary judge’s construction of the phrase “seeking to exercise rights” in that he had unduly circumscribed the reach of that phrase (Grounds 1 to 5).

45    The Commissioner further contended that the primary judge had, by reason of his misconstruction of s 500 and the related provisions of Part 3-4, failed to consider and make relevant findings relating to the evidence about the conduct of the two officials during the various entries. In particular, he alleged that the primary judge ought to have found on the evidence that Mr MacDonald and Mr Long were “seeking to exercise rights” for the purpose of s 500. He did not, in these grounds, assert that the evidence supported a finding that they were “exercising” rights (Grounds 6 to 8).

46    Grounds 9 to 11 were the subject of the concessions which are recorded above at [38]. In the light of those concessions no more need be said, at this stage, about those grounds.

47    Ground 12 related to the alleged contraventions of s 340 of the Act which will be dealt with separately and later in these reasons.

CONSIDERATION

Construction of the relevant provisions

48    The principles which govern the construction of statutes are well established. In Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519; [2012] HCA 55 at [39], the High Court said that:

“This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.” So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and intrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and intrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

See also CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 46-47; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ), SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at 940-941 and 944; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ) and [37] (Gageler J).

49    These principles were recently applied by a Full Court of this Court in dealing with some other elements of Part 3-4 of the FW Act. In Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470; [2017] FCAFC 89 the Full Court (Allsop CJ, White and O’Callaghan JJ) emphasised the need to adopt a practical approach to the construction of provisions which are intended to operate on business premises including construction sites on a daily basis. Their Honours said (at 474-475 [15]):

15    ... First, to the extent that a provision is a civil remedy or civil penalty provision a necessary clarity of meaning should be striven for, to the extent that is possible and conformable with the language employed and context legitimately available. Secondly, notwithstanding the closely regulated environment of industrial and employment legislation, provisions as 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 commonsense so that they can be implemented in a clear way on a day-to-day basis at work sites. The legislation needs to work in a practical way at the work sites, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site.

50    Their Honours considered (at 478 [38]-[41]) that s 6(5) of the FW Act (which is set out above at [16]) should be read as:

Part 3-4 is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role — under this Act …

So construed the subsection lent support for the view that s 494 (which provides that officials must not exercise State or Territory occupational health and safety rights unless they hold permits under the FW Act), as part of Part 3-4, is directed only to the kinds of rights of entry granted to or conferred on officials of organisations: see at 478 [40]. Their Honours, however, cautioned that it did not follow that Part 3-4 “is only about that subject or that the meaning of words should be read down to conform only with that subject”: at 478 [41] (emphasis in the original).

“Exercising … rights”

51    Ground 3(a) of the Commissioner’s further amended notice of appeal asserted that the primary judge erred at [68] and [69] of his reasons, where his Honour held that the giving of notice of entry in compliance with s 487 of the FW Act is “a precondition to the conferral of the right of entry” under s 484 of the FW Act for the purposes of s 500 of the FW Act. Ground 3(b) asserted that the primary judge made a further error, at [70], by holding that, even if a right under s 484 is conferred prior to the giving of an entry notice, that right is not “exercised” without the giving of notice required by s 487.

52    The first issue is whether a permit holder can be said to be “exercising … rights”, for the purposes of s 500, if one of the requirements, prescribed by Subdivision C, has not been complied with. In turn, and more specifically, the question to be determined on this appeal is whether s 484 of the FW Act confers “rights” on permit holders of its own force whether or not the permit holder has complied with provisions of Subdivision C, including ss 487 and 489.

53    The Commissioner contended that the two preconditions to the conferral of a right under s 484 were the grant of a permit and the holding of the requisite purpose for entry.

54    Part 3-4 confers a series of rights of entry on permit holders if those entries are for prescribed purposes. Division 2 of Part 3-4 provides for entry for particular purposes including, relevantly, entry for the purpose of holding discussions with certain employees under Subdivision B.

55    Subdivision C of Division 2 then imposes certain requirements which must be observed by permit holders in exercising those rights. Some of the requirements operate before the right of entry is effected (s 487(1) is one of these), others at the point of entry (for example, s 487(4)) and yet others after entry has been effected (for example, s 490).

56    The text of s 484 confers a right on a permit holder to enter premises for the purposes of holding discussions with employees who have the three characteristics set out in paragraphs (a), (b) and (c) of the section. The conferral of the right of entry, provided for in s 484, is not expressly conditioned upon the satisfaction of any or all of the requirements of Subdivision C. The statutory context suggests that no such precondition should be implied.

57    The rights of entry, provided for in Division 2 of Part 3-4, are conferred on permit holders. Those rights of entry continue to exist for as long as the permit remains valid. The right, in each case, must be exercised in accordance with the requirements prescribed by Subdivision C but they continue to exist. The consequence of a failure to comply with a provision of Subdivision C which is applicable is that prescribed by s 486 of the Act. It is not a termination of the right.

58    The requirements imposed on permit holders by Subdivision C assume the existence and exercise of rights conferred by provisions of earlier subdivisions. This includes the right of entry provided for in s 484. The Subdivision C provisions operate as qualifications on the existing right of entry or the manner of exercise of a pre-existing right. As s 486 provides: a contravention of Subdivision C by a permit holder in exercising such rights has the consequence that the permit holder is “not authorise[d] … to enter or remain on premises, or exercise any other right …” (emphasis added).

59    A permit holder who has given notice under s 487, and who enters premises for the purposes prescribed by s 484, enters as a matter of right and is able to remain on the premises to pursue discussions with willing employees. The permit holder may, at any time whilst on site, be asked to produce his or her authority documents (including the entry permit) for inspection pursuant to s 489. If a request is made and complied with, no impediment is placed on the official’s pursuit of discussions with workers. If a request is made and not complied with, the consequence, under s 486, is that s 484 no longer authorises the continued presence of the permit holder on the premises. In each instance s 486 proceeds on the basis that the permit holder has a relevant right and has exercised, or sought to exercise, that right.

60    Section 487 requires that, “before entering” the premises, the permit holder must give an entry notice. The permit holder must give the occupier of the premises an entry notice during working hours at least 24 hours before entry is to take place. This requirement is not, as the primary judge found (at [86]), “a precondition to the conferral of the right of entry” provided for under s 484. The proposed entry, when effected, has the potential to cause some disruption to normal operations. Whilst discussions with workers may only take place during meal times or other breaks (s 490(2)) arrangements must be made as to a suitable venue agreed with the occupier (s 492(1)) and these processes will often take managers away from their normal duties. The giving of notice ensures that the permit holder’s visit can be planned for and inconvenience to site management minimised.

61    Other provisions of Part 3-4 suggest that the word “exercising”, as used in s 500, is intended to be read more broadly than the construction adopted by the primary judge. These include:

    Section 478, “the Guide to the Part”, distinguishes between the exercise of rights under Division 2 and the need for permit holders to comply with the requirements, imposed on them by the Part, when exercising those rights.

    In Division 3, ss 495, 497, 498 and 499, which deal with entry by permit holders to “exercise a State or Territory OHS right”, provide that a permit holder must not exercise such a right unless the permit holder does certain things, including the giving of written notice (s 495) and the production of his or her entry permit when requested to do so (s 497). These rights must only be exercised during daylight hours (s 498) and must not be exercised unless the permit holder complies with any reasonable request by the occupier to comply with an occupational health and safety requirement that applies to the premises (s 499). A failure to comply with these provisions, in each case, attracts a civil penalty. These provisions maintain a distinction between the exercise of rights by a permit holder and compliance with requirements attached to that exercise.

62    If notice is not given as required by s 487, the consequence is that prescribed by s 486, namely that s 484 (Subdivision B) does not “authorise” the holder to enter or remain on the premises. This stipulation operates as a qualification on an existing right of entry for a prescribed purpose.

63    If notice is given and a permit holder enters a site for a s 484 purpose and remains on the site for some time but then fails to produce his or her permit on request as required by s 489 the same consequence, prescribed by s 486, follows.

64    The construction which I prefer gives effect to the balancing of competing rights contemplated by s 480 of the FW Act. One of the rights, specifically mentioned in s 480(a), is “the right of organisations to … hold discussions with potential members”. Rights of entry are given by provisions such as s 484 to further the rights identified in s 480(a) and their exercise is then regulated in order to avoid undue inconvenience to the social right of occupiers of premises to go about their business in the conduct of their operations (s 480(c)). The balancing regime, with which s 480 is concerned, would be undermined if a relevant right was found not to arise (and so not be regulated by the Act) because a permit holder made a deliberate decision not to satisfy one of the requirements imposed by Subdivision C. Such a construction would have the consequence that a permit holder, who wishes to enter premises for a purpose provided by the Part and for which the permit was given to him or her, would be constrained by the requirements of Part 3-4 only if he or she chose to obey the FW Act. If he or she chooses not to, the occupier would be left to protect itself by the law of civil and criminal trespass.

65    It is further to be observed that none of the requirements, imposed on permit holders by Subdivision C, are expressly identified in the FW Act as preconditions of the exercise of a right.

66    At trial, the respondents sought to support their construction argument by reference to the decision of Greenwood J in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2011) 195 FCR 280 at 308; [2011] FCA 770 at [137]. His Honour was there dealing with the predecessor of the provisions presently under consideration. Section 760 of the Workplace Relations Act 1996 (Cth) (“the WR Act”) was the predecessor of s 484 of the FW Act. Section 763 provided for pre-entry notice. It was in these terms:

763    Limitation on rights — entry notice

This Division does not authorise entry to premises, or subsequent conduct on the premises, unless all the following conditions are satisfied:

(a)    the permit holder gave an entry notice to the occupier of the premises at least 24 hours, but not more than 14 days, before the entry;

(b)    the entry notice specifies section 760 as the section that authorises the entry;

(c)    the entry is on a day specified in the entry notice.

67     At 308 [137] his Honour said:

Section 760 authorises entry to premises by a permit holder if the permit holder has the prescribed purpose (supported by evidence of that purpose) and each of the integers ((a), (b) and (c)) of s 763 are satisfied. The satisfaction of those integers coupled with the holding of the prescribed purpose engages a power to enter the relevant premises within the limits of the grant, namely, entry. Having authority to enter premises, however, does not confer authority or permission, it is said, to engage in conduct beyond the limits of the grant. Although the permit holder may have had the prescribed purpose on entry (a matter denied on the facts by Holland), the permit holder was not authorised by s 760 to then hold discussions with employees of Holland because there were no eligible employees on site. Once the permit holders embarked upon holding discussions with Holland’s employees none of whom were eligible employees (as the Full Court upheld), the permit holders necessarily, it is said, exceeded the limitations of the grant.

(Emphasis in the original.)

68    The primary judge noted (at [66]) that the “three integers” of s 763 that Greenwood J had held needed to be satisfied before “the power to enter is engaged” were each “now reflected in the requirements of s 487”. He regarded those latter requirements as being “equivalent to those made by (b) and (c) of the former s 763” (at [66]). He also considered that s 763 of the WR Act incorporated the substance of the present s 486 of the FW Act (at [67]).

69    Before turning to consider the primary judge’s reasoning on this point, it is convenient to record some additional passages from Greenwood J’s reasons.

70    His Honour continued (at 308 [139]-[141]):

139    It [s 760] confers authority (provided the pre-conditions of s 763 are satisfied) upon a permit holder to enter premises provided he or she has the prescribed purpose. That authority extends to all facets of entry. It does not end on crossing the boundary or entering through the gate. The authority to enter authorises the conduct of entry expressed as passage through the gate, progression along the access road to the place where the men and women work or congregate in their breaks, waiting at the place of congregation for the breaks to occur and entry to the areas (crib huts or smoko huts) where discussions might be held with those who wish to do so. It is an authority coupled with a purpose. The purpose is the purpose of holding discussions with eligible employees.

140    Section 760 goes beyond mere entry because it confers authority coupled with a purpose (which must be held so as to authorise entry) which is also the purpose for entry.

141    There would be little point in the legislation conferring a right upon a permit holder to enter premises provided he or she subjectively holds the prescribed statutory purpose of holding discussions with eligible employees and then denying the permit holder the right to hold any discussions on the footing that, as a matter of objective construction of the relevant pre-existing collective agreement, there are no eligible employees on the entered premises.

(Emphasis in the original.)

It is notable that his Honour used the words “authority” and “right” interchangeably in dealing with the former s 760.

71    These passages expose a material difference between s 487 and the former s 763. Section 487 is, in some respects, similar to s 763 but, significantly, does not, in terms, link authority to enter with compliance with “conditions” as did the former s 763. Nor does s 486. Sections 486 and 487 of the FW Act are, therefore, textually different from the former ss 760 and 763 of the WR Act and are not “to the same effect”: cf [67].

72    For these reasons, I would uphold Ground 3(a) and Ground 3(b) of the Commissioner’s appeal.

“In accordance with this Part”

73    Ground 3(c) of the Commissioner’s further amended notice of appeal asserted that the primary judge erred at [72] of his reasons, where his Honour held that, in relation to s 500 of the FW Act, a person may only be said to be “exercising” rights under Part 3-4 when doing so “in compliance with” with the requirements of that Part.

74    On appeal, the respondents sought to support the primary judge’s construction of s 500 by directing attention to the phrase which follows immediately after the words “exercising, or seeking to exercise, rights”. Those words are “in accordance with this Part”. They argued that the words meant “in compliance with” or “in conformity with”. The Commissioner contended that the phrase was “locational” and “interchangeable” with the words “under” or “covered by”. In this respect he relied on the dictum of Jessup J in Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 at 472-473; [2009] FCA 223 at [88]-[89] in which his Honour held that, in the context of s 36(1)(b) of the Building and Construction Industry Improvement Act 2005 (Cth), “in accordance with” meant “covered by the terms and conditions prescribed by” the relevant instrument. Section 36(1) contained a definition of “building industrial action”. Such action was defined in paragraph (b), relevantly, to include “a ban, limitation or restriction on the performance of building work … in accordance with the terms and conditions prescribed by an industrial instrument”.

75    Counsel for the respondent union in Williams argued that “the performance of building work … in accordance with” the relevant industrial instrument meant “the performance of work in the manner required” by the instrument rather than “the performance of work covered by” the instrument.

76    His Honour, in preferring the latter construction, referred (at [88]-[89]) to long standing authority to the effect that “the policy of the [instruments] … was to discourage or prevent organisations being concerned in a total prohibition of, or partial interference with, work covered by the award, whatever the motive or purpose of the prohibition or interference”: see Commonwealth Steel Co Ltd v Federated Ironworkers Association of Australia (1952) 74 CAR 84 at 94-95 (Kirby J). He thus adopted a purposive approach to the construction of a provision which was designed to proscribe certain forms of industrial action by those whose employment was regulated by particular industrial instruments.

77    As may readily be discerned the context of Williams was very different from that presently under consideration. Nevertheless, the adoption of a purposive construction of the relevant parts of Part 3-4 of the FW Act also supports a broader rather than a narrower construction of the phrase “in accordance with this Part” as it appears in s 500.

78    The respondents also placed reliance on dicta in the judgment of Reeves J in Ramsay v Sunbuild Pty Ltd (2014) 221 FCR 315; [2014] FCA 54. His Honour there considered the construction of the words “in accordance with” in ss 501 and 502 of the FW Act. These provisions protect permit holders who are entitled to enter premises “in accordance with this Part” (s 501) or who are “exercising rights in accordance with this Part” (s 502). Some permit holders had sought to enter a construction site because they suspected occupational health and safety standards were not being complied with. They asserted a right of entry under s 494 of the FW Act. Managers at the site refused them access. They brought proceedings in the Court alleging contraventions, by the respondent, of the two provisions. The respondent contended that the permit holders had no entitlement under Part 3-4 to enter its work site for occupational health and safety purposes. Accordingly, the permit holders did not have any right to enter its premises or any rights to exercise “in accordance with [Part 3-4]” for the purposes of ss 501 and 502 respectively.

79    Justice Reeves ordered that two separate questions should be tried. They were (at 317 [1]):

(a)    In the circumstances as alleged in the amended statement of claim, were any of the applicants a “permit holder who is entitled to enter” the site, as defined in the amended statement of claim, “in accordance with this Part” within the meaning of s 501 of the Fair Work Act 2009 (Cth) (the FWA)?

(b)    In the circumstances as alleged in the amended statement of claim, were any of the applicants a “permit holder exercising rights in accordance with this Part” within the meaning of s 502 of the FWA?

80    His Honour answered those questions (at 317 [2]) thus:

(a)    On the assumption that each of the applicants complied with all of the provisions of Div 3 of Pt 3-4 of the FWA, yes, all of the applicants were permit holders who were entitled to enter Sunbuild’s worksite in accordance with Pt 3–4 within the meaning of s 501 of the FWA; and

(b)    On the assumption that all of the applicants complied with all of the provisions of Div 3 of Pt 3-4 of the FWA, yes, all of the applicants were permit holders exercising rights in accordance with Pt 3-4 within the meaning of s 502(1) of the FWA.

81    In answering these questions his Honour said (at 341 [94]) that he did not consider that either ss 501 or 502(1) required that the relevant “entitlement” or “rights” stem from Part 3-4 itself. He took this view, in part, because he considered that the phrase “in accordance with” in both sections was to be understood as meaning “in conformity with” or “consistently with” (at 341 [95]-[96]). It followed, he held, that the words “in accordance with” in ss 501 and 502(1) do not refer to a permit holder’s entitlement to enter premises or exercise rights under Pt 3-4 of the [FW Act], but rather to his or her having acted in conformity with the provisions of that Part and gained the status of a permit holder under it (at 340-341 [94]). No issue arose as to whether the permit holders had given the necessary notice under s 495 (the equivalent of s 487 in Division 2) and, in answering the questions, his Honour proceeded on the assumption that they had done so (see 343 [103]). As his Honour observed, the provisions of Part 3-4 were designed “to enforce compliance with it, on the one hand, and to protect those officials who exercise rights in compliance with it, on the other”: see at 339 [87]. Furthermore, because the focus of argument was on the internal verbiage of ss 501 and 502, his Honour did not have to consider whether the words “in accordance with this Part” bore the same meaning in s 500.

82    It is also to be observed that neither s 501 nor s 502 protect a permit holder who is “seeking to exercise” a right of entry to premises.

83    The protections afforded by ss 501 and 502 are only available to a permit holder who has complied with all of the requirements imposed on him or her by the Part.

84    The purpose of s 500 is different. It is to regulate the conduct of permit holders who are exercising or seeking to exercise rights in accordance with the Part. In the context of that section “in accordance with” is better understood as meaning “covered by” or “under”. To so hold is not inconsistent with the reasoning of Reeves J in Ramsay.

85    For these reasons, I would also uphold Ground 3(c) of the Commissioner’s appeal.

“Seeking to exercise”

86    By Ground 4 the Commissioner asserted that the primary judge erred in his construction of the phrase “seeking to exercise rights” in s 500. The Commissioner identified instances in the judgment where he said that the primary judge took an erroneously narrow approach to the construction of the phrase “seeking to exercise”.

87    The primary judge placed a narrow construction of the phrase “seeking to exercise” in s 500. As already noted his Honour held that the phrase limited the operation of s 500 to cases in which a permit holder had engaged in “an intended but legally flawed exercise of a right” (at [79] and [84]) or in an “unintended or inadvertent non-compliance with the requirements for the exercise of a right” (at [80]).

88    In my view this construction is too narrow. There is no textual justification for excluding an attempt to exercise a right of entry in circumstances where the permit holder knows that he or she has the right but has not complied with one of the requirements of Subdivision C. Such conduct can reasonably be treated as an attempt to exercise the right conferred by s 484.

89    The word “seeking” is not defined in the FW Act. “Seek” bears its ordinary and grammatical meaning. That meaning includes:

    “to try or to attempt (to do something)” (S Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1352); and, to like effect,

    “[t]ry or attempt to do” (A Stevenson (ed), Shorter Oxford English Dictionary (Oxford University Press, 6th ed, 2007) vol 2, 2736).

90    This broader meaning of “seeking” is supported by two paragraphs of the explanatory memorandum for the Bill which became the FW Act and which dealt with the clauses which became, respectively, Subdivision C and s 500:

Subdivision C — requirements for permit holders

[1947]    This subdivision sets out mandatory requirements that a permit holder must meet when exercising or attempting to exercise rights under Subdivision A or B of this Division.

…

[1994]    Acting in an improper manner is intended to cover a wider range of conduct [than that comprehended by the preceding phrase “intentionally hinder or obstruct”]. It includes actions that are inconsistent with the requirements of the right of entry provisions, such as deliberately engaging in conduct that the permit holder knows is not permitted.

(Emphasis added.)

Paragraph [1947] uses the word “attempting” synonymously with “seeking”. Paragraph [1994] contemplates that s 500 will be available in the case of deliberate misconduct.

91    The narrow construction also invites an inquiry (as to one of its elements) into the permit holder’s subjective reason for not complying with the requirements (or some of them) of Subdivision C. In the present case that reason, in each instance, was compliance with a union policy. This was affirmed orally by the officials. In the absence of such clear statements, it will be difficult, if not impossible, for site managers to ascertain whether Part 3-4 of the FW Act was engaged on any particular occasion on which officials attend at a site without notice and refuse to produce permits on request.

92    The respondents also sought to support their argument on appeal by reference to the Full Court’s decision in Bragdon. The appellants in that case were union organisers who, while holding permits under the FW Act, did not hold “WHS permits” under the relevant State legislation — the Work, Health and Safety Act 2011 (NSW) (“the New South Wales Act”). They attended at a construction site where they directed workers to stop work because they said a concrete pour was unsafe. Upon arrival the organisers did not assert that they were exercising any rights under the FW Act or the New South Wales Act: at 51 [26] and 54 [44]. There were assertions when on the site, however, about lack of safety: see the agreed facts set out at 52-53 [32]. Upon their arrival the occupier of the site did not request them to produce an entry permit: at 52 [29]. During the visit, however, requests were made for the production of permits which were deflected with promises to provide those permits at a later time: at 52 [31]. The occupier did not direct them to leave the site.

93    The Full Court in Bragdon held that s 500 of the FW Act had not been contravened. Justices Buchanan, Reeves and Bromberg said (at 57-58 [63]-[64]) that:

63    In the present case it was not necessary for the primary judge to be concerned with whether Messrs Bragdon and Kong were “purporting” to exercise a State or Territory OHS power (at least not so far as s 500 is concerned) because s 500 states its own criteria for engagement (i.e. exercise or seeking to exercise). In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293, White J explained the second element of s 500 (in a way ultimately consistent with the underlying approach in Pine v Doyle) as follows:

76    It is appropriate to keep in mind that the second element of a s 500 contravention requires proof that the permit holder was exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the FW Act. This means that the second element will be established if the permit holder was, as a matter of fact, exercising (relevantly) the s 484 right or seeking to exercise that right. Permit holders may seek to exercise the s 484 right even though they are mistaken in their belief that there are employees on the site at the time of the entry, or that there are on the site employees whose industrial interests the permit holder’s organisation is entitled to represent, or that persons answering that description do wish to participate in discussions with them. Proof that each of the elements listed in s 484 pertained at the time of the official’s entry is not required, at least in respect of an allegation that the permit holder was seeking to exercise rights under Pt 3-4.

(Emphasis in original.)

64    Nevertheless, such a case must be proved. In our view, neither Mr Bragdon nor Mr Kong was exercising any State or Territory OHS right and nor were they “seeking to exercise” any such right. They did not have such a right and they did not proceed under any mistaken belief about their rights.

(Emphasis added.)

94    As can be seen the Full Court rejected the Commissioner’s claim under s 500 because no right existed. And it answered a factual enquiry (in the negative) as to whether they were seeking to exercise a right that they thought they had. In the present case the facts were materially different: Messrs MacDonald and Long were both permit holders and they entered, on each occasion, for the avowed purpose of holding discussions with employees on the site, the very purpose to which s 484 is directed, as they no doubt appreciated. It is also to be observed that, in Bragdon, their Honours were not called on to determine the reach of the word “seeking” in the context of s 500.

95    The respondents also sought to derive some assistance from what the Full Court said at 55 [47]:

In essence, Merkel J [in Pine v Doyle] acted upon the claims of reliance on the right of entry power to prevent its abuse. That is not this case. Neither had a NSW WHS permit. Neither had given notice and neither produced an entry permit on request. If the first of those latter conditions had been able to be satisfied, the second would bring their rights to a speedy end if they had any.

96    It may be accepted that the failure, by a permit holder who has entered a site, to produce his or her permit on request will bring the authority to proceed with the entry pursuant to the right of entry to a “speedy end”. The quoted passage does not, however, support the wider proposition, contended for by the respondents. It was one way of expressing the operation of s 486. It is not to be understood as a precise legal expression denoting the destruction of the right of entry. In Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528; [2017] FCAFC 77, a case in which the trial judge had found that the relevant officials were “asserting an entitlement to enter for the s 484 purpose” (see at 534 [30]), Flick J (with whom Besanko and North JJ agreed) held (at 535 [31]) that the decision of the Full Court in Bragdon “does not support a conclusion that a ‘permit holder’ who fails to give a ‘notice for the entry’ is not ‘exercising, or seeking to exercise’ the right conferred by s 484 or a conclusion that entry in such circumstances is not ‘in accordance with’ Pt 3-4.” I agree.

97    Depending on the circumstances of a particular case it may be open to the Court to find (as the primary judge contemplated in the present case at [79] and [84]) that a permit holder may intend to exercise a right under Division 2 of Part 3-4 without complying with the requirements prescribed by Subdivision C of that Division. Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 was such a case. Having found (at [84]) that the relevant respondents who held permits issued under s 512 of the FW Act had “assert[ed] an entitlement to enter [the premises] for the s 484 purpose without having to give the notice of entry required by s 487”, White J went on to hold that those respondents had contravened s 500 of the FW Act by acting in an improper manner while seeking to exercise rights in accordance with Part 3-4 in that they had failed to provide a notice of entry as required by s 487, had remained on the site for almost two hours and had distracted workers. He made declarations to this effect: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy and Union [2016] FCA 413 at ii, Declarations 3 and 5.

98    For the reasons above, I would uphold Ground 4.

Conclusions on construction issues

99    The construction of s 500, which was adopted by the primary judge, would have the effect that a permit holder, who wished to enter premises for the purposes of consulting with members, could immunise him or herself from the operation of s 500 by the simple device of refusing to give notice under s 487. On the primary judge’s construction, such a refusal would mean that a person was not “exercising” a right (as a precondition for the conferral of the right had not been met and because of the non-compliance with Part 3-4). Further, such a person would not be “seeking to exercise” a right, as deliberate non-compliance would be sufficient evidence that he or she lacked the requisite subjective intention to exercise rights in accordance with Part 3-4. Resort to such a device would be inconsistent with the scheme and purposes of Part 3-4 which are directed at the creation and regulation of rights of permit holders.

100    The construction of s 500, which I prefer, is consistent with the text of Part 3-4 and the purposes which it seeks to achieve. It provides the clarity and practical outcomes with which the Full Court in Powell was concerned.

101    The Court was not invited to decline to follow Bragdon and no argument was developed to that end. Although I harbour some reservations about some of the dicta in Bragdon, it is not necessary that I pursue those issues in the present appeal. For the reasons given, I consider that Bragdon is plainly distinguishable and does not apply to a case such as the present in which officials who were permit holders repeatedly chose not to give notice and produce their permits when asserting a right of entry for the purposes of holding discussions with members of their union.

THE TRIAL JUDGE’S REASONING ON THE SECOND ISSUE

102    The primary judge found that Messrs MacDonald and Long caused practical disruption or inconvenience to Qanstruct in the course of making each of the five entries (at [132]). He held, however, that the actions which gave rise to the disruption and inconvenience, in each case, had not adequately been pleaded as particulars of the allegation that the officials had acted “in an improper manner” (at [133]-[135]).

103    His Honour accepted that the Commissioner had alleged, with sufficient clarity, that the failures of the officials to provide notice and to show their entry permits on request constituted “improper conduct” for the purposes of s 500. His Honour understood the Commissioner’s pleaded case to be “that the mere failure to comply with the requirements of s 487 (relating to notice) and s 489 (relating to the production of a permit) was to act in an ‘improper manner’ within the meaning of s 500”: see at [136]. He continued (at [141]):

In the absence of contrary authority, I would not have accepted that a failure to abide by the requirements of either ss 487 or 489 which had no prejudicial impact or effect upon the occupier or other persons on the premises, is an act done “in an improper manner” within the meaning of s 500. My view is supported by the observation that Part 3-4 addresses conduct of that kind by other means. Non-compliance will result in the loss of the right to enter: s 486.

104    Despite some reservations the primary judge accepted that contrary authority was to be found in the decisions of White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 and Charlesworth J in Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147. Comity required that he follow their approach to the construction of the phrase “act in an improper manner”. Accordingly, he held that, had he found that s 500 was engaged, he would have also found “that, by failing to give notice and produce their entry permits contrary to the requirements of ss 487 and 489 of the FW Act, MacDonald and Long acted in an ‘improper manner’ in relation to each entry they made”: see at [146].

THE RESPONDENTS’ CROSS-APPEAL

105    The respondents cross-appealed against the primary judge’s findings relating to their liability in the event that the first issue was resolved against them on this appeal and s 500 was engaged.

106    There were four grounds of the cross-appeal. The first and third grounds challenged the findings that comity supported a finding that the failures to provide notice of entry and to produce entry permits upon request were capable, without more, of constituting action in an “improper manner” for the purposes of s 500. The third ground also raised a pleadings issue.

107    The second ground was that the primary judge should have held that the Commissioner could not establish a contravention of s 500 without proving conduct which caused undue inconvenience or some prejudice to a site occupier’s ability to conduct its business as usual.

108    The fourth ground of the cross-appeal concerned the primary judge’s finding that Mr Long had not contravened s 340 of the FW Act. This ground alleged that the primary judge erred at [203]-[204] of his reasons by failing to hold that, if s 361 of the FW Act was engaged, Mr Long would have discharged the onus imposed upon him by that section to prove that he had not acted for a proscribed reason. Ground 4 of the cross-appeal is considered below, along with Ground 12 of the appeal, under the heading “The section 340 issue”.

109    After the notice of cross-appeal had been filed, a Full Court of this Court held that a permit holder could be found liable for a contravention of s 500 even if his or her impugned actions were not shown to have had a “practical and adverse impact” on the performance of an inspector’s statutory duty: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15 at [48]-[49].

110    As a result of this decision, the respondents determined not to press Ground 2 in their notice of cross-appeal. They also modified their contentions in relation to the first and third grounds. In modifying those contentions they also had regard to the subsequent first instance decision in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122.

111    In relation to Ground 1 and Ground 3 of the cross-appeal, the respondents contended that the decisions of White and Charlesworth JJ, to which the primary judge referred, did not preclude a construction of s 500 which supported their submission that it could not be contravened by mere failures by permit holders to comply with the requirements of Subdivision C (including ss 487 and 489) of the FW Act. They contended that the two judgments left open the prospect that such failures would only constitute a contravention if accompanied by conduct which, viewed objectively, was performed in a manner which was “improper”.

CONSIDERATION

Ground 1 of the cross-appeal

112    As mentioned, by Ground 1 of the cross-appeal, the respondents challenged the primary judge’s finding that a bare failure to provide notice or to produce entry permits upon request could constitute action in an “improper manner” for the purposes of s 500.

113    The precise circumstances of each of the five entries differed but each had the following features:

    Both Messrs MacDonald and Long were permit holders for the purposes of s 500.

    Each entered, on each occasion on which he did so, for the purpose of holding discussions with employees who were working on the particular site.

    When requested to produce the permit each refused to do so because of what they said was a union policy that officials could enter construction sites without notice and without the production of permits.

    When challenged their response did not, on any occasion, include an assertion that they were not exercising or seeking to exercise a right to enter the site and speak to members.

114    In my view these actions (or inactions) in relation to each entry, individually and collectively, amounted to actions “in an improper manner” for the purposes of s 500.

115    The Full Court in the Castlemaine Police Station Case (at [39]-[42]) endorsed the decisions in earlier cases that impropriety, for the purposes of s 500, arises if there is a “breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case.” This test was adapted from the High Court’s decision in R v Byrnes (1995) 183 CLR 501 at 514-515 (Brennan, Deane, Toohey, Gaudron JJ): see Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373 at 394; [2015] FCA 668 at [97] (Flick J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106]-[107] (Mansfield J).

116    The first of the two cases referred to by the primary judge was Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287. In that case White J dealt with an allegation that an individual who was a permit holder and a union official had entered a site for the purpose of exercising or seeking to exercise rights under s 484 of the FW Act and had done so without giving any notice under s 487.

117    His Honour accepted that the Byrnes test applied. He then turned to deal with an argument, advanced by counsel for the permit holder, that entry to premises, for a purpose comprehended by s 484, without the giving of prior notice should not be regarded as “improper” because s 487 was not a civil remedy provision. In rejecting that submission his Honour said (at [174]) that:

I do not accept that submission. Section 487 is directed to that which a permit holder must do before entering premises, and not to the consequence of the permit holder entering without having provided notice of entry in accordance with its terms. Further, I am not able to identify any reason why an entry on to premises without there having been antecedent compliance with s 487 may not, in conjunction with other circumstances, amount to improper conduct for the purposes of s 500.

118    His Honour held that the permit holder had acted in an “improper” manner and had contravened s 500. He said (at [178]) that:

On my assessment, however, Mr Kirner’s conduct does warrant being characterised as “improper”, although it is far from being the most egregious conduct of that kind. That is because Mr Kirner entered the site without providing a notice of entry, and without completing all of the formalities in the Visitors’ Book. He thought that he could “get away with it” as he had on previous occasions and, when confronted by Mr Bickerdike, did not leave the site immediately. Instead, he was the cause of an unpleasant interchange.

119    White J’s decision was considered by Charlesworth J in McDermott. Her Honour held (at [119]-[120]) that:

119    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [173]–[174], White J held that the failure to provide an entry notice in accordance with s 487 of the FW Act constituted acting in an improper manner in exercising or seeking to exercise the right of entry under s 484 of the FW Act.

120    I am mindful that the failure to provide a notice of entry in compliance with s 487 of the FW Act is a circumstance that deprived Mr Sloane of the authorisation to enter the Site under s 484 of the FW Act at all: s 486 of the FW Act. In my opinion, that circumstance does not preclude the Court from categorising his act of entering the Site without such a notice as “improper” within the meaning of s 500 of the FW Act. It is sufficient to found a contravention of s 500 that the permit holder acts in an improper manner when seeking to exercise rights in accordance with Pt 3.4 of the Act, including by seeking to exercise the right of entry conferred under s 484. The word “seeking” in my opinion is broad enough to encompass a circumstance in which a permit holder purports to, or subjectively intends to, exercise a right that he or she objectively does not have.

120    The respondents relied, particularly, on White J’s statement that he was unable to identify any reason why an entry to a premises without antecedent compliance with s 487 “may not, in conjunction with other circumstances, amount to improper conduct for the purposes of s 500” (emphasis added).

121    It may be observed that his Honour did not, in terms, hold that s 500 could not be contravened unless the Commissioner established something more than a failure to comply with requirements of Subdivision C. It is also notable that Charlesworth J understood White J to have held that s 500 could be contravened by entry to a site for s 484 purposes where notice had not been given pursuant to s 487.

122    In my view a permit holder acts “in an improper manner” for the purposes of s 500 if he or she exercises a right, conferred on permit holders by Part 3-4 of the FW Act, without complying with one or more of the requirements of Subdivision C. The relevant impropriety is to be found in the failure of permit holders who hold privileged rights and associated responsibilities to satisfy their statutory obligations. If that failure is inadvertent or unintentional, liability will still arise but such ameliorative factors will be relevant in determining appropriate penalties for the contraventions.

123    In any event, the circumstances which attended each of the five entries involved additional conduct, on the part of either or both Mr MacDonald and Mr Long, which also supported the Commissioner’s complaint that one or both of them had acted in an improper manner. The details of the various entries are recounted above at [29]-[33]. They need not be repeated. It was a common feature of each entry that representatives of companies managing the sites challenged the officials and directed their attention to relevant statutory requirements. In each case the representatives were met with a dismissive response and (save on the second entry) the permit holder proceeded on to the construction site despite being warned that he would be trespassing if he did so.

124    For these reasons, I consider that Ground 1 of the cross-appeal fails.

Ground 3 of the cross-appeal

125    At [132] of his reasons, the primary judge found that aspects of the conduct of Mr MacDonald and Mr Long had, on each of their entries, caused “a practical detriment” to the work on site. His Honour held, however, that it was not open to the Commissioner to rely upon these aspects in relation to the question of whether their conduct should be characterised as improper. This was because the Commissioner had not pleaded those aspects of their conduct as “instances of intentional hindrance or obstruction or of MacDonald or Long acting ‘in an improper manner’”: at [133]. The judge considered that the Commissioner should be held to his pleading:

135    … A number of matters referred to above were not pleaded at all. Insofar as some of those matters were referred to in the ASOC, they were relied on for other purposes and the way in which they were pleaded or addressed in the course of the trial would not have given the respondents a reasonable opportunity to appreciate that the case made against them included allegations that those matters were being relied upon to establish “improper conduct” for the purpose of establishing a contravention of s 500.

126    By Ground 3 of their cross-appeal, the respondents submitted that the effect of these findings, together with acceptance of their contention that mere non-compliance with ss 487 and 489 cannot amount to acting in an improper manner, meant that all of the Commissioner’s allegations of contraventions of s 500 (other than that concerning Mr Long in relation to the third entry) should have been dismissed. This gave rise to an unfortunate issue on the appeal as to the way in which the trial at first instance had been conducted.

127    Ordinarily, issues of this kind should be able to be resolved by reference to the Commissioner’s pleading. However, that is not so easy in this case. The Commissioner’s amended statement of claim was in a narrative form and, at the conclusion of the narrative, concluded with allegations that, “by reason of” the matters pleaded in identified paragraphs, each of Mr MacDonald and Mr Long had contravened s 500. It is commonplace that this style of pleading can lead to uncertainty as to the particular aspects of the conduct contained in the narrative which are relied upon for the asserted legal conclusion. That seems to have been the case in the present instance.

128    In these circumstances, the Court would ordinarily attach great significance to a primary judge’s assessment of the issues in contest in the trial and not readily interfere with that assessment. However, it is apparent that the judge did misapprehend the position in some respects.

129    During the closing submissions of counsel for the Commissioner, the primary judge raised the identification of the matters relied upon for the contention that Mr MacDonald and Mr Long had behaved in an improper manner. That led to some detailed exchanges between the primary judge and the Commissioner’s counsel. Ultimately, as recorded at page 233 of the transcript, counsel summarised the Commissioner’s position as follows:

It is plain in the statement of claim that the improper conduct is not showing the permit, not giving the 24 hours’ notice and persisting in coming on the premises. That’s plain. It’s also plain in the various cross-references … that there are particulars in paragraphs which set out conversations and movements of people. And it was intended that those cross-references ultimately would mean that the improper conduct is not showing the permit, not giving the written notice, going on the premises as set out there.

130    Counsel for the respondents commenced his closing address with the a submission, recorded at pages 241-243 of the transcript, that the Commissioner’s statement of claim was more narrowly based than had been suggested by the Commissioner’s counsel:

[T]he amended statement of claim in respect of [the] section 500 contraventions clearly pleaded that the basis of the improper action was failure to give 24 hours notice, refusal of production of authority documents, and that’s the issue that our defence joined. … And what’s joined clearly is, we say, a failure to comply with 487 and 489 is incapable of constituting, acting in an improper manner. The outlines support that that was the issue that has been joined. Both outlines. The outline of the applicant and our outline in response. What I do say, your Honour, is that we have proceeded on the basis that the particulars in the statement of claim inform those failings or breaches which are said to constitute the improper conduct or colour – put in another way. They set out the particulars of the manner in which the refusal and the presence in contravention of those sections take place. I think that’s a fair way that we’ve proceeded.

…

[T]o clarify, for instance, where in the particulars in the statement of claim there’s a reference to, “You’re on top of our hit list,” we understand that to be relevant to the question of improper conduct, in the sense that it’s connected to or associated with the manner in which the refusal to produce documents and the other failings, our presence, in contravention of those sections is said to take place.

…

What is not in the particulars and what is not pleaded and what we have not come to face is an allegation that we made a statement of some kind, that, “We could have stopped the pour today.” That’s not pleaded anywhere. It’s not referred to in any particular. It’s not referred to in outlines. It’s not pleaded that Mr Long entered an exclusion zone of a crane and lifted up a flag barrier. Not pleaded anywhere. It’s not pleaded that we acted improper[ly], because we caused workers to walk offsite on 27 February. Now, those matters have never been part of the case that we have come to face.

(Emphasis added.)

131    During the reply submissions of counsel for the Commissioner, the respondents’ counsel sought, at page 278 of the transcript, to remove a misapprehension of the former as to the respondents’ position:

I said what’s clearly pleaded is failure to give notice. Failure to produce documentation, and what I said was the particulars that are in the statement of claim [which we] were on notice about and they can be relied upon to go to the manner in which those breaches which constitute the improper conduct occurred. So you don’t just have a [bare] … refusal to give a permit. You might … have a bit of conversation surrounding it. But … not pleaded as a stand-alone contravention if you like of something having been said that in itself constitutes a contravention. They’re all pleaded in terms of – the particulars are pleaded in terms of no 487, no 489, and during the course of attendance in those circumstances these things were said as … particulars.

(Emphasis added.)

132    In response, at page 278 of the transcript, counsel for the Commissioner described the distinction being drawn by the respondents’ counsel as “arid”. He said that it did not matter to the Commissioner’s case whether the surrounding circumstances formed part of the request and refusal or whether they were categorised legally as a separate matter. What was important, counsel submitted, was “that the colour and movement is there”.

133    Thus, there seem to have been three understandings of the Commissioner’s pleading: first, an allegation based on the bare failures to comply with ss 487 and 489, which was the understanding adopted by the primary judge; secondly, the understanding of the respondents’ counsel that it was those failures as well as particular pleaded matters which were “connected or associated with” the manner in which the failures or refusals occurred; and, thirdly, the more extensive position for which counsel for the Commissioner contended which the primary judge summarised in [132] of his reasons.

134    As I understand the position, the primary judge overlooked the position which counsel for the respondents at trial had accepted, namely that the evidence of the conduct of Mr MacDonald and Mr Long was part of the Commissioner’s case to the extent that it related to whether their failures to provide notices of entry and to produce their entry permits constituted acting in an “improper manner” but, to the extent that it did not so relate to those matters, could not be taken into account.

135    The Commissioner’s amended notice of appeal did not challenge the correctness of the primary judge’s findings concerning his pleaded case. I am not inclined to attach much significance to this circumstance given that the issue arose only from the respondents’ cross-appeal. The more critical matter is whether the Commissioner was on notice before the hearing of the appeal that the respondents relied on the correctness of the judge’s findings as to the effect of the pleading. That question must be answered in the affirmative given the contents of the respondents’ written outlines of submissions provided in advance of the appeal hearing.

136    Given the concessions made by the respondents’ counsel at trial, it is apparent that the primary judge erred in thinking that the Commissioner had confined the claims of improper manner to the bare contraventions of ss 487 and 489. However, I am not satisfied that the Commissioner has shown that the primary judge erred in failing to take into account that Mr MacDonald and Mr Long had acted in the manner identified by his Honour at [132] of his reasons. Had the Commissioner intended that those aspects of the conduct of Mr MacDonald and Mr Long should be taken into account, that case should have been articulated more clearly, preferably in the pleadings but at least in the articulation of the claim.

137    For these reasons, I consider that Ground 3 of the cross-appeal fails.

Mr Long’s conduct during the third entry

138    It is convenient, in this context, to deal with the Commissioner’s appeal ground that threats, made by Mr Long in the course of the third entry, should have been found to constitute a contravention of s 500 (see Ground 11).

139    This submission should be accepted. The exchanges which passed between Mr Long and site managers at the Cheltenham premises on 27 February 2014 are set out above at [31]. Of particular relevance, for present purposes, was Mr Long’s statement, upon being advised that the police had been called, that: “We will have 500 blokes on site here tomorrow, we won’t sign an EBA with you, next year you guys will be on nothing. Your wages will drop.” These statements were made in a raised voice and were found by the primary judge (at [173]) to have been “said fairly aggressively”.

140    As Barker J noted in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (2017) 270 IR 190 at 231; [2017] FCA 847 at [170] what a permit holder says on such occasions “and its effect, and how he spoke, all may potentially comprise conduct falling under the ruling ‘act in an improper manner’”.

141    The relevant exchange commenced with a lawful request by Qanstruct’s manager for Mr Long to produce his entry permit. He refused to do so. When warned that thereafter he would be trespassing on the site and that the police would be called, he chose to remain on the site. When later told that the police had been called he made the threats about bringing large numbers of “blokes” to the site the next day and disrupting work.

142    In my view Mr Long’s conduct breached the standards that would be expected of a permit holder by reasonable persons who had knowledge of the statutory requirements that governed the conduct of permit holders. In uttering the threats his conduct fell below that standard which could reasonably be expected of permit holders in his position. The respondents’ concession that “there was evidence at trial capable of sustaining a finding of contravention of s 500 on the occasion of the third entry by Long” was, therefore, properly made (see above at [38]).

143    For these reasons, I would uphold Ground 11.

THE SECTION 340 ISSUE

144    As mentioned, Ground 12 of the appeal concerned s 340 of the FW Act. Ground 4 of the respondents’ cross-appeal also concerned this section. The Commissioner alleged at trial that, in making the threats in the course of the third entry, Mr Long had contravened s 340(1) of the FW Act. The primary judge found that no contravention had occurred as s 340(1) was not engaged because of the absence of any “workplace right”.

145    That subsection provides:

340    Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

…

146    The term “adverse action” is defined in s 342. Relevantly, Item 7(c) of the table appearing in s 342(1) provides that an officer of an industrial association (such as the CFMEU) is taken to have engaged in adverse action if the officer “takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services”. Section 342(2)(a) provides that adverse action includes “threatening to take action” which is covered by the items in the table appearing in s 342(1).

147    The term “workplace right” is, relevantly, defined in s 341 as follows:

341    Meaning of workplace right

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument …; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

…

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)    a conference conducted or hearing held by the FWC;

(b)    court proceedings under a workplace law or workplace instrument;

(c)    protected industrial action;

(d)    a protected action ballot;

(e)    making, varying or terminating an enterprise agreement;

(f)    appointing, or terminating the appointment of, a bargaining representative;

(g)    making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h)    agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i)    making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j)    dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)    any other process or proceedings under a workplace law or workplace instrument.

148    The FW Act is a “workplace law”: see s 12.

149    The Commissioner’s case at trial was put succinctly in a paragraph of his written submissions:

177.    The Applicant contends that if an occupier makes a request to a permit holder to produce authority documents under s 489, that request constitutes a workplace right on one or both of the following grounds:

177.1    a request for authority documents is initiation of or participation in a process or proceeding under a workplace law (s 341(1)(b)); and/or

177.2    the ability to request authority documents constitutes an entitlement to the benefit of, or a role or responsibility under, a workplace law (s 341(1)(a)).

150    The primary judge held that:

    Mr Long had threatened to take action within the meaning of s 342(2)(a) (at [173]).

    His threat constituted adverse action for the purposes of Item 7(c) of s 342(1) (at [174]).

    Mr Long understood the site manager’s request to him as being a request to produce his entry permit in accordance with s 489(2) (at [176]).

    Had it been necessary to do so, he would have found that Mr Long had failed to discharge the onus, which he bore under s 361(1) of the FW Act, to prove that the request was not the reason, or a reason, why he took the adverse action (at [204]).

151    It appears that the primary judge rejected the Commissioner’s case under s 340 only because he held that the manager’s request did not constitute the exercise of a “workplace right” within the meaning of s 341(1) of the FW Act.

152    The Commissioner contended on this appeal that his Honour had erred in so finding (see Ground 12).

The primary judge’s reasoning

153    The primary judge held (at [183]) that there was “a short and a longer answer to the case made by the Commissioner” relating to the exercise by Qanstruct of a “workplace right”.

154    The “short answer” was that Mr Long had not entered the Cheltenham premises under s 484. As a result s 489(2), which provides that a permit holder, who has entered premises under s 484, must produce his or her authority documents on request from the occupier of the premises, was not engaged. There was, therefore, no relevant entitlement, role or responsibility for the purposes of s 341(1)(a), nor any ability on the part of Qanstruct to initiate a process, etc, for the purposes of s 341(1)(b), conferred upon the company by s 489(2). As a result, his Honour held, “no workplace right was conferred capable of being exercised by Qanstruct” (emphasis in the original): see at [185].

155    The “longer answer” was given on the assumption that s 489(2) had been engaged. If it was, his Honour held, the subsection did not confer a right or benefit upon Qanstruct. He reached this conclusion having regard to the following matters:

    Section 489(2) does not confer any rights or benefits on occupiers (at [188]).

    In particular, the obligation on a permit holder, to produce authority documents, confers no correlative right on occupiers (at [188]-[192]).

    The obligation imposed by s 489(2) is not legally enforceable (at [193]).

    If a request is made for the production of authority documents under s 489(2) and the permit holder does not comply with the request the only material consequence is that the permit holder can be treated as a trespasser and required to leave the premises (at [193]).

156    It was, therefore, impossible for the Commissioner to make good the contention that Qanstruct, as an occupier of premises, was “‘entitled to the benefit of, or has a role or responsibility [under s 489(2)]’ and thus [he could not], for that reason as well, make good that part of his case reliant upon s 341(1)(a)”: see at [194].

157    His Honour also expressed doubt as to whether the “arrangements made by Part 3-4” for permit holders to enter premises for the purpose of holding discussions could be regarded as a “process … under a workplace law” within the meaning of s 341(1)(b): see at [195].

Consideration of Ground 12 of the appeal

158    For the reasons already given, I consider that Messrs MacDonald and Long made their various entries to the sites in the exercise of a right of entry granted by s 484 of the FW Act. As a result s 489(2) was engaged. The primary judge’s “short answer” does not, in my opinion, justify a rejection of the Commissioner’s claim.

159    I turn then to the “longer answer”.

160    One way in which a “workplace right” arises, within the meaning of s 341(1)(a), is that a person (here Qanstruct as an occupier) “is entitled to the benefit of … a workplace law” such as the FW Act. In my view, s 489(2) confers an entitlement to a benefit. If a permit holder enters premises the occupier has an entitlement to request his or her authority documents, including the permit holder’s entry permit. The making of such a request gives rise to an obligation on the permit holder to produce his or her authority documents for inspection. Even if it be assumed that the obligation is unenforceable, a benefit is conferred on the occupier. The statutory consequence of a failure to comply is that the permit holder is deprived of authority to remain on the premises (s 486). The occupier then has the benefit of being able to declare the permit holder to be a trespasser and direct the person concerned to leave the site.

161    I would allow the Commissioner’s appeal on this ground.

162    It is not, as a result, necessary for me to give consideration to the Commissioner’s other argument founded on s 341(1)(b). I would simply observe that I share the primary judge’s reservations about whether the making of a request for the production of authority documents under s 489(2) constitutes the initiation or participation in “a process or proceedings” of the kind contemplated by s 341(1)(b). Such a request does not fall within paragraphs (a) to (j) of subsection 341(2). Furthermore I do not consider that the making of a request under s 489(2) constitutes a process or proceeding under the FW Act within the meaning of s 341(2)(k). Section 489(2) provides for the making of a request for production. It is a stand-alone provision which may be invoked when a permit holder enters premises for purposes identified in s 484. It forms no part of any process or proceeding in the senses in which those words are employed in the non-exhaustive definition in which they appear.

Consideration of Ground 4 of the cross-appeal

163    It is convenient in this section also to address Ground 4 of the respondents’ cross-appeal. This ground asserts that, if Qanstruct possessed a “workplace right” within the meaning of s 341(1) of the FW Act, the primary judge erred by failing to hold that Mr Long would have discharged his onus, arising under s 361(1) of the FW Act, to prove that he had not engaged in adverse action for a proscribed reason. As I have held above, I consider that Qanstruct did possess a workplace right within the meaning of s 341(1)(a). Thus, s 340 was engaged and, so long as the preconditions for the exercise of s 361(1) were established (see Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [13] and [15] (Tracey, Reeves and Bromwich JJ)), the onus in s 361(1) would operate such that it would be presumed that Mr Long took action for a proscribed purpose under s 340(1) unless he proved otherwise.

164    Section 361 relevantly provides:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

…

165    In my opinion, the preconditions for the application of s 361 are met by the Commissioner’s pleadings. The “particular reason” is pleaded at [36], [42], [43] and [46]. The material facts, which show that the alleged action, in combination with the particular reason, would constitute a contravention of s 340, are pleaded at [36] and [42]-[46].

166    The primary judge held (at [204]) that, had it been necessary for him to have done so, he would have held that Mr Long had failed to discharge the onus placed upon him by s 361(1) to prove that he had not acted for a proscribed reason:

… I am not satisfied that the evidence negates the real possibility that a substantial and operative reason for the making of the threat was the making of the request for a permit to be produced by Sherlock. In those circumstances, I would not have come to the view that the connection between the reason alleged and the impugned conduct was so remote as to be fanciful and, accordingly, I would not have held that Long had discharged the onus that the s 361(1) presumption imposes.

167    The respondents submitted that the judge erred in so finding. Mr Long’s threat, they submitted, was made when it was revealed or confirmed to him that the police had been called. There was no connection between the request to show the permit and the threat. They relied upon a passage in the reasons of Logan, Bromberg and Katzmann JJ in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 335; [2015] FCAFC 25 at [192] where their Honours had said:

It is possible that the alleged reason may be negated by a respondent on the applicant’s own evidence. Where the connection between the reason alleged and the impugned conduct is so remote as to be fanciful, the onus may well be discharged in the absence of any evidence from the decision-maker.

168    It was submitted that, in the evidence of this case, the connection between the request by the site manager to show the permit and Mr Long’s threat was so remote as to be fanciful. Counsel for the respondents submitted, at the hearing of this appeal, that “over all the visits there was no great disquiet exhibited about the request to produce a permit, rather it was apparently something productive of an angry response when it was revealed that the police might now attend.”

169    In circumstances where Mr Long had not given evidence, and the Court had before it uncontroverted evidence of his threat and the unanswered allegation as to the reason why the threat was made, the trial judge was, in my opinion, correct to conclude that Mr Long had failed to discharge the onus placed upon him by s 361.

170    It will be a rare case in which the onus, imposed by s 361 of the FW Act, will be satisfied if evidence is not called from the person who took the adverse action and accepted by the Court as to the reason why the impugned action occurred: see General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 (Mason J); Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500 at 517; [2012] HCA 32 at [45] (French CJ and Crennan J).

171    Mr Long made the threat in the context of a continuing conversation which followed his entry and his failure to produce his permit when asked to do so. That conversation related to the consequences of the contravention. One of those consequences was the calling of the police. The police had been called because the site managers considered that the contravention had rendered Mr Long a trespasser. Despite being so advised Mr Long refused to leave the site. His threat was directly linked to his contravening conduct and, in particular, it was linked to the unsatisfied request for the production of his permit.

172    Ground 4 of the cross-appeal should be dismissed.

DISPOSITION

173    I would allow the Commissioner’s appeal and dismiss the respondents’ cross-appeal. The second order made by the primary judge on 17 July 2017 should be set aside and the matter remitted to him for further hearing in accordance with these reasons.

Associate:

Dated:    14 June 2018

REASONS FOR JUDGMENT

WHITE J:

174    The circumstances giving rise to this appeal and cross-appeal, the issues to which they give rise and the relevant statutory provisions are set out in the reasons of Tracey J. I agree that the appeal should be allowed, that the cross-appeal be dismissed and that the matter should be remitted to the primary Judge for further hearing. My reasons follow.

The contraventions of s 500

175    The Commissioner’s case was that each of Mr MacDonald and Mr Long had contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) while exercising, or seeking to exercise, the right of entry conferred by s 484.

176    The primary Judge found that Mr MacDonald and Mr Long had not, in any of the five entries, contravened s 500 because the prohibition contained in that section applies only to a permit holder who is exercising, or seeking to exercise, rights in accordance with Pt 3-4, and neither of them had been such a person. His Honour reached this conclusion by finding that:

(1)    neither had been exercising the right conferred by s 484; and

(2)    neither had been seeking to exercise the right conferred by s 484.

177    Both findings rested on the particular construction of s 500 adopted by the primary Judge.

178    I agree with the respondents’ submission that the expression “exercising, or seeking to exercise, rights in accordance with this Part” in s 500 is a composite expression and should be understood as such. Nevertheless, it contains different elements which it is convenient to address separately.

“Exercising … rights”

179    I respectfully agree with the reasons of Tracey J at [51]–[72] that the primary Judge erred in holding that compliance with s 487 (provision of notice of entry) is necessary in order for a permit holder to have the right of entry conferred by s 484. The conferral of the rights of entry by ss 481, 483A and 484 is not conditioned on compliance with the requirements of Subdiv C. Section 487 is instead a provision regulating the exercise of the rights of entry granted earlier in Pt 3-4 of the FW Act.

“Seeking to exercise rights”

180    I respectfully agree with the reasons of Tracey J at [86]–[98] for concluding that the primary Judge erred in his construction of the term “seeking to exercise”. The word “seeking” should, at the least, be given its ordinary meaning of “trying” or “attempting” to do or achieve something. Whether it extends further so as to encompass a primary holder “wishing” to exercise a right or, more colloquially, “looking” to exercise a right, need not be considered presently.

“In accordance with this Part”

181    I respectfully agree with the reasons of the Chief Justice at [2]–[5] and with reasons of Tracey J at [73]–[85] as to the meaning of this phrase.

182    The inclusion of the term “seeking to exercise rights” in s 500, with the meaning just mentioned, is to my mind an important feature differentiating that section from ss 501 and 502 which were considered by Reeves J in Ramsay v Sunbuild Pty Ltd [2014] FCA 54; (2014) 221 FCR 315. I also consider that a number of other matters point to “in accordance with this Part” having a meaning like “covered by” or “to which this Part refers”.

183    First, it seems reasonable to construe s 500 as intended to operate with respect to two kinds of rights: those conferred by Pt 3-4 itself and those which, although not conferred by Pt 3-4, have their exercise regulated by the Part (State or Territory OHS rights). It is appropriate to construe “in accordance with this Part” as encompassing both these circumstances.

184    Secondly, it is to my mind more natural to understand the term as qualifying the noun “rights” than it is the verbal nouns “exercising” and “seeking to exercise”. That is to say, s 500 is not to be construed as though it read “a permit holder exercising, or seeking to exercise, in accordance with this Part, rights …”.

185    Thirdly, if the phrase did have the meaning for which the respondents contend, it would mean that the s 500 prohibition would apply to a permit holder seeking to exercise rights in conformity with Pt 3-4 but not to a permit holder seeking to exercise the same rights but without conforming in whole or in part with the requirements of the Part. It is not easy to identify any aspect of text, context or purpose pointing to this being the intended construction.

186    Fourthly, the construction for which the respondents contend would mean that the s 500 prohibition would apply in relation to s 484 only when permit holders have two different mental states: an intention to enter premises for the s 484 purpose; and the intention in doing so to conform with the requirements of Pt 3-4. An applicant alleging a contravention would have to prove both mental states. Again, I am unable to identify any aspect of text, context or purpose pointing to this being the intended construction. On the contrary, in a context in which the permit holder’s purpose and intention will often have to be inferred from the permit holder’s conduct, which may include non-compliant conduct, such a construction seems unlikely.

187    Fifthly, the construction for which the respondents contend would introduce technicality and fine distinctions into the practical application of the scheme for the exercise of rights of entry. The Court should not readily accept that effects of this kind are intended: Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470 at [15]. Would it mean, for example, that a permit holder who did enter intending to conform with the Subdiv C requirements could avoid contravening s 500 by a change of mind part way through the entry about compliance with those requirements? Would a permit holder who entered with the intention of not complying with the requirements of Pt 3-4, but who nevertheless did so, not contravene s 500 by acting in an improper manner? Would permit holders intending not to comply with a requirement attaching to a right of entry in one respect only (for example, by not wearing the protective clothing required by the occupier under s 491) not contravene s 500 even though in other respects they acted in an improper manner? In my opinion, in the absence of indications to the FW Act to the contrary, it would not be appropriate for the Court to adopt a construction which would allow these possibilities. Instead, the Court should prefer the construction, reasonably open on the language of the section, which allows s 500 to operate in a practical way.

188    Finally, the respondents’ construction seems to assume that there will in every case be requirements in Pt 3-4 with respect to which the exercise or contemplated exercise of rights must conform. That assumption is sound with respect to the rights of entry contained in ss 481, 483A and 484, but not with respect to other rights, for example, those contained in ss 482 and 483B. There are no stipulated requirements to be observed by a permit holder in respect of inspection or copying of documents. Accordingly, “in accordance with this Part”, if construed in the manner for which the respondents contend, would have no practical content. The Court should not readily adopt a construction which has that effect.

“Improper manner”

189    The primary Judge found that, with the exception of the pleading with respect to the third entry, the Commissioner had pleaded only that the failures of Mr MacDonald and Mr Long to provide notices for each entry and to show their entry permits on request as required by Pt 3-4 had constituted “improper conduct”, at [135]-[136]. He rejected a submission from the Commissioner to the contrary. His Honour then said that, were it not for two decisions which he understood to have held that a failure to provide a notice of entry or to produce an entry permit could, by itself, constitute improper conduct, he would not have made a finding to that effect, at [141]. The two decisions to which the Judge referred were Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 (the SAMHRI Case) (White J); and Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 (Charlesworth J). The Judge said that he did not consider that these decisions could be said to be plainly wrong, and that, in keeping with the principle of comity, he should follow them, at [145].

190    Accordingly, the Judge concluded that if, contrary to his findings, s 500 had been engaged, the failure by Mr MacDonald and Mr Long to give notices of entry and to produce their entry permits as required by ss 487 and 489 respectively constituted action in an “improper manner” in relation to each entry, at [146].

191    By their cross-appeal, the respondents contend that the Judge’s acceptance that a failure by a permit holder to provide a notice of entry or to produce the entry permit on request could, by itself, constitute improper conduct for the purposes of s 500 was wrong, and that the SAHMRI Case and McDermott should be distinguished or, to the extent that they had been to the contrary, should not be followed.

192    For the reasons given by Tracey J with respect to the pleadings issue, the Commissioner’s case at trial was not confined to allegations of a bare failure to provide notices of entry or to produce the entry permits. He had also relied on other circumstances connected with those failures. Accordingly, the resolution of the cross-appeal does not, strictly speaking, require that this Court determine whether a failure to provide a notice of entry or to produce an entry permit on request may, by itself, constitute conduct in an improper manner. The more critical issue is whether such conduct may be part of the circumstances warranting a finding that a permit holder had acted in an improper manner.

193    It is established that permit holders act in an improper manner for the purposes of s 500 when they fail to conform with the standards of conduct to be expected of them by reasonable persons having knowledge of their duties, powers and authority, and of the circumstances of the case: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106]-[108]; Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453, (2015) 239 FCR 405 at [171]. The characterisation of conduct as improper does not depend on the permit holder’s intention: Setka v Gregor (No 2) [2011] FCAFC 90; (2011) 195 FCR 203 at [30], [35]-[37], [42].

194    In the SAHMRI Case, I addressed the submission made to the same effect as that advanced by the present respondents as follows:

[173]    Counsel for the respondents commenced with a submission to the effect that an entry on to premises for the s 484 purpose without the prior provision of a s 487 notice should not be regarded as improper because s 487 is not itself a civil remedy provision.

[174]    I do not accept that submission. Section 487 is directed to that which a permit holder must do before entering premises, and not to the consequence of the permit holder entering without having provided notice of entry in accordance with its terms. Further, I am not able to identify any reason why an entry on to premises without there having been antecedent compliance with s 487 may not, in conjunction with other circumstances, amount to improper conduct for the purposes of s 500.

195    In the circumstances then being considered, I concluded that the permit holder’s failure to provide notice of his entry was one of a number of matters which, in combination, warranted the characterisation of his conduct as improper, at [175]-[178]. This was reflected in the declaration made in the penalty judgment in the SAHMRI Case ([2016] FCA 414) in respect of the permit holder:

The Third Respondent, David Kirner, contravened s 500 of the FW Act on 22 November 2013 by acting in an improper manner, while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by entering the SAHMRI site without having provided notice of entry as required by s 487 of the FW Act, by failing to complete all of the formalities in the SAHMRI site Visitors’ Book, and by failing to leave the SAHMRI site immediately after he was requested to do so by a representative of Hindmarsh.

196    Accordingly, I do not regard the SAHMRI Case as an instance in which the mere failure of the permit holder to have provided a notice of entry had been held sufficient to warrant conduct being characterised as improper.

197    It is true that Charlesworth J in McDermott, at [119], considered that I had held in the SAHMRI Case that the failure to provide notice of entry in accordance with s 487 constituted acting in an improper manner. However, that belief by her Honour, which in my respectful opinion was mistaken, was not the basis for the decision in McDermott. This is indicated by the declarations as to the contraventions of s 500 made by her Honour in the penalty decision in McDermott ([2017] FCA 797), each of which indicated that it was a combination of circumstances, one of which was the failure to provide notices of entry, which constituted the conduct in an improper manner.

198    It follows that I do not consider that the principle of comity obliged the primary Judge in the present case to hold that non-compliance with s 487 or s 489 could, by itself and without more, be characterised as conduct in an improper manner.

199    I remain unable to identify any aspect of text, context or purpose which would indicate that the failure of the permit holder to provide the notice of entry or to produce an entry permit may not be an element of the overall conduct to be taken into account when considering whether the conduct should be characterised as improper. In particular, the fact that ss 487 and 489 are not themselves civil remedy provisions does not warrant the conclusion for which the respondents contend. There is nothing in the FW Act which suggests that non-compliant conduct of that kind may not be taken into account, with other circumstances, in the characterisation of a permit holder’s conduct.

200    There may well be circumstances in which a permit holder’s failure to comply with ss 487 or 489 would not warrant the characterisation of the conduct as improper. Innocent mistakes by a permit holder may be one example.

201    It follows that I agree respectfully with the reasons of the Chief Justice at [6]-[7] on this issue.

202    I would hold that the primary Judge erred in finding that the failures by Mr MacDonald and Mr Long to give notice of their entries and to produce their entry permits could, by themselves, constitute acting in an improper manner for the purposes of s 500.

203    It also means that I would uphold Ground 1 in the respondents’ cross-appeal, although for the reasons given by Tracey J with respect to the pleadings issue, that does not have the consequence that the cross-appeal should be allowed.

The pleading issue

204    On this issue, I respectfully agree with the reasons of Tracey J.

Mr Long’s conduct during the third entry

205    On this issue, I respectfully agree with the reasons of Tracey J at [138]–[143].

The s 340 issue

206    I respectfully agree with the reasons of Tracey J at [144]–[172] concerning this issue. Ground 12 in the Commissioner’s amended notice of appeal should be upheld.

Conclusion

207    The effect is that I agree that the Commissioner’s appeal should be upheld and the second order made by the primary Judge on 17 July 2017 be set aside.

208    The cross-appeal of the respondents should be dismissed.

209    The Commissioner submitted that this Court should make positive findings concerning the contraventions of s 500 by Mr MacDonald and Mr Long (and by the CFMEU) and of s 340 by Mr Long (and the CFMEU). In my opinion, it is not appropriate for this Court to do so. The matter should instead be remitted to the primary Judge, as proposed by Tracey J, for further hearing by him in accordance with the reasons of this Court.

Associate:

Dated:    14 June 2018