Federal Court of Australia

ECA Training Pty Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2026] FCAFC 138

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

RANGIAH AND HATCHER JJ:

1    Section 484 of the Fair Work Act 2009 (Cth) (FW Act) establishes a right for a “permit holder”, being an official of a registered organisation holding an entry permit issued under s 512 of the FW Act, to enter premises for the purpose of holding discussions with employees who perform work on the premises, are entitled to be represented by the permit holder’s organisation and wish to participate in those discussions. On 2 and 9 May 2024, two officials of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), a registered organisation, who each held an entry permit, attempted to enter premises occupied by ECA Training Pty Limited (ECA Training) and NECA Training Ltd (NECA Training) at Chullora in New South Wales. The premises may conveniently be described as the NECA Centre. The two officials, Zac Hicks and Jacob Kennedy, were denied access to the NECA Centre on 2 May 2024 and, on 9 May 2024, their access was limited in such a way as to prevent them from holding discussions with employees in the part of the premises utilised by NECA Training.

2    On 17 October 2024, the CEPU initiated proceedings in this Court against ECA Training alleging that it had contravened ss 501 and 502 of the FW Act on 2 and 9 May 2024 and seeking the imposition of pecuniary penalties for the contraventions under s 546 of the FW Act. NECA Training was subsequently added as a second respondent to the proceedings.

3    Judgment in the matter was delivered on 17 October 2025. The primary judge, Kennett J, made orders declaring that ECA Training and NECA Training had each contravened ss 501 and 502 on 2 and 9 May 2024 and imposed pecuniary penalties for the contraventions.

4    ECA Training and NECA Training (collectively, the appellants) have appealed the primary judgment (or PJ). Their amended notice of appeal sets out seven grounds of appeal, of which two were not ultimately pressed, but in substance the appellants raise three contentions of appealable error:

(1)    The primary judge erred in construing the words “who perform work on the premises” in s 484(a) as an element of the subjective purpose of the permit holder in seeking entry. Correctly construed, s 484(a) establishes a requirement applying at the time that entry to premises is sought which must objectively be satisfied.

(2)    Alternatively, if the primary judge was correct in construing s 484(a) as concerned with the permit holder’s subjective purpose, the permit holder must nevertheless have a reasonable belief that there are employees who perform work on the relevant premises. In this case, the permit holders did not have such a reasonable belief.

(3)    If s 484(a) is construed as establishing an objective requirement, in this case it was not satisfied because the relevant employees did not perform work on the premises. The primary judge erred in finding otherwise.

5    For the reasons which follow, the appellants’ contentions of error are rejected and the appeal should be dismissed.

Statutory scheme

6    Part 3-4 of the FW Act establishes a scheme by which officials of registered organisations who hold entry permits may enter premises for certain purposes and subject to certain conditions. The guide to Pt 3-4 in s 478 describes the subject matter of the Part as follows (before referring to each Division in the Part):

This Part 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 and under State or Territory OHS laws.

7    The object of Pt 3-4 is set out in s 480:

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.

8    Division 2 of Pt 3-4 provides for three kinds of entry rights. Subdivision A provides for a right to enter premises to investigate suspected contraventions of the FW Act or a term of a fair work instrument (including a modern award or enterprise agreement) in specified circumstances. In this respect, s 481 provides:

481    Entry to investigate suspected contravention

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

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

(b)    who performs work on the premises.

Note 1: Particulars of the suspected contravention must be specified in an entry notice or exemption certificate (see subsections 518(2) and 519(2)).

Note 2: The FWC may issue an affected member certificate if it is satisfied that a member referred to in this subsection is on the premises (see subsection 520(1)).

Note 3: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 4: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision, or otherwise act in an improper manner (see sections 501 and 502).

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

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

Note: A permit holder who seeks to exercise rights under this Part without reasonably suspecting that a contravention has occurred, or is occurring, is liable to be penalised under subsection 503(1) (which deals with misrepresentations about things authorised by this Part).

9    The rights under s 482 referred to in s 481(1) are to inspect any work, process or object relevant to the suspected contravention, interview any person about the suspected contravention who agrees to be interviewed and whose industrial interests the permit holder’s organisation is entitled to represent, and to require the occupier or an affected employer to inspect and make copies of any record or document (other than a “non-member record or document”, defined in subs (2A)) that is directly relevant to the contravention and is kept on the premises or is accessible from a computer kept on the premises: s 482(1). Under s 483(1), a permit holder has the right, by written notice, to require an affected employer to produce, or provide access to, a record or document (other than a non-member record or document) that is directly relevant to the suspected contravention on a later day specified in the notice.

10    Subdivision AA provides for a right of entry to investigate suspected contraventions relating to a “TCF award worker” (being an employee or contractor who performs work that is covered by a prescribed instrument applicable to the textile, clothing or footwear industry: s 483A(1A); reg 1.08 of the Fair Work Regulations 2009 (Cth)). Section 483A(1), like s 481(1), expresses this right in terms of entry “for the purpose of investigating a suspected contravention of” the FW Act or terms of specified types of instruments.

11    Subdivision B, which consists of only s 484, provides for the right of entry to hold discussions with which this appeal is concerned. Section 484 provides:

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.

Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision, or otherwise act in an improper manner (see sections 501 and 502).

Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.

12    Subdivision C sets out a range of requirements applicable to the exercise of the entry rights conferred under Subdivs A, AA and B. A permit holder is not authorised to enter or remain on premises, or exercise any other right, if they do not comply with the requirements of Subdiv C in exercising an entry right: s 486. Section 487(1)(b) requires that, before entering premises under s 484, the permit holder must give the occupier of the premises an “entry notice” of the entry. An entry notice is a notice that complies with s 518: s 487(2). Section 518(1) requires that an entry notice must specify the premises that are proposed to be entered, the day of the entry and the organisation of which the permit holder for the entry is an official. Additionally, s 518(3) provides:

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

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

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

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

13    Additional requirements in Subdiv C as relevant to the exercise of the right in s 484 include that the permit holder:

    must, on request, produce their entry permit and entry notice: s 489;

    may exercise their right of entry under s 484 only during working hours and hold discussions only during mealtimes or other breaks, and may only enter premises on a day specified in the entry notice: s 490;

    must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises: s 491;

    must hold discussions in the room or areas of the premises agreed with the occupier or, in the absence of agreement, in any room or area in which one or more of the persons who may participate in the discussions ordinarily take meal or other breaks and that is provided by the occupier for the purpose of taking meal or other breaks: s 492;

    must comply with any reasonable request by the occupier to take a particular route to reach a room or area of the premises determined under s 492: s 492A; and

    must not enter any part of premises that is used mainly for residential purposes: s 493.

14    Division 4 of Pt 3-4 establishes a number of prohibitions in respect of entry rights. Some of these prohibitions apply to permit holders exercising entry rights under s 484. Section 500 provides that 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”, and s 503 provides:

503    Misrepresentations about things authorised by this Part

(1)    A person must not take action:

(a)    with the intention of giving the impression; or

(b)    reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

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

(2)    Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

15    The prohibitions which the appellants were found by the primary judge to have contravened were those in ss 501 and 502, which provide:

501    Person must not refuse or delay entry

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

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

502    Person must not hinder or obstruct permit holder etc.

(1)    A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part, or otherwise act in an improper manner.

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

(2)    To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute conduct referred to in subsection (1).

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

16    Finally, s 505 in Div 5 provides that the Fair Work Commission (FWC) may deal with a dispute about the operation of Pt 3-4, including by arbitration.

Factual background

17    The relevant facts are set out in the primary judgment at [2]-[25] or are otherwise non-controversial, and may be summarised as follows. ECA Training is a registered charity under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) and is also registered as a Group Training Organisation (GTO) under the Apprenticeship and Traineeship Act 2001 (NSW) (Apprenticeship Act). ECA Training, as a GTO, employs apprentice electricians pursuant to contracts of employment and an enterprise agreement. The apprenticeships of the employees consist of two elements. The first is the provision of what the primary judge described (at [17]) as “work experience and on-the-job training”. This is effected by ECA Training placing the apprentices with a third-party business or “host employer” engaging in electrical work. Mr Tom Emeleus, the General Manager of ECA Training, gave evidence that the host employer “gives the apprentice or trainee on-the-job training by providing and supervising work according to the apprentice[‘]s/trainee[‘]s level of skills and experience”. The host employer pays ECA Training a fee for the benefit of the apprentice’s labour. ECA Training does not supervise the apprentices whilst they are undertaking their placement with the host employer.

18    The second element is what may be described as “classroom” or “off-the-job” training delivered during defined times in the week at the NECA Centre. ECA Training engages NECA Training to deliver this training. NECA Training is a Registered Training Organisation (RTO), and it provides a course of study to obtain the Certificate III in Electrotechnology Electrician. This training comprises classes in theory and practical classes, described by Mr Emeleus in the following way:

The theory classes are conducted by a trainer who stands in front of the apprentices in a classroom environment and leads the class through the theory content of the day explaining and answering questions as they go. Topic reviews are then conducted to ensure the content of the lesson has been understood; formal assessments are also carried out under exam[-]like conditions. In the practical classes, a trainer will demonstrate a particular skill the apprentices need to be trained in until the apprentices in the class can reproduce the required skill; examples are mounting a power point or testing a circuit to see that it has been installed properly. During this training, apprentices do not produce any work product but are instead in a simulated and safe environment that enables them to learn the required skills necessary to successfully complete their apprenticeship.

19    Apprentices employed by ECA Training are engaged pursuant to a contract of employment consisting of a standard letter of offer for which the apprentice signs their acceptance. This letter of offer is headed “Contract of employment” and offers the position of “1st year electrical apprentice”, with the nominal duration of the apprenticeship being 48 months. In respect of the placement with the host employer, the letter states:

Host Trainer and location

You will be based at (Insert Host and address here) but may be required to work at such other locations as reasonably determined by (Insert Host name). Your placement at the Host Trainer may be varied throughout the duration of your apprenticeship due to a downturn in work availability, skills development or other operational issues.

20    The letter says that hours of work are expected to be an average of 38 hours per week during general business hours, and that there may be a requirement to work reasonable to additional hours or after hours when necessary to perform the apprentice’s duties. The letter also states:

This employment contract should be read in conjunction with:

1.    The NECA Electrical Apprenticeships Employee Enterprise Agreement 2022

2.    NECA Electrical Apprenticeships policies and procedures

3.    The Training Contract.

21    In respect of remuneration and performance, the letter states:

Remuneration

Your commencing hourly wage rate is . This hourly wage rate is subject to change as determined by any updates to the documents listed in Terms of employment. All minimum wage rates and employment conditions are covered by the NECA Electrical Apprenticeships Employee Enterprise Agreement 2022. Some host placements may result i[n] you being paid a higher rate of pay or additional allowance. These above agreement conditions only apply whilst you are placed with that host trainer.

Performance

Your on the job performance and satisfactory progression at the nominated Registered Training Organisation (as per agreed Training Plan) will be reviewed quarterly. If you have any questions or concerns relating to your successful completion of your apprenticeship, please contact your nominated field officer as soon as possible. Any underperformance or misconduct may result in disciplinary action.

Payment for off the job training is conditional on satisfactory progression. Failure of more than 1 unit, may result in your apprenticeship being reviewed.

22    The NECA Electrical Apprenticeships Employee Enterprise Agreement 2022 (the NECA EA) took effect from 22 November 2022 after approval by the FWC. Clause 3.2 of the NECA EA provides that the parties bound by the agreement are “The Company” (defined in cl 2 as ECA Training) and “The Employees” (defined as “any persons employed by the Company, performing work within NSW, the ACT or Queensland and who performs work in accordance with the classifications set out in this Agreement”). The classifications in Schedule A to the NECA EA are for “Indentured Apprentices” and “School Based Apprentice[s]”. As the primary judge observed, the NECA Agreement provides for working hours, rates of pay and allowances, leave entitlements, dispute resolution, consultation and union delegates’ rights. In respect of training, cl 10.1 relevantly provides:

10.1    The Company will pay the costs for an Employee to undertake mandatory training subject to the following conditions:

10.1.1     Employees may be directed by the Company to attend training during working hours;

10.1.2     The Company will pay all the costs of mandatory training and pay employees at ordinary time rates for their time spent in attendance. Notwithstanding anything else in this Agreement, under no circumstances will an employee receive overtime payments for attendance at any training or further education at any time unless the employee has been directed to attend such training outside of ordinary hours by the Company;

. . .

10.1.5    Where an Employee fails a compulsory unit of training, this unit must be completed by the employee outside work hours and at the Employee’s expense;

10.1.6    Where the Company pays the course fees for training or further education and an Employee resigns from or abandons their employment, the Employees agree to reimburse the Company for the costs of training or further education incurred in the period six months prior to the resignation;

10.1.7    Apprentices attending technical colleges, schools, registered training organisations or TAFE must be reimbursed by the employer [for] all fees paid by the apprentice less any amount paid to the apprentice for reimbursement of these fees by a government. However, training is only funded by the Employer for the first enrolment in each unit;

10.1.8    Employees shall make every endeavour to successfully pass all training modules/units. Employees that fail more than 2 modules/units may be subject to disciplinary action.

23    Clause 11, Apprentices of the NECA EA also includes the following provisions:

11.2    Notwithstanding any provisions of this Agreement, should the Apprenticeship Training Agreement and/or Training Contract be cancelled, either by expiry or for other reasons, the employee will also be terminated.

11.3    Training for the Apprentice shall be in accordance with the employee’s applicable apprentice training schedule.

24    The “Training Contract” referred to in the Letter of Offer is a standard-form document which, in New South Wales, an apprentice enters into with ECA Training after a training plan proposal has been approved by the Training Services branch of the Department of Education. The Training Contract specifies the following obligations on the part of the employer and the apprentice/trainee:

For the employer

I agree that I will:

a)    employ and train the apprentice/trainee as agreed in our Training Plan and ensure the apprentice/trainee understands the choices that he/she has regarding the training

b)    provide the appropriate facilities and experienced people to facilitate the training and supervise the apprentice/trainee while at work, in accordance with the Training Plan

c)    make sure the apprentice/trainee receives on-the-job training and assessment in accordance with our Training Plan

d)    provide work that is relevant and appropriate to the vocation and also to the achievement of the qualification referred to in this Contract

e)    release the apprentice/trainee from work and pay the appropriate wages to attend any training and assessment specified in our Training Plan

f)    meet all legal requirements regarding the apprentice/trainee, including but not limited to, occupational health and safety requirements and payment of wages and conditions under the relevant employment arrangements

g)    repay any payment I receive that I am not entitled to

h)    work with our RTO and the apprentice/trainee to make sure we follow our Training Plan, keep training records up-to-date, and monitor and support the apprentice/trainee’s progress; and

i)    let the relevant State/Territory government department, authority or agency and the RTO know within five working days (or when the local State/Territory legislation requires, if this is different) if our Training Contract has become jeopardised.

I acknowledge that it is an offence to use information in the Contract to discriminate against any person, including the apprentice/trainee.

For the apprentice/trainee

I agree that I will:

a)    attend work, do my job, and follow my employer’s instructions, as long as they are lawful

b)    work towards achieving the qualification stated in our Training Contract

c)    undertake any training and assessment in our Training Plan.

25    The NECA Centre contains a number of occupants. ECA Training itself occupies part of the first floor, where its managerial and field officers have their offices. NECA Training leases part of the ground floor from ECA Training for training the apprentices, the apprentices’ break area and an office for trainers. The NECA Centre contains a reception area on the ground floor from which the area occupied by NECA Training may be accessed. There is an electronic facility at the entrance to the NECA Centre by which apprentices are required to sign in and sign out when attending to undertake training.

26    On 1 May 2024, Mr Hicks and Mr Kennedy each sent an entry notice in identical terms addressed to the attention of “The Appropriate Officer” of both ECA Training and “NECA Electrical apprenticeships” giving notice that they proposed to enter the NECA Centre (identified by its address) on 2 May 2024. The notice stated that entry was authorised by s 484 of the FW Act (as required by s 518(3)(a)). Each notice contained a declaration intended to comply with s 518(3)(b) and cited the CEPU’s membership rule in accordance with s 518(3)(c).

27    Consistent with these notices, Mr Hicks and Mr Kennedy attended the NECA Centre on 2 May 2024. The primary judge accepted the evidence of Mr Hicks and Mr Kennedy to the effect that their purpose for seeking entry was to hold discussions with union members and potential union members who were present at the NECA Centre: PJ at [9]. Upon attendance at the reception area of the NECA Centre on 2 May 2024, Mr Emeleus refused them entry to the area occupied by NECA Training, although he said that they could meet with any field officers in that part of the premises occupied by ECA Training. He also raised an issue that the notices were not addressed to NECA Training. Mr Hicks and Mr Kennedy then left the NECA Centre.

28    On 8 May 2024, Mr Hicks and Mr Kennedy each sent two further entry notices to Mr Emeleus in identical terms which gave notice of entry to the NECA Centre on 9 May 2024. These notices now included references to NECA Training as well as ECA Training, and were otherwise in relevantly the same terms as the 1 May 2024 notices. Prior to Mr Hicks and Mr Kennedy attending the NECA Centre, Mr Emeleus advised them by email that NECA Training had legal advice to the effect that the apprentices did not perform work at the NECA Centre within the meaning of s 484 of the FW Act and, accordingly, the NECA Centre would not permit entry to hold discussions with the apprentices.

29    Mr Hicks and Mr Kennedy attended the premises later in the day on 9 May 2024. The primary judge again accepted their evidence that their purpose was to have discussions with employees who performed work on the premises, who were CEPU members or potential members, and who wished to have those discussions: PJ at [15]. Upon arrival, they were escorted to a meeting room in the area occupied by ECA Training and were permitted to speak to an apprentice who was undertaking light duties at the NECA Centre because of an injury. They were not permitted to enter the area occupied by NECA Training (including the apprentices’ meal room) and, after about an hour, left the premises.

The primary judgment

30    The primary judge commenced his consideration of the matter by identifying the issues in dispute. His Honour noted (PJ at [36]-[39]) that there was ultimately no issue as to the validity of any of the entry notices in respect of either ECA Training or NECA Training, and whether entry was sought to the NECA Centre as a whole or just the NECA Training part of the premises did not affect the framing or resolution of the main issue in the matter. The main issue in dispute was identified as being whether apprentices undertaking training at the NECA Centre were employees who “perform work at the premises” within the meaning of s 484(a), but the primary judge identified that a question as to the construction of s 484 had to be addressed first in order for the relevance of that issue to be understood: PJ at [40].

31    The identified issue of construction arose from the decision of this Court (Wigney J) in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Elecnor Australia Pty Ltd [2025] FCA 156 (Elecnor). In Elecnor, s 484 was construed on the basis that it was the existence of the purpose in the mind of the permit holder to hold discussions with employees falling within paragraphs (a), (b) and (c), rather than the actual presence of such employees at the premises, which enlivened the right of entry under the section. The primary judge, after analysing the reasoning in Elecnor, concluded that it was correct insofar as it held that “the foundation for a right of entry under s 484 is the permit holder having the purpose referred to in the section, and that purpose can be present even if it turns out that there are no employees present on the premises who come within paras (a) to (c)…”: PJ at [48]. However, the primary judge identified a potentially significant difference in the ratio of Elecnor between:

(a)    a case where the permit holder understands a certain group of workers (who come within paras (a) to (c)) to be present on the premises, and purposes to have discussions with those workers if they are there, but in fact they are not present; and

(b)    a case where the permit holder understands a certain group of workers who are present at the premises to be employees who come within paras (a) to (c), but on the correct construction of the paragraphs they do not.

32    In respect of the second situation, the primary judge considered it arguable that the task of determining whether particular employees came within ss 484(a) to (c) was one for the Court and, if the permit holder proceeds on a wrong view about this as a matter of law, they did not have the requisite purpose. The primary judge considered however that Elecnor (which concerned the capacity of the organisation in that case to represent the relevant workers) was to be understood as holding that there was no distinction between a dispute about the facts and one about the law for the purposes of s 484, so that a bona fide belief that employees come within paras (a) to (c) is sufficient for the necessary purpose to exist. The primary judge concluded that he was not persuaded that this aspect of the reasoning in Elecnor was plainly wrong and that it was “probably correct”. In this respect, the primary judge regarded two matters as persuasive: first, that requiring a permit holder to demonstrate the presence of employees in the relevant category before entering the premises in reliance on s 484 would be impractical and would deprive the provision of much of its intended effect, both in cases of legal debate and factual uncertainty and, second, that the right conferred by s 484 was limited and subject to a range of constraints such that it was unlikely to have been intended that the criteria for entry might be the subject of complex legal argument: PJ at [49]-[51].

33    On the basis of his acceptance of their evidence as to their purpose, the primary judge was satisfied that Mr Hicks and Mr Kennedy believed they were entitled to exercise a right of entry at the NECA Centre under s 484 (including in order to speak to any apprentices who wanted to speak to them on the basis of a belief they were performing “work”), and concluded therefore that they were exercising a right of entry under s 484 when they sought to enter the NECA Centre on 2 and 9 May 2024: PJ at [52].

34    On the basis of this conclusion, the primary judge considered it unnecessary to determine whether the apprentices at the NECA Centre who were there to receive training were performing “work” within the meaning of s 484(a), but considered it prudent to address the issue in the event that an appellate court might construe s 484 differently. His Honour noted that “work” is not defined for the purposes of s 484 but, referring to Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83; 185 FCR 383 at [66] and Merrimans Local Aboriginal Land Council v Dwight [2025] FCA 991 at [40], the term as used in the FW Act should “take its meaning from the exchange of the employer’s money for the employee’s time and effort that is fundamental to contracts of employment”: PJ at [55]. His Honour said at [59]:

Drawing specific boundaries around the concept of performing “work” in s 484, so as to include some aspects of employment and exclude others, involves effecting policy choices that the legislature has not expressed in the text or the context of the provision. It also involves making fine and potentially debatable distinctions, adding complexity to the operation of a provision which was clearly intended to allow quick and simple but limited access to workplaces. Such an approach was expressly discouraged in Australian Building and Construction Commission v Powell [2017] FCAFC 89; 251 FCR 470 at [15] (Allsop CJ, White and O’Callaghan JJ) (cited in Elecnor at [108]). The facts of Elecnor itself provide an example: how, one might ask, was Wigney J to delineate the performing of “work” if it did not include things necessarily undertaken for the purpose of accomplishing the employer’s goals, such as meetings and preparation?

35    The primary judge then referred to the requirements in cl 10.1 and cl 11 of the NECA EA concerning attendance and performance at training and concluded at [62]:

Attending and successfully completing the training that that was necessary for the purposes of an apprentice’s training contract was, therefore, a central aspect of what the apprentice was required to do (and what they were paid to do) as part of the terms of their employment with ECA Training. …

36    His Honour also pointed to other features of the apprentices’ attendance at the NECA Centre which were commonly associated with being at work, including the sign-in and sign-out requirements, the requirements to attend the NECA Centre for a full eight-hour day, the disciplinary processes and control over behaviour and clothing during classes, and engagement in discipline and instruction concerning “on-the-job” matters while at the NECA Centre. The apprentices, while attending the NECA Centre, were therefore performing their obligations as employees, were subject to control and supervision consistent with being at work, and were available for discussions with representatives of their employer about their work with host employers, and thus were performing “work” at the premises in the sense relevant to s 484: PJ at [63]-[64]. This was sufficient for Mr Hicks and Mr Kennedy to have a right of entry under s 484 when they sought to enter the NECA Centre.

The grounds of appeal

37    Grounds 1, 2 and 3 of the appellants’ amended notice of appeal challenge the primary judge’s alternative conclusion that the apprentices employed by ECA Training performed work at the NECA Centre for the purpose of s 484(a). By ground 1, the appellants contend that the primary judge erred by finding that engagement in paid employment was equivalent to “performing work on the premises” under s 484(a) and, by ground 2, the appellants contend that the primary judge erred in finding that apprentices undertaking off-the-job training at the NECA Centre were “performing work on the premises” for the purpose of s 484(a). By ground 3, the appellants contend that the primary judge erred in failing to give “due weight” to the Full Court judgment in Construction Forestry Mining and Energy Union (Construction and General Division) v Master Builders Group Training Scheme Inc [2007] FCAFC 165; 168 IR 164 (Master Builders), which was followed by the Court (Katzmann J) in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 (Excelior). The appellants submit in support of these grounds that, having regard to the relevant legislative history, s 484(a) should be understood as restricting the right of entry to workplaces rather than anywhere an employee might travel whilst engaged in paid employment. They relied upon the distinction between work and training evidenced by the definition of “training arrangement” in s 12 as follows:

“training arrangement” means a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees.

38    They also relied on the judgment in Master Builders in which (they submitted) a Full Court of this Court had found that apprentices engaged in off-the-job training, in not-dissimilar circumstances, were not engaged in work. This case was not distinguishable on the basis that it involved the interpretation of an award and should have been followed.

39    Ground 4 challenges the primary judge’s finding that a right of entry arises under s 484 where a permit holder holds a subjective belief that the circumstances giving rise to such a right exist, independent of whether those circumstances actually exist. The appellants submit that the primary judge’s construction of s 484(a), and that of Wigney J in Elecnor, are at odds with the approach of Jessup J in Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85;  203 FCR 389 (AMIEU) and contrary to longstanding authority as to the approach to right of entry under workplace legislation referred to in Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065;  280 IR 47 (ALAEA) (Flick J). The Full Court majority judgments in Construction, Forestry, Mining and Energy Union and Others v John Holland Pty Ltd [2010] FCAFC 90; 186 FCR 88, which determined that the right of entry under s 760 of the Workplace Relations Act 1996 (Cth) (WR Act) was enlivened once it was established that the permit holder had the required subjective purpose, concerned a different legislative scheme which did not include the current requirement in s 518(3)(b) for a declaration as to the entitlement of the permit holder’s organisation to represent the industrial interests of employees performing work on the relevant premises, as well as the associated requirement in s 518(3)(c) to identify the provision of the organisation’s rule which founded the entitlement. The appellants submit that, against this background, it is difficult to discern a statutory intention that the unreasonable subjective view of a permit holder may entitle them to enter any premises. The primary judge’s interpretation of s 484(a) gives rise to difficulty, it is submitted, because it provides occupiers of premises with no proper basis upon which to refuse entry to the premises in circumstances where there are no employees performing work there.

40    Ground 5, as formulated in the notice of appeal, is simply that the primary judge erred in finding that Mr Hicks and Mr Kennedy had the relevant subjective purpose (assuming that s 484 was to be construed on that basis). However, in their submissions, the appellants conceded that they could not properly challenge the primary judge’s finding that the permit holders subjectively held the purposes of entering the premises to hold discussions with the apprentices during meal breaks on the basis that they believed the apprentices were performing at the NECA Centre. Instead, the appellants submit that, nonetheless, the permit holders’ view had to be reasonably held, and referred to ALAEA and the declaration requirement in s 518(3)(b) in support of this proposition. Mr Hicks and Mr Kennedy did not have adequate reasons or a reasonable belief in the existence of the relevant circumstances where the occupier contended no such right existed, they were unaware of any earlier exercise of a right to enter premises where off-the-job training was conducted, they had not sought any assistance from the CEPU’s legal advisors or industrial officers as to the existence of the asserted right, and they were on presumptive notice of the Court’s judgment in Excelior that apprentices were not performing work when engaged in off-the-job training.

41    The ratio of the primary judgment is plainly that s 484 is to be construed as concerned with the subjective purpose of the permit holders and that Mr Hicks and Mr Kennedy had the requisite purpose when they sought entry to the NECA Centre on 2 and 9 May 2024. Accordingly, the proper course is to consider grounds 4 and 5 first, and then to consider grounds 1-3 to the extent necessary.

Appeal ground 4 — construction of s 484

42    The appellant’s challenge to the construction of s 484 adopted by the primary judge is substantially founded on contextual and policy considerations. However, they did not clearly articulate a text-based alternative construction of the section.

43    In our opinion, the question of the construction of s 484 raised by appeal ground 4 turns on how the expression “for the purposes of” in the chapeau is to be interpreted in the immediate context of the section as a whole and in the wider context of the right of entry scheme established by the FW Act. The potential for this expression to have either a subjective or objective meaning, dependent on context, was well articulated by Buss JA, with whom Murphy JA agreed, in Re Her Honour Judge Schoombee; Ex parte Attorney General (WA) [2011] WASCA 129 (Schoombee) at [47]:

The phrase “for the purpose of” may, in some circumstances, carry with it the notion of a subjective intention to achieve a particular object or aim and may, in other circumstances, indicate that, objectively, something has been used to facilitate the attaining or execution of a particular goal or task. The meaning to be ascribed to “purpose” or “for the purpose of” in a statute depends on the context and the apparent object of the provision in which the word or phrase appears. The word or phrase must not, of course, be construed in isolation but as an integral part of the provision as a whole…

44    This potential ambiguity in the expression arises from variants in the ordinary meaning of the word “purpose” itself, which may mean “the object for which anything exists or is done, made used etc.”, and thus may carry an objective import, or may mean “an intended or desired result; end or aim”, which is subjective: Macquarie Online Dictionary.

45    Cases in which “for the purpose of”, or similar expressions, have been construed objectively have usually involved provisions where the relevant purpose is of a thing rather than a person. In Peate v Federal Commissioner of Taxation (1964) 111 CLR 443 at 469, Kitto J (with whom McTiernan and Owen JJ agreed) followed the Privy Council decision in Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 at 8-9 in construing a provision in a tax statute which voided for tax purposes arrangements with the purpose or effect of avoiding tax as concerned with the objective purpose of the arrangement itself, rather than the purpose in the minds of those who were parties to the arrangement.

46    In Schoombee, the Western Australia Court of Appeal considered the construction of the phrase “the motor vehicle was used for the purpose of committing the offence” in a criminal injury compensation statute. The majority (Buss and Murphy JJA) determined that “for the purpose of” was to be construed objectively. Justice Buss said:

[49]    The grammatical structure of this provision is passive, not active. It is not expressed by reference to the offender or accomplice who made use of the vehicle or by reference to his or her purpose.

. . .

[51]    Although an offender’s subjective intention will sometimes be an element of the relevant offence, on other occasions it will not. For example, subjective intention is not an element of the offence created by s 59(1) of the RTA. See [12] above.

[52]    In my opinion the subjective state of mind of the offender or any accomplices (including his, her or their subjective purpose in driving or using the motor vehicle) is not the “purpose” with which s 37(3)(a) is concerned. Rather, s 37(3)(a) is concerned with, and the phrase “for the purpose of” expresses, the necessity for a connection in fact between the driving or other use of the vehicle, on the one hand, and the commission of the offence, on the other. The driving or other use will be use “for the purpose of” committing the offence if the driving or other use objectively caused, assisted, was conducive to or otherwise facilitated the commission of the offence. It is not essential that the driving or other use be an element of the relevant offence for the use to be characterised as “for the purpose of” committing the offence.

[53]    The “purpose” for which a vehicle was driven or being driven or otherwise used (in particular, whether the vehicle was driven or being driven or otherwise used “for the purpose of” committing the offence) will always be a question of fact to be determined objectively. In answering this question, it will be necessary to have regard to all of the facts and circumstances involved with and surrounding the relevant driving, journey or use (including the actions and omissions of the offender and any accomplices) and the nature and character of the offending.

47    However, in his dissenting judgment, Hall J concluded that the provision in question was concerned with the subjective intention of the offender, notwithstanding the use of the passive voice in the provision ([113]-[116]), and did not agree that the use of “purpose” in connection with a thing necessarily connoted an objective meaning:

[108]    The word “purpose”, used as a noun, as here, may have a number of meanings. The two which are open for consideration are:

(1)    “an intention or aim”.

(2)    “the reason for which something is done or made, or for which it exists” (Shorter Oxford English Dictionary)

[109]    The first meaning refers to a state of mind. The second meaning does not necessarily do so; an inanimate thing may have a purpose, a reason for existence, independently of any individual person. Examples of this which come readily to mind are lighthouses, doorbells and telephones. For ease of reference I will refer to the first meaning as subjective and the second as objective.

[110]    The conjunction of the word “purpose” with an inanimate object does not necessarily mean that an objective meaning is intended. In many (if not all) cases where the word is used in relation to an inanimate object that object will be a manufactured or constructed thing. Such things may serve an objective purpose, but they may also be used by a person for a purpose of that person. Accordingly, the intended meaning will depend upon the grammar and context in which the word is used.

[111]    It has been suggested that the word “purpose” can be used in some circumstances to indicate that something has been used to facilitate the attaining or execution of a particular goal or task. Arguably this is only a reformulation of the subjective meaning as reference to a goal or task implies that a person is seeking to achieve that goal or undertake that task…

48    By contrast, statutory provisions in which “purpose” is used in conjunction with a person have usually been construed as concerned with the subjective purpose of the person. For example, in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 (Tillmans), Deane J at 348-9 construed a statutory provision which prohibited boycotting activities by a person in concert with others “where the activity is engaged in for the purpose”, or likely to have the effect of, causing substantial loss or damage to the targeted corporation as concerned with the subjective purpose of those engaging in the activity:

The “purpose” referred to in s 45D(1) is the operative subjective purpose of those engaging in the relevant conduct in concert. In this regard, one may contrast the purpose referred to in s 45D(1) with the objective purpose of an arrangement under s 260 of the Income Tax Assessment Act 1936 (Cth) (see Peate v. Federal Commissioner of Taxation) [(1964) 111 CLR 443, at p 468].

It suffices, for present purposes, to say that, in my view, the question to be answered in determining whether conduct was engaged in for a “purpose” mentioned in s 45D(1) of the Act is, to adopt the words of Viscount Simon L.C. in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1941] UKHL 2; (1942) AC 435, at pp 444-445, to be answered not by reference to whether it was appreciated that the relevant conduct might have the specified effect but by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert.

49    Similarly in Parker Pen (Aust) Pty Ltd v Export Development Grants Board (1983) 67 FLR 234 (Parker Pen) at 242, Lockhart J construed a provision which referred to expenditure “incurred by a person primarily and principally for the purpose of” specified business activities as directed to the purpose of the relevant purpose of the person engaging in the expenditure:

The word “purpose” is, of course, susceptible of a variety of meanings depending on its context. In the context of s 4(1) the inquiry must be to ascertain whether the expenditure was incurred by the person primarily and principally for the purpose of creating or seeking opportunities or creating or increasing demand for the stipulated objects, including the sale by that person for export of eligible goods manufactured in Australia. This involves a subjective element. The purpose must be someone[‘]s purpose. It is the purpose of the person mentioned in the subsection. To ignore subjective elements is wrong. There is, of course, a difference between the essential elements in the notion of purpose and the means whereby purpose is ascertained. Purpose may be gleaned either from subjective or objective elements or, more usually, both. A person may say what his purpose is, but the objective facts may cast doubt upon the credibility or reliability of his statement. It is for the tribunal of fact to consider all the circumstances and conclude whether the requisite purpose has been established. Objective facts are usually more reliable than mere protestations of purpose, intent or state of mind, which, although susceptible of testing in cross-examination, are intrinsically impenetrable and inscrutable.

50    As another example, in Glover v Corigliano (1992) 59 SASR 190 (Glover) the Supreme Court of South Australia (In Banco) considered a statutory prohibition upon persons engaged in certain fishing activities “for the purpose of trade or business” unless they met specified conditions. Justice Olsson, in considering the meaning of this provision, referred at 199 to the reasoning of Deane J in Tillmans and Lockhart J in Parker Pen and said:

In my opinion this reasoning is plainly correct. What is essentially in issue is an examination of the subjective state of mind of the relevant person, at the time at which the activity takes place, with a view to examining what was the aim of that activity when it was embarked upon. It is simply not possible to discern purpose without directing attention to the state of mind of the person in question — with a view to ascertaining the aim or intention of that person in embarking upon the activity sought to be impugned. As with all states of mind, it will usually be necessary to infer purpose from the conduct of the person concerned at about the relevant time.

51    Turning to the text of s 484, the subject of the sentence which constitutes the section is the permit holder. Having regard to the reasoning in Tillmans, Parker Pen and Glover, the natural reading of the section therefore is that the “purposes” to which the section refers are the subjective purposes of the permit holder at the time that they seek to enter premises pursuant to the section. The words which follow “for the purposes of” are descriptive of the subjective purpose which the permit holder is required to hold in order to enliven the right of entry for which the section provides. Paragraphs (a), (b) and (c) are not, as a matter of language, expressed as separate preconditions which must objectively be satisfied independent of the subjective purpose of the permit holder. Rather, they are expressed as elements of the requisite subjective purpose in that they describe the characteristics of the employees which the permit holder must purpose to have discussions with. Whether the permit holder has the necessary subjective purpose is, however, to be determined by reference to objective facts: Parker Pen.

52    The appellants’ contention that paragraphs (a), (b) and (c) of s 484 establish requirements which must be capable of satisfaction at the time that entry to premises is sought to be exercised leads to a number of practical difficulties. The most obvious of these, as pointed out by Wigney J in Elecnor at [108], is that it is unlikely to be practicable to establish (either by the permit holder at the time or in subsequent enforcement proceedings if entry is refused) that there are employees on the premises who wish to participate in discussions with the permit holder. This is likely to be something which will only become known when the permit holder has entered the premises and seeks to engage in discussions with particular employees. It may also not be practicable, in respect of organisations which have restricted or specialist coverage (for example, coverage of peripatetic tradespersons), to establish prior to entry that there are particular employees which the organisation is entitled to represent who are working on the premises at that time. The same is true in relation to organisations about which there is some legal controversy as to the scope of their eligibility rule – as was the case in Elecnor. For these reasons, the approach for which the appellants contend is contrary to the approach to the statutory right of entry scheme in the FW Act stated in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470 at [15], namely that the provisions of the scheme:

… should be construed conformably with the language used by Parliament 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 site, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site.

53    Two matters of context in Pt 3-4 favour a subjective construction of s 484. The first, as observed by Wigney J in Elecnor at [107], is that s 478 describes the subject matter of the Part as being about the rights of permit holders to enter premises “for purposes related to their representative role under this Act and under State or Territory OHS laws”, with ss 481(1), 483A(1) and 484 then identifying the particular purposes which found the various rights of entry for which the Part provides. Thus, the subject matter of Pt 3-4 is consistently framed by reference to the purposes of permit holders. The second is the requirement in s 518(3)(b) for the permit holder to include in an entry notice a declaration concerning their organisation’s right to represent the industrial interests of employees working on the premises (with the associated requirement in s 518(3)(c) to identify the provision in the organisation’s rules giving rise to the entitlement). The appellants submit that this requirement is inconsistent with a subjective construction of s 484. We disagree. The declaration represents the permit holder’s opinion or state of mind as to a mixed question of law (that is, the legal meaning of the relevant provision of the organisation’s rules) and fact (that there are employees working on the premises who fall within the scope of the relevant rule). It thus evidences that the permit holder has that part of the required statutory purposes in paragraphs (a) and (b) of s 484. Applying the reasoning in Parker Pen, the declaration requirement establishes an objective indicator that the permit holder has the necessary subjective purpose. It thus answers the appellants’ point that, on a subjective construction of the section, the occupier of premises will not be able to know when they must allow or may refuse entry under s 484 because they cannot know the permit holder’s state of mind. The service of the entry notice on the occupier operates to authenticate that the permit holder has the statutory purpose. Conversely, if paragraphs (a) and (b) are objective criteria preconditioning entry, it is difficult to comprehend what purpose the declaration requirement serves, since the permit holder’s opinion as to these matters is obviously not conclusive. It is also notable that s 518(3) does not require the entry notice to state that the employees “wish to participate in those discussions”, which is inconsistent with the notion that the purposes in s 484 must be objectively established.

54    The legislative history and previous case authorities relevant to s 484 provide support for a subjective construction of s 484. A right for officials of registered organisations to enter premises for the purpose of discussions with employees was first introduced into federal industrial relations legislation by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). The new right was contained in s 285C of the WR Act. Section 285C provided:

285C    Discussions with Employees

(1)    A person who holds a permit in force under this Division may enter premises in which:

(a)    work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and

(b)    employees who are members, or eligible to become members, of that organisation work;

for the purposes of holding discussions with any of those employees who wish to participate in those discussions.

(2)    The person may only enter the premises during working hours and may only hold the discussions during the employees’ meal-time or other breaks.

55    Section 285C(1) was drafted in a meaningfully different way to the current s 484 of the FW Act. Of particular relevance is that paragraphs (a) and (b) were initially expressed as characteristics of the premises into which entry was sought, and then paragraph (b) was picked up in the chaussure (by the words “any of those employees”) to describe the employees with which the permit holder might purpose to hold discussions. The requirements of paragraphs (a) and (b) were therefore objective criteria for premises at which the right of entry might be exercised, which applied independently of the requisite purpose.

56    Consistent with this analysis, in Pine v Doyle [2005] FCA 977;  222 FCR 291, Merkel J treated the requirement in paragraph (a) of s 285C(1) as an objective prerequisite for the exercise of the entry power in the section, but went on to treat the required purpose as referable to the subjective intention of the permit holder. His Honour said at [14]:

… It is clear that the respondent was not entitled to exercise his power of entry under s 285C. It is common ground that no award binding on the CFMEU was applicable to the work being carried out at the site. Accordingly, the pre-condition set out in s 285C(1)(a) for a valid exercise of the power was not satisfied with the consequence that the power was not lawfully exercised. Also, as is apparent from my findings, the respondent did not exercise or purport to exercise the power of entry under s 285C(1) ‘for the purposes of holding discussions with any of those employees’ who were members of the CFMEU or who were eligible to become members of the CFMEU. Also, he did not intend to hold any discussions during a break in work as is contemplated by s 285C(2). Rather, he entered for the sole or dominant purpose of conducting a safety inspection, which is not a purpose authorised by s 285C. Thus, it is plain that the power of entry was exercised for a purpose for which the power was not conferred and was therefore not a lawful exercise of the power for that reason.

57    The right of entry for the purpose of holding discussions in the WR Act was substantially reformulated as a result of the amendments effected by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). Section 760 of the WR Act, which took effect on 27 March 2006, provided:

760    Right of entry to hold discussions with employees

A permit holder for an organisation may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose, eligible employee means any employee who:

(a)    on the premises, carries out work that is covered by an award or collective agreement that is binding on the permit holder’s organisation; and

(b)    is a member of the permit holder’s organisation or is eligible to become a member of that organisation.

58    Limitations on the right conferred by s 760 (including the limitation previously contained in s 285C(2)) were set out in ss 761-766.

59    The reformulation of the requirements in paragraphs (a) and (b) of former s 285C in the definition of “eligible employee” in s 760 had the effect of incorporating them into the requisite purpose of the permit holder. Section 760 was the subject of consideration by a Full Court of this Court in John Holland. That matter concerned an appeal against the imposition of pecuniary penalties on three unions for contraventions of the WR Act arising from their officials seeking to enter premises pursuant to s 760: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 786; 186 IR 408; John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 865; 187 IR 400. The parties at the trial, and the trial judge (Greenwood J), treated the question of which award or collective agreement covered the work of the employees at the premises as determinative of whether the officials were authorised by s 760 to enter the premises. That is, that part of the definition of “eligible employee” in s 760(a) was treated as an objective precondition for the lawful exercise of the right of entry.

60    A majority of the Full Court disagreed with this approach. Justice Dowsett said at [38]-[39]:

[38]    Section 760 authorises entry by:

•    a permit holder;

•    who enters the premises “for the purposes of holding discussions with any eligible employees who wish to participate in those discussions”.

[39]    The term “eligible employee” is defined. However authorisation of entry pursuant to s 760 is not dependent upon satisfying that definition. The permit holder must rather satisfy the requirement that he or she have the required purpose. Establishment of, or challenge to the existence of such purpose may involve examination of whether there was an adequate factual basis for having the prescribed purpose. If, for example, the permit holder did not have some basis for a belief that there were eligible employees on the premises, then it may be difficult to conclude that he or she had the purpose of entering into discussions with people fitting that description. His or her purpose may rather have been to discover whether there were such people on the premises. Of course, a person may have more than one purpose. Authorisation pursuant to s 760 is not dependent upon the permit holder having reasonable grounds for a particular belief.

61    Justice Spender agreed with Dowsett J that the parties, and the trial judge, had proceeded upon a misconstruction of s 760 and that the relevant question under the section was whether the permit holder had the prescribed purpose: [3]-[8]. Justice Logan proceeded upon the same premise as the trial judge.

62    On remittal (John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 770; 195 FCR 280 at [130]), Greenwood J confirmed that the precondition for entry under s 760 was that the permit holder held the requisite subjective purpose:

… the question to be determined is whether the Union officials entered the premises for the prescribed purpose supported by some basis in the evidence for that purpose. This subjective assessment of purpose does not depend upon whether the purpose was reasonably formed or not but simply whether, in fact, the officials entered for the prescribed purpose and genuinely acted upon that purpose.

63    By the time that John Holland was decided, the WR Act had been replaced by the FW Act. The legislative process by which s 484 in its current form was enacted is instructive. The first reading version of the Fair Work Bill 2009 (Cth) set out clause 484 as follows:

484    Entry to hold discussions

A permit holder may enter premises to hold discussions with one or more persons:

(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.

64    As drafted, this initial version of the provision omitted any express reference to the permit holder’s purpose. However, clause 484 was subsequently the subject of a Government amendment which replaced “to hold” in the chapeau with “for the purpose of holding” (as well replacing “persons” with “employees or TCF outworkers”). Section 484 was ultimately enacted in these amended terms. The Supplementary Explanatory Memorandum (SEM) explained the amendment in the following way:

Item 18 – Clause 484

214.    This item clarifies that when a permit holder enters premises under clause 484, the entry must be for the purpose of holding discussions with employees or TCF outworkers who:

•    perform work on the premises;

•    are entitled to be represented by the permit holder’s organisation; and

•    wish to participate in those discussions.

215.    While entry must be for the purpose of holding discussions with this class of workers, it does not mean that if other workers choose to attend or participate in discussion that the entry is invalid or contrary to the Act.

216.    The amendment also makes clear that the proviso that employees must wish to participate in discussions operates after entry – i.e., it ensures that an employee cannot be required or otherwise compelled to participate in the discussions. However, it does not mean that a permit holder must demonstrate before entry that there is a particular employee on the premises who wishes to talk to the permit holder.

65    The above passage in the SEM is consistent with a construction of s 484 that focuses on subjective purpose. In particular, paragraph [215] identifies that, as long as the permit holder has the purpose of holding discussions with the class of workers with the identified characteristics, it does not matter that the permit holder ends up participating in discussions with employees who do not fall within that class provided they do so voluntarily. Further, paragraph [216] of the SEM confirms that the requirement in s 484(c) is not a requirement which applies at the time that entry is sought.

66    The declaration requirement in s 518(3) was introduced for the first time as part of the enactment of the FW Act. The Explanatory Memorandum for the Fair Work Bill (EM) explained this requirement in the following terms:

The requirement to make a declaration arises because it may be difficult for an employer to easily establish whether or not an organisation satisfies the pre-requisite for entry of being entitled to represent the industrial interests of their employees. A permit holder who deliberately makes a false declaration in an entry notice would breach clause 503, which prohibits intentionally giving the impression that a permit holder has rights under this Part when she or he does not. A permit holder who is found to have breached clause 503 must have his or her permit suspended or revoked under clause 510.

67    It might be said that the reference in the above passage of the EM to the “pre-requisite for entry of being entitled to represent the industrial interests of their employees” supports the appellants’ case concerning the construction of s 484. However, the difficulty arises that, as earlier stated, the first reading version of the Fair Work Bill omitted any reference to “purpose” in clause 484. Accordingly, the above passage cannot reliably aid the construction of s 484 in the form it was enacted.

68    Since the FW Act commenced operation, s 484 has consistently been construed in this Court on the subjective basis earlier outlined. In Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [157], White J rejected an argument that it was necessary, in order to establish that entry rights under s 484 were sought to be exercised, to demonstrate that “employees with each of the characteristics to which s 484 refers were on the site at the time of the entry”:

In my opinion, this submission overlooked that what is to be established, is relevantly, the permit holder’s purpose in entering. The permit holder may have that purpose even if it is, as a matter of fact, incapable of being fulfilled. A permit holder may wish to enter for the s 484 purpose even though there may not, as a matter of fact, be employees on the site, or there be no employees whose industrial interests the permit holder’s union is entitled to represent, or there be no employees who wish to hold discussions with the permit holder. Permit holders may, for example, be mistaken in their belief that there are employees on the site answering the relevant description. The existence of their mistake would not mean, of itself, that the permit holder could not have the relevant purpose.

69    The same approach was taken in Director, Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 (Charlesworth J) at [110]:

I proceed on the basis that the word “purpose” in s 484 of the FW Act is a reference to the subjective purpose of the permit holder and that the enquiry to be undertaken is one involving an assessment of the permit holder’s state of mind. Although it is not necessary for the Director to prove, as an element of a contravention of s 500 of the FW Act, that the workers at the Site objectively had the characteristics prescribed in s 484 of the FW Act, the characteristics of the workers, as understood by the alleged contravenor, will be relevant in determining whether the contravenor exercised or was seeking to exercise a right of entry to premises for the subjective purpose of holding discussions with them: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287, [156] - [158] (White J).

70    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802 at [64], Bromberg J applied the reasoning in John Holland to conclude that s 484 was concerned with the subjective purpose of the permit holder:

Another pre-condition to the conferral of the right contemplated by s 484, is that the permit holder hold the prescribed purpose. That requirement is confirmed by the holding by Spender and Dowsett JJ in CFMEU v John Holland, where it was determined that the requisite purpose had to be subjectively held …

71    Elecnor and the primary judgment here represent a continuation of this approach.

72    The appellants referred to the Full Court judgment in AMIEU as supportive of their position. It is sufficient to say that the question of the construction of s 484 which arises in this appeal did not arise for consideration in that matter. The appellants referred specifically to the observation of Jessup J at [16] that “[t]he individual paragraphs of s 484 identify the employees with respect to whom those purposes may exist”, but that observation was not the result of a contest about the construction of s 484 and, in any event, may on one view be read as supportive of a subjective approach to purpose. The appellants also relied on ALAEA, which concerned the construction of s 481(1) rather than s 484. In that matter, Flick J, following Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 (Curran), determined at [34] that the “purpose” to which s 481(1) refers is a purpose objectively, rather than subjectively, determined. Curran was concerned with s 286(1) of the Industrial Relations Act 1988 (Cth) (IR Act), which provided for a right for an official of an organisation to enter premises to undertake specified activities “for the purpose of ensuring the observance of an award or an order of the Commission binding the organisation”. The Court (Gray J) said at 252-3:

Some discussion took place in argument as to whether the purpose referred to in s 286(1) is an objective or a subjective purpose. Mr Heerey QC, who appeared with Mr Kelly of counsel for the prosecutor, referred to cases in which the word “purpose” has been construed as meaning a subjective purpose. See Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees’ Union [1979] FCA 85; (1979) 42 FLR 331, at pp 348-349 and Parker Pen (Aust.) Pty. Ltd. v. Export Development Grants Board [1983] FCA 77; (1983) 46 ALR 612, at p 621. The question is a difficult one. It is plain from the authorities cited, and from Peate v. Federal Commissioner of Taxation (1964) 111 CLR 443, at p 469 in the judgment of Kitto J., that the word “purpose” may mean either a subjective or an objective purpose, depending upon the context in which it is used. In the context of s 286(1) of the Act, it seems to me to be more likely that the purpose required is objective, i.e. that a particular exercise of a right to enter, inspect or interview can be said to be related with sufficient proximity to the object of ensuring observance of an award. If that were not the case, an honestly held but wholly mistaken belief by an officer of an organisation that he or she was pursuing a course which would result in the observance of an award would be decisive of the right to enter, inspect or interview. It is unlikely that Parliament intended the section to be construed in that manner. Its ultimate purpose is to promote the observance of awards, the giving of rights of entry, inspection and interview being only a means to that end.

73    It is not necessary for the purpose of determining this appeal to revisit the above analysis, which appears to be predicated on the proposition that a subjective purpose to ensure observance of an award would be “mistaken” if the exercise of the right of entry did not result in that purpose being achieved. Section 481 of the FW Act is expressed in significantly different terms to s 286(1) of the IR Act since the requisite purpose incorporates, by subsection (3), a reasonable suspicion of the part of the permit holder that a contravention has occurred or is occurring. This necessarily imports into the preconditional purpose for entry a subjective element, albeit one assessed by reference to objectively reasonable grounds. It is therefore not clear that Curran provides useful guidance for the construction of s 481. In any event, Curran and ALAEA were concerned with different statutory provisions and, in our view, do not provide significant assistance in the proper construction of s 484.

74    The appellants argue that if the purposes in s 484 are construed as the subjective purposes of the permit holder, the occupier would effectively be deprived of any ability to prevent the permit holder from entering the premises even if in reality there were, for example, no workers who wished to participate in discussions. However, that submission ignores or discounts s 503(1), a civil remedy provision, which prohibits a person from taking action with the intention of giving the impression that the doing of a thing is authorised by Pt 3-4 if it is not so authorised. It is a real and necessary requirement of a permit holder’s authority to enter premises pursuant to s 484 that a permit holder have the requisite purposes. Contrary to the appellants’ submissions, the absence of such belief is capable of demonstration. As Lockhart J observed in Parker Pen at 242, a person may say what their purpose is, but the objective facts may cast doubt upon the credibility or reliability of that statement. In a proceeding for an injunction to restrain a contravention under s 503(1), a court is capable of determining whether the permit holder’s real motivation is to enter the premises for an entirely extraneous purpose.

75    The construction of s 484 which we prefer achieves an appropriate balance of the rights of organisations, employees, occupiers of premises and employers consistent with the object of s 480. As observed by the primary judge (PJ at [51(b)]), the right which s 484 confers is limited: it may only be exercised during working hours (s 490(1)), any discussions with employees may only occur during meal and rest breaks (s 490(2)), the permit holder must comply with an occupier’s reasonable request to comply with an occupational health and safety requirement (s 491), discussions must occur at an agreed location or otherwise in the meal room or area (s 492), the permit holder must comply with a reasonable request by the occupier to take a particular route to the discussion area (s 492A), and the permit holder is prohibited from intentionally hindering or obstructing any person or otherwise acting in an improper manner while exercising the entry right (s 500). Having regard to these constraints, the exercise of the entry right based upon a genuinely-held subjective intention to effect the purpose identified in s 484, supported by the rigorous requirement in s 518(3)(b) for a declaration to be provided to the occupier as part of the entry notice, would give effect to the legislative scheme in a workable and commonsense way. The alternative construction proposed by the appellants makes it likely that the attempted exercise of the entry right in s 484 would be accompanied by complex disputation about union coverage rights (as occurred in Elecnor), whether “work” was performed on the premises (as here) or whether any employees wished to engage in discussions with the permit holder. That alternative would not achieve the object of Pt 3-4 in s 480.

76    Accordingly, ground 4 is rejected.

Ground 5 — reasonable grounds

77    Ground 5 of the appeal is founded on the proposition that, if s 484(a) is to be construed as concerned with the subjective purpose of the permit holder, that purpose must be reasonably held. The appellants do not advance any textual basis for this contention. They cite ALAEA at [38] in support of this proposition, but that part of the judgment was concerned with the requirement for a reasonable suspicion of contravention under s 481 and is not relevant to s 484.

78    More significantly, as the appellants properly conceded, they did not advance this construction of s 484(a) at the trial. As a consequence, it was not considered by the primary judge.

79    Other than in exceptional circumstances, a party is bound by the conduct of their case at the trial and is not permitted to raise a new argument on appeal: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8; Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481 at 483. Where the new argument raises a question of law, it is sometimes expedient that the question should be argued and determined in the appeal, but this will not be allowed where, if the point had been raised at the trial, it could have been met by evidence which might possibly have prevented it from succeeding: Coulton at 7-8; Tredders Investments Pty Ltd v Channel 9 South Australia Pty Ltd [2024] FCAFC 164 at [18].

80    In this case, the respondent contends, and we accept, that if the issue had been raised at the trial, it may readily have been met by the adduction of further evidence from Mr Hicks and Mr Kennedy explaining why they had a reasonable basis to hold the purpose required for entry in s 484. The appellants did not proffer any explanation for not raising the point at the trial. The potential construction of s 484 which they now seek to raise had earlier been referred to by Wigney J in Elecnor at [109], who expressed his inclination against it without determining it. The appellants were therefore presumptively aware of it but chose not to raise it. Ground 5 should therefore be dismissed on this basis.

Grounds 1, 2 and 3 — performance of “work”

81    Having regard to the conclusions reached concerning appeal grounds 4 and 5, it is not strictly necessary for the determination of the appeal to consider grounds 1, 2 and 3. However, the grounds were fully argued and we consider it appropriate to address the appellants’ case in this respect.

82    The appellants contend that the primary judge erred in finding that the apprentices employed by ECA Training performed “work” at the NECA Centre within the meaning of s 484(a). However, they declined to articulate a construction of the term “work” as used in the section that might allow “work” activities conducted in the course of employment to be distinguished from any non-“work” activities on a basis of principle. Rather, they approached the question on the basis that, whatever might constitute “work” for the purpose of s 484(a), it self-evidently does not include the type of training activity engaged in by the employed apprentices at the NECA Centre.

83    Contrary to this approach, we consider it necessary to begin by attempting to assign a meaning to the term “work” in s 484(a). As the primary judge observed, “work” is not anywhere defined in the FW Act, so it is necessary to assign a meaning to the term having regard to the immediate context provided by the FW Act and the wider context of the legal principles applicable to employment.

84    The use of the term “work” and its derivatives in various contexts in the FW Act indicates that it was intended to have a wide and flexible meaning. A prime example of this is the use of the term in the context of “hours of work”. Section 62 establishes the National Employment Standard concerning “maximum weekly hours”. Section 62(1) provides:

Maximum weekly hours of work

(1)    An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

(a)    for a full-time employee--38 hours; or

(b)    for an employee who is not a full-time employee--the lesser of:

(i)    38 hours; and

(ii)    the employee’s ordinary hours of work in a week.

(Emphasis added.)

85    Section 62(2) provides that an employee “may refuse to work additional hours … if they are unreasonable” (emphasis added), with s 62(3) setting out criteria by which it may be determined whether additional hours are reasonable. Section 62(4) deems any hours an employee “works” in a week to include authorised hours of leave or absence, whether paid or unpaid. Relatedly, s 139(1)(c) authorises the inclusion of terms in modern awards about “arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours” (emphasis added), and s 147 requires a modern award made by the FWC to include terms concerning “the ordinary hours of work” (emphasis added) for the classifications of employee and types of employment under the award. It is pursuant to these provisions that modern awards contain provisions concerning hours of “work” for the employees which they cover, including maximum weekly hours of work, the span of hours during which ordinary hours may be worked on each day of the week, and those hours of work which attract penalty rates.

86    The conception of “work” in the context of working hours is not understood to be confined to periods spent undertaking particular types of duties or tasks; rather it refers to all the time during which the employee is required to attend to their employment obligations and is available to perform work in accordance with the lawful and reasonable instructions of their employer. It is for hours of “work” in this sense that remuneration is payable. It would be entirely impracticable and completely at odds with the established industrial conception of hours of work for the period spent in employment to be subdivided based on distinctions about the nature of the activity being performed by employees. This traditional conception was articulated in Warramunda Village Inc v Pryde [2002] FCA 250; 116 FCR 58, (Warramunda), where the Full Court determined by majority that attendance at a sleepover shift at an aged care facility constituted work attracting payment under the relevant award, irrespective of whether any personal care duties were actually undertaken. Although the matter involved the construction of the provisions of the award, broader conceptions of what constitutes “work” were invoked. Thus, Lee J said at [17]:

It cannot be said that, in rendering a “sleep-over shift”, an employee is “on call” within the meaning of cl 32. For the purpose of cl 32 an employee who is off duty but “on call” is free to conduct his, or her, private life subject to the employer being able to direct the employee to report for duty, and to the employee organizing his or her affairs to be able to respond to that direction if given. (See: Suffolk County Council v Secretary of State for the Environment [1984] ICR 882 (House of Lords)). An employee who attends at the place of employment pursuant to the employer’s direction to be at the employer’s premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at “work” for the purposes of the 1995 Award and is entitled to be remunerated according to the terms of the Award. (See: Hospital Employees’ Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456).

87    Similarly, Finkelstein J concluded at [37] that the time spent by an employee under the instruction of their employer was time worked under the applicable award. The approach taken in Warramunda was followed in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242, in which Katzmann J found at [465]-[473] that massage therapists were “working” for the purpose of s 62(1) of the FW Act when their employer required them to be available during the day to service customers and they were ready, willing and able to work, regardless of whether they were performing any actual tasks. It was further accepted by the Full Court in Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots [2025] FCAFC 45 at [33] that Warramunda and a number of other authorities referred to supported the proposition that “if an employee is instructed by their employer to do certain things and not do certain other things during a period, then during that period they are on duty and the time is generally to be regarded as time worked”, subject to the specific terms of the applicable industrial instrument. In that case, pilots on stand-by duty were determined to be engaged in paid work for the purpose of the applicable award.

88    Other references to “work” in the FW Act provide contextual support for a wide and flexible meaning. For example, Pt 6-4B establishes a remedial regime in respect of “Workers bullied at work”. Section 789FC(1) provides that a worker who reasonably believes that they have been “bullied at work” may make an application to the FWC for an order to stop bullying under s 789FF. The expression “bullied at work” is defined in s 789FD, but the definition remains premised on the relevant worker the subject of bullying having been “at work” in a constitutionally-covered business when the bullying occurs. It is difficult to conceive that the legislature intended the remedial anti-bullying scheme to operate by reference to the precise tasks or activities engaged in by the relevant worker, as distinct from them simply attending their employment and making themselves available to comply with the instructions of their employer. In this case, for example, it would not readily be concluded that the apprentices were not “at work” and thus unable to avail themselves of the remedies for which Pt 4-6B provides when they attended the NECA Centre to undertake training. Other instances in which the use of the term “work” has a wide and flexible import include the concept of “work value reasons” for award wage-setting in s 157, the references to “equal remuneration for work of equal or comparable value” in ss 134(1)(ab), 284(1)(aa) and 302, and the reference to the supply of employees “to perform work for a regulated host” in s 306E(1)(a) in the scheme to regulate labour hire arrangements in Pt 2-7A (emphasis added in each instance). It is likely to be trite to also observe that an Act which seeks to comprehensively regulate employment, and employment-like, relationships within the scope of its operation is entitled the “Fair Work Act” and has its object in s 3 expressed by reference to “a balanced framework for cooperative and productive workplace relations”.

89    The specific context of s 484(a) provides no reason to assign a meaning to “work” that confines it to work tasks of any particular type. In the provision itself, it is coupled with the verb “perform”, which relevantly means to “carry out; execute; do” (Macquarie Online Dictionary), but this sits comfortably with the notion of “work” being constituted by any attendance by the employee to the performance of their employment obligations in paid time on the relevant premises. Nor does the object of the entry scheme in s 480 require a confined approach to the meaning of “work” in s 484(a): the right of officials or organisations to enter a workplace to hold discussions with potential members who are employed there on whatever basis, and the right of such employees to receive information from such officials while at work, need not disrupt the right of occupiers of premises and employers to conduct their business without undue inconvenience.

90    Consistent with the conclusion of the primary judge, we consider that “perform[ing] work” in s 484(a) may be equated to the service an employee is obliged to provide in accordance with their contract of employment. The essential characteristic of employment is the work-wage bargain: “the essence of a contract of service [is] that it is a bilateral contract involving executory obligations on behalf of both employer and employee”: Dare v Dietrich (1979) 26 ALR 18 at 36 per Deane J, cited in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 at [107] per Gageler and Gleeson JJ. The terms of the contract will prescribe the nature of the service required to be provided by the employee in consideration for the remuneration to be provided by the employer, and there is no basis for a priori assumptions to be made about what may constitute the “work” that is required in return for remuneration. As Dixon J (quoting Milton) observed in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 466 when describing the service which carries wages, “[t]hey also serve who only stand and wait”.

91    The appellants place reliance on the definition of the term “training arrangement” in s 12, which has earlier been set out. This term is used in a number of places in the FW Act, usually as part of the expression “employees to whom training arrangements apply”, and principally in relation to the setting of special minimum wages rates for such employees in modern awards, enterprise agreements and the national minimum wage order (ss 139(1)(a), 153(3)(c), 195(3)(c), 284(1)(e) and (3)(a), 294(1)(b)(ii), (3)(b) and (4)(b)) and for the purpose of exclusion from certain entitlements in the FW Act such as notice of termination and redundancy pay (s 123(1)(d)), regulated labour hire arrangement orders (s 306G(1)), fixed term contract protections (s 333F(1)(b)), unfair dismissal rights (s 386(2)(b)) and consultation about dismissals (ss 534(1)(d) and 789(1)(d)). The definition’s purpose may therefore be identified as aiding the description of a particular class of employee which is the subject of special provision in various parts of the FW Act. In that context, the words “a combination of work and training” in the definition may best be understood as referring in a shorthand way to the separate elements of on-the-job or workplace training and classroom-type training by a RTO which make up a training arrangement.

92    However, it does not follow that the definition of “training arrangement” in s 12 may be used to inform the undefined term “work” where it is used in s 484(a). In the first place, training arrangements themselves do not involve any neat dichotomy between work and training as separate concepts, since the on-the-job element of the arrangement is equally a form of training. So much is made clear by the training contract in this case, which refers to it as “on-the-job training”. The Apprenticeship Act, which governs the training arrangements entered into by ECA Training in New South Wales, similarly refers to the on-the-job component of the arrangement as “the work-based component of the required training”: ss 13, 14. More importantly, Pt 3-4 of the FW Act does not anywhere use the term “training arrangement” in circumstances where, in other parts of the FW Act, exclusions from the operation of various provisions of employees subject to training arrangements are expressly stated using that term. There is no reason, therefore, to read down “work” in s 484(a) by reference to the definition of “training arrangement”.

93    The appellants also relied on the Full Court judgment in Master Builders, which concerned whether the fares and travel patterns allowance for which the then National Building and Construction Industry Award 2000 provided was payable to apprentices when attending “trade school”. The allowance itself was payable under the award to employees “for travel patterns and costs peculiar to the industry which include mobility requirements on employees and the nature of employment on construction work”. The award separately provided that the “general provisions of this award shall apply to apprentices employed on work within the scope of this award”. It also characterised the off the-job-training as “paid training leave’: [19]. The Full Court concluded (at [20]) that a conclusion that an apprentice was not “employed on work” when at trade school such as to make the allowance applicable was consistent with the stated purpose of the allowance since “[a]n apprentice’s travel to trade school does not involve travel patterns and costs peculiar to the building and construction industry and has nothing to do with the nature of employment on construction work”. The Court further considered (at [21]) that “the long accepted nature of a contract of apprenticeship, the language of the Award and the purpose for which the fares and travel patterns allowance is paid, all suggest that an apprentice while at trade school is not “employed on work” within the meaning of cl 38.1.2 of the Award”.

94    We do not consider that Master Builders is of assistance in construing s 484(a). It was determined having regard to the language and purpose of the specific provisions of the award in question, and does not stand for any more general conceptual distinction between “work” and paid training required to be undertaken in the course of employment. Excelior, also relied upon by the appellants, did more plainly distinguish between work and training in determining that travel allowances under the relevant award were not payable in respect of travel to and from training, but this was in a context where the award entitled a trainee employee to be “released from work” to attend training (at a location away from the workplace) without loss of continuity of employment or wages: [13], [52], [58]. That does not describe the circumstances of this case.

95    Where an employer requires an employee to undertake training in paid time as an obligation arising under the contract of employment, that may readily be characterised as the performance of work. In Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327; 97 FCR 361, Mansfield J had no difficulty in determining at [42] that an employee was “at work” for the purpose of a total and permanent disability insurance benefit when the employee attended a compulsory four-day training course at the commencement of employment as a sales assistant. The relevant insurance policy defined “at work” as being in “active employment”, the definition of which in turn required employment “to carry out identifiable duties”. His Honour said:

The expressions “at work” and “active employment” are commonplace. There is no reason to think that the expression which comprises the first element of “active employment”, namely being employed by an employer to carry out identifiable duties, had other than its normal and commonplace meaning. The trustee did not proffer any reason why the appellant did not have the character of being employed by Myers to carry out the duties of a sales assistant just because he was undergoing a period of training as part of that employment. It is the fact and nature of the employment, rather than the precise duties being performed at any one time, which indicates whether the first element of the definition of “active employment” is satisfied.

96    The facts in this case are that the apprentices’ contract of employment, the NECA EA and the training contract all required the apprentices to undertake mandatory RTO training, which was undertaken at the NECA Centre during paid working hours. The apprentices were further required to satisfactorily progress through the required training units, with any failure thereof placing the apprentice at risk of disciplinary action including termination. The apprentices remained subject to the instruction and discipline of their employer, ECA Training, while they undertook training at the NECA Centre. They could also be engaged about aspects of their employment other than the off-the-job training. The apprentices were therefore engaged in discharging their obligations of service under their employment contract, and under the applicable industrial instrument, while undergoing training at the NECA Centre. This constituted the performance of work for the purpose of s 484(a) of the FW Act.

97    This conclusion arises from applying a sensible construction of s 484(a) to the facts of this case, which include that the relevant premises are the NECA Centre, where the employer (ECA Training) conducts its business and leases space to NECA Training to conduct off-the-job-training, and that this training is conducted in the ordinary working hours of the apprentices. The appellants raise in terrorem the prospect that this outcome may lead to union officials having right of entry for discussion purposes to TAFE Colleges where they serve as the location for off-the-job apprentice training and other training arrangements. However, whether that is the case will depend upon the basis upon which attendance at such Colleges occurs. If apprentices are not subject to employer instruction or control when attending a training location external to the employer such as a TAFE College, and their attendance is (as in Master Builders and Excelior) more properly characterised as paid leave or a paid release from duty, it might be that a different outcome would prevail. Such alternative scenarios do not assist in determining the outcome in this case.

98    Accordingly, grounds 1, 2 and 3 of the appeal must be rejected.

Conclusion

99    For the above reasons the appeal should be dismissed.

Associate:    

Dated:    28 October 2026

REASONS FOR JUDGMENT

SNADEN J:

100    On two occasions in May 2024, two officials employed by the respondent (the “Union”)—Mr Zac Hicks and Mr Jacob Kennedy (the “Officials”)—attended upon the premises of the National Electrical and Communications Association in Chullora, New South Wales (the “NECA Premises”). On each occasion, they did so in order to hold discussions with apprentices who were in attendance at part of those premises for education purposes. To that end, they sought to exercise a right of entry that they considered that they possessed by operation of s 484 of the Fair Work Act 2009 (Cth) (the “FW Act”). On both occasions, the appellants turned the Officials away.

101    By an amended originating application dated 27 August 2025, the Union charged the appellants with having, on the two occasions of relevance, contravened ss 501 and 502(1) of the FW Act; specifically, by refusing, hindering and/or obstructing the exercise of a statutory right of entry that the Officials had sought to exercise. The appellants defended the action on the footing that the Officials did not possess (and, therefore, could not exercise) the right that they asserted. That was the central question upon which the matter turned.

102    By judgment pronounced on 17 October 2025, the court determined that, on both occasions, the Officials possessed the right that they had asserted; and that each of the appellants had conducted itself in breach of the statutory injunctions that it was charged with contravening: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ECA Training Pty Limited [2025] FCA 1260 (Kennett J; hereafter, the “Primary Judgment”). Relief in various forms was granted in light of those conclusions. Among them were pecuniary penalties set at modest sums.

103    By amended notice dated 10 August 2026, the appellants appeal from the whole of the Primary Judgment. The central contention upon which that appeal turns is that neither of the Officials possessed the statutory right of entry whose exercise the appellants were found to have refused, hindered or obstructed.

104    For the reasons that follow, that central contention is correct and the appeal should be allowed. The declaratory and other orders that the primary judge preferred should be set aside and, in their place, this court on appeal should order that the Union’s amended originating application dated 27 August 2025 be dismissed. There should be no orders as to costs.

Background

105    Part 3-4 of the FW Act is entitled, “right of entry”. In short compass, it confers upon “permit holders” certain rights, exercisable in certain circumstances, to commit what would otherwise amount to trespass upon premises (certainly in the civil sense and possibly, in some jurisdictions, in a criminal sense). Corresponding obligations are imposed upon the occupiers of premises: broadly speaking, statutory rights of entry may not be refused, and permit holders who exercise them may not be hindered or obstructed whilst doing so. Occupiers who indulge in conduct to that effect do so in contravention of civil remedy provisions and may be made liable for various statutory remedies as a consequence.

106    Presently, it is not in contest that each of the Officials was a “permit holder” on both of the occasions upon which the appeal focuses. Likewise, there is no controversy that the appellants relevantly refused each of them entry onto the NECA Premises, nor that they hindered or obstructed each of them from exercising the rights of entry that were asserted. The conduct constituting those refusals, hindrances and obstructions appears to have inhered in expressions of disagreement as to whether the Officials possessed the right that they asserted. The appellants told the Officials that they (the appellants) would “not permit” entry onto the NECA Premises (or relevant parts of them). Of course, if the Officials possessed the right that they asserted, it would follow that they did not require any such permission. That being so, there may be reason to doubt that the expression of a contrary opinion about what a statute does or does not authorise amounts to a relevant refusal, hindrance or obstruction; but that question did not arise below and does not arise now, so nothing more need be said about it.

107    Sections 501 and 502(1) of the FW Act provide (and, at relevant times, provided) as follows, namely:

501 Person must not refuse or delay entry

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

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

502 Person must not hinder or obstruct permit holder

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

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

…

(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.

108    The protective objects that underlie those provisions are self-evident. Section 501 serves to ensure that a permit holder who is authorised to enter premises under pt 3-4 of the FW Act is not prevented duly from doing so; and s 502(1) serves to ensure that he or she is not prevented duly from doing the things for which the FW Act envisages that entry might legitimately be gained. Presently, the appellants were, in respect of both relevant occasions, charged with contravening (and were found to have contravened) both injunctions at the same time (or by the same conduct). Again, there might be reason to doubt how that could be; but that too does not arise and so may also pass without further consideration.

109    Section 484 of the FW Act is the provision of most relevance to this appeal. It provides (and provided) as follows, namely:

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.

Note 1:     A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2:     A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3:     Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.

110    In oral evidence before the primary judge, each of the Officials explained that, on each of the occasions that he attended at the NECA Premises, he understood that the apprentices with whom he wished to hold discussions were employees who performed work there. That evidence was accepted and those subjective states of mind feature as important elements of the present appeal.

111    The apprentices in question—or, certainly, some of them—were employees of the first appellant (“ECA”). ECA is a “Group Training Organisation”, registered as such by the New South Wales Commissioner for Vocational Training pursuant to the Apprenticeship and Traineeship Act 2001 (NSW). Its animating purposes are to facilitate the placement of apprentices with “host employers” and to coordinate their attaining of trade qualifications through a combination of education and “on-the-job” training. Its principal—and probably only—vocational exposure is within the electrical and communications industry.

112    Enacted in every Australian state and territory are laws that, whether directly or via subordinate instruments, prohibit the undertaking of certain kinds of electrical installation works by those who are not approved for that purpose. To obtain that approval, one must become an electrician and be licensed as such by an approved regulator (Building Commission NSW, for example). In order to obtain such a licence, one must obtain what is known as a “Certificate III in Electrotechnology Electrician” (hereafter and more grammatically, a “Cert III Electrical Qualification”).

113    The second appellant (“NECA Training”) is (and, at all material times, was) a “Registered Training Organisation” approved as such by the Australian Skills Quality Authority pursuant to the National Vocational Education and Training Regulator Act 2011 (Cth). It is one of the many education providers throughout Australia that are authorised to confer Cert III Electrical Qualifications. Others include various colleges of technical and further education (such as TAFE NSW) and some universities.

114    The apprentices that ECA employs are (or relevantly were) engaged pursuant to written contracts of employment. The primary judge summarised as follows (and uncontroversially) the salient conditions of their employment (Primary Judgment, [20]-[25]):

20    An apprentice who is engaged by [ECA] receives a letter of offer (the letter of offer) which they sign to indicate acceptance. The letter of offer is headed “Contract of employment” and specifies matters such as:

(a)     commencement date and the duration of the apprenticeship;

(b)     name and address of host employer;

(c)     hours of work;

(d)     hourly rate of pay.

21     The letter of offer provides:

Terms of employment

This employment contract should be read in conjunction with:

1.     The NECA Electrical Apprenticeships Employee Enterprise Agreement 2022

2.     NECA Electrical Apprenticeships policies and procedures

3.     The Training Contract

22     The NECA Electrical Apprenticeships Employee Enterprise Agreement 2022 (the NECA EA) was approved by the Fair Work Commission (FWC) on 15 November 2022. The NECA EA is expressed to apply to and bind [ECA] and “The Employees”, with the latter defined to mean any persons “employed by the Company”, working in NSW, the ACT or Queensland and performing work in accordance with classifications set out in the agreement. It is also expressed to apply to the Union. Under cl 4.3, employees are to be “engaged as Apprentices for temporary fixed terms (ie, the length of the employee’s training contract)”. The NECA EA provides for the matters usually dealt with in such agreements such as working hours, rates of pay and allowances, leave entitlements, dispute resolution, consultation and union delegates’ rights.

23     The NECA EA includes the following provisions in relation to training. These are obviously important provisions in the context of an [e]nterprise [a]greement applicable to employees who are “engaged as apprentices”.

10.1     The Company will pay the costs for an Employee to undertake mandatory training subject to the following conditions:

10.1.1     Employees may be directed by the Company to attend training during working hours;

10.1.2    The Company will pay all the costs of mandatory training and pay employees at ordinary time rates for their time spent in attendance. Notwithstanding anything else in this Agreement, under no circumstances will an employee receive overtime payments for attendance at any training or further education at any time unless the employee has been directed to attend such training outside of ordinary hours by the Company;

10.1.3     Where the Company does not direct an Employee to attend training or further education, the decision as to whether the Employee shall be paid for Employee’s attendance at such training or further education, is at the sole discretion of the Company;

…

10.1.5     Where an Employee fails a compulsory unit of training, this unit must be completed by the employee outside work hours and at the Employee’s expense;

…

10.1.8     Employees shall make every endeavour to successfully pass all training modules/units. Employees that fail more than 2 modules/units may be subject to disciplinary action.

24     The NECA EA also includes the following provisions under the heading “Apprentices”.

11.1     Employees engaged on apprenticeships are engaged as fixed term employees for the duration of those apprenticeships. During that time, they are entitled to all the benefits of full time employment, provided that this clause overrides any contradictory clause in this Agreement.

11.2     Notwithstanding any provisions of this Agreement, should the Apprenticeship Training Agreement and/or Training Contract be cancelled, either by expiry or for other reasons, the employee will also be terminated.

11.3     Training for the Apprentice shall be in accordance with the employee’s applicable apprentice training schedule.

11.4     Where an Apprentice absents himself or herself from work on unauthorised leave, the period of the Apprenticeship shall be extended by such period of unauthorised leave.

11.5     Where an Employee is not able to attend their normal training duties as a result of workers compensation the employee may have their apprenticeship extended for such a period.

25     A person commencing an apprenticeship in NSW is also required to complete a “training plan proposal” which becomes a “training contract” when accepted by the relevant State training authority. In the case of [ECA] apprentices, [ECA] and its chosen RTO (ie, NECA Training) are also parties to this contract.

115    Insofar as concerned the off-the-job training that ECA’s apprentices undertook with NECA Training, that too was the subject of evidence below, to which the court on appeal was directed. The primary judge highlighted certain specific features of the training, to which attention will shortly turn; but in the main, the apprentices attended classes directed to matters of theory, as well as practical (workshop) training, each of which was subject to structured assessment. In his affidavit, Mr Tom Emelus, the General Manager of ECA, said of that practical training:

…a trainer will demonstrate a particular skill the apprentices need to be trained in until the apprentices in the class can reproduce the required skill; examples are mounting a power point or testing a circuit to see that it has been installed properly. During this training, apprentices do not produce any work product but are instead in a simulated and safe environment that enables them to learn the required skills necessary to successfully complete their apprenticeship…

The Primary Judgment

116    In the proceeding below, the Union advanced two contentions, each of which was said to be dispositive of the central issue that fell for his Honour’s consideration (namely, whether the Officials were entitled to enter the NECA Premises on the two relevant occasions).

117    The first concerned the Officials’ states of mind. Relying upon the conclusion at which Wigney J arrived in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Elecnor Australia Pty Ltd [2025] FCA 156 (“Elecnor”), the Union invited the court to accept that, when they attended at the NECA Premises, each of the Officials subjectively understood that the apprentices who were in attendance qualified as employees who performed work there whose industrial interests the Union was competent to represent. That, the contention continued, was sufficient—irrespective of what might objectively have been true—to establish that their purpose in seeking entry upon the NECA Premises aligned with the purpose in respect of which s 484 of the FW Act confers a right of entry.

118    The second contention was that the apprentices were, in any event—that is to say, objectively—employees who performed work at the NECA Premises. The submission continued: because they were (uncontroversially) at least eligible to be members of the Union and might be persuaded to indulge discussions initiated by the Officials, it followed that the Officials possessed the right of entry that they asserted.

119    The learned primary judge accepted both propositions (the latter in obiter, after acknowledging that it was not strictly necessary that he should address it). On the construction point, his Honour accepted that he was bound to apply the reasoning that Wigney J applied in Elecnor. In that regard, his Honour observed in summary (Primary Judgment, [50]-[51]):

50    Accordingly, Elecnor is to be understood as holding that there is no distinction between a debate about the facts and a debate about the law in determining whether a permit holder had the requisite intention for the purposes of s 484. Even if the permit holder has misread the organisation’s rules for the purposes of para (b)—or, by parity of reasoning, misunderstood the meaning of “work” for the purposes of para (a)—their bona fide belief that employees who come within these provisions might be present is a sufficient basis for the purpose referred to in the section.

51     While this aspect of the reasoning is perhaps debatable, I am not persuaded that it is plainly wrong. Rather, I consider that it is probably correct. It is at least arguable that the legislature intended a genuine purpose of holding discussions with employees of the relevant kind to be sufficient to give rise to a right of entry, even if that purpose is founded on a misunderstanding of fact or law. The following considerations support this view.

(a)     As Wigney J pointed out in Elecnor at [108], requiring a permit holder to demonstrate the presence of employees in the relevant category before entering the premises in reliance on s 484 would be impractical and would deprive the provision of much of its intended effect. That is equally true in cases of legal debate as of factual uncertainty.

(b)     The right conferred by s 484, and the corresponding qualification on the rights of occupiers, are limited. In contrast to entry under s 481 or s 483A, where specific and potentially invasive rights are conferred (including inspection of works, processes and documents: ss 482(1), 483B(1)), no particular acts are authorised by s 484 other than to enter premises (and, implicitly, to have discussions with employees). The permit holder is prohibited by s 500 (which is a civil penalty provision) from intentionally hindering or obstructing any person, must comply with reasonable requests related to health and safety (s 491), can only hold discussions in the places referred to in s 492, and must comply with reasonable requests concerning the routes taken to those places (s 492A). Entry under s 484 is not a licence to disrupt work at the premises to which entry is authorised or to pry into the occupier’s affairs. Implicitly, also, the permit holder ceases to be able to rely on s 484 (and must leave if asked to do so) if it becomes apparent that no employees who come within s 484(a) to (c) are present, because in that circumstance they would no longer have the requisite purpose. In the light of these limitations, it would be somewhat surprising if the legislature had intended to impose objective criteria for the right of entry that might be the subject of complex legal argument.

120    As to whether or not ECA’s apprentices were employees who performed work at the NECA Premises, his Honour reasoned as follows (Primary Judgment, [61]-[64]):

61    In the present case, pursuant to the NECA EA, all employees of [ECA] were subject to direction by [ECA] to attend training “during working hours” (cl 10.1.1). They were entitled to be paid at ordinary time rates for the time spent attending “mandatory training” (and to receive overtime payments if they were directed to attend training outside ordinary hours) (cl 10.1.2). Failure to pass compulsory units of training had adverse consequences under the EA: the unit would have to be completed outside work hours and at the employee’s expense (cl 10.1.5); and disciplinary action might be taken against an employee who failed more than two units or modules (cl 10.1.8). These provisions in relation to “mandatory” or “compulsory” training were clearly applicable to apprentices who, it will be recalled, were subject to “training contracts” as a fundamental aspect of their apprenticeships. Additionally, as to apprentices, the NECA EA provided that:

(a)     apprentices were entitled to “all the benefits of full time employment”, even though they necessarily spent a significant proportion of their working hours in training rather than in revenue-generating activities (cl 11.1);

(b)     an apprentice’s employment would be terminated if their Apprenticeship Training Agreement or Training Contract were cancelled (cl 11.2); and

(c)     it was envisaged that each apprentice was to have an “apprentice training schedule” (cl 11.3).

62     Attending and successfully completing the training that was necessary for the purposes of an apprentice’s training contract was, therefore, a central aspect of what the apprentice was required to do (and what they were paid to do) as part of the terms of their employment with [ECA]. It is not in doubt that this is the type of training the [ECA] apprentices (other than those doing “light duties”) were engaged upon when attending the NECA [Premises].

63     That attendance had some of the other features commonly associated with being at work, which reinforces the conclusion that the apprentices who were at the NECA [Premises] were engaged upon the performance of their duties as employees (although some of these features might also be present in a school or college). They were required to “sign in” using an electronic facility when they arrived and “sign out” when they left, with any late arrival affecting their rights to rostered days off. They were required to attend the NECA [Premises] for a full eight hour day, even if formal instruction did not last that long. They were subject to disciplinary processes in respect of their behaviour while attending training at the NECA [Premises], and control was sought to be exercised over what they wore during classes. Additionally, apprentices’ attendance at the NECA [Premises] appears not to have been solely devoted to training: there is evidence of apprentices being pulled out of classes to be reprimanded about incidents at host employers’ work sites and of [ECA]’s Operations Manager and field officers attending classrooms to discuss work-related matters.

64     [ECA] apprentices who attended the NECA [Premises] for training were, therefore, performing their obligations as employees; subject to control and supervision consistent with being at work; and available for discussions with representatives of their employer about their work with host employers. They were, in the sense relevant to s 484 of the FW Act, persons who performed “work” at the premises.

121    Although not addressed in terms—possibly because the pleadings were such as not to require it (it doesn’t much matter)—his Honour quite apparently proceeded on the basis that the Union had standing to move for the relief for which it moved. That was not obviously an issue below and it is most certainly not now, so I need say nothing more about it.

The appeal

122    The present appeal was commenced by notice dated 13 November 2025. At that point, the court’s ruling in Elecnor was already (albeit then only recently) the subject of appellate challenge. In December 2025, that challenge was—or, more accurately, those challenges were (there were two appeals arising from the determinations in that matter, one by the employer and one by the Union)—listed for hearing before a full court. It is unclear why only the Elecnor appeals were listed at that point but nothing turns upon that.

123    That (Elecnor) appeal hearing transpired on Wednesday, 4 March 2026, following which the full court (Rangiah, Snaden and Stellios JJ) reserved its judgment. Approximately two months later, the parties to the present appeal received notice that it would be the subject of a hearing before the court as presently constituted in the court’s August appeals sittings. Two weeks after that, the parties to the Elecnor appeals agreed not to pursue them and filed signed notices of discontinuance.

124    The court as presently constituted has not been as fortunate (I say facetiously) and, thus, the present appeal continues.

125    Although in the opposite order, the appellants take aim at both of the propositions that the learned primary judge accepted. Appeal grounds 4 and 5 are directed to the errors that are said to inhere in his Honour’s primary determination that, in divining a right of entry under s 484 of the FW Act, it was sufficient for the Officials to think that the apprentices were actual or potential members who, as employees, performed work at the NECA Premises (and with whom they might hold discussions). Appeal grounds 1, 2 and 3 are directed to the errors that are said to inhere in his Honour’s acceptance of the proposition that they were, in truth, such people (specifically, people who performed work at the NECA Premises).

126    The Union submits that, should the court be minded to dismiss grounds 1, 2 and 3, there should be “…no need for the Full Court to consider ground 4”. In other words, it is said that, were the court to accept that the ECA apprentices who were in attendance at the NECA Premises on the two occasions of relevance were employees who performed work there, that would be dispositive of the appeal and there would be no need to disturb the primary judge’s subjective construction of s 484 of the FW Act, which is the subject of appeal ground 4.

127    Whether that is so or not might be doubted. It seems to me that the observations that are the subject of appeal grounds 1, 2 and 3 were expressed in obiter. As it happens (and for reasons that will shortly become apparent), it is necessary that I should address both issues regardless. I shall do so; but I will address the operative aspects of the Primary Judgment first.

The proper construction of section 484

128    The construction argument turns upon what is to be understood by the inclusion of the words “for the purposes of” in the chapeau to s 484 of the FW Act. Do those words contemplate that “[a] permit holder may enter premises” if the subjective purpose that he or she hopes to realise by doing so inheres in the holding of discussions with actual or potential union members who, as employees, perform work on the premises? Or do they extend no further than to identify what a permit holder may do if certain objective criteria are present?

129    The task is a familiar one of statutory construction. The court’s task is to take the words that the provisions employ and ascribe to them meanings that the legislature should be presumed to have intended that they should bear: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).

130    That task starts and ends with the text, read in its proper context: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). That context includes—and, for the purposes of divining legislative intention, the court may have regard to—relevant extrinsic materials: Acts Interpretation Act 1901 (Cth) (the “AI Act”), s 15AB. Also contextually relevant is the operation of the statute as a whole: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 (Mason and Wilson JJ). The construction that best achieves the objects of the statute is to be preferred: AI Act, s 15AA.

131    In the present matter, the primary judge considered himself bound to follow the construction of s 484 of the FW Act that Wigney J preferred in Elecnor (which, acknowledging the scope for doubt, his Honour considered was in any event correct). It is to be recalled that, on that construction, it suffices that a permit holder might seek entry onto premises for the purposes of holding discussions with people that he or she believes are employees who perform work there. In that universe, the right is enlivened by the existence of the subjective state of mind, no matter any degree of misalignment with reality. At a particular premises, there may be no employees who perform work or nobody whose work qualifies them for membership of a permit holder’s organisation; and yet, on the construction that found favour below (and in Elecnor), a right of entry nonetheless arises because the permit holder thinks that it arises.

132    There is nothing in the text, context or purpose of s 484 of the FW Act (or pt 3-4 more broadly) that warrants such a construction. Conferral of the right for which the section provides is conditioned by the existence of the qualifying circumstances that it lists. A permit holder’s possession of a particular state of mind is not one of those circumstances.

133    There are several reasons to prefer a construction that is consistent with that analysis. Before identifying them, it is prudent to map out some additional features of the statutory scheme.

The statutory scheme

134    Part 3-4 of the FW Act is structured familiarly according to divisions and subdivisions. Division 1 attends to preliminary matters, including a recitation of the object of pt 3-4. In that regard, s 480 provides (and provided) as follows, namely:

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.

135    Division 2 of pt 3-4 of the FW Act confers the rights of entry that are the principal subject of the part. It comprises four subdivisions (subdiv A, subdiv AA, subdiv B and subdiv C). The first three of those describe the circumstances in which the statute authorises permit holders to enter premises and the rights that they might exercise upon doing so. Subdivision A confers upon permit holders a right to enter premises to investigate suspected contraventions of the FW Act or other nominated instruments. Complementary inspection, interview and document production rights are also conferred. Relevantly, s 481 of the FW Act provides (and provided) as follows:

481 Entry to investigate suspected contravention

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

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

(b)    who performs work on the premises.

Note 1:    Particulars of the suspected contravention must be specified in an entry notice or exemption certificate (see subsections 518(2) and 519(2)).

Note 2:    The FWC may issue an affected member certificate if it is satisfied that a member referred to in this subsection is on the premises (see subsection 520(1)).

Note 3:    A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 4:    A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

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

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

Note:     A permit holder who seeks to exercise rights under this Part without reasonably suspecting that a contravention has occurred, or is occurring, is liable to be penalised under subsection 503(1) (which deals with misrepresentations about things authorised by this Part).

136    Subdivision AA confers a similar right that pertains to certain textile, clothing and footwear industry workers.

137    Subdivision B comprises solely of s 484 of the FW Act (above, [109]).

138    Subdivision C of pt 3-4 of the FW Act is headed, “Requirements for permit holders”. Mostly, it comprises of provisions that bear limited relevance to the present appeal; but the exception is s 487. It provides that permit holders must, before entering premises under subdivs A or B, provide to the occupier of the premises an “entry notice”: FW Act, s 487(1). Such notice must be given at least 24 hours (but not more than 14 days) in advance of the entry to which it pertains (FW Act, s 487(3)) and must comply with the requirements identified by s 518 (FW Act, s 487(2)). A failure to abide by those requirements has the result that the other provisions of pt 3-4 of the FW Act “do not authorise a permit holder to enter or remain on premises, or exercise any other right…”: FW Act, s 486.

139    Division 3 of pt 3-4 of the FW Act contains provisions that regulate the exercise of rights of entry conferred by state occupational health and safety statutes. Its provisions are irrelevant for present purposes and nothing need be said of them.

140    Division 4 of pt 3-4 of the FW Act is headed, “Prohibitions”. It is the division in which ss 501 and 502 are located. Section 503 bears upon the court’s task in this appeal. It provides (and provided) as follows, namely:

503 Misrepresentations about things authorised by this Part

(1)     A person must not take action:

(a)     with the intention of giving the impression; or

(b)     reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

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

(2)     Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

141    Division 5 of pt 3-4 of the FW Act is headed, “Powers of the FWC”. Section 505 (by which that division commences) confers upon the Fair Work Commission (the “FWC”) various powers to “deal with” disputes about the operation of pt 3-4, including by arbitration. In exercising those powers, the FWC “must take into account fairness between the parties”. However, it cannot confer upon a permit holder such rights as are “additional to, or inconsistent with” the rights otherwise conferred by the part.

142    Division 6 of pt 3-4 of the FW Act is entitled, “Entry permits, entry notices and certificates”. As that heading might suggest, subdiv B of div 6 addresses “Entry notices”. It comprises solely of s 518 of the FW Act, which relevantly provides (and provided) as follows, namely:

518     Entry notice requirements

Requirements for all entry notices

(1)     An entry notice must specify the following:

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

(b)     the day of the entry;

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

Requirements for entry notice for entry to investigate suspected contravention

(2)     An entry notice given for an entry under section 481...must:

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

(b)     …specify the particulars of the suspected contravention, or contraventions; and

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

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

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

…

Requirements for entry notice for entry to hold discussions

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

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

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

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

Note:     See section 503 (which deals with misrepresentations about things authorised by this Part).

143    At the risk of overinclusion, subdiv D of div 6 provides for the issuing, by the FWC, of certain documentation relevant to the right of entry conferred by s 481 of the FW Act. Section 520 provides (and provided) that:

520 Affected member certificates

(1)    The FWC must, on application by an organisation, issue a certificate (an affected member certificate) to the organisation if the FWC is satisfied that:

(a)    a member of the organisation performs work on particular premises; and

(b)    the organisation is entitled to represent the industrial interests of the member; and

(c)    a suspected contravention of a kind referred to in subsection 481(1) relates to, or affects, the member.

(2)    An affected member certificate must state the following:

(a)    the premises to which it relates;

(b)    the organisation to which it relates;

(c)    particulars of the suspected contravention, or contraventions, to which it relates;

(d)    that the FWC is satisfied of the matters referred to in paragraphs (1)(a), (b) and (c).

(3)    An affected member certificate must not reveal the identity of the member or members to whom it relates.

144    The final division comprising pt 3-4 of the FW Act, div 7, is not presently relevant.

Extrinsic materials and legislative history

145    At the times relevant to this appeal, s 484 of the FW Act was in terms relevantly (although not actually) identical to those that it assumed when the FW Act was first enacted. In 2008, when the bill that would ultimately become the FW Act was first introduced into the House of Representatives, the provision read as follows, namely:

484 Entry to hold discussions

A permit holder may enter premises to hold discussions with one or more persons:

(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.

146    The explanatory memorandum that accompanied the bill when it assumed that form said the following about div 2 of pt 3-4:

Division 2 – Entry rights under this Act

1918. Division 2 sets out when a permit holder may enter premises and the rights they may exercise while on those premises. Subdivision A allows a permit holder to enter premises for the purpose of investigating a suspected contravention of the Bill or a fair work instrument. Subdivision B allows a permit holder to enter premises for the purpose of holding discussions with members, and people eligible to be members of the permit holder’s organisation. Subdivision C sets out the mandatory requirements a permit holder must meet when exercising rights under either Subdivision A or B.

1919. This Division gives officials of organisations a statutory right to enter premises and exercise powers provided they satisfy various conditions. It is not intended to codify all of the ways in which entry can occur or provide an exhaustive list of the powers exercisable on the premises. The Division does not affect the ability of an occupier of premises to invite any person onto that premises, e.g., to meet with the employer about a particular matter.

147    Specifically in respect of what was then cl 484, the instrument recorded:

Clause 484 – Entry to hold discussions

1938. This clause authorises a permit holder to enter premises for the purpose of holding discussions with persons at the premises if one or more of those persons:

    perform work on the premises;

    are entitled to be represented by the permit holder’s organisation; and

    wish to participate in those discussions.

148    The explanation provided in respect of cl 481 was as follows:

1921. This clause provides that a permit holder may enter premises and exercise a right conferred by clause 482 or 483 in order to investigate a suspected contravention of the Bill or a term of a fair work instrument (this term is defined in clause 12 to mean a modern award, enterprise agreement, workplace determination or an FWA order). However, subclause 481(1) provides that these rights may only be exercised if the following entry conditions are met: the suspected contravention relates to or affects a member of the permit holder’s organisation; the organisation is entitled to represent the industrial interests of that member; and that member performs work on the premises.

149    Upon its introduction to the House of Representatives, the bill was the subject of a second reading speech: Commonwealth, Parliamentary Debates, House of Representatives, 25 November 2008, 11195 (Julia Gillard, Acting Prime Minister). It was relevantly observed that:

The bill provides a fair and proper balance between the rights of employees and their union to meet in the workplace and the rights of employers to run their businesses without interference.

The bill provides a right for members of a union that is eligible to represent their industrial interests (and potential members of that union) to meet with their union at the workplace during non-working hours for the purpose of holding discussions…

The bill provides that the right to enter premises to hold discussions comes with strict obligations, including the holding of a valid right of entry permit, the giving of 24 hours[’] notice to enter and requirements for conduct while on site…

150    Various other extrinsic materials emphasised the government’s view about the relationship between that discussion-focused entry right and its ancestors in predecessor legislation.

151    Before coming to that, it repays briefly to address that predecessor legislation. The Industrial Relations Act 1988 (Cth) (the “IR Act”) provided for a single right of entry. Section 286 afforded to an officer of a registered organisation, acting with the written authority of its secretary, rights to enter prescribed premises, inspect things and interview members or potential members of the organisation “for the purpose of ensuring the observance of an award or an order of the [Industrial Relations Commission] binding the organisation”. There was, at that time, no equivalent right (certainly no statutory right) directed to the facilitation of discussions with employees.

152    That right was first enshrined in statute in 1996, upon the passing into law of amendments that amended and recast the IR Act as the Workplace Relations Act 1996 (Cth) (the “WR Act”). Section 285C thereof relevantly provided as follows:

285C Discussions with employees

(1)    A person who holds a permit in force under this Division may enter premises in which:

(a)    work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and

(b)    employees who are members, or eligible to become members, of that organisation work;

for the purposes of holding discussions with any of those employees who wish to participate in those discussions.

…

153    The relevant explanatory memorandum explained as follows about the introduction of that right:

Proposed section 285C authorises a permit holder to enter premises for the purpose of holding discussions with any employees who wish to participate in the discussions. The section would apply only to premises where there are employees who are members of the organisation concerned or who are eligible to be members of that organisation…

154    That discussion-based entry right was the subject of multiple amendments. However, the core criteria of present relevance—being those in sub-s (1)—remained in that form up until the commencement of the “Work Choices” reforms that were passed in 2005. By those reforms, the right of permit holders to enter premises to hold discussions was constrained so as to limit entry only onto premises at which work was performed that was covered by an award or collective instrument that was binding upon a permit holder’s organisation.

155    It was that constraint that informed the introduction of s 484 of the FW Act. The extrinsic materials to which I have adverted recorded the view that cl 484 would restore the right of permit holders to enter premises and hold discussions regardless of what industrial instruments were or were not applicable. A report on the bill issued by the Senate Standing Committee on Education, Employment and Workplace Relations and tabled in Parliament on 27 February 2009 stated that the “provision…existed in the pre-WorkChoices [WR Act]”. The Acting Prime Minister, in answering a question without notice in the House of Representatives on 2 December 2008, indicated that “the provisions…about right of entry…are basically the provisions that applied in this country from 1988 to 2005”.

156    The Parliamentary debates that ensued in relation to what was then cl 484 of the bill record a measure of opposition scepticism about whether the rights of entry proposed in the bill in fact had that operation. None of that scepticism, though—and, indeed, none of the government’s responses to it—proceeded on the basis that cl 484 might be understood to be entirely (and subjectively) purposive in the way for which the Union now contends.

157    In March 2009, the Senate amended the original form of cl 484 of the bill, substituting “for the purposes of holding” for “to hold”. That edit—which, consistently with the statements of the Acting Prime Minister, brought the provision closer in form to what was s 285C of the pre-Work Choices WR Act—was effected by “item 18” of a list of government amendments that the Senate (and subsequently the House of Representatives) endorsed. A supplementary explanatory memorandum circulated in respect of the amended bill noted:

Item 18 – Clause 484

214. This item clarifies that when a permit holder enters premises under clause 484, the entry must be for the purpose of holding discussions with employees or TCF outworkers who:

    perform work on the premises;

    are entitled to be represented by the permit holder’s organisation; and

    wish to participate in those discussions.

215. While entry must be for the purpose of holding discussions with this class of workers, it does not mean that if other workers choose to attend or participate in discussion that the entry is invalid or contrary to the Act.

216. The amendment also makes clear that the proviso that employees must wish to participate in discussions operates after entry – i.e., it ensures that an employee cannot be required or otherwise compelled to participate in the discussions. However, it does not mean that a permit holder must demonstrate before entry that there is a particular employee on the premises who wishes to talk to the permit holder.

158    From the initial provision, which used “to hold” (above, [145]), and its initial explanation (both in the second reading speech and the explanatory memorandum), which used “for the purpose of holding” (above, [146], [147], [149]), it can be seen that the two turns of phrase were used interchangeably. Indeed, the heading to the subdivision in its current form—to which attention is legitimately directed for construction purposes (AI Act, s 13(1), as qualified by s 40A of the FW Act)—continues to employ the earlier phrasing (“to hold”). Linguistically, the alternative phrasings denote the same thing.

159    The explanatory memorandum to the initial bill relevantly said as follows about what was then clause (now section) 503:

Clause 503 – Misrepresentations about right of entry

2001. This clause provides that a person must not take action with the intention of giving the impression, or reckless as to whether the impression is given, that the action is authorised by the Part when this is not the case. An example of behaviour that this clause would cover is where a person represents himself or herself as a permit holder when [he or she] does not hold a valid entry permit. Other examples would include where a person asserts [that he or she] is entitled to represent particular employees when the union’s eligibility rules do not extend to that class of employees, or where an employer asserts to employees that the union is not allowed to talk to them when it can.

160    Clause 518 of the initial bill was also the subject of amendment by the Senate but none of those amendments bore upon the issue of present focus. Of that provision, the explanatory memorandum noted:

2061. Subclauses 518(2) and 518(3) set out specific additional requirements relating to entry under clause 481 to investigate a suspected contravention and under clause 484 for discussion purposes.

2062. In both cases, the entry notice must specify the clause that authorises the entry (that is either clause 481 or 484). The permit holder is also required to make a declaration that his or her organisation is entitled to represent the industrial interests of the relevant employees and specify the part of the organisation’s rules which provide that coverage.

2063. The requirement to make a declaration arises because it may be difficult for an employer to easily establish whether or not an organisation satisfies the pre-requisite for entry of being entitled to represent the industrial interests of their employees. A permit holder who deliberately makes a false declaration in an entry notice would breach clause 503, which prohibits intentionally giving the impression that a permit holder has rights under this Part when [he or she] does not. A permit holder who is found to have breached clause 503 must have his or her permit suspended or revoked under clause 510.

161    Similarly, cl 520 was the subject of the following explanation:

2068. This clause requires FWA to issue an affected member certificate in certain circumstances. These certificates would prevent the need to disclose the identity of a member of an organisation where a permit holder seeks to enter for investigation purposes. The need to identify a member may arise as entry may only occur if the organisation has a member working on the premises and the breach relates to or affects that member. Establishing these facts with a certificate would cater for circumstances in which the member does not wish to identify themselves to the employer as the person who has sought the union’s assistance.

Analysis

162    The question that arises for the court’s consideration in this appeal (and that arose both below and in Elecnor) is this: does the Parliament’s use of the phrase “for the purposes of holding” mean that authority to enter premises turns upon consideration of a permit holder’s subjective purpose; or was it intended, instead, to denote the objective criteria that inform what permit holders may do when exercising rights under the section? If, for example, there are no employees present at particular premises who perform work there, does the section envisage that a permit holder might lawfully enter them regardless merely by subjectively believing otherwise; or does it operate so as to accept that entry in those circumstances cannot objectively be gained in order to realise the purpose described?

163    As I have said, the resolution of that question turns upon the application of standard principles of statutory construction. In the analysis that follows, I proceed on the footing that the text of the section is capable of sustaining both the subjective construction that the primary judge preferred and the alternative, objective construction that the appellants advance. That does not appear to be in doubt.

164    There are several aspects of the statutory regime and the extrinsic material that contextualises it that point towards an objective construction of s 484 of the FW Act. Perhaps the most obvious is the requirement for which s 518(3) of the FW Act provides. In order that a permit holder might gain entry onto particular premises, he or she must first produce to the occupier a declaration certifying that his or her organisation is competent to represent employees who work there. That declaration must identify the provision within the organisation’s rules that reflects that competency.

165    Section 518(3) does not require permit holders to declare what their state of mind is. The declaration and reference that it contemplates are, on any view, directed towards verifying the existence of an objective state of affairs. It may be accepted that such verification might occasionally require that a permit holder call upon what he or she understands to be true (informed, of course, by a measure of expertise reflective of possession of an entry permit). A person who makes a declaration about an objective fact necessarily does so on the strength of what he or she subjectively believes is accurate. For present purposes, there may be occasions on which, for example, questions of industrial coverage are complex and require measures of informed conjecture. None of that changes the obvious purpose to which the section is directed. Entry is conditioned upon a permit holder declaring what is; not what he or she thinks.

166    Just as obvious is why the statute requires that that information should be given to an occupier and what might be done with it upon receipt. On any view, the purpose is educative: for the occupier to be told how it is that the permit holder qualifies for the right of entry that s 484 of the FW Act confers. It affords occupiers an opportunity—and some means—to verify that permit holders possess the right of entry that they assert.

167    One would struggle not to recognise that wholly unambiguous statutory objective; but even if there were some doubt about it, it is immediately extinguished upon consideration of the explanatory memorandum. The passage of relevance bears repeating (emphases added):

The requirement to make a declaration arises because it may be difficult for an employer to easily establish whether or not an organisation satisfies the pre-requisite for entry of being entitled to represent the industrial interests of their employees.

168    The purpose of the declaration is to make it easier for occupiers to satisfy themselves that a permit holder satisfies a prerequisite for entry. That prerequisite is not that the permit holder thinks that his or her organisation is competent to represent the industrial interests of employees who perform work at the premises in respect of which is asserted a right of entry under s 484 of the FW Act. The prerequisite for entry—the condition upon which conferral of that right depends—is that the permit holder’s organisation is competent.

169    That unambiguous expression of legislative intent is fatal to the Union’s construction of s 484 of the FW Act.

170    Nonetheless, there are other indicators that just as persuasively favour the objective construction of s 484 for which the appellants contend. The note subjoined to s 518(3) of the FW Act references s 503. It may be recalled that s 503 of the FW Act broadly prohibits a person from taking action with intent to create, or reckless as to the creation of, a wrong impression that the doing of a thing is authorised by pt 3-4. The statutory regime contemplates that, subject to s 503(2), a permit holder might offend that prohibition by making a declaration under s 518(3) that is wrong (that is to say, by wrongly declaring that his or her organisation is competent to represent the industrial interests of employees who perform work at the premises in respect of which is asserted a right of entry under s 484). Again, to the extent that there was any doubt about that, the explanatory memorandum (above, [159]-[160]) makes it unambiguously clear.

171    If the right of entry conferred by s 484 of the FW Act turns upon the possession of a subjective state of mind, then the making of a declaration under s 518(3) about an objective state of affairs would not obviously stand as conduct that was apt wrongly to imply authority to enter. As counsel for the Union rightly accepted, a person could not sensibly stand charged with having done something, whether recklessly or by design, that led another person wrongly to think that entry onto premises was authorised by s 484 of the FW Act if the thing that the first person did—here, make an unreasonably false declaration as to the industrial coverage of persons performing work on a site—bore no connection to the existence of that authority. If the Union’s construction is right, it would be only in very limited (if any) circumstances that false declarations made under s 518(3) of the FW Act might attract sanction under s 503.

172    But even assuming otherwise, there is an even more absurd possibility. Suppose that a permit holder genuinely but wrongly (and without reasonable cause) believes that his or her organisation is competent to represent the industrial interests of employees who perform work at premises in respect of which is asserted a right of entry under s 484 of the FW Act. Assuming compliance with s 487 of the FW Act, the Union’s construction of the statutory regime would have it that the permit holder will simultaneously be entitled to enter the premises and be liable to sanction for entry notice misconduct offensive to s 503(1) of the FW Act. In construing the provisions, some effort is legitimately to be expended in avoiding such plainly anomalous outcomes.

173    Below and in Elecnor, the court was concerned to consider how the objective construction of s 484 might operate in practice if it were embraced. The primary judge observed that the criteria in paras (a) to (c) “might be the subject of complex legal argument”. Like Wigney J in Elecnor (at [108]), his Honour considered that “requiring a permit holder to demonstrate the presence of employees in the relevant category before entering the premises in reliance on s 484 would be impractical and would deprive the provision of much of its intended effect”.

174    Respectfully, that is not how pt 3-4 of the FW Act works. It is to be recalled that div 4 is headed, “Prohibitions”. Section 501 operates so as to expose occupiers and employers to civil penalties in the event that they frustrate the entry to premises of a permit holder duly exercising prescribed rights in that regard. There is no mental element or defence. Save that they must provide the information that s 487 of the FW Act envisages, rights of entry are not conditioned upon permit holders being able to persuade occupiers that their entry onto premises is authorised.

175    That understood, there is no reason to assume that a permit holder might be drawn into protracted or spurious legal argument “at the gate”. An occupier or employer who takes steps to prevent a permit holder from duly entering premises—or who unduly delays his or her authorised entry—runs the risk of exposure to civil penalty if the factual or legal propositions upon which it does so are not later vindicated. A permit holder who proceeds onto premises innocently and reasonably but without statutory authority does not wear any similar risk under pt 3-4 of the FW Act.

176    At the hearing of the appeal, the Union emphasised particular difficulties that might arise in the event that permit holders are required to establish, upon or prior to entering premises, that there are employees who wish to speak with them. In that respect, it relied upon the observations of Wigney J in Elecnor (at [108]):

…For example, how would a permit holder be able to demonstrate to the occupier of the premises, before entering the premises, that there are in fact employees on the premises who wish to participate in discussions. That could realistically only be demonstrated once the permit holder is on the premises and invites employees to participate in discussions. As the Full Court observed in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470; [2017] FCAFC 89 at [15]:

…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 site, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site.

177    Permit holders are not required to declare in advance of entry that there are employees on site who wish to speak to them: FW Act, s 518(3); see also, Note 3 to s 484. Insofar as the words of the section might be misunderstood to condition the right of entry upon a permit holder’s proving that such people actually exist, the extrinsic material surveyed above makes it clear beyond doubt that that is not how the section is intended to operate: above, [157]. None of that, though, requires or supports the acceptance of a subjective construction. It merely reflects that the section operates to enable entry onto premises so that permit holders can hold discussions with whomever they might persuade to indulge in them. That is the commonsense, practical construction that emerges from the section’s text, context and purpose, informed by relevant extrinsic material.

178    Further contextual analysis might be superfluous but I will embark upon it if only to underline that it uniformly reinforces acceptance of the construction to which I have in any event been drawn.

179    I have already noted that, in proposing cl 484 of the bill that eventually became the FW Act, the government purported to reinstate what had earlier been s 285C of the WR Act. That provision (above, [152]) was structured so as to express unequivocally that the circumstances in s 285C(1)—the statutory ancestors of s 484(a) and (b)—were objectively to exist in order that any right of entry was conferred. At no point during the progression of the bill was there any departure from that historical reality.

180    To similar effect, the explanatory memorandum accompanying the original bill expressly detached the purposive element of the provision (that is, the holding of discussions) from the characteristics that the intended interlocutors were to have (see above, [147]). By itself, that might not be an especially strong indicator of Parliamentary intention. However, there are obvious parallels between s 481(1)(a) and (b) (on the one hand) and s 484(a) and (b) (on the other). The explanatory memorandum made it pellucidly clear that the former requirements were to be construed objectively (see above, [148]). To the extent that the primary judge suggested (above, [119]) that there might be contextual reasons to construe differentially what are, in truth, materially identical provisions, I respectfully disagree. The text and context do not provide any meaningful or realistic support for such a distinction; and the extrinsic material inclines unanimously in the opposite direction. It is, for example, very clear from the relevant aspects of the explanatory memorandum that the declaration required under s 518 was intended to operate in the same way in respect of both species of right (see above, [160]).

181    That s 481(1) of the FW Act ought to be interpreted objectively is apparent from a long line of first instance authority. In Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd (2018) 280 IR 47 (“Qantas Airways”), Flick J found that “the ‘purpose’ to which s 481(1) refers is a purpose objectively determined rather than subjectively determined”. His Honour in reaching that view considered two decisions of Gray J in respect of s 286 of the IR Act (above, [151]). Commencing with Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241, 252-3 (Gray J), Flick J explained (at 63-4 [34]):

…There in issue was s 286(1) of the former Industrial Relations Act 1988 (Cth), which authorised (inter alia) entry upon premises “for the purpose of ensuring the observance of an award or an order of the Commission”. With reference to that provision, Gray J concluded:

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

This view was repeated as follows by his Honour in Australian Federation of Air Pilots v Australian Airlines Ltd (1991) 28 FCR 360 at 372; 36 IR 194 at 204:

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

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

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

182    Before this court, the Union placed some emphasis on the majority’s construction of a statutory antecedent to s 484 in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 (“John Holland”). There, the full court (Spender, Dowsett and Logan JJ) considered, en route to interpreting other provisions of the relevant part of the WR Act, the correct interpretation of the discussion-focused entry right conferred by what was then s 760 (in the form that it assumed following the passage of the Work Choices reforms). It repays to rehearse that form:

760 Right of entry to hold discussions with employees

A permit holder for an organisation may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose, eligible employee means any employee who:

(a)    on the premises, carries out work that is covered by an award or collective agreement that is binding on the permit holder’s organisation; and

(b)    is a member of the permit holder’s organisation or is eligible to become a member of that organisation.

183    Justice Dowsett, with whom Spender J agreed (at 91-2 [3], [8]), held (at 97 [39]) that the authorisation conferred by s 760 “is not dependent upon satisfying [the definition of ‘eligible employee’]” and instead turned upon the permit holder having “the required purpose”.

184    The appellants contend presently that that finding was made without the benefit of full argument on the point. They rely, in that regard, upon the dissenting observations of Logan J at 116-7 [108] (which I needn’t replicate). The proposition seems at least plausible, given that there was no reference in John Holland to any historical interpretations of the single-purpose entry right in the IR Act, which Flick J rehearsed—and ultimately applied in respect of s 481(1)—in Qantas Airways.

185    It doesn’t much matter. John Holland offers limited, if any, assistance. When s 484 became law, John Holland was yet to be handed down. The so-called “re-enactment presumption” does not apply. Further, there are obvious contextual differences between the scheme as it there existed and the scheme with which the present appeal engages. Especially relevant is that the statutory antecedent to s 518(3)—s 763 of the WR Act—included no requirement to declare an entitlement to represent the industrial interests of those who performed work on the premises in respect of which entry was sought.

186    The statutory scheme erected by pt 3-4 of the FW Act “…manifests a concern to tightly circumscribe the statutory right to entry that can be exercised by union officials”: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd [2022] FCA 1462, [41] (Colvin J). In construing the limits of the phrase, “…may enter premises for the purposes of holding discussions”, this court “…must be careful to honour that clear parliamentary intention”: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd (2023) 300 FCR 396, 403 [30] (Bromberg, Rangiah and Snaden JJ). That cannot be done by preferring a construction of s 484 of the FW Act that confers a right of entry by a process of self-entitlement.

187    Moreover, it must be borne in mind that the right that s 484 of the FW Act confers is one that permits what would otherwise be unlawful. The section is properly to be construed “…with an eye on the important role of organisations in protecting their members”: Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140, [109] (Jessup J). So too, though, must the court bear in mind that “[s]tatutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language”: Coco v The Queen (1994) 179 CLR 427, 436 (Mason CJ, Brennan, Gaudron and McHugh JJ). Where a statutory encroachment upon “rights and freedoms at common law” permits of alternative constructions, the legislature is presumed to have intended the construction that minimises that encroachment: Momcilovic v The Queen (2011) 245 CLR 1, 46 [43] (French CJ); see also Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 329 [21] (Gleeson CJ).

188    Conferring rights of entry by a process of self-entitlement offers little in the way of the “balance” that s 480 of the FW Act nominates as an objective of pt 3-4. A right of entry conditioned by the existence of shared, ascertainable facts is one that affords permit holders and occupiers alike a reliable means of assessing and asserting their rights and obligations. A right conditioned nebulously by reason of what is or is not within a permit holder’s mental contemplation does not; at least not in any way that is practical. If permit holders are entitled to enter premises merely because they convince themselves that such an entitlement exists, any practical scope for challenge is lost; and with it goes any realistic prospect of realising the statutory aspiration of balancing competing rights.

189    Section 484 of the FW Act envisages that permit holders will be able to enter premises and hold discussions with certain kinds of employees who might be persuaded to indulge in them. If there are no employees of that kind at particular premises, then entry thereupon cannot be perfected for the purposes that the section envisages and no right in that regard arises. If there are, then it can and it might. So far as the criteria in paras (a) to (c) are concerned, the subjective state of mind of a permit holder is irrelevant. That construction is the only one that is unambiguously consistent with the words that the section employs and the broader statutory context within which they appear. Moreover, it aligns with every single indicator that emerges from the relevant extrinsic material and the other historical markers that I have surveyed above. The construction that the Union advances cannot be accepted in a way that honours those clear expressions of legislative intent.

190    Respectfully, Elecnor was wrongly decided (at least insofar as concerns this construction question). Appreciating the force in the primary judge’s reasons for following it—and acknowledging, in any event, that his Honour (perhaps like Wigney J) might not have been taken to all of the other aspects of the statutory regime or the extrinsic materials that feature in the analysis above—it necessarily follows, in my respectful view, that his Honour erred in preferring a subjective construction of s 484.

191    Appeal ground 4 should be upheld.

192    Before moving to the second of the two substantive questions with which the appeal engages, I should say something about appeal ground 5. It was formulated differently in the amended notice of appeal; but, by their written submissions, the appellants posit that, even assuming that s 484 is to be subjectively construed, the subjective state of mind by which permit holders might self-entitle themselves to rights of entry thereunder must nonetheless reasonably be formed.

193    The contention sought now to be advanced did not feature as part of the appellants’ defence of the action below. The primary judge was not invited to—and did not—make any finding about the reasonableness of the subjective states of mind by which he accepted that the Officials were animated on the occasions that they sought entry onto the NECA Premises.

194    Appeal ground 5, then, essentially distils to the proposition that the primary judge erred by failing to make a finding that he wasn’t asked to make. Such a contention collides headlong with well-established appellate principles. At least insofar as it is (as it plainly is) one that might have been addressed evidentially, an appellant cannot on appeal expect to succeed upon a contention that was not advanced at first instance: Coulton v Holcombe (1986) 162 CLR 1, 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ).

195    No more need be said of appeal ground 5. It should fail at least for the reason just identified.

Is school the same as work?

196    Having answered the construction question, attention must next turn to grounds 1, 2 and 3 of the appellants’ amended notice of appeal, which concern the correctness of the primary judge’s findings that the apprentices who were in attendance at the NECA Premises on 2 May 2024 and 9 May 2024 were employees who performed work there for the purposes of s 484 of the FW Act.

197    As I have already noted, it is, perhaps, more accurate to describe his Honour’s observations as considered obiter rather than operative conclusions of fact and law. Having found that the Officials’ rights of entry on the dates in question were established by reason of their subjective states of mind, it was not strictly necessary for his Honour to explore whether, objectively, the facts bore out what he was satisfied that they believed. His Honour did so all the same and, with respect, rightly so. At issue now is whether the conclusions that he recorded about the objective state of affairs—that is to say, about whether ECA’s apprentices at the NECA Premises were properly described as employees who performed work there for the purposes of s 484 of the FW Act—withstand the criticisms that are the subject of appeal grounds 1, 2 and 3.

198    The answer to that question turns upon consideration of a relatively straightforward query: can the ECA apprentices’ attendance at school properly be equated with their performing work as employees? For the reasons that follow, the short answer to that question is: no.

199    I use the term “school” but not for any particular reason. It doesn’t much matter whether what ECA’s apprentices received at the NECA Premises is fairly conceived of as “education” or “training” or “schooling” or something that falls conceptually within some other synonymous term. ECA’s apprentices were required, as a condition of their apprenticeship, to attend the lectures or classes or workshops (howsoever described) that comprised their enrolment in the Cert III Electrical Qualification course. The time that they devoted in that regard was time for which they were (and were required to be) paid. None of that is controversial. At issue is whether they can properly be understood to have been, by those attendances, concerned with the performance of their work as ECA employees.

200    An ordinary incident of any employment relationship is the obligation of an employee to obey the reasonable and lawful directions of his or her employer. Necessarily, then, every employee is obliged to undertake such paid training as his or her employer might lawfully and reasonably direct. That that obligation might formally find expression within the written terms that govern an employee’s engagement is neither here nor there.

201    The essence of a contract of service “…is the supply of the work and skill of a man”: Humberstone v Northern Timber Mills (1949) 79 CLR 389, 404-5 (Dixon J, with whom Latham CJ and Rich J agreed in the result). Inherent in the concept of “service”, then, is the supply to an employer of an employee’s labour. In the case of labour hire businesses—as ECA’s might properly be described—the position is no different, save that, in practical terms, the benefit of the labour supplied will inhere most immediately to the business’s “host” client.

202    Employees who undertake off-the-job training as described at [115] above are not, when doing so, performing work in any sense that the ordinary meaning of that word can reasonably accommodate. Indeed, there is a clue in that description: it is “off” the job; external to and separate from the supply of labour by which a contract of service is otherwise and elementally constituted. It doesn’t matter whether it’s undertaken at an employee’s normal place of work or at some other location: the performance of work (which is central to any contract of service) is to be distinguished from attendances to other things that arise as incidents ancillary to that central covenant.

203    An apprentice electrician who is deployed to a construction site to assist with such construction tasks as he or she might lawfully and reasonably be allocated is plainly somebody who may be understood to be an employee performing work at that site. An apprentice who falls ill and spends the day (or part of the day) in an on-site sick room is, just as plainly, not (at least not for so long as his or her inability to work persists). So to acknowledge is not to doubt that the employee would remain one “who perform[s] work on the premises” for the purposes of s 484. That status doesn’t toggle back and forth from moment to moment depending upon whether an employee is on premises doing things other than working. The distinction to be drawn is as between the performance of work and (in this example) on-site convalescence. They are not the same.

204    I will shortly come to some of the constituent activities that featured in the primary judge’s analysis; but, to state an immediate proposition, the apprentices who were in attendance at the NECA Premises did not, whilst there, attend as employees to any tasks that might realistically be equated with the performance of work. School is not work (at least not in the sense associated with contracts of service). It must be borne in mind that the Cert III Electrical Qualification in respect of which the apprentices were in attendance at the NECA Premises can be (and, in some cases, was) obtained from other education providers, such as colleges of technical and further education, and even some universities. It could not sensibly be thought that student apprentices attending class at a TAFE college did so as employees performing work there. For the same reason, I do not accept that apprentice employees attending equivalent classes at the NECA Premises did either.

205    What, then, can be made of the circumstances to which the primary judge adverted en route to accepting the contrary proposition (replicated above at [120])? Save for the concluding sentence in [64] of the Primary Judgment, nothing that his Honour noted is credibly to be doubted. Respectfully, I agree with all of his Honour’s other observations, including that the ECA apprentices’ attendances at the NECA Premises were attendances that they made as incidents of their service to ECA. That is not the issue. The issue is whether, when undergoing training, one can be understood to be performing work. For the reasons that I have canvassed, one cannot.

206    The fact that ECA sought to (and, occasionally, did) avail itself of its proximity to its apprentice employees for the purposes of holding discussions with them about their work is, likewise, neither here nor there. Talking about work is not the same as performing it. A discussion at the NECA Premises about an employee’s poor performance or misconduct no more involves the performance of work there than the same discussion conducted by telephone during an employee’s commute home involves the performance of work in his or her car.

207    That example is, of course, somewhat strained; but it assists in illustrating the point. Others were the subject of exploration at the hearing of the appeal. Counsel for the Union accepted, for example, that, on his conception of what is covered by the words “perform work on the premises”, an apprentice employee who is asked to visit a nearby hardware store to pick up a new screwdriver would properly be understood to be an employee who performs work there.

208    Other examples abound. Might a fly-in, fly-out mineworker en route to a remote site be conceived of as an employee who performs work on the plane that flies him or her there? Might a person appearing under direction to give evidence at a hearing in a matter commenced by or against his or her employer be conceived of as an employee performing work at the court premises? Is a person attending upon a physician at his or her employer’s direction to be understood as an employee performing work at the doctor’s rooms? At least for the purposes of s 484 of the FW Act, the answer in each case is very plainly “no”.

209    Although skilfully advanced, the Union’s submission cannot be accepted. On only the most perverse conception of the statutory phrasing could workers in any of the examples addressed above be thought of as employees performing work at those locations. At least for the purposes of s 484 of the FW Act, there is no necessary or inherent coincidence between the premises at which one performs work and the premises at which one has occasion to be in connection with his or her paid employment. The former is a subset of the latter.

210    Whatever might be the conceptual boundaries of work performance for the purposes of s 484 of the FW Act, attendance at education or training workshops—or school—falls comfortably outside of them. An employee who attends by direction upon the premises of an education or training provider is not, merely thereby, an employee who performs work at those premises for the purposes of s 484 of the FW Act.

211    That conclusion aligns with what limited jurisprudence there is on the subject. In Construction Forestry Mining and Energy Union (Construction and General Division) v Master Builders Group Training Scheme Inc (2007) 168 IR 164 (“Master Builders”; Branson, Finn and Gyles JJ), this court had occasion to consider whether apprentice builders were entitled, on days that they attended at a trade school under the terms of their training contracts, to a travel allowance under the terms of an award that was in force under the WR Act. That entitlement turned upon whether or not the apprentices were “employed on work” within an identified radius of the Adelaide general post office.

212    At first instance, the claim was rejected, in part on the basis that “…one would [not] ordinarily consider that an apprentice attending trade school was employed on ‘work’”: Construction Forestry Mining and Energy Union (Construction and General Division) v Master Builders’ Group Training Scheme Inc (2007) 161 IR 86, 93 [39] (Besanko J). On appeal, the full court recorded (Master Builders, 167 [12]) the appellant’s submission as follows:

The appellant argued that an apprentice at trade school is “employed on work” within the meaning of…the Award because the respondent and the host employer are obliged by statute and contractually to allow the apprentice to attend trade school and the apprentice is contractually obliged so to attend. The appellant submitted that the attendance at trade school is thus part of the work of the apprentice.

213    In rejecting that presently familiar contention and dismissing the appeal, the court concluded (at 169 [21]) that:

…the long accepted nature of a contract of apprenticeship, the language of the Award and the purpose for which the fares and travel patterns allowance is paid, all suggest that an apprentice while at trade school is not “employed on work” within the meaning of…the Award…

214    En route to stating that conclusion, the court had occasion to consider the definition of “training arrangement” in s 4 of the WR Act, noting (at 168 [16]) that it reflected “[t]he distinction between training and work”. For present purposes, a materially identical definition exists (and existed) in s 12 of the FW Act.

215    Master Builders was the subject of consideration in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 (“Excelior”; Katzmann J). That matter also involved a claim made under an award for travel payments by an employee who attended some training; and turned upon whether the time spent travelling thereto and from attracted an entitlement on the basis that the training amounted to “work”. The employer’s contention—that “‘Work’ means work, not training”—was accepted. After acknowledging that the provisions of the award should be construed according to the ordinary meaning of their words, her Honour observed (at [55]) that “…[w]ork does not ordinarily mean training…” and concluded (at [57]) that the award-based phrase “required to work” did not include “being required to attend off-the-job training”. The outcome of the application followed accordingly.

216    Here, the primary judge did not consider that he was bound, in respect of s 484 of the FW Act, to apply the conclusions of this court that were expressed in those earlier judgments in respect of award entitlement claims: Primary Judgment, [60]. It was not, on appeal, suggested that he erred by so considering and, with respect, rightly so. Nonetheless, the facts with which Master Builders and Excelior engaged were materially similar, if not relevantly identical, to those of the present matter. Although not binding, the constructions favoured in those cases in respect of words of general application were, at the very least, highly persuasive; in my view, to the point of compelling. For the reasons that I have explored above, they conform to ordinary conceptions of “work” and the performance thereof.

217    Appeal grounds 1, 2 and 3—or the central contention to which they distil—should succeed. ECA’s apprentices were not relevantly employees who performed work at the NECA Premises on the occasions that the Officials sought entry thereupon. Insofar as the primary judge concluded or opined otherwise, I respectfully consider that he did so in error.

Relief

218    The appeal should be allowed. The declaratory and other orders that the court pronounced on 17 October 2025 should be set aside and, in their place, it should be ordered that the Union’s amended originating application dated 27 August 2025 be dismissed. There is no application for costs and s 570(1) of the FW Act very likely precludes their being awarded. For now, at least, there should be no orders in that respect.

Associate:    

Dated:    28 October 2026