FEDERAL COURT OF AUSTRALIA

Australian Food Corporation Pty Limited ACN 077 256 430 v Australasian Meat Industry Employees Union [2001] FCA 513

AUSTRALIAN FOOD CORPORATION PTY LIMITED ACN 077 256 430 v AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION

Q 75 OF 2000

DOWSETT J

4 MAY 2001

BRISBANE

THE COURT ORDERS THAT:

1.         The appeal is allowed.

2.         The orders of the industrial magistrate made on 7 July 2000 be set aside. 

3.         The complaint be dismissed

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal pursuant to s 422 of the Workplace Relations Act 1996 (Cth) (the “Commonwealth Act”) against a decision of an industrial magistrate of the State of Queensland exercising jurisdiction conferred by s 285F of that Act which provides:

(1)       In this section:

"eligible court" means:

(a)        the Federal Court of Australia; or

(b)        a District, County or Local Court; or

            (c)         a magistrate's court.

"penalty provision" means subsection 285A(5) or 285E(1), (2), (3) or (4).

(2)       If a person contravenes a penalty provision, the contravention is not an offence. However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.

(3)       The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.

(4)       An application for an order under subsection (2) may be made by any person.

(5)       An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.

2                     In s 4 of the Commonwealth Act, the term “magistrate’s court” is defined to mean:

(a)       a court constituted by a police, stipendiary or special magistrate; or

(b)       a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate.

(c)        (repealed).

3                     The proceedings in question were to recover a penalty for an alleged breach of subs 285E(2) of the Commonwealth Act which relevantly provides:

The occupier of premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 285B or 285C.

4                     Entitlement to enter was claimed pursuant to s 285B which authorizes entry to premises during working hours by certain persons for the purpose of investigating suspected breaches of the Commonwealth Act or of an award, order of the Commission or certified agreement.  Thus it was alleged that contrary to subs 285E(2) the applicant, as occupier of premises, refused entry to those premises by one Brian Patrick Crawford who was entitled to such entry pursuant to s 285B.  Mr Crawford was the assistant secretary of the Queensland branch of the respondent.  The industrial magistrate found that such contravention was established on the balance of probabilities and imposed a penalty of $1,500 of which $200 was to be paid to the respondent.

5                     The applicant has argued the following grounds of appeal:

·                 that the jurisdiction of the Industrial Magistrates Court was not properly invoked so that the Court had no jurisdiction to entertain the proceedings;

·                 that the industrial magistrate erred in finding that the applicant was the occupier of the relevant premises; and

·                 that the industrial magistrate erred in finding that Mr Crawford had sought entry to the premises “during working hours” as required by subs 285B(2);

Jurisdiction

6                     It is necessary that I describe the basic structure of Magistrates Courts in Queensland.  Magistrates are appointed pursuant to the Magistrates Act 1991 (Qld) (the “Magistrates Act”).  Where other legislation refers to a “stipendiary magistrate”, such references are to a magistrate so appointed.  See s 25.  However Magistrates Courts are constituted pursuant to the Justices Act 1886 (Qld) (the “Justices Act”), which act also confers jurisdiction in matters where, pursuant to any act:

any person is made liable to a penalty or punishment, or to pay a sum of money, for any offence, act, or omission, and such offence, act or omission is not by the Act declared to be an indictable offence, and no other provision is made for the trial of such person … .(s 19)

7                     Section 6 of the Acts Interpretation Act 1954 (Qld) suggests that the word “Act” does not include Commonwealth legislation.  Jurisdiction conferred pursuant to the Justices Act will often be criminal or quasi-criminal, but civil proceedings for a pecuniary penalty are also within the ambit of s 19.  In Queensland civil jurisdiction is primarily conferred upon Magistrates’ Courts by the Magistrates Courts Act 1921 (Qld) (the “Magistrates Courts Act”).  Proceedings pursuant to the Justices Act are generally commenced by complaint, followed by a warrant or summons.  See ss 42, 57 and 58.  Where the jurisdiction is conferred by the Magistrates Courts Act, proceedings have historically been commenced by way of plaint with pleadings.  In civil proceedings, the Uniform Civil Procedure Rules 1999 (the “UCP Rules”) now apply (r 3).

8                     The Industrial Relations Act 1999 (Qld) (the “IR Act (Qld”) establishes Industrial Magistrates Courts which are constituted by industrial magistrates.  Any stipendiary magistrate is an industrial magistrate.  See ss 289, 290 and 291.  Thus Industrial Magistrates Courts are separate from Magistrates Courts constituted for the purposes of the Justices Act or the Magistrates Courts Act but may be constituted by the same stipendiary magistrates.  It will be noted that whilst the Commonwealth Act uses the apostrophe in the term “magistrate’s court”, the relevant Queensland legislation does not.  The effect of subss 285F(1) and (2)  of the Commonwealth Act is to confer jurisdiction upon both Magistrates Courts and Industrial Magistrates Courts in Queensland.  It seems that the respondent sought to invoke the jurisdiction of the Industrial Magistrates Court at Ipswich.  The originating process was in the form of a complaint and summons, referring to that court.  It has not been suggested that the purported conferment of federal jurisdiction upon that Court is other than valid.  The challenge is to the validity of the respondent’s attempt to invoke its jurisdiction.  It is submitted that the procedure of complaint and summons purportedly used to commence these proceedings was not appropriate and that all proceedings were therefore of no effect. 

9                     I doubt whether that conclusion necessarily follows from the initial premise.  Neither the Commonwealth Act nor the IR Act (Qld) appears to make the conferment of jurisdiction or the invocation of that jurisdiction dependent upon any particular procedural step.  In the absence of an express statutory provision, it seems unlikely that any rule-making power, whether conferred upon the executive government or upon the court in question, could be exercised so as to require any such step in order to invoke the jurisdiction of a relevant court.  Nevertheless, it is submitted that when the Commonwealth confers jurisdiction upon a state court it takes that court “as it finds it” (Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554 at 559-60) and that such jurisdiction must therefore be exercised in accordance with any state procedural rules. 

10                  Section 338 of the IR Act (Qld) authorizes the Governor-in-Council to make appropriate rules, including rules for the purposes of proceedings in the Industrial Magistrates Courts.  The power also extends to making rules for practice in other tribunals constituted pursuant to the Industrial Relations Act, including the Industrial Court, the Industrial Relations Commission and before the registrar.  The registrar acts as registrar for both the Industrial Court and the Industrial Relations Commission.  The Industrial Court Rules 1997 (The “IR Rules (Qld)”) have been promulgated pursuant to s 338.  Rule 18 relates to the commencement of proceedings before the Court, Commission or registrar but does not deal with proceedings before an industrial magistrate.  On the other hand rule 93 provides:

A proceeding before a magistrate for an offence, including a proceeding for the enforcement of penalties imposed or orders made for the offence, must be dealt with as required by section 460 of the Act and these rules. 

11                  It seems that the reference to s 460 (of the IR Act (Qld)) should now be taken as a reference to s 683, there having been a renumbering of the relevant sections at some time between the adoption of the rules and the 1999 reprint of the Industrial Relations Act.  That section provides:

(1)       Proceedings for an offence under this Act are to be heard and decided by the court or a magistrate, within the limits of the court’s or magistrate’s jurisdiction.

(2)       Proceedings before a magistrate are to be heard and decided summarily under the Justices Act 1886, but the Industrial Magistrates Court where the proceedings are taken is to be constituted by a magistrate sitting alone.

(3) – (7)           …

This implies that for proceedings for offences, the procedure prescribed by the Justices Act is to be adopted.  The reference to the constitution of the court by “a magistrate sitting alone” may be designed to exclude any residual possibility of a court being constituted by justices of the peace.  As I have pointed out, proceedings under the Justices Act are commenced by way of complaint and summons. 

12                  Rule 94 provides:

(1)       This part applies to the following proceedings –

(a)        a claim for wages or other moneys payable to an employee and unpaid;

(b)        a claim for damages sustained by an employee because the employer failed to pay the employee’s wages;

(c)        a claim for moneys deducted from an employee’s wages, with the employee’s authority, to be paid by the employer for the employee but unpaid;

(d)        a claim for the amount of superannuation contribution that is unpaid, or an amount that is just and fair for the employer’s failure to pay superannuation contributions, and any reasonable costs associated with the fund;

(e)        a claim for damages for breach of an agreement made under an industrial instrument;

(f)        the recovery of penalties and amounts payable to WorkCover under the WorkCover Act 1996.

(2)        The proceeding must be commenced by complaint in form 21 made before a justice.

(3)        The complaint must be made by:

(a)        the complainant; or

(b)        a person authorized in writing by a complainant.

(4)        The matters in subrule (1) may be joined in 1 complaint.

13                  Rule 95 then provides that where a complaint has been made before a justice, he or she may issue a summons. The form prescribed in the IR Rules (Qld) (Form 21) is in the form of a complaint and summons.  The respondent adopted that format for the purposes of these proceedings.  It seems likely that a complaint and summons for the purposes of those Rules would also be adequate for the purposes of the Justices Act.

14                  It is arguable that the present claim does not fall within either rule 93 or rule 94 of the IR Rules (Qld).  Subsection 285F(2) of the Commonwealth Act provides that a contravention of the present kind does not constitute an offence but only exposes the “offender” to a penalty.  Rule 93 deals with proceedings “for an offence” and so cannot apply.  At the same time, recovery of a penalty does not fall within any of the categories prescribed by subrule 94(1).  There is no other prescribed process for commencing proceedings in the Industrial Magistrates Court.

15                  Clearly, the conferment of jurisdiction by the Commonwealth Parliament cannot be frustrated by the absence of any express provision as to how proceedings should be commenced.  As I read the Electric Light case, the procedures normally adopted by the court are to be adopted, save to the extent that the contrary intention appears.  The extent to which the Commonwealth may interfere in the process of a state court is not a matter which requires discussion for present purposes.  It is necessary only to say that the Industrial Magistrates Court at Ipswich has been given jurisdiction and must exercise it in an appropriate way.  The applicant’s argument depends upon establishing that the process adopted was not appropriate to the circumstances.  It seems to me, however, that the effect of the sections and rules to which I have referred is that there was simply no prescribed procedure which was directly appropriate to the recovery of a penalty under the Commonwealth Act.  It is not surprising that the State authorities had not thought it necessary to deal specifically with jurisdiction conferred by the Commonwealth Parliament.  I would have thought that in the absence of any express prescription of the way in which particular proceedings are to be commenced, any reasonably appropriate method would be satisfactory, and that if a potential applicant chose to proceed in a way which was analogous to that prescribed by rules 93 and 94, there would be little risk of the process being inappropriate. 

16                  In any event, if there be a difficulty it is, in my view, disposed of by the provisions of subrule 3(2) of the IR Rules (Qld) which provides:

Subject to the Justices Act 1886 and Magistrates Courts Act 1921, these rules apply to all proceedings about industrial matters before a magistrate. 

17                  Although there may be room for argument as to whether that wording is appropriate to give paramountcy to either the Justices Act or the Magistrates Courts Act on the one hand or the express provisions of the rules on the other, there is little doubt that where the rules are silent as to the means of commencing proceedings, a procedure which is appropriate under either the Justices Act or the Magistrates Courts Act will suffice.  As I have demonstrated, s 19 of the Justices Act authorizes the commencement of proceedings to recover a penalty “for any offence, act or omission” payable pursuant to a statute, provided that such conduct is not an indictable offence.  Those words are precisely appropriate to describe the present claim.  The applicant argues that s 19 applies only to amounts payable pursuant to Queensland statutes.  As a matter of construction, this may be true.  However we are not concerned with jurisdiction in the strict sense, only with procedure.  It is to be expected that the procedures in state courts will primarily address claims under state law, but that does not mean that the same procedures cannot be applied to claims within the jurisdiction of the court pursuant to Commonwealth legislation.

18                  Even if the Justices Act procedure could not be applied, the practice adopted under the Magistrates Courts Act could be adopted as the claim is a civil claim to which the UCP Rulesapply (rule 3).  Although the procedure of complaint and summons is not an originating process under those rules (see rule 8), rules 16 and 373 suggest that irregularity will not lead to invalidity.  Finally, rule 5 of the IR Rules (Qld) permits a magistrate to approve the procedure to be adopted where such procedure is not prescribed.  The industrial magistrate appears to have proceeded in this way.  See AB 10 at ll 43 – 54.

19                  I am of the view that whether the originating process actually adopted is treated as analogous to other procedures prescribed under the IR Rules (Qld), or whether it purports to be a complaint and summons for the purposes of the Justices Act, it was adequate to commence these proceedings.  That I have spent time in analyzing this matter should not be taken as indicating that I find any arguable merit in it.  There is much in the view expressed by Whitlam J in John L Pearce Pty Ltd v Kennedy [2000] FCA 1729 at par 23 where his Honour, sitting as a member of the Full Court, observed that the commencement of proceedings in an Industrial Magistrates Court by information rather than by complaint was “beside the point”.  I am of the view that in this case the question is also quite irrelevant and insubstantial. 

Other grounds of appeal

20                  In order to understand these grounds it is necessary to appreciate the facts of the case.  The premises are described in the complaint as at 26 Coominya Connection Road, Coominya.  There is no more precise description of them.  It seems that this street address serves at least two different properties.  One is lot 20 on registered plan 911288 of which the registered proprietor is the applicant.  Erected on that parcel (the “applicant’s land”) is a meat patty manufacturing plant (the “meat patty plant”) operated by the applicant.  The other parcel is lot 1 on registered plan 867653 (the “abattoir land”) of which the registered proprietor is AFC Abattoirs Pty Ltd (“AFC Abattoirs”).  Exhibit 16 demonstrates that the applicant’s land does not have direct access to Coominya Connection Road, whereas the abattoir land is a “battle axe” shaped block, having a narrow access corridor leading to that road.  Lot 3 on registered plan 867653 is also registered in the name of AFC Abattoirs.  It has substantial frontage to the road but is not immediately relevant for present purposes.  It seems that the applicant has some entitlement to use the access corridor, probably pursuant to one or more of the easements shown on the plan.  The abattoir land and building thereon are, according to the evidence of Mr Fullelove (a director of both the applicant and of AFC Abattoirs), used by AFC Abattoirs as an abattoir (the “abattoir premises”).

21                  Exhibits 13 and 19 indicate that AFC Abattoirs and the applicant have common directors and common shareholders, although the shares in the two companies are held in different proportions.  Neither company is a subsidiary of the other; they are rather separate entities owned by the same shareholders.  The evidence also discloses that the applicant does not employ labour at the meat patty plant.  This function is performed by another company, presumably in the same group.  There is evidence that both the applicant and AFC Abattoirs carry on business under the name Australian Food Corporation.  Exhibit 1 is a letter written on letterhead which bears a logo with the words “Australian Food Corporation” and the initials “AFC”.  The letterhead also bears the applicant’s name and shows its address as:

Australian Food Corporation

26 Coominya Connection Road

PO Box 401

COOMINYA  QLD  4313

22                  See also exhibits 3, 5 and 7.  Exhibit 20 appears to be a copy of a document on AFC Abattoirs’ letterhead which again bears an AFC logo, although in not quite the same form as that on the applicant’s letterhead.  The document records an agreement as to the provision of security services and is between AFC Abattoirs and a firm, Wivenhoe Security.  Relevantly, it provides that the said firm is to supply “Australian Food Corporation” with names and weekly rosters of security personnel.  Exhibit 20 also contains a letter from Wivenhoe Security to “Mike Eathorne, Australian Food Corporation (Abattoir Division)”.  It refers to security of “the plant and property of the abattoir and the adjacent patty factory”.  All of this evidence suggests that both the applicant and AFC Abattoirs were carrying on business under the business name Australian Food Corporation.  This is of some importance because it seems that the industrial magistrate treated the reference to “Australian Food Corporation” in exhibit 20 as necessarily being a reference to the applicant.  The context suggests that the reference was probably to the whole undertaking, (including both operations).  I will return to this matter at a later stage. 

23                  Mr Crawford, the assistant secretary of the Queensland branch of the respondent claimed that he was denied access to the premises described in the complaint.  In his evidence, he clearly distinguished between the abattoir premises and what he described as a “further processing plant which I understand processes meat – meat patty and further value adding”.  At AB 17, Mr Crawford referred to information concerning “employees on the slaughter floor”, obviously a reference to the abattoir premises.  He had contacted Mr Fullelove in early March, saying that he wished to “attend the plant”.  Although this expression may have been equivocal, the subsequent correspondence makes it clear that he wished to enter the abattoir premises.  See exhibits 2, 9 and 10.  The case was conducted by both sides upon this basis.  The magistrate also proceeded upon this basis in his reasons.  (See AB 96, ll 41 and 42 and AB 97, ll 23 – 24.)  For present purposes it is alleged that the applicant offended against the provisions of subs 285E(2) in that as the occupier of the premises, it refused to allow Mr Crawford to enter.

24                  On the morning in question, Mr Crawford, in company with another person approached a security point situated in the access corridor to which I have referred.  It is owned by AFC Abattoirs.  A security officer employed by Wivenhoe Security refused to permit him to enter.  For present purposes the critical questions are whether the applicant was occupier of the abattoir premises and whether Mr Crawford’s attempted entry occurred during working hours.

Occupier

25                  Prima facie it seems that the applicant was not in any sense the occupier of the abattoir premises.  Nonetheless, the industrial magistrate came to the conclusion that “both companies can be said to be occupiers at that location”, that location being 26 Coominya Connection Road, Coominya.  It is artificial to seek to identify the premises in question for the purposes of s 285E(2) by a street address.  The premises to which Mr Crawford was entitled to have access were those described in subs 285B(2), namely premises where relevant employees worked.  It seems clear that the premises to which he sought access were the abattoir premises, which happened to be described for some purposes as situated at 26 Coominya Connection Road.  He did not wish to enter the meat patty plant, nor did I understand the case to be conducted on that basis.  Thus the magistrate erred in treating as the relevant premises for the purposes of subs 285E(2) those described by the street address.  He ought to have been concerned with the abattoir premises.  Even so, he found that “both companies can be said to be occupiers at that location”, implying that the applicant was a co-occupier of the whole of the premises including the abattoir premises.  This would be sufficient to justify a finding that it was an occupier for the purposes of subs 285E(2).  Thus the correctness of that finding must be considered.  His Worship said (AB 97 – 98):

Whilst the owners of the parcels of land can be identified separately, they remain in joint occupation of the whole complex, sharing one common boundary and one common entry.  They are further identified as one in that the directors of each company are the same and on the evidence of Mr Fullelove he is the director exercising control over that whole complex.

26                  At AB 98, ll 19 – 23 the magistrate held:

It is clear from the correspondence passing between the respondent company and the union that the respondent company was claiming to be in charge of the whole of the complex situation (sic) at that location.  Further support that the respondent company was in charge is clearly evident from the Wivenhoe Security Agreement, which is Exhibit 20.

27                  It is necessary that I deal carefully with each aspect of these observations.  There is clear evidence from Mr Fullelove that AFC Abattoirs was the occupier of the abattoir premises which are owned by that company.  There is no suggestion that the applicant carried on any business on that parcel other than to the extent that it used the access corridor.  Mr Fullelove’s evidence was not challenged in these respects.  It is said that he asserted control over the whole of the premises, and that is a fair comment.  However that he, as a director of both companies, may have supervised the day-to-day operation of both undertakings did not mean that both companies necessarily occupied the whole of both parcels of land.  Even if Mr Fullelove were himself an occupier of both parcels, that would not make either company an occupier of both of them.  It is true that in the course of cross-examination it was suggested to Mr Fullelove that he had, in the correspondence, admitted that the applicant was the occupier of the premises.  See AB 34 ll 44 – 48.  Counsel for the applicant correctly objected to that question.  If the respondent intended to suggest that the applicant was, nonetheless, the occupier and that the correspondence demonstrated as much, the matter should have been further pursued in cross-examination.  Counsel should have asked whether Mr Fullelove agreed that the letters suggested that the applicant was able to regulate entry to the premises and whether this was so or not.  In the event Mr Fullelove was given no opportunity to explain any alleged inconsistency between the correspondence and his evidence. The absence of any challenge to the evidence indicates that the respondent accepted it as correct

28                  The correspondence may imply that the applicant could control entry to the abattoir premises.  However it seems that Mr Crawford’s first oral request was for entrance to “the plant”, a term which might easily apply to either undertaking or to both.  Mr Fullelove’s response (exhibit 1) must be read in that context.  It is certainly on letterhead bearing the words “Australian Food Corporation Pty Limited” but the letter cannot, for that reason alone, be taken as an assertion that the applicant was occupier of the abattoir premises.  As far as the evidence goes, Mr Crawford had not specified those premises as the place which he wished to enter.  There is also the possibility that Mr Fullelove used stationery indiscriminately.  In exhibit 2 (dated 3 March) Mr Crawford made it clear that entry was being sought to the abattoir premises.  The letter was addressed to Mr Fullelove at Australian Food Corporation Pty Ltd.  His reply (exhibit 3 dated 3 March) again bears the AFC logo and refers to the applicant in the letterhead.  In view of Mr Crawford’s earlier letter, the premises in question had, by then, been identified as the abattoir premises.  However Mr Fullelove signed as “Group General Manager”, rather than on behalf of the applicant.  The word “group” usually implies the existence within the group of two or more corporations.  Similar comments apply to the other letters received from the applicant, including exhibits 5 and 7.  Nevertheless, those letters are capable of constituting an appropriate basis for inferring control over admission to the abattoir premises on the part of the applicant.  However the magistrate was required to ascertain whether or not the applicant was the occupier, not whether it had held itself out as being the occupier.  There are other possible explanations for the letters in question, the most obvious being that Mr Fullelove conducted his business using such letterhead without regard to the niceties of corporate identity.  There was also his own evidence as to use of the two parcels.

29                  The industrial magistrate also placed reliance upon the agreement with Wivenhoe Security (exhibit 20).  Although that document clearly purports to be an agreement between AFC Abattoirs and Wivenhoe Security, the learned magistrate fixed upon the references to “Australian Food Corporation” and concluded that this demonstrated that the applicant was in joint occupation of the whole of both parcels of land.  That view was simply not open to him.  The document clearly demonstrates that AFC Abattoirs was also trading under the name “Australian Food Corporation”.  The letterhead says as much.  The references to Australian Food Corporation were clearly to the business name under which both companies were trading.  The document makes it clear that Wivenhoe Security was dealing with ACF Abattoirs.

30                  As I have said, the earlier correspondence offered some evidence from which it may have been inferred that the applicant occupied the abattoir premises.  It is also true that there was no fence between the sites so that, as the magistrate put it, they shared common boundaries and a common point of entry.  The agreement with Wivenhoe Security concerned both sites, and the two companies were associated by virtue of their having common directors and shareholders.  It was probably correct, as the magistrate suggested, that Mr Fullelove personally controlled both sites, but he did so on behalf of each company.  His dual position said nothing about the relationship between the applicant and the abattoir premises.  There was no apparent reason why it should have been an occupier of that site.  Although the circumstantial evidence to which I have referred may have been sufficient to justify an inference that the applicant was occupier of the abattoir premises, that was not the only available inference.  That inference could only have been drawn if the magistrate chose to reject Mr Fullelove’s evidence.  He did not do so.  Indeed, he could not properly have done so in the absence of any challenge to it by the respondent.  It follows that he should not have drawn such an inference.  In any event, it was based upon a misunderstanding of exhibit 20.  The finding cannot stand.

31                  I should comment on one other matter.  It concerns the applicant’s responsibility for the conduct of the security officer who refused access to the premises.  Clearly, the security agreement was with AFC Abattoirs and not with the applicant.  However the existence of easements over the access corridor for the benefit of the applicant’s land, and the fact that the applicant needed such access may well have been sufficient to justify an inference that the applicant could control admission to its own premises, namely the meat patty plant and to that extent, to the access corridor.  That did not make it occupier of the abattoir premises which Mr Crawford wished to enter.  Had it been shown to be occupier of those premises, then the relevant question would have been whether the employee of Wivenhoe Security was acting on behalf of the applicant when he prevented Mr Crawford from entering.  It would not have been conclusive against such an inference that the security contract was between AFC Abattoirs and Wivenhoe Security.

Working hours

32                  Subsection 285B(2) permits entry “during working hours” to “any premises where employees work who are members of the organization …”.  It seems likely that the reference to “working hours” is to those of the relevant employees.  Presumably any investigation is likely to involve discussion with them.  Alternatively, the expression might be given a wider meaning so as to include hours during which the place of employment was usually open for business or carrying on its principal functions.  However it is very difficult to limit the meaning of the term in any significant way other than by reference to the working hours of particular “workers”.  One would not think it difficult for a trade union official to obtain information of that kind. 

33                  The evidence indicates that on 14 March Mr Crawford and Mr McLaughlin attended at the plant at about 7.20 am.  Mr Crawford said that at that time:

There was activity on the plant.  There was trucks coming and going.  There was cars in the car park.  There was people walking around on the plant.

(AB 25 – 26)

34                  At 7.35 am Mr Crawford again unsuccessfully sought entrance to the premises.  The magistrate concluded, at AB 96 ll 28 – 37 that:

I am satisfied that work was being performed at the time entry was sought and that such entry was sought during working hours.

35                  To say that work was being performed is not necessarily to say that such work was being performed during working hours for the purposes of the relevant section.  There was certainly activity at the plant, but it is curious that Mr Crawford did not claim to have seen one person whom he could identify as an employee.

36                  Sections 285B and 285C both authorize entry to places of employment during working hours.  Subsection 285B(1) provides that the section applies only to permit holders who are officers or employees of an organization which is bound by the Act or by an award, order of the commission or certified agreement.  Subsection 285B(2), as I have said, permits entry during working hours into premises where employees (who are members of the organization in question) work.  Subsection 285B(3) provides that after entering such premises, the person in question may have access, during working hours, to time sheets, pay sheets or any other documents which are relevant to the suspected breach, but not to Australian Workplace Agreements.  He or she may also, during working hours, inspect or view any relevant work, material, machinery or appliance and interview any employee who is a member of the organization in question or eligible to be a member.  Subsection (4) relates to the inspection of documents at the workplace during working hours or otherwise by agreement. 

37                  Section 285C permits access to the workplace for the purpose of discussion with employees.  Subsection (2) provides that such access must be during working hours and that discussion must take place during meal time or other breaks.  Clearly, entry for the purposes of s 285C must be linked to the working hours of the relevant employees with whom discussion is to take place.  It is likely that the expression should be given the same meaning in s 285B, so that it is limited to the hours of work of the employees who are members of the organization in question or perhaps, who are eligible for such membership.  There are some difficulties with that interpretation.  It may often be inappropriate to perform some of the functions contemplated by subs 285B(3) during such hours.  This may be particularly so in the case of shift workers or plant maintenance personnel.  However the provision is clearly intended to limit the hours for access, and consistency of usage is desirable.  Normally, this would not be a difficult issue to prove, and one wonders why it should have been difficult for the respondent in this case.  In any event, there was no evidence that any relevant employee was working at the time at which Mr Crawford sought entry.

38                  In the circumstances, neither the conclusion as to occupancy nor that as to working hours was justified on the evidence.  The appeal must be allowed and the orders below set aside.  The complaint should be dismissed.

Associate:

Dated:              4 May 2001