FEDERAL COURT OF AUSTRALIA

Pine v Doyle [2005] FCA 977

INDUSTRIAL LAW – application for a penalty to be imposed on a union organiser for intentionally hindering or obstructing an employee and an employer when exercising a statutory power to enter premises – whether the union organiser was exercising the statutory power of entry when he had no legal entitlement to exercise the power – whether diverting an employee away from performing the employee’s duties constitutes hindering or obstructing the employee – whether the hindering or obstructing alleged against the union organiser was intentional

Workplace Relations Act 1996 (Cth) ss 285A, 285C, 285D, 285E and 285F

Acts Interpretations Act 1901 (Cth) s 15AA

Briginshaw v Briginshaw (1938) 60 CLR 336 - applied

O’Reilly v The Commissioner of the State Bank of Victoria (1983) 153 CLR 1 - applied

Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 - cited

Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 - cited

Bropho v State of Western Australia (1990) 171 CLR 1 - cited

Leonard v Morris (1975) 10 SASR 528 - cited

MEAA v Advertiser Newspapers Ltd (1996) 41 AILR 3-504 - cited

Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd (1974) 1 NSWLR 93 - cited

Halliday v Nevill (1984) 155 CLR 1 - cited

Molina v Zaknich (2001) 24 WAR 562 - cited

LISETTE EILEEN PINE v FERGAL DOYLE

VID 649 OF 2004

MERKEL J

18 JULY 2005

MELBOURNE

THE COURT ORDERS THAT the application be dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant, who is an inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996 (Cth) (‘the Act’), has applied for an order pursuant to s 285F(2) of the Act imposing a penalty on the respondent for contravening s 285E(1) of the Act.  Under that sub-section, a person exercising powers under s 285C to enter an employer’s premises ‘must not intentionally hinder or obstruct any employer or employee’.

2                     The respondent is an organiser for the Construction, Forestry, Mining and Energy Union (‘CFMEU’) and is the holder of a permit issued under s 285A of the Act, which entitles him to exercise the power of entry under s 285C.  On 18 February 2004, the respondent entered a construction site at 173-175 High Street, Prahran (‘the site’) of Villex High Street Pty Ltd (‘the builder’).  At the time of the entry, the site was being supervised by Lyndon Arnel (‘Arnel’), the operations manager of Villex Constructions Pty Ltd (‘Villex’).  The builder had engaged a number of subcontractors to work on the site, including Urban Wall Pty Ltd (‘Urban Wall’).  The builder was not a party to any industrial agreements with the CFMEU in relation to the work being carried out at the site.  However, Urban Ritek Pty Ltd (which is now Urban Wall) and the CFMEU had entered into a certified agreement under the Act (‘the certified agreement’), cl 33 of which conferred a right of entry on accredited union officials to any premises at which Urban Wall is undertaking work.  The right of entry was able to be exercised for the purpose, inter alia, of checking ‘safety conditions’, which would include the Workplace safety standards agreed to in cl 11 of the certified agreement.

3                     Between 29 January 2004 and 18 February 2004, the respondent had visited and inspected the site on several occasions and informed Arnel that there were a number of safety issues which were required to be addressed.  The builder and Arnel raised queries concerning the respondent’s right to enter the site.  Notwithstanding the queries, on 18 February 2004, the respondent visited and inspected the site with Andrew Gude (‘Gude’), who was a CFMEU member who had been elected as the Occupational Health and Safety representative of Urban Wall’s employees at the site.  That site visit was described by the respondent as a ‘follow-up safety inspection’.

4                     The evidence relied upon by the applicant as constituting the contravention of s 285E(1) was set out in pars [101]-[109] of Arnel’s first affidavit:

‘101.    I was on the Site on Wednesday 18 February 2004.  There were electricians working on the second level that day and work was also being done on some handrails.  I was expecting Mr Doyle to arrive at the Site at some time.  At about 2.10pm, after the lunch break, I was standing in the undercover carpark area when I saw Mr Doyle come on to the Site through the rear access.  At that time I was on my mobile phone arranging for sub-contractors to come on the Site the next day.  I stopped making the call when I saw Mr Doyle come on to the Site.  Andrew Gude was sitting in the carpark area at this time several metres away from me having a cigarette.

102.     As Mr Doyle was walking towards me, I said "Do you have a right of entry permit?”  Mr Doyle said “Yes” as he continued to walk towards me with his hands in his pockets.  He walked up very close to me, so close that I had to take steps backwards to avoid him making contact with me.  He stopped just short of making contact with me, stepped back and he reached into a pocket and pulled out a card and held it up in front of my eyes for a brief moment.  I said I did not see it properly and he then gave it to me to look at.  I looked at it.  It looked like an A4 letter of some type that had been reduced to credit card size.  While I was looking at it Mr Doyle asked to have a look around.  I said “No.  You can talk to your members off Site.  I’ll get them for you.”

103.     Whilst I was still examining the document he had given me, Mr Doyle walked past me brushing me as he did so, made his way along the walkway leading to the access stairs in the building and began walking up the stairs.  I turned and followed him.  As I walked after him I called to him, “You can’t go there” or words to that effect.  I called this out quite loudly several times as I followed him.  He did not acknowledge what I said.   Andrew Gude followed me.

104.     At the level one stairway landing, the entry door was boarded off by a black 20mm form-ply pineboard.  This boarding covered the doorway and was anchored in place by several screws drilled into the concrete frame or edges of the doorway.  I saw Mr Doyle attempt to pull the boarding away from its anchor points with his hands.  As he was attempting to do this I said to him, “You can’t get in there, there is no access”.  He said words to the effect “You’ve got it so I can’t get in there.  What are you hiding?”  I said, “Nothing.  It’s been boarded off as it’s not been checked or cleared to work in there yet.”  I also said “You are not supposed to be on site, you are only supposed to speak to the electricians.”

105.     Mr Doyle then stopped trying to remove the boarding and made his way up the stairs to level two.  I followed him.  This is where the electricians had been working in the morning of that day moving and re-positioning temporary wiring in preparation for tradespersons to do work on that level.  I was aware that the electricians had been working there and I did not know precisely what stage they had reached in doing their work.

106.     There was a black 20mm form-ply pineboard covering the doorframe preventing access to the second level.  It was kept in position by several tech-screws drilled through the board into the pine doorframe.  On reaching the blocked doorway, Mr Doyle said, “What’s going on here.”  I said, “You can’t go in there, electricians are working in there, I don’t know whether it is safe.”  Mr Doyle took hold of the boarding and forcefully pulled it away from its fixings.  He began to walk into the second level area.  As he did so I grabbed his jacket to stop him going further into that area.  I was concerned about his safety.  He spun around quickly and said “That’s assault.”  I said “No, all I did was stop you from going in there because you are not allowed and it could be unsafe.”

107.     At this stage Andrew Gude was standing behind Mr Doyle and I had let go of Mr Doyle’s jacket.  Mr Doyle said to Andrew “You saw that.  That’s assault.  Write it in your diary.  You’ll be my witness.”  He and Andrew Gude then went up the next flight of stairs to the next level.  I followed them.  Mr Doyle looked at the handrails on that level.  He looked at the kicker boards on that level and said “The height of the kick boards is not right”.  Andrew and I said “It’s been passed by WorkSafe.”  Mr Doyle said “He shouldn’t do that.  He doesn’t know what he’s talking about.”  After that exchange Mr Doyle went down the stairs and left the Site.  As he did so he appeared to be making calls on his mobile telephone.

108.     During the course of the events I have described in the previous four paragraphs, Mr Doyle asked me several times whether I had been drinking and whether I had had a drink at lunch time.  I told him that I had not.  I had not had any alcohol that day and at the time he made those remarks I did not know of any reason why he had chosen to make them.

109.     Mr Doyle was on the site for about an hour.  I was quite busy on that day and had plenty to do.  His presence and conduct on the Site prevented me from carrying out the work I would have otherwise have done.  After he left, I spoke to the electricians and directed them to fix the boards that Doyle had ripped off.  I supervised this being done.  I also called Greville and reported to him what had taken place.  At the time it happened and after, I considered Mr Doyle’s conduct and demeanour to be belligerent and I was unsettled by it, as well as being diverted from the work I would otherwise have done.  This included calling relevant people to re-schedule a crane, get Urban back on the Site and arrange for other contractors to resume work at the Site’.

5                     The applicant claims that the evidence establishes that the respondent misused his power under s 285C(1) to enter the site for an ulterior purpose, which was to use the safety issues he raised as a vehicle to coerce the builder and Villex to enter into an enterprise bargaining agreement (an ‘EBA’) with the CFMEU in respect of the site and to ensure that all workers on the site became CFMEU members.  It is then contended that, as a result of the misuse of the statutory power, Arnel was intentionally diverted away from the tasks he would normally be undertaking in order to deal with the respondent’s entry onto the site.  That diversion, which is said to have been established by pars [103]-[109] of Arnel’s affidavit, was claimed to constitute an intentional hindrance and obstruction of an employee (Arnel) and his employer (Villex).

6                     The issues are:

(a)        whether the respondent was ‘exercising powers’ under s 285C during his visit to the site on 18 February 2004; and

(b)       whether the respondent intentionally hindered or obstructed Arnel and through him, Villex, during that visit.

7                     It is common ground that, as the application is for the imposition of a penalty, the standard of proof is that laid down in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361‑362.  It is also common ground that whether a person is obstructed or hindered is a question of fact in a particular case and that conduct, which is essentially negative in character, may in some circumstances constitute such hindrance or obstruction: see O’Reilly v The Commissioner of the State Bank of Victoria (1983) 153 CLR 1 at 49-50, cf Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 (‘Curran’) at 258.

8                     The respondent, as the holder of a permit under s 285A of the Act, was entitled to exercise the powers set out in s 285C which, relevantly, provides:

‘(1)      Subject to subsections (2) and (3), 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.

(3)       …’

9                     Section 285B provides for similar rights of entry for the purpose of investigating suspected breaches of the Act, industrial awards, orders or agreements made under the Act.  Section 285D provides:

‘(1)      If:

(a)     a person proposes to enter, or is on, premises in accordance with section 285B or 285C; and

(b)          the occupier of the premises requires the person to show his or her permit;

the person is not entitled under that section to enter or remain on the premises unless he or she shows the occupier the permit.

(2)     A person is only entitled to enter premises, and exercise powers, under section 285B or 285C if the person has given the occupier of the premises at least 24 hours' notice of the person's intention to do so.

(3)     …’

10                  Section 285E, relevantly, provides:

‘(1)      A person exercising powers under section 285B or 285C must not intentionally hinder or obstruct any employer or employee.

(2)     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.

(3)     …

(4)     A person must not otherwise intentionally hinder or obstruct a person exercising powers under section 285B or 285C. To avoid doubt, a failure to agree on a place or a time as mentioned in paragraph 285B(4)(a) or (c) does not constitute hindering or obstructing a person exercising such powers’.

11                  The parties were in dispute about the relevant events.  However, findings need not be made about most of the disputed matters as they relate to incidental issues that do not need to be determined.  I shall therefore restrict my findings, which are set out below, to the factual matters that are relevant to my determination of the application.

12                  The findings are:

1.         On 29 January 2004, the respondent first visited the site, at which some CFMEU members were working, in response to concerns expressed to him about the safety of the site.

2.                  Between 29 January 2004 and 18 February 2004, the respondent visited the site on several occasions, raised safety issues about the site with Arnel, Villex and the builder and was instrumental in disrupting and delaying the construction activities of Urban Wall at the site.

3.                  Although the safety issues raised by the respondent, which included the matters dealt with in two WorkSafe reports, were genuine in the sense that the respondent was seeking to have them addressed, he was also using his concern about those issues to induce the builder and Villex to enter into an EBA with the CFMEU.

4.                  The builder, Villex and Arnel were of the view that the respondent was not genuine in raising his safety concerns and believed he was using them for the purpose of inducing them to enter into an EBA, which they were not prepared to do.

5.                  After the respondent’s right of entry to the site became a matter of contention, the builder sent a facsimile to the CFMEU on 4 February 2004, requesting that the CFMEU give prior notice of any intended visit to the site.  That led to the CFMEU sending a letter dated 10 February 2004 to the builder, which read in part:

‘The union gives you notice that Mr Fergal Doyle intends to visit the site tomorrow.  Mr Doyle has had a number of concerns in relation to occupational health and safety issues which in his view [did] not get fixed adequately.  Mr Doyle has also raised the issue with Work Safe.  If those matters are not resolved tomorrow we put the company on notice that Mr Doyle may need to return to resolve any outstanding issues.

We also note that a number of contractors on the site have certified agreements with the union.  Those agreements have a right of entry provision which does not require a union official to provide 24 hours notice.  Accordingly, when Mr Doyle or another official seeks to hold discussions with those employees of the subcontractors or visit their areas of work we ask that your company does not impede or attempt to restrict the union in exercising those rights’.

6.                  The builder’s letter in response dated 10 February 2004, after it had received advice from the Building Industry Task Force, was as follows:

‘In response to your earlier letter dated 10 February 2004 I wish to advise the following:

·               I would request you to specify on what basis you are saying the Head Contractor (Villex High Street Pty. Ltd) must allow entry of Mr. Fergal Doyle to the High Street site.

·               I would point out Villex High Street Pty. Ltd. are not a party to any enterprise bargaining agreement.

·               Under the Workplace Relations Act 1996 there is no obligation to permit entry under the purpose stated in your letter.

Please clarify your position and in the absence of any evidence to the contrary we cannot facilitate the request as stated in your letter’.

7.                  The CFMEU did not respond to the letter and the respondent continued to raise safety issues about the site.

8.                  The dispute between the builder and the CFMEU went before the Industrial Relations Commission for conciliation on 16 February 2004.  The Commission recommended that, subject to ‘the provisions of any requisite safety compliance certificate’ to the builder, all bans at the site be lifted and that work resume on 17 February 2004.

9.                  Arnel’s evidence, which was not challenged on this point, is that he had the following telephone conversation on 17 February 2004 with Raoul Wainwright (‘Wainwright’), the CFMEU’s Industrial Officer who appeared on behalf of the CFMEU in the Commission:

‘At 3.55 pm I was at the Punt Road offices and I received a telephone call from Raoul Wainwright, Industrial Officer, CFMEU.  He said “Why are you not co-operating?  Doyle will come tomorrow.  Don’t know what time.  I can’t give a time.”  I said “It must be during crib break and he can’t look around the Site.  He must have a permit.”  Mr Wainwright said “Doyle wants to talk to our members and you about an EBA.  You have only two employees.  Why don’t you sign an EBA.  If you have an EBA we will help you guys, it won’t cost much and you will make more money.  Doyle will ask in his own words for an EBA.”  Mr Wainwright began talking before I had an opportunity to say who I was’.

10.              Later that day Wainwright sent the following facsimile to the builder:

‘The union gives notice, pursuant to the Workplace Relations Act 1996, that Mr. Fergal Doyle intends to visit the above site tomorrow’.

11.              The builder responded by facsimile on 17 February 2004 as follows:

‘We confirm that Villex High Street Pty Ltd is not bound by an enterprise bargaining agreement.  We therefore expect Mr Doyle to comply with the right of entry provisions in the Workplace Relations Act 1996, including:

·                specify the purpose for which Mr Doyle intends to visit the site at 173 High Street Prahran;

·                provide at least 24 hours notice of any intention to enter the site specifying a date and time; and

·                hold a permit and present the permit before entering the site.

Failure to comply with these requirements will result in us being unable to facilitate Mr Doyle’s request to enter the site’.

12.              The respondent stated in his second affidavit:

‘5         On the morning of 18 February 2004 I telephoned Mr Andrew Gude, the occupational health and safety representative of the employees of Urban Wall Pty Ltd, a contractor carrying out work on the site, and said to him words to the effect that I was going to attend the site to do a follow-up safety inspection.

6          I attended the site on 18 February 2004 at approximately 2pm.  Mr Lyndon Arnel and I had a discussion about my right to be on the site.  Mr Arnel asked to see my permit.  I showed him my permit.  I then said “I wanted to inspect the site with Andrew”.  I was referring to Mr Andrew Gude.  Andrew Gude was standing approximately 5 metres from my conversation with Mr Arnel.  Both Andrew and I walked off together and commenced a site inspection.  I did not request or invite Mr Arnel to accompany us’.

Although Arnel gave a more detailed description of the visit, which plainly involved tension and acrimony between Arnel and the respondent, his description and the respondent’s description did not differ significantly in relation to the matters set out above.

13.              The respondent’s visit was conducted as a safety inspection. He was accompanied by Gude.  The respondent was followed by Arnel who did so because he regarded it as part of his duties to accompany the respondent and Gude on the safety inspection and also to comply with his instruction, from his brother Greville Arnel (a director of Villex) given on the advice of the Building Industry Task Force, to record on a digital recorder ‘everything’ the respondent said during his visits to the site.  To the extent that Arnel suggested in his oral evidence that he was invited to participate in the visit I do not accept that evidence.  He did not say that in his affidavits, it is not supported by the respondent’s evidence and any such invitation is unlikely given the state of relations between the parties at that stage.  The main circumstance that made the site visit on 18 February 2004 different to the previous site visits was that that visit was purportedly carried out in the exercise of a power of entry under s 285C of the Act.

14.              The site visit was probably of a duration of about 30 minutes.  Arnel participated in the visit for about 20 minutes and during that period he did not pursue the other duties he would have carried out had the respondent not visited the site.

15.              Although Wainwright informed Arnel on 17 February 2004 that an EBA was to be discussed by the respondent during his visit on 18 February 2004, I regard that conversation, as well as Wainwright’s letter of 17 February 2004, as part of a ploy by the CFMEU to justify the respondent’s visit as a visit under s 285C of the Act for the purpose of discussing an EBA.

16.              During the respondent’s visits to the site on 9, 10, 11 and 18 February 2004 he only raised safety issues and did not discuss an EBA with Arnel or any other representative of the builder or Villex.

17.              During his visits to the site the respondent believed he had a right of entry under cl 33 of the certified agreement to conduct safety inspections.  However, after that right had been disputed, the respondent and the CFMEU were of the view that the respondent should exercise his statutory right of entry under s 285C on 18 February 2004 because it was less likely that that right would be disputed.

18.              The respondent visited the site on 18 February 2004 for the express purpose of inspecting the site with Gude in order to ascertain whether the safety issues had been resolved.  He did not intend to have, nor did he have, a discussion with any employee apart from Gude, and his visit was not intended to be, and did not take place, during a meal-time or any other break in work.  Notwithstanding Wainwright’s telephone conversation with Arnel on 17 February 2004, I am satisfied that, by 18 February 2004, the respondent no longer expected that the builder or Villex would enter into an EBA and that the visit to the site on 18 February 2004 was for the purpose of a ‘follow up safety inspection’.  The respondent’s loss of interest in an EBA is supported by the lack of any further involvement by him with the site after he was satisfied the safety matters raised had been resolved.

13                  I now turn to address the two issues.  The first is whether the respondent was ‘exercising powers’ under s 285C during his visit on 18 February 2004.  The evidence that the respondent was exercising his power of entry under s 285C on his visit to the site on 18 February 2004 is compelling.  On 17 February 2004 the CFMEU, acting on the respondent’s behalf, notified the builder that the respondent proposed to exercise his statutory right of entry on 18 February 2004.  The notification was required under s 285D(2).  On 18 February 2004, the respondent, upon being required to do so, showed his permit to Arnel.  In doing so the respondent complied with s 285D(1).  Finally, although the respondent believed he had a right of entry under cl 33 of the certified agreement he also believed that, because the builder had disputed that right of entry, it was necessary for him to assert his right of entry under s 285C in order to enter the site.

14                  The respondent submitted that the requirement in s 285E(1), that he be exercising his power of entry under s 285C, cannot be satisfied if, as a matter of law, his purported exercise of the power was unlawful.  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.

15                  However, it does not follow that, for the purposes of s 285E(1), the power was not exercised at all.  In my view, s 285E(1) requires that the power of entry be exercised as a matter of fact, rather than as a matter of law.  That construction of the sub-section accords with the plain and ordinary meaning of the words. Also, the words used in s 285E(1) (‘person exercising powers under section 285B or 285C’) may be contrasted with the words used in s 285E(2) (‘a person entitled to enter premises under section 285B or 285C’).  Thus, when the legislature intended to refer to the exercise of the statutory power as a matter of law, it did so in s 285E(2) in terms of ‘entitlement’ to exercise the relevant power, rather than in terms of ‘exercising’ that power as is set out in s 285E(1).

16                  Finally, my construction gives effect to the purpose of s 285E(1), which is to ensure that when a person enters and remains upon premises in reliance upon s 285C the person does not do so in a manner that intentionally interferes with the activities being conducted by an employee or an employer at the premises.  The construction contended for by the respondent would remove that protection when it is most needed, namely in a case of misuse or abuse of the statutory power.  As was observed by Lord Diplock in ‘The Courts as Legislators’ in The Lawyer and Justice (1978) 263 at 274:

‘if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit; not merely to record that it has been missed’.

17                  Even if it is assumed that both constructions of ss 285C(1) and 285E(1) were reasonably open, the modern rule of construction is to resolve the uncertainty by giving effect to the legislative purpose: see s 15AA of the Acts Interpretations Act 1901 (Cth) and Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423, approved in Bropho v State of Western Australia (1990) 171 CLR 1 at 20.

18                  Accordingly, I regard the question mandated by s 285E(1) to be whether the person entering the premises in question is exercising the power of entry as a matter of fact, rather than as a matter of law.  For the reasons given above I am satisfied that the respondent was exercising his power of entry under s 285C during his visit to the site on 18 February 2004.

19                  On the second issue, the applicant accepted that the respondent did not engage in any positive act of hindrance or obstruction.  The applicant also did not dispute the observation of Gray J in Curran at 257:

‘The fact that the employee concerned would otherwise be engaged in some other work will not mean that he or she has been hindered or obstructed by the inspecting officer’.

20                  The applicant contended, however, that what distinguishes the present case is that the respondent knowingly misused or abused his power of entry and thereby intentionally diverted Arnel away from the duties that he would otherwise have been performing for his employer.

21                  I am prepared to assume, without deciding, that the distinction sought to be drawn by the applicant is valid with the consequence that a diversion of Arnel away from his other duties in such circumstances is capable of constituting ‘hindering or obstructing’ for the purposes of s 285E(1).  However, I would add that I doubt that there has been a hindrance or obstruction in the present case as it was open to Arnel to choose to follow, or not to follow, the respondent during his visit.  Put simply, Arnel, was not requested or required by the respondent to participate in the site inspection and whether he followed the respondent around was entirely a matter for him to decide.  The mere fact that Arnel saw it as his duty to follow the respondent is not likely to convert the site visit into a hindrance or obstruction of Arnel.  The position might be otherwise if the respondent requested or required Arnel to follow him, or if Arnel’s participation in the visit was an inevitable or necessary consequence of his entry.  However, that is not what occurred in the present case.

22                  The main problem for the applicant is the requirement that the hindrance or obstruction be intentional.  In the usual course, that mental element would require that the respondent advert to the likely consequences of his conduct.  Thus, it has been suggested that to ‘intentionally hinder’ the perpetrator must either intend to substantially impede another individual in performing the individual’s duties or must, being aware that what he or she is doing or about to do is likely to so impede that individual, decide nevertheless to do it or go on doing it: see Leonard v Morris (1975) 10 SASR 528 at 531 and MEAA v Advertiser Newspapers Ltd (1996) 41 AILR 3-504.

23                  I am satisfied that the respondent did not advert, or turn his mind, to Arnel being diverted away from any activity in which he might have otherwise been engaged, as a likely consequence of his visit.  It formed no part of the respondent’s intention or purpose that Arnel follow him around during the visit.  In so far as the respondent was concerned, Arnel followed him and Gude around during the site inspection because he chose to do so.  The applicant argued that the respondent must be taken to intend the natural or inevitable consequences of his conduct.  However, as explained above, I do not accept that it was a natural or inevitable consequence of the respondent’s entry upon the site that Arnel would follow him around the site.

24                  There is an additional problem with the applicant’s case on intention.  The case involved the contention that there was a knowing abuse or misuse of the power of entry by the respondent, which therefore made the diversion of Arnel away from his duties a knowing diversion that was unwarranted and unjustified.  If the issue of entitlement to enter rested solely on s 285C there may be some force in the applicant’s argument on that point.  However, I am satisfied that the respondent believed he was entitled to enter the site under cl 33 of the certified agreement and that the only reason s 285C was relied upon was because the builder, Villex and Arnel had not accepted the respondent’s entitlement to enter under cl 33.  Thus, although the respondent relied on s 285C, he believed his visit was justified under cl 33 with the consequence that, in his mind, he was entitled to undertake the safety inspection.  From the respondent’s perspective, Arnel’s participation in the inspection was not an unwarranted or unjustified diversion of Arnel from his duties, because the respondent was entitled to expect that Arnel would wish to become aware of the outcome of the respondent’s safety inspection.

25                  The applicant claimed that there was no reasonable basis for any belief by the respondent that cl 33 entitled him to enter the site.  While reasonableness might be relevant to whether the respondent had the requisite intent, it is not an additional criterion in its own right.  In any event, the applicant’s claim that cl 33 did not entitle the respondent to enter the site is not as simple or clear as the applicant suggests.  While the precise terms of the contract between the builder and Urban Wall are unclear, the builder must be taken to have granted a licence to Urban Wall to enter upon the site to carry out the works it was engaged by the builder to carry out:  see Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd (1974) 1 NSWLR 93 (‘Roberts’) at 102.  It is plainly arguable that the licence granted by the builder to Urban Wall extends to entry for the purposes of ensuring that the safety requirements, which were imposed by law on Urban Wall in relation to the works being carried out, were satisfied.  As a certified agreement has, in many respects, the force of law and breach of it may result in the imposition of a penalty, there is much to be said for the view that the safety requirements in cl 11 are imposed by law: see ss 170LY, 170LZ and 178(1) of the Act.  Thus, in so far as a right of entry is exercised under cl 33 for the purpose of meeting the safety requirements imposed by the certified agreement, the entry may well fall within the implied licence.  Usually, that is essentially a question of fact although, in some circumstances a licence may be implied as a matter of law: see Halliday v Nevill (1984) 155 CLR 1 at 18-20.  Further, the observations of Malcolm CJ in Molina v Zaknich (2001) 24 WAR 562 at 565 [9] might be applicable to the present case:

‘where a head contractor, … employs no labour itself, but enters into subcontracts with subcontractors, who employ union labour to do work on some part of the premises, the subcontractor must necessarily have been granted a contractual licence to enter and take possession of the relevant part of the site where the subcontractor’s work is to be performed.  It follows that so much of the site as would be required to be occupied for the purposes of the subcontract would be within the possession of the subcontractor, even if such possession was not exclusive because other subcontractors were also doing work in the relevant area’.

26                  See also McKechnie J at 573 [57].  If the observations of Malcolm CJ did apply to the site, Urban Wall, through the elected Urban Wall Occupational Health and Safety Officer, may have been entitled under cl 33 to invite the respondent onto the site, or the part thereof, that it was occupying.  Of course, if there was such a licence to Urban Wall the question of whether it was expressly or impliedly revoked would arise: see Roberts at 105.

27                  However, as I need not resolve the cl 33 issues for the purposes of the present case, they are best left for consideration in a case in which they arise.  In a sense that is unfortunate as the real dispute between the CFMEU, Villex and the builder was whether the right of entry being asserted under cl 33 was being asserted for an improper purpose and, if not, whether that right may be exercised at the site.  Neither of those issues, which may have important industrial relations implications, has been resolved by the present proceeding.

28                  For the above reasons, the applicant has not established that there was an intentional hindrance of obstruction of Arnel by the respondent.  Accordingly, the application is to be dismissed.

Associate:

Dated:              15 July 2005