FEDERAL COURT OF AUSTRALIA

 

John Holland Pty Ltd (ACN 004 282 268) v Construction, Forestry, Mining and Energy Union [2009] FCA 786

INDUSTRIAL LAW – consideration of an application for declarations and related relief in connection with a greenfield workplace agreement made between an employer and the Australian Workers’ Union under the Workplace Relations Act 1996 (Cth) – consideration of whether the agreement covers work undertaken as part of an expansion of the Abbot Point Coal Terminal – consideration of whether permit holders under the Act had a right of entry to premises under s 760 of the Act

INDUSTRIAL LAW – consideration of the elements of civil penalty provisions s 767(1) and 768(1) of the Act – consideration of the circumstances in which a permit holder may be taken to act intentionally for the purposes of s 767(1) – consideration of hindering and obstructing for the purposes of s 767(1) – consideration of whether “reasonable grounds” subsisted for a relevant belief for the purposes of s 768(1) of the Act

Workplace Relations Act 1996 (Cth), ss 736, 737, 760, 767, 768

Fair Work Act 2009 (Cth)

Fair Work (Registered Organisations) Act 2009 (Cth)

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

George A. Bond & Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 - cited

City of Wanneroo v Holmes (1989) 30 IR 362 - cited

Kucks v CSR Limited (1996) 66 IR 182 - cited

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 - cited

Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 - cited

United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 – cited

Amcor Limited v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 214 ALR 56; (2005) 222 CLR 241 - cited

Briginshaw v Briginshaw (1938) 60 CLR 336 - cited

Pine v Doyle (2005) 143 IR 98; [2005] FCA 977 - cited

Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009 - cited

George v Rockett (1990) 93 ALR 483 - cited

Rema Industries and Services Pty Ltd v Coad & Ors (1992) 107 ALR 374 - cited

O’Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1 - cited

Leonard v Morris (1975) 10 SASR 528 – cited

JOHN HOLLAND PTY LTD (ACN 004 282 268) v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, AUTOMOTIVE, FOOD, METALS ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and AUSTRALIAN WORKERS UNION

QUD 63 of 2009

 

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, ELECTRICAL TRADE UNION OF EMPLOYEES QUEENSLAND BRANCH UNION (ETUQLD), CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CFMEU), TERRY BRADLEY, WILLIAM KANE LOWTH, PETER ONG and MICHAEL ROBINSON v  JOHN HOLLAND PTY LTD (ACN 004 282 268)

QUD 66 of 2009

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GREENWOOD J

24 JULY 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
fair work division	QUD 63 of 2009

 

BETWEEN:	JOHN HOLLAND PTY LTD (ACN 004 282 268) Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent   THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Second Respondent   AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Third Respondent   AUSTRALIAN WORKERS UNION Fourth Respondent

 

JUDGE:	GREENWOOD J
DATE OF ORDER:	24 JULY 2009
WHERE MADE:	BRISBANE

 

THE COURT ORDERS THAT:

 

1.                  Proceeding QUD63 of 2009 shall be listed for further argument in relation to the scope of relief to be the subject of formal orders arising out of the findings and reasons for judgment published on 24 July 2009 at a date to be nominated by the Court. 

2.                  Proceeding QUD66 of 2009 shall be listed together with proceeding QUD63 of 2009 for the hearing of further argument in relation to the disposition of the costs in that proceeding. 

3.                  The costs of the proceeding QUD63 of 2009 are reserved. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 66 of 2009

 

BETWEEN:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION First Applicant   ELECTRICAL TRADE UNION OF EMPLOYEES QUEENSLAND BRANCH UNION (ETUQLD) Second Applicant   CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CFMEU) Third Applicant   TERRY BRADLEY Fourth Applicant   WILLIAM KANE LOWTH Fifth Applicant   PETER ONG Sixth Applicant   MICHAEL ROBINSON Seventh Applicant
AND:	JOHN HOLLAND PTY LTD (ACN 004 282 268) Respondent

 

JUDGE:	GREENWOOD J
DATE OF ORDER:	24 JULY 2009
WHERE MADE:	BRISBANE

 

THE COURT ORDERS THAT:

 

1.                  The application is dismissed. 

2.                  The proceeding will be listed together with QUD63 of 2009 for further argument in relation to the question of the disposition of the costs in proceeding QUD66 of 2009. 

3.                  The costs in proceeding QUD66 of 2009 are reserved. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 63 of 2009

BETWEEN:	JOHN HOLLAND PTY LTD (ACN 004 282 268) Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent   THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Second Respondent   AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Third Respondent   AUSTRALIAN WORKERS UNION Fourth Respondent

 

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 66 of 2009

 

BETWEEN:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION First Applicant   ELECTRICAL TRADE UNION OF EMPLOYEES QUEENSLAND BRANCH UNION (ETUQLD) Second Applicant   CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CFMEU) Third Applicant   TERRY BRADLEY Fourth Applicant   WILLIAM KANE LOWTH Fifth Applicant   PETER ONG Sixth Applicant   MICHAEL ROBINSON Seventh Applicant
AND:	JOHN HOLLAND PTY LTD (ACN 004 282 268) Respondent

 

JUDGE:	GREENWOOD J
DATE:	24 JULY 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Background and short synopsis of the framework contentions

1                     These proceedings concern two matters which were heard together.  Evidence in one has been treated as evidence in the other. 

2                     The central question in controversy is whether work done by employees of John Holland Pty Ltd (“John Holland”) at the Abbot Point Coal Terminal (“the Terminal”) located at Abbot Point approximately 30 kilometres north of Bowen, and generally described as the marine or off‑shore expansion works undertaken by the Terminal owner, Ports Corporation Queensland (“PCQ”), by contract with John Holland, as part of works to expand the annual throughput capacity of the Terminal to 50 million tonnes per annum (“50mtpa”) falls, as a matter of construction, within the terms of a greenfields workplace agreement made between John Holland and the Australian Workers’ Union (the “AWU”), described as the John Holland Pty Ltd – Abbots Point Coal Terminal Expansion Workplace Agreement 2008 (referred to in these reasons, alternatively, as the “Workplace Expansion Agreement” or “the Agreement”). 

3                     If so, the Agreement covers the work carried out on the relevant premises and is binding upon the AWU for the purposes of s 760 of the Workplace Relations Act 1996 (Cth) (“the Act”) to the exclusion of other Unions with the result that officials of other Unions or Organisations are not entitled to rely upon s 760 of the Act as the source of a right to enter the premises for the purpose of holding discussions with employees performing work under the Workplace Expansion Agreement, although those employees may be eligible to become members of the Union or organisation represented by the relevant officials.  Industrial engagement in relation to the relevant work on site is thus a function of the relationship between the employer, the employees and the AWU for the term of the Agreement according to its terms. 

4                     The Workplace Expansion Agreement was entered into between 14 and 17 April 2008 and commenced operation on 17 April 2008. 

5                     The Automotive, Food, Metals Engineering, Printing and Kindred Industries Union (the “AMWU”); the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the “CEPU’); the Electrical Trade Union of Employees Queensland Branch Union (the “ETU”); and the Construction, Forestry, Mining and Energy Union (the “CFMEU”) (collectively described as “the Unions”) contend that the work undertaken by John Holland employees on an area of Terminal land on the eastern side of the Terminal described as the X50 site (where X signifies expansion) are differentiated from other Terminal expansion works by separate signage, a dividing boundary fence and a separate secure access gate.  The Unions contend that the Workplace Expansion Agreement does not apply so as to regulate the terms and conditions of work of John Holland employees at the X50 site for the purposes of s 760 of the Workplace Relations Act 1996 (Cth), because, by the express terms of the Agreement, it is limited in its application to a single expansion project “at the Ports Corporation of Queensland Abbot Point Coal Terminal X25 and X30 Expansion” (cl 4.1 of the Agreement).  The Unions give particular emphasis to the word “at” in that phrase as signifying the geographical limitation in the application of the Agreement to a specific site or project which, in the Agreement, was collectively described as the X25 and X30 Expansion. 

6                     The “X25 and X30 Expansion” is therefore said to signify a site specific project other than the differentiated X50 project.  The Unions contend that the “X25 and X30 Expansion” contemplated by the Workplace Expansion Agreement when entered into in April 2008 comprehended, by the language of the Agreement, an expansion project which, it is said, is undertaken on the western on‑shore side of the Terminal separated from the X50 site by the dividing boundary fence, separate signage and a separate secure point of access. 

7                     John Holland contends that it undertakes works at the Terminal under two contracts.  One, not relevant to these proceedings, concerns construction work undertaken on the western side of the Terminal to expand throughput capacity from 21mtpa to 25mtpa.  The works comprehended by that contract are understood, it is said, as the “X25 Expansion”.  The second contract was awarded to John Holland on 29 July 2008 and is described in PCQ’s letter of acceptance as “Contract No. Q08‑004 for the construction of X50 Marine Works”. 

8                     John Holland says, put simply, that there is symmetry in the description of the scope of works to be undertaken, between the invitation to tender issued by PCQ on 21 December 2007; Contract Q08‑004 (“the Contract”) by reference to the technical specification defining the works; and the Workplace Expansion Agreement.  John Holland says the question of whether the Agreement covers the work carried out by its employees on site is to be determined by examining the content of Appendix 1 to the Workplace Expansion Agreement.  Although cl 4.1 contains the phrase given emphasis by the Unions, the term “X25 and X30” in that phrase is immediately followed by the phrase “as outlined in Appendix A”.  Although there is no “Appendix A” to the Agreement, John Holland says “Appendix 1” to the Agreement outlines a scope of works which is consistent with the tender description and the Contract, and accurately describes the work its employees are actually performing on site under the Contract.  John Holland says the Appendix 1 tasks were to form part of a staged expansion of the Terminal to 30mtpa, which explains the reference to X30 in cl 4.1 of the Agreement.  However, John Holland contends that PCQ in response to market demand abandoned a staged approach to expansion of the Terminal through phases X30, X35 and X50 and elected to expand the throughput capacity of the Terminal directly from 25mtpa to 50mtpa with the result, it is said, that the off‑shore marine works described in the tender letter and Appendix 1 to the Agreement came to be described by PCQ as works forming part of its “X50 Expansion”.  That description of the expansion project was subsequently adopted in the Contract. 

9                     The Unions contend that there is work undertaken on the X50 site that is not within the description contained in Appendix 1 (assuming that Appendix 1 is treated as Appendix A for the purposes of cl 4.1) which suggests that the Contract scope of works finally negotiated after the making of the Workplace Expansion Agreement, goes beyond the scope of works in the Agreement.  Moreover, they say that since there is no reference to a separate X50 project or “X50 Expansion” in the Agreement, the parties when describing the expansion project as an X25 and X30 Expansion must be taken, in a practical sense, to have expressed their clear intention that their greenfields workplace engagement was limited to a defined expansion project then contemplated as an expansion to achieve a Terminal throughput capacity of 25mtpa and 30mtpa.  They say the PCQ project description “X50 Expansion” was not a descriptive project term used outside PCQ at 17 April 2008 and therefore not a common term of reference used by the parties to the Agreement at April 2008, which informs the proper construction of the Agreement.  The Unions also contend that John Holland has failed to adduce the necessary evidence to support the factual foundations for the relief claimed by it and has failed to demonstrate that the work carried out at the X50 site is covered by the Contract, forms part of PCQ’s X50 Expansion project and is comprehensively covered by the Workplace Expansion Agreement. 

10                  The Unions also contend that on 3 November 2008, approximately seven months after the Agreement was entered into, John Holland put a proposal to their employees at the X25 and X50 work sites to vary the Agreement so as to, among other things, delete the existing Appendix 1 described as “Definition of Project” and bearing the subheading “The Scope of Works for X30 includes”, and substitute a new Appendix 1 defining the project under a subheading “The Scope of Works for X50 includes the following” with a new textual description of the project works.  The proposed amendment was rejected by the employees.  The Unions contend that the conduct of proposing the amendment is inconsistent with John Holland’s notion that Appendix 1 of the Agreement as struck on 17 April 2008 clearly describes and thus covers work said to be carried out under the Contract on the X50 site.  The Unions further say that the attempt to amend Appendix 1 informed their belief that the Agreement did not cover work carried out on the X50 work site. 

11                  The Unions accept that if the proper construction of the Workplace Expansion Agreement is that it applies to work undertaken by John Holland employees at the X50 site under the Contract as part of PCQ’s X50 Expansion program, officials of the Unions are not entitled to enter the site in reliance upon s 760 of the Act for the purpose of holding discussions with John Holland employees carrying out that work, as the Agreement, binding upon the AWU, is not binding upon the AMWU, CEPU, ETU or CFMEU and thus there are no “eligible employees” of John Holland on site for the purposes of s 760 of the Act.  Section 760 is in these terms: 

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 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. 

12                  The Unions however contend that the Agreement does not cover the work and other awards apply in circumstances where some John Holland employees would be eligible to become members of the Unions.  The relevant awards are the National Metal and Engineering On‑site Construction Award 2002 (the “Metals Award”), the Electrical Contracting Industry Award 2003 (“the NAPSA”) and the National Building and Construction Industry Award 2000 (“the Construction Award”).  John Holland concedes that some of its employees are eligible to become members of the AMWU and the CFMEU, although there are no “eligible employees” in the definitional sense of s 760 of the Act.  It says that it has no employees eligible to become members of the CEPU or ETU, and that the NAPSA, as a matter of construction of the Award, has no application to it in any event.  A subsidiary question arises in relation to contractors to John Holland whose employees may be undertaking electrical work on the X50 site within the Contract scope of works. 

13                  On 19 November 2008, Mr Bradley and Mr Lowth, officials of the AMWU; Mr Ong, an official of the CEPU and ETU; and Mr Robinson, an official of the CFMEU entered the X50 work site.  Mr Bradley and Mr Lowth had sent by facsimile an entry notice to John Holland in reliance upon ss 738 and 760 of the Act.  On 13 February 2009, Mr Robinson, Mr Lowth, Mr Ong and Mr Bradley entered the site and held discussions with employees of John Holland.  They purported to do so under s 760 of the Act having issued notices to John Holland in reliance upon s 738 of the Act.  On 5 March 2009, Mr Robinson and Mr Bradley entered the X50 work site and held discussions with John Holland employees having issued notices to John Holland in reliance upon s 738 of the Act so as to exercise a contended right of entry under s 760 of the Act.  John Holland contends that each official, acting for and on behalf of the relevant Union, engaged in conduct in contravention of ss 767(1) and 768(1) of the Act.  The Unions contend that each official exercised a valid right of entry and in the course of doing so and seeking to conduct discussions with John Holland employees, John Holland by its employees and in particular by Mr Ingham, contravened s 767(3) and s 767(7) of the Act. 

14                  Those provisions are, relevantly, in these terms:

767      Hindering, obstruction etc. in relation to this Part

            (1)        A permit holder exercising, or seeking to exercise, rights:

                        (a)        under section … 760; or

                        (b)        …

                        must not intentionally hinder or obstruct any person, or otherwise act in an improper manner. 

            …

            (3)        A person must not refuse or unduly delay entry to premises by a permit holder who is entitled to enter the premises:

                        (a)        under section … 760; or

                        (b)        …

            …

            (7)        A person must not otherwise intentionally hinder or obstruct a permit holder exercising rights:

                        (a)        under section … 760; or

            …

            (10)      Without limiting subsection (7), that subsection:

                       (a)        extends to hindering or obstructing that occurs after the entry notice is given but before the permit holder enters the premises; and

                       (b)        applies whether or not the person who is hindering or obstructing knows at the time which permit holder will be exercising the rights in respect of the entry notice. 

768      Misrepresentations about right of entry

            (1)        A person must not, in the circumstances mentioned in subsection (2), engage in conduct:

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

                       (b)        reckless as to whether a second person would get the impression;

that the first person, or a third person, is authorised by this Part to do a particular thing. 

(2)        The circumstances are:

            (a)        the first person or the third person (as the case requires) is not authorised by this Part to do that thing; and

            (b)        the first person knows, or has reasonable grounds to believe, that the first person or the third person (as the case requires) is not authorised by this Part to do that thing. 

15                  The relevant Part is Part 15 of the Act which deals with “Right of entry”.  Section 760 falls within Division 6 of Part 15.  Sections 767(1), 767(3), 767(7) and 768(1) are civil remedy provisions of the Act. 

16                  John Holland accepts that by Mr Ingham and other employees, although not by reason of any conduct on the part of security officers employed by a third party or PCQ employees, it sought to prevent the Union officials from entering the X50 site to conduct discussions with its employees and directed the officials to leave the site on the footing that they had no right of entry and their conduct constituted trespass.  The Unions assert that their officials entered the X50 site on the footing that they reasonably believed that the Agreement did not cover the work carried out on site by John Holland employees.  The basis for these beliefs, the conduct of the parties and whether a person was actuated by an exculpatory honest and reasonable belief, is a further aspect of the controversy. 

17                  Finally, a question arises as to whether industrial action was threatened, impending or probable for the purposes of s 39(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (the “BCII Act”). 

18                  The Workplace Relations Act 1996 (Cth) continues to apply to conduct that occurred prior to the repeal of the Act, by reason of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). 

19                  The two proceedings heard together are these. 

20                  In QUD63 of 2009, John Holland by its Further Amended Application filed on 28 April 2009 seeks declarations binding upon the CFMEU, CEPU, AMWU and AWU that the Workplace Expansion Agreement applies to work performed by its employees at PCQ’s Abbot Point site in connection with PCQ’s “X50 Expansion” project; the Workplace Expansion Agreement covers exhaustively all work performed by its employees at PCQ’s Abbot Point site in connection with PCQ’s X50 Expansion project under the Contract to the exclusion of any work which might be performed by members of the CFMEU, CEPU and AMWU; the Workplace Expansion Agreement is not binding on the CFMEU, CEPU and AMWU; and the CFMEU, CEPU and AMWU may not, by their servants, agents or officials enter the Abbot Point site under s 760 of the Act for the purpose of holding discussions with any employee of John Holland performing work under the Agreement. 

21                  John Holland also seeks a declaration that Notices issued by the CFMEU and AMWU respectively on 20 November 2008 purporting to initiate a bargaining period in relation to John Holland’s operations at PCQ’s Abbot Point Terminal, pursuant to the X50 Expansion project, are invalid and of no effect; and an injunction restraining the CFMEU, CEPU and AMWU from engaging in industrial action in connection with John Holland’s operations at the Abbot Point Terminal pursuant to the X50 Expansion project. 

22                  John Holland seeks an order imposing a pecuniary penalty upon the CFMEU, CEPU and AMWU pursuant to s 769 of the Act in respect of contraventions of ss 767(1) and 768(1) of the Act.  In proceeding QUD63 of 2009, John Holland had initially joined and sought relief against the Union officials, Robinson, Ong, Bradley and Lowth.  Since each Union has accepted that its official acted within the scope of his authority in relation to all relevant conduct and the Union is thus vicariously liable for any contravention of ss 767(1) or 768(1) of the Act, John Holland by its Further Amended Application discontinued the proceeding against the individuals. 

23                  By QUD66 of 2009, the AMWU, ETU and CFMEU and Messrs Bradley, Lowth, Ong and Robinson by their Amended Application filed on 5 May 2009 seek declarations that John Holland has contravened ss 767(3) and 767(7) in respect of conduct on the part of its employees in connection with the exercise by the officials of the Union of their contended right of entry to the site of the X50 Expansion works, on 19 November 2008, 13 February 2009 and 5 March 2009.  The applicants in that proceeding seek an order pursuant to s 769 of the Act for the imposition of a pecuniary penalty upon John Holland in respect of each contravention and an order that John Holland pay Messrs Bradley, Lowth, Ong and Robinson compensation as the Court may determine.  The applicants in QUD66 of 2009 had joined and sought relief against a second respondent, Mr Stephen Sasse, in the form of declarations that Mr Sasse had engaged in contraventions of ss 767(3) and 767(7) of the Act in respect of conduct on his part 19 November 2008, 13 February 2009 and 5 March 2009; and related relief.  By their Amended Application the applicants have discontinued claims for relief against Mr Sasse. 

24                  Having regard to the reformulation of the relief sought in each proceeding, the applicant John Holland in QUD63 of 2009 and the applicants in QUD66 of 2009 agreed to file amended applications identifying the specific relief pressed in each proceeding.  Rather than amend the Statement of Claim in each proceeding, the parties in each proceeding elected to frame an agreed list of issues for determination in the proceedings, heard together.  The agreed list of issues adopts definitional terms at cl 1, most of which are reflected in these reasons, and to the extent that there are other specific definitions, they are set out below.  The agreed list of issues together with the “notes” of the parties to issues 5, 8 and 9 are these:

AGREED LIST OF ISSUES

Agreed Definitions

…

(g)        Relevant Employees means those persons who have been, are currently, and/or will be employed by [John Holland] to perform work at the X50 work site pursuant to Contract Q08‑004 [and/or Contract Q08‑005];

(h)        X25 Expansion Project means the project which PCQ is presently undertaking to expand the Terminal to increase the Terminal’s throughput capacity from 21 Mtpa to 25 Mtpa;

(i)         X50 Expansion Project means the project which PCQ is presently undertaking to expand the Terminal to increase the Terminal’s throughput capacity from 25 Mtpa to 50 Mtpa;

(j)         X50 work site means the work area on the Eastern side of the Terminal known as the X50 work site where work is performed in connection with PCQ’s X50 Expansion Project;

(k)        X25 work site means the work area on the Western side of the Terminal known as the X25 work site where work is performed in connection with PCQ’s X50 Expansion Project

…

Coverage Issues

2.         Is the work which John Holland is presently performing for PCQ at the X50 work site pursuant to Contract Q08‑004:

            (a)        part of PCQ’s X50 Expansion Project; and

            (b)        covered by the Expansion Agreement [the Agreement]. 

3.         Do the Relevant Employees perform work which is:

            (a)        covered by the Contract Q08‑004;

            (b)        part of PCQ’s X50 Expansion Project;

            (c)        comprehensively covered by the Expansion Agreement. 

Right of Entry Issues under s.760 of the Workplace Relations Act 1996 [WR Act]

4.         Do any of the Relevant Employees carry out work which is covered by the NAPSA, Metals Award or Construction Award?  Can the NAPSA in any event apply to [John Holland]? 

5.         With respect to those Relevant Employees who were employed by [John Holland] at the time of Mr Ong’s entry on 18 November 2008 [19 November 2008] and 13 February 2009, were any of those persons a member of, or eligible to become a member of the ETU? 

            [Note [John Holland] concedes that there are Relevant Employees who were at least eligible to become a member of the CFMEU and/or the AMWU]

6.         Are any of the Relevant Employees “eligible employees” of the CFMEU, AMWU and/or ETU for the purposes of s.760 of the WR Act?

7.         Having regard to the answers to Questions 4, 5 and 6, did Mr Bradley, Mr Lowth, Mr Ong and/or Mr Robinson have a valid right of entry to the X50 work site on 18 November 2008, 13 February 2009, and/or 5 March 2009 pursuant to s.760 of the WR Act?

8.         If the answer to Question 7 is no, then did the CFMEU, AMWU and/or CEPU by the conduct of their respective agents, Messrs Bradley, Lowth, Ong and Robinson on 13 February 2009 and/or 5 March 2009 breach:

            (a)        section 767(1) of the WR Act;

            (b)        section 768(1) of the WR Act; and/or

            [Note, it is conceded by the CFMEU, AMWU and CEPU that the conduct of Messrs Bradley, Lowth, Ong and Robinson was at all times within the scope of their actual or ostensible authority as union officials.]

9.         If the answer to Question 7 is yes, then did [John Holland] (by the conduct of its employees or agents) breach:

            (a)        Section 767(1) of the WR Act; and/or

            (b)        Section 768(1) of the WR Act;

            [Note, it is conceded by [John Holland] that Mr Ingham at all times acted within the scope of his authority as [John Holland’s] lawful agent.  However, issues will arise as to whether other persons (such as the unnamed security guard) were [John Holland’s]agent.]

10.       Is unlawful industrial action threatened, impending or probable for the purposes of s.39(1) of the BCII Act?  If yes, should the Court grant an injunction? 

25                  The reference at point 9 of the Agreed Issues to ss 767(1) and 768(1) of the Act should be a reference to ss 767(3) and 767(7) of the Act.  The Australian Building and Construction Commissioner (the “ABCC”) has intervened in both proceedings pursuant to s 71 of the Building and Construction Industry Improvement Act 2005 (Cth) (the “BCII Act”) and has made submissions on questions of law and some factual questions.  The agreed issues are to be resolved separately from any question of the imposition of a pecuniary penalty arising out of any contravention of ss 767 or 768 of the Act that might be found to have occurred. 

The PCQ expansion at the Abbot Point Terminal

26                  Mr Carrick Stokoe gave this evidence. 

27                  Mr Stokoe is engaged by PCQ in the role of General Manager Construction.  He has been engaged by PCQ since 4 July 2005 and is responsible for all works required to be undertaken to provide the Terminal with throughput capacity of 50mtpa.  His responsibilities include the overview of all design phases of the expansion, the advertising and assessment of tenders, the letting of tenders and the overseeing of all construction work to deliver the works involved in the expansion.  The Terminal is owned by PCQ and operated by “Abbot Point Bulk Coal”.  Over the years, PCQ has undertaken a number of construction projects to increase the capacity of the Terminal.  In or around July 2006 when PCQ was originally planning the expansion of the Terminal, those expansions were intended to have several phases.  Each phase was intended to represent an expansion of the capacity of the Terminal to facilitate the export of a particular number of million tonnes of coal per annum and the phase of the expansion was designated by an X.  Accordingly, there were initial plans for an X21 Project, an X25 Project, an X30 Project and an X35 Project, with the balance of work required to complete the expansion described as the X50 Project. 

28                  It became apparent during the construction of the X21 Project in or about January 2008 and shortly after the expansion works for the X25 Project were contracted to John Holland, that there was sufficient capacity demand from users to move directly to the expansion of the Terminal to 50mtpa.  Accordingly, PCQ dispensed with the phased intervening expansions of the Terminal between X25 and X50.  The work undertaken to expand the capacity of the Terminal beyond 25mtpa became described by reference to two categories of expansion work, namely, the X50 “on‑shore” works and the X50 “off‑shore” works.  Mr Stokoe says that the reference to the “X50 off‑shore” works was a reference to work to be carried out under Contract Q08‑004.  The tender process for the letting of a contract for these works was overseen by Mr Stokoe.  It fell within his responsibility as General Manager Construction. 

29                  On 21 December 2007, PCQ issued, by letter, an invitation to short‑listed pre‑qualified companies including John Holland to tender for construction of the off‑shore works described in the invitation letter as the “Marine Works” (the “Invitation to Tender”).  Mr Stokoe says the Invitation to Tender refers to the intended X30 expansion and includes within the scope of works to be constructed, the intended X30 and X35 works.  The letter enclosed tender documents including a technical specification relating to structural, mechanical and electrical works (Appendix D).  The letter provides that the Marine Works comprise the scope of works to be the subject of the proposed contract Q08‑004. 

30                  The letter of 21 December 2007 is contextually important and is, relevantly, in these terms:

John Holland Pty Ltd

Ports Corporation of Queensland

Abbot Point Coal Terminal

X30 Expansion

Marine Works

Contract No. Q08‑004

Invitation to Tender

1.         Background

As you are aware, [PCQ] is undertaking a major expansion of its [Terminal] north of Bowen. 

The terminal has recently been expanded from 15Mtpa to 21Mtpa throughput capacity with the completion of the X21 expansion.  Further work proposed in 2008 will increase capacity still further to approximately 25Mtpa through:

·                      Construction of a second rail receival dump station and in‑loading conveyor stream

·                      Speeding up of existing yard conveyors and the existing out‑loading stream from its current 4,000tph to 6,000tph

This work is defined as the X25 expansion. 

Contingent upon construction of the Northern Missing Link (NML) rail link between North Goonyella and Newlands, PCQ is now planning to expand its Abbot Point facility to 50Mpta.  The next stage of this expansion comprises construction of the following works:

·                      Upgrading of Dump Station DS1 and inloading Conveyors C101, C102 and C103

·                      Construction of a second yard Conveyor C204 on Bund 2 and fourth Stacker/Reclaimer SR4

·                      Construction of a third bund, Bund 3, yard Conveyors C205 and C206 and additional Stacker/Reclaimer machines SR5 and SR6

·                      Construction of a second berth offshore, referred to as Berth No. 2 and associated shipping gallery Conveyor C335

·                      Construction of a second Shiploader SL2

·                      Construction of a second outloading stream, referred to as CL2

It is PCQ’s intention that the onshore works will be undertaken under separate contracts.  Accordingly, the scope of Contract No. Q08‑004 – Marine Works, broadly includes:

Scope of Contract No Q08‑004 – Marine Works

·                      Construction of Berth 2 to the east of existing Berth 1, approximately 2.85km offshore, including skeletal steel wharf structure, shiploader strong point, berthing dolphins, mooring dolphins and access roadway

·                      Construction of shipping gallery Conveyor C335 and associated drive tower

·                      Construction of the second jetty Conveyor C334 complete, including all structural mechanical and electrical works associated with the outloading conveyor

·                      Modifications at the head end of jetty Conveyor C334 within the existing transfer tower to permit both the existing jetty Conveyor C324 and the new jetty Conveyor C334 to feed each berth 

            …

Site access for erection will be available from 28 July 2008.  Export of first coal over Berth 2 is required by 31 March 2010.

…

2.         Description of the works

The proposed second berth, Berth 2, is shown in general arrangement Drawing No’s 664‑4‑X30‑SK010 to SK014.  The berth will be constructed to the east of the existing berth and broadly comprise the following features:

·                      Western strongpoint connected via an access roadway to the existing C324 Drive Tower support platform

·                      Skeletal steel wharf structure comprising piles, slotted headstocks and shiploader long travel rail girders, and including longitudinal anchor

·                      Seven independent berthing dolphin structures

·                      Mooring dolphins and interconnecting walkways

·                      Precast concrete deck units on the strongpoint, wharf and wharf access roadway 

The wharf also supports the wharf shipping Conveyor C335 over its entire length.  The structural, mechanical and electrical works associated with this C335 shipping conveyor and C335 Drive Tower will also form part of the scope of works 

In addition, the Marine Works Contract shall include the supply and installation of the 2.85km long jetty Conveyor C334.  The 24 metre span conveyor gallery trusses will be supported from existing piled headstocks… 

A long travelling, luffing, 7,200tph shiploader will also be located on Berth 2 as part of the X50 expansion.  At this stage, the shiploader is not included in this Tender but PCQ may later include the supply and installation of the shiploader within the scope of the Contract. 

31                  The Invitation to Tender sets out at section 3 the scope of works the subject of the tender, in these terms:

3.         Scope of Works

The Scope of Works proposed in this Contract No. Q08‑004 broadly includes, but is not limited to, the following:

·                      Supply and fabrication of approximately 12.8km of 1,200 diameter steel tube piling

·                      Delivery to site of this piling and splicing on‑shore at site into the required lengths for driving, including provision of the driving shoe.  Two splices will be required at site per pile (ie approximately 480 splices at site producing 240 piles)

·                      Handling and pitching of approximately 240/1,200 diameter piles

·                      Driving an estimated quantity of 6,000 metres of piles

·                      Supply, fabrication, protective treatment, delivery to site and installation of approximately 2,200 tonnes of fabricated steelwork associated with headstocks, rail girders, bracing and access for the marine structures and also the C335 conveyor support trestles

·                      Manufacture, delivery and installation of approximately 950 precast concrete deck units of varying lengths

·                      Supply and installation of over 530 metres of A150 shiploader rail

·                      Supply and installation of other miscellaneous equipment including fenders, mooring hooks, ships access facility, platforms, davits, etc.

Structural steelwork including:

·                      Jetty Conveyor C334 gallery trusses, each typically spanning 24 metres, supported from existing piled headstocks, (Note, no additional piling is required on the approach jetty).  The estimated quantity of fabricated steelwork is 1,050 tonnes.

·                      Modifications in the C324 Drive Tower

·                      C335 shipping gallery structure comprising over 260 tonnes of fabricated steelwork

·                      C335 Drive Tower comprising approximately 45 tonnes of fabricated steelwork

·                      Extruded aluminium flooring and aluminium floor grating

·                      Aluminium purlins and girts and cladding in C335 Drive Tower

·                      Limited concrete flooring

            Mechanical works including:

·                      Jetty Conveyor C334 complete including all pulleys, idlers, drive units, conveyor belt, takeup, chutes, scrapers, sensors, guarding, etc, and modifications as required within the existing C324 Drive Tower

·                      Wharf Conveyor C335 complete including all pulleys, idles, drive unit, conveyor belt, takeup, chutes, scrapers, sensors, guarding, etc.  The diverter chute shall be capable of feeding to either C335 on Berth 2 or existing C325 on Berth 1. 

·                      Modifications to chutework to permit existing Jetty Conveyor C324 to feed to either C325 on Berth 1 or C335 on Berth 2

·                      Wharf slurry tanks and clean‑up system

·                      Maintenance hoisting equipment

·                      Conveyor water services

            Electrical works including:

·                      C334 jetty conveyor complete with electrical/control systems hardware, junction boxes, cabling, testing and commissioning

·                      C335 shipping conveyor complete with electrical/control systems hardware, junction boxes, cabling, testing and commissioning

·                      Feed centre to shiploader

·                      Replacement of existing and the installation of new HV switchgear within the Wharf Substation

·                      HV cabling between the Main and Wharf Substations

·                      General lighting & power to wharf & jetty structures

·                      PA system extension

·                      Cathodic protection of marine structures

                                                [emphasis other than emphasis in bold, added]

32                  The Invitation to Tender contained a number of key dates applicable to the proposed contract including oral presentations by tenderers on 3 March 2008, the selection of the preferred contractor by 28 March 2008, the formalisation of the Contract by 30 May 2008, access to the site for the establishment of amenities by 7 July 2008, access to the works by 28 July 2008 and practical completion by 31 March 2010. 

33                  Mr Stokoe says that by March 2008 the expansion project was known and commonly referred to as the “X50 Expansion Project”. 

34                  On 29 July 2008, PCQ issued a Letter of Acceptance of John Holland’s lump sum tender for the Contract.  The letter notes that on 28 May 2008, PCQ had issued a “Letter of Intent” to contract with John Holland to enable it to commence early works prior to finalisation of the Contract in order to ensure PCQ’s delivery schedule for the works was maintained. 

35                  The letter of 29 July 2008 describes 10 categories of documents comprising the “Contract Documents” including a Technical Specification (Revision 3) dated 4 June 2008, Standard Specifications listed in an appendix to the Technical Specification and particular Drawings.  Revision 3 of the Technical Specification is actually dated 3 June 2008 and is Exhibit MD‑2 to the affidavit of Malcolm Davis sworn 5 March 2009.  An earlier version of the Technical Specification, Revision 1, dated 30 April 2008, one month prior to the Letter of Intent of 28 May 2008, is Exhibit MD‑3 to Mr Davis’s affidavit of 5 March 2009.  The Technical Specification, Revision 3, contains an introductory explanation of the “X50 Expansion” and the scope of works for Contract Q08‑004, in these terms:

1.         Introduction

1.1       X50 Expansion

            The Abbot Point Coal Terminal (APCT) is owned by Ports Corporation of Queensland (PCQ) and operated by Abbot Point Bulkcoal (APB), hereinafter defined as the “Operator”.

            The terminal is located at Abbot Point, approximately 30km by road north of Bowen, on the Central Queensland coast.  The site of the proposed works is within the boundaries of the existing operating terminal.

            X50 is an expansion stage to increase overall throughput at APCT to a nominal 30 million tonnes per annum.  The scope of Contract No. Q08‑004 – Marine Works is part of X50 and includes but is not limited to the following main areas of scope:

            1.1.1    Berth 2

                        Berth 2 is a new skeletal steel framed wharf to cater for Cape Size vessels which will be situated to the east of the existing Berth 1.  It will have an independent dolphin system and will be connected to the existing transfer tower platform via a new wharf bridge and widening to the transfer tower platform.

            1.1.2    Conveyor C334

                        Conveyor C334 will be a new (second) jetty conveyor which will form part of the new Outloading System 2 (OL2) between the new onshore sample plant tower (to be constructed by others) and the existing offshore transfer tower (which will require modification as part of this contract).  The conveyor will be supported upon the existing jetty structure, which was originally constructed to support two conveyors.

            1.1.3    Conveyor C335

                        Conveyor C335 will be an elevated wharf conveyor servicing Shiploader SL2 (to be constructed, delivered and installed by others) upon the new Berth 2, feeding from the new Conveyor C334 at the offshore transfer tower and finishing at a new drive tower at the eastern end of Berth 2.

36                  Section 2 describes the scope of works, in part, in these terms:

2.         Scope of works

            The scope of work included in this Contract broadly includes, but is not necessarily limited to, the supply, fabrication, protective treatment, delivery to site, storage at site and installation of concrete, structural steelwork, mechanical equipment and electrical works associated with X50, …

37                  Clause 2.1 summarises the marine structural works in these terms:

The following is provided as a summary of the works to be undertaken:

·                      280m long Berth 2 wharf with western strongpoint, longitudinal anchor structure and eastern drive tower platform, including structural steel piling, headstocks, rail girders, rails, pre‑stressed concrete deck units, conveyor support structures, associated steelwork and concrete and miscellaneous items;

·                      Three new mooring dolphins and seven new berthing dolphins, including Mooring Dolphin MD12, Berthing Dolphins BD13 to BD19 inclusive, and Mooring Dolphins MD20 and MD21, including structural steel piling, headstocks, flooring, steelwork, fendering and mooring equipment and interconnecting trusses and walkways;

·                      Wharf bridge and transfer tower platform extension, providing roadway connection and wharf conveyor support between Berth 2 and the existing transfer tower platform. 

38                  The Technical Specification then sets out specific requirements in relation to tubular pile fabrication (2.1.1), hammer and driving system performance (2.1.2), pile testing (2.1.3), pile tension anchors (2.1.4), marine fender systems (including such matters as the Berthing Dolphin Fender Systems and working load tension specifications for chain systems used in association with the Berthing Dolphins) (2.1.5) and quick release mooring hooks (2.2). 

39                  The general description of the structural works is in these terms:

2.3       Structural works

            Removal and disposal off site of existing steelwork as required and the supply, fabrication, protective treatment (including site restoration of new or existing protective coatings affected by the Works), delivery and erection of all new steelwork, grating and cladding systems as nominated by the Drawings and Specifications, including preparation of shop details and the design and installation of temporary works necessary to complete the Works. 

40                  The structural works are then described in this way:

2.3.1    Jetty Conveyor C334

·                      Tail end conveyor and conveyor walkway support structure, built upon the Sample Plant 2 C334 Tail end floor structure (constructed by others)

·                      Onshore trestles and conveyor galleries from the Sample Plant 2 tower to Jetty Bent 1, built upon concrete foundations constructed by others. 

·                      Offshore conveyor galleries along the typical jetty, mounted upon new stainless steel plates welded to the existing headstock shoes, including conveyor cross‑over ladders and platforms at approximately 264 metre centres.

·                      Offshore trestles and conveyor galleries with fully seated flooring at the offshore end of the conveyor where it rises to the existing C324 / C334 drive tower (the offshore transfer tower), including brake platform, and gravity take‑up unit with fall arrester assembly.

·                      Modifications to the existing C324 / C334 drive tower to accept the new conveyor installation, and head end conveyor support, conveyor access, and chutework support structure within the tower.

2.3.2    Wharf Conveyor C335

·                      Tail end conveyor support and conveyor access structure.

·                      Trestles and clad truss conveyor galleries with fully sealed flooring from the tail end structure to the western‑most tripper travel extent adjacent to the Berth 2 strongpoint.

·                      Continuously welded beam‑type open conveyor galleries for the length of Berth 2, which support the conveyor and provide the running beams for the Shiploader SL2 tripper.

·                      Break platform, and gravity take‑up unit with fall arrest assembly near the head end.

·                      Elevated, clad drive tower at the eastern end of Berth 2.

            2.3.3    Miscellaneous Structures

·                      Berth 2 Ship Access Ladder

·                      Removal and replacement of the existing amenities building, and provision of miscellaneous shelters and platforms. 

41                  The mechanical works are described in these terms:

2.4       Mechanical Works

            Supply, fabrication, protective treatment, delivery to site, installation, fastening, site welding and touch‑up painting of the following:

            2.4.1    Jetty Conveyor C334

                        The scope of work shall include the supply and installation of the following items:

·                      Conveyor belting and splice kits

·                      Storm hold down clamps

·                      Idler sets (frame and rollers)

·                      Pulleys complete with bearings and bearing housings

·                      Installation only of conveyor drive units (primary and secondary) – Principal supplied

·                      Drive maintenance access platforms

·                      Take‑up equipment including pulley, suspended box, guide brackets, guide posts, fall arrest and access platforms

·                      Take‑up lifting winch assembly

·                      Low speed brake callipers and hydraulic control units at take‑up and tail

·                      Head chute including deflector plate

·                      Diverter chute to feed either C325 or C335 including mechanism, gate and actuator

·                      Transition chutework between diverter outlet and C325 spoon chute

·                      Transition chutework between diverter outlet and C335 spoon chute

·                      Feed spoon chute and skirting system at tail end including, skirt plates, skirt clamps, skirt rubbers, skirt covers, shear gate, access platform and ladder, dust sprays and enclosure, etc Contract terminal point is bolted flange at top of spoon chute.  Chutework above this flange supplied by others

·                      Pulley support frames at primary drive, secondary drive, take‑up and tail

·                      Belt scrapers and return belt ploughs

·                      Belt rip detectors and other specified protection devices

·                      Head end belt wash station including underpan, wash rollers, spray bars, nozzles and connecting pipework

·                      Tail end belt wash station including under underpan, wash rollers, spray bars, nozzles and connecting pipework

·                      Reticulation of services (air for scapers and water for dust suppression and belt wash)

·                      Guarding

                        2.4.2    Wharf Conveyor C335

                                    The scope of work shall include the supply and installation of the following items:

·                      Conveyor belting and splice kits

·                      Storm hold down clamps

·                      Idler sets (frame and rollers)

·                      Pulleys complete with bearings and bearing housings

·                      Installation only of conveyor drive units – Principal supplied

·                      Drive maintenance access platforms

·                      Take‑up equipment including pulley, suspended box, guide brackets, guide posts, fall arrest and access platforms

·                      Take‑up lifting winch assembly

·                      Low speed brake callipers and hydraulic control unit at take‑up

·                      Head chute including deflector plate

·                      Feed spoon chute and skirting system at tail end including, feed spoon from C324, feed spoon from C334, skirt plates, skirt clamps, skirt rubbers, skirt covers, shear gate, access platform and ladder, dust sprays and enclosure, etc.

·                      Pulley support frames at drive, take‑up and tail

·                      Belt scrapers and return belt ploughs

·                      Belt rip detectors and other specified protection devices

·                      Head end belt wash station including underpan, wash rollers, spray bars, nozzles and connecting pipework

·                      Tail end belt wash station including underpan, wash rollers, spray bars, nozzles and connecting pipework

·                      Reticulation of services (air for scrapers and water for dust suppression and belt wash)

·                      Guarding 

2.4.3    Existing jetty to wharf transfer C324/C325

The scope of work shall include the supply and installation of the following items:

·                      Diverter chute to feed either C325 or C335 including mechanism, gate and actuator

·                      Transition chutework between diverter outlet and C325 spoon chute

·                      Transition chutework between diverter outlet and C335 spoon chute

·                      Feed spoon chute and skirting system at tail end of existing C325 including, feed spoon from C324, feed spoon from C334, skirt plates, skirt clamps, skirt rubbers, skirt covers, shear gate, access platform and ladder, dust sprays and enclosure, etc.

                        2.4.4    Slurry return system

                                    The scope of work shall include the supply and installation of the following items:

·                      Holding tank and associated pumps, pipework, valves etc at head end of C335

·                      Holding tanks and associated sumps, pumps, pipework, valves etc at head end of C334

·                      Sumps, pumps, pipe work, valves, etc at tail end of C334

                        2.4.5    Services

                                    Particular requirements for services include:

·                      Water services including all pipework, valves and fittings to service transfer chute dust suppression and slurry return system.  This includes connection of new water services into existing pipework. 

·                      Compressed air services for belt scraper air tensioners for C334 and C335.  This includes connection of new air services into existing pipework. 

42                  The scope of work for the relevant services is then further defined in detail in the specification.  The Technical Specification of 30 April 2008 (Revision 1) is in precisely the same terms as those sections of Revision 3 of the Technical Specification of 3 June 2008 quoted at para [35] to para [41].

43                  The electrical works are defined exhaustively at cl 2.5 of the Technical Specification.  It is neither useful nor necessary to recite in these reasons the extensive and detailed requirements of the Technical Specification in relation to the electrical works.  The works however involve the development and installation of a wharf substation fire suppression system.  Clause 2.5.2 sets out the content of the electrical requirements for the wharf substation.  Clause 2.5.3 sets out the content of communications network upgrades within the off‑shore and on‑shore substations.  Clause 2.5.4 sets out the requirements in relation to the Conveyors including C334 – Jetty Conveyor 2 and C335 – Wharf Conveyor 2.  Clause 2.5.5 sets out the requirements for the “Wharf and Berth 2 electrical services”.  Clause 2.5.6 describes the switchgear and motor control centre requirements under the heading “Installation of HV switchgear and 415V motor control centre”.  Clause 2.5.7 deals with the installation, testing and commissioning of transformers in accordance with the specifications and drawings, and cl 2.5.8 addresses the requirements for classes of PLC cabinets.  Clause 2.5.9 addresses the requirements for communications network equipment.  The remaining subsections of cl 2.5 address the content of specific electrical requirements all related to the X50 Expansion works.  The description of the electrical works in Revision 3 is in precisely the same terms as Revision 1 of the Technical Specification. 

44                  Mr Stokoe says that PCQ is presently undertaking an expansion of the Terminal to increase throughput capacity from 21mtpa to 25mtpa known as the “X25 Expansion project” and an expansion to increase the Terminal’s throughput capacity from 25mtpa to 50mtpa known as the “X50 Expansion project”.  Mr Stokoe says that all work which is being carried out at the Terminal in connection with the X25 Expansion project is taking place on the Terminal site in areas that are marked by signs and known as the “X25 work site”.  Mr Stokoe says that John Holland is engaged to carry out the work necessary to undertake the off‑shore component of PCQ’s X50 Expansion project and that work is taking place on the eastern side of the Terminal in areas marked by signs and collectively known as the “X50 work site”.  Mr Stokoe says that all work which has been performed to date by John Holland at the X50 work site forms part of PCQ’s X50 Expansion project pursuant to two contracts between PCQ and John Holland, namely, Contract Q08‑004 and a second contract, Contract Q08‑005, described as the “X50 Expansion Shiploader SL2 Contract” (“the Shiploader Contract”).  Mr Stokoe says that at present, John Holland is not performing any work at the X50 work site pursuant to the Shiploader Contract and all works undertaken by John Holland at the X50 work site are undertaken pursuant to Contract Q08‑004. 

45                  Mr Stokoe gives this further evidence. 

46                  PCQ is the owner of the X50 work site.  PCQ is the owner and occupier of the whole of that work site with the exception of three areas described as “Lay Down Area 1”, “Lay Down Area 2” and a third area described as an amenity and administration area comprising buildings erected by John Holland.  John Holland is the occupier of these three areas under the Contract.  There is no “X30” work site at the Terminal and no “X30” signs have been erected at the Terminal.  There is no “X30 Project” in the same sense that there is an X25 Project and an X50 Project.  In various planning phases, PCQ did intend to undertake an X30 Expansion project.  However, as things evolved, what was intended to be a separate X30 Expansion stage simply became a part of, and to that extent indivisible from, PCQ’s current X50 Expansion project.  There was no need to stage the works separately.  Instead, PCQ elected to “roll” the intended X30 Expansion works into the off‑shore aspect of the X50 Expansion project. 

The Workplace Expansion Agreement

47                  Between 15 April and 17 April 2008, John Holland and the AWU executed the Agreement which came into operation on 17 April 2008.  The parties to the Agreement are the AWU, John Holland and all employees of John Holland “engaged in the classifications contained in [the] Agreement, unless excluded by Clause 4.2”.  The definition of “Classifications” is set out in Appendix 3.  Appendix 2 describes the wages, allowances and escalations applicable to the Classifications.  Clause 4.1 is in these terms:

4.         APPLICATION AND SCOPE OF AGREEMENT

4.1       This Agreement shall apply to the parties at the Ports Corporations of Queensland Abbot Point Coal Terminal X25 and X30 Expansion as outlined in Appendix A for who rates of pay and classifications are provided by this Agreement. 

48                  Clause 4.2 recites, so as to “avoid doubt”, that the Agreement does not apply to 12 categories of personnel engaged in particular classes of work and one category of work described as warranty, defects liability, repair and other maintenance work performed by or on behalf of manufacturers etc.  Clause 5 sets out the intention of the parties in relation to what is described as the sanctity and operation of the Agreement, in these terms:

5.         SANCTITY AND OPERATIONS OF AGREEMENT

            This Agreement provides comprehensively the wages and conditions of employment for the Employees covered by the Agreement.  This Agreement is stand alone and insular in nature and has been developed by the Parties to reflect and accommodate the specific circumstances of the Project. 

            The parties agree that this Agreement satisfies all claims against [John Holland] in respect of the employment of the employees whose employment is subject to this Agreement. 

            It is a term of this Agreement that the parties and each of the employees bound by this Agreement will not support or advance any other or extra claims against [John Holland] for so long as this Agreement remains within its nominal term. 

            It is also a term of this Agreement that the parties to this Agreement will not engage in any industrial action in support of or for the purpose of advancing any other or extra claims against [John Holland] for so long as this Agreement remains within its nominal term. 

            This Agreement shall not be used as a precedent by any of the Parties in respect of any other project.  The Parties have in drafting this document considered all relevant aspects relating to the employee entitlements. 

All other agreements and awards are excluded from having any application to the Employee while performing the work covered by this Agreement. 

                                                                                                [emphasis added]

49                  The Agreement operates for three years from 17 April 2008.  Clause 8 describes aspects of the engagement of persons on the project including weekly or casual engagement and flexibility and skill levels reflected in wage rates for each classification.  Appendix 1 defines the scope of works “for X25” and “for X30”.  The scope of works for X25 is uncontroversial.  The works consist of works in relation to a “Dump Station” which involves work in relation to “Dump Station 1 and Dump Station 2”.  The works also relate to an “In Loading System”, a “Stockyard Upgrade” and an “Out Inloading upgrade”.  It is common ground that those works are undertaken on the western side of the Terminal. 

50                  Appendix 1 as it relates to other works is in these terms:

APPENDIX 1 – DEFINITION OF PROJECT

 

The scope of works for X30 includes the following:

·                     Supply and fabrication of approximately 12.8km of 1,200 diameter steel tube piling

·                     Delivery to site of this piling and splicing on‑shore at site into the required lengths for driving, including provision of the driving shoe.  Two splices will be required at site per pile (i.e. approximately 480 splices at site producing 240 piles)

·                     Handling and pitching of approximately 240/1,200 diameter piles

·                     Driving an estimated quantity of 6,000 metres of piles

·                     Supply, fabrication, protective treatment, delivery to site and installation of approximately 2,200 tonnes of fabricated steelwork associated with headstocks, rail girders, bracing and access for the marine structures and also the C335 conveyor support trestles

·                     Manufacture, delivery and installation of approximately 1,085 precast concrete deck units of varying lengths

·                     Supply and installation of over 530 metres of A150 shiploader rail

·                     Supply and installation of other miscellaneous equipment including fenders, mooring hooks, ships access facility, platforms, davits, etc

            Structural steelwork including:

·                     Jetty Conveyor C334 gallery trusses, each typically spanning 24 metres, supported from existing piled headstocks.  (Note, no additional piling is required on the approach jetty).  The estimated quantity of fabricated steelwork is 1,050 tonnes.

·                     Modifications in the C324 Drive Tower

·                     C335 shipping gallery structure comprising over 260 tonnes of fabricated steelwork

·                     C335 Drive Tower comprising approximately 45 tonnes of fabricated steelwork

·                     Extruded aluminium flooring and aluminium floor grating

·                     Aluminium purlins and girts and cladding in C335 Drive Tower

·                     Limited concrete flooring

            Mechanical works including:

·                     Jetty Conveyor C334 complete including all pulleys, idlers, drive unit, conveyor belt, take up, chutes, scrapers, sensors, guarding, etc, and modifications as required within the existing C324 Drive Tower.  The head chute shall be capable of feeding to either C335 on Berth 2 or existing C325 on Berth 1.

·                     Wharf Conveyor C335 complete including all pulleys, idlers, drive unit, conveyor belt, take up, chutes, scrapers, sensors, guarding, etc.

·                     Modifications to chutework to permit existing Jetty Conveyor C324 to feed to either C325 on Berth 1 or C335 on Berth 2

·                     C335 Tripper structure complete including all pulleys, hold down rollers, scrapers, chute, guards, etc

·                     Wharf slurry tank and clean‑up system

·                     Maintenance hoisting equipment

·                     Conveyor water services

            Electrical works including:

·                     C334 jetty conveyor

·                     C335 shipping conveyor

·                     Feed centre to shiploader

·                     Wharf substation HV switchgear

51                  It can be seen that there is a very substantial degree of reconciliation between the scope of works comprising the “Marine Works” the subject of the proposed Contract Q08‑004 as described in the Invitation to Tender at [30] and [31] particularly having regard to the content of section 3 of the Invitation to Tender, on the one hand, and the description of the scope of works for X30 in Appendix 1 to the Agreement having regard to the content of the structural steelwork, mechanical works and electrical works in Appendix 1; at [50], on the other hand.  PCQ issued the Invitation to Tender for work so described in the invitation on 21 December 2007.  PCQ contemplated the submission of tenders to undertake those works by 22 February 2008, an oral presentation by the tenderer on 3 March 2008 and the selection of a contractor by 28 March 2008.  In April 2008, John Holland and the AWU signed the Workplace Expansion Agreement which closely adopts the description of works reflected in the Invitation to Tender.  By 28 May 2008 PCQ had issued a Letter of Intent to contract with John Holland for the expansion works subject to the finalisation of the formal Contract.  The acceptance of John Holland’s tender was awarded on 29 July 2008.  The Technical Specification incorporated within the Contract recites the content of the detailed specific requirements to be met by John Holland in performing all work required to be undertaken to complete the off‑shore or marine works as part of an expansion of the Terminal to 50mtpa. 

52                  Unsurprisingly, the Technical Specification recites with the focused precision of construction lawyers or consulting engineers, the specific burden of the work tasks to be done or functional outcomes to be achieved in respect of each category of activity relating to marine structural works, mechanical works and electrical works concerning Berth 2, Conveyor C334 and Conveyor C335 and associated infrastructure works. 

53                  John Holland and the AWU reached an agreement that was to provide comprehensively for the wages and conditions of employment of John Holland employees “to reflect and accommodate the specific circumstances of the Project” as applied to the parties at the X25 and X30 Expansion of the Terminal.  Whilst it is true that the Agreement recites that it shall so apply, the content of the terms X25 and X30 are “outlined” by an appendix mis‑described as Appendix A.  The relevant appendix “outlining” those expansions for the purposes of the Agreement, can only be Appendix 1.  Whilst it is also true that PCQ contemplated a phased expansion of the Terminal transitioning from X25 to X30 as a project distinct from other incremental phases of expansion such as X35 and ultimately X50, Appendix 1, as between the parties to the Agreement, gives qualifying meaning to the reference to “X30 Expansion” by defining the scope of the works comprising the 30mtpa expansion to be undertaken by the employees, described in the Agreement as the “X30 Expansion”.  Those works are treated by the Agreement as separate and distinct from the X25 Expansion located on the on‑shore western side of the Terminal.  The Agreement treats the works described as the X30 Expansion and defined by Appendix 1 as X30, as off‑shore marine works consistent with the description of the scope of works in the Invitation to Tender. 

54                  The off‑shore or Marine Works are undertaken on the eastern side of the Terminal as part of the X50 Expansion.  The Technical Specification recites the scope of works to be undertaken, for the purposes of that document, with the detailed and orthodox specificity that such a document requires.  The parties to the Workplace Expansion Agreement chose by that document not to record that degree of specificity within the description of the scope of works defining what is meant by “X30 Expansion”.  That does not mean that the parties did not intend the Workplace Expansion Agreement to comprehensively cover or regulate the sanctity of their industrial relationship in the performance of the necessary actual work falling within the descriptions or categories of work identified by them by reference to the bullet points they adopted under “Scope of Works for X30” at [50].  It is true that the Agreement uses the terms “the Project” and “Definition of Project” and “other project”.  It is also true that the Agreement sites the project at PCQ’s Terminal X25 and X30 Expansion.  However, the expansion work must necessarily take place at a place and in this case, the place is PCQ’s infrastructure facility of the Abbot Point Coal Terminal.  Some of that work, such as the X25 Expansion work to Dump Stations, an In‑loading system, Stockyard upgrades and other Upgrades occurs on the western on‑shore side of the Terminal and other expansion work to the capacity of the Terminal occurs elsewhere on site.  The circumstance that determines the place where work will be done is the nature of the expansion works.  In this case, the work described in Appendix 1 to the Agreement under the reference X30 describes, in an inclusive way, expansion works to existing off‑shore assets and the construction of new off‑shore facilities involving a new Berth, a new Jetty Conveyor, an elevated Conveyor and associated works for the integration of those assets with other existing infrastructure assets or new assets to be developed as part of the off‑shore expansion.  That work, in fact, occurs on the eastern side of the Terminal. 

55                  Mr Stokoe says that he is very familiar with the off‑shore component of the X50 Expansion.  He says that he has read Appendix 1 of the Workplace Expansion Agreement.  He says that the scope of works for X25 accurately defines the work undertaken by John Holland at the X25 work site pursuant to PCQ’s contract with John Holland for that purpose (Contract Q08‑001).  He also says that the scope of works for X30 described at Appendix 1 accurately defines the work which is performed and to be performed by John Holland at the X50 work site pursuant to Contract Q08‑004 in undertaking the off‑shore component of PCQ’s X50 Expansion.  Mr Stokoe says that there is no separate X30 Expansion project and no project exists by that name.  He asserts in evidence that the intended X30 and X35 phased expansion was abandoned and combined to create the X50 Expansion project. 

56                  Mr Steven Ingham gave evidence on behalf of John Holland. 

57                  Mr Ingham is employed by John Holland in the role of Employee Relations Manager and has been employed by John Holland since 10 June 2008.  Mr Ingham says that he is familiar with the layout of the Terminal and particularly the site of the X25 works carried out on the western on‑shore part of the Terminal and the X50 site where the off‑shore works are undertaken.  He says there is no area at the Terminal designated either by PCQ or John Holland as an “X30 work site” although there are areas designated by PCQ and John Holland as the “X25 work site” and “X50 work site”. 

58                  Mr Ingham has provided a description of the Terminal and the method of access to the X25 and X50 work sites supported by a number of photographs and a plan marked “SI‑1” to his affidavit sworn 11 March 2009.  Mr Ingham says that the Terminal is approached along Abbot Point Road where an access seeker will reach a sign indicating a turnoff to the western access gate to the Terminal, marked “John Holland X25” with an arrow indicating the western direction of travel.  The sign is located on the Abbot Point Road before the western access turnoff.  The western access road takes an access seeker to the western on‑shore side of the Terminal designated as the X25 work site and a secure access gate to the work site.  The X25 work site contains a coal stockpile and a coal conveyor.  Work is being undertaken on site in relation to Dump Stations and loading systems.  Mr Ingham’s map demonstrates the western inland site of these works.  All works undertaken by John Holland in connection with PCQ’s X25 Expansion project are performed within this area. 

59                  If the access seeker continues along Abbot Point Road, the access seeker will reach a sign marked “John Holland X50” with an arrow pointing in an easterly direction.  There is also a sign marked “Eastern Access” with a sign pointing in an easterly direction.  The access seeker will, by following the signs, reach a secure access gate to the site of the off‑shore expansion works forming part of the X50 Expansion.  The site is known as the “X50 work site”. 

60                  The site consists of three distinct work areas.  Work Area 1, known as Lay Down Area 1, is a large area located adjacent to the secure access gate and extending for a significant area into the site.  Mr Ingham says that, in Lay Down Area 1, the following works are being or are to be performed by John Holland:

(a)        Receipt to site and storage of 1,200 diameter steel tube piling;

(b)        Receipt to site and storage of fabricated steelwork associated with headstocks, rail girders, bracing and access for marine structures.  The fabricated steelwork is supplied through the John Holland workshop in Richlands, Brisbane;

(c)        Receipt to site and storage of precast concrete deck units; and

(d)        Receipt to site of other miscellaneous equipment.

61                  Work Area 2 known as Lay Down Area 2 is located approximately two kilometres from the eastern access gate and is north of Lay Down Area 1.  Mr Ingham says the following works are performed in this area:

(a)        Spicing of piling on‑shore into the required lengths for driving off‑shore; and

(b)        Handling of the piling on‑shore in preparation for the piling off‑shore.

62                  Work Area 3 is a “hockey stick” shaped off‑shore new berth work area in which Mr Ingham says the following works are performed:

(a)        Handling and pitching of piles off‑shore;

(b)        Driving of piles off‑shore;

(c)        Installation of fabricated steelwork associated with headstocks, rail girders, bracing and access to marine structures;

(d)        Installation of precast concrete deck units;

(e)        Installation of shiploader rail;

(f)        Installation of gallery trusses. …;

(g)        Modification to a Drive Tower[s];

(h)        Installation of a shipping gallery structure …;

(i)         Installation of aluminium flooring and grating …;

(j)         Mechanical works on jetty conveyors;

(k)        Mechanical works on the wharf conveyor;

(l)         Modifications to chutework;

(m)       Other associated mechanical work; and

(n)        Associated electrical works.

63                  Mr Ingham says and his photograph shows that materials inwards are collected, stored and stockpiled in Lay Down Area 1 until required for use otherwise, on site.  Lay Down Area 2 is also known as the pile splice yard and is located on and close to the coastline.  In this area, piles are spliced together for use in the construction of the new berth, Berth 2.  Work Area 3 is the construction site for the new berth. 

64                  A road approximately two to three kilometres long links the X50 work site secure access gate with Work Areas 1 and 2.  Work area 3 is immediately beyond work area 2.  Mr Ingham’s map reveals and his evidence describes a fence adjacent to the link road that marks out one boundary of the X25 work site (that is, works undertaken west of the fence) and the X50 work site (that is, works undertaken on the eastern side of the fence).  Mr Ingham says the physical arrangement of the work sites at the Terminal provides for two work sites, X25 and X50, and there are signs marked with those descriptions directing access seekers to either of the work sites.  Mr Ingham says there is no area marked “X30 Expansion Project” or “X30 Work Site”. 

65                  Mr Ingham says that John Holland employs approximately 140 employees on wages to work at the Terminal, all of whom are paid under the terms and conditions of the Workplace Expansion Agreement.  He says that approximately 71 employees work at the X50 work site engaged on the X50 Expansion works and the remainder work at the X25 work site.  Mr Ingham exhibits to his affidavit sworn 17 April 2009 a document described as John Holland’s “Active Verse Total Workforce Numbers” (SI‑1) which forms part of a “Manning Forecast” for employees required to undertake work tasks for the X50 work site, and a document described as “Project Wages Personnel Manning Plan” for the X50 Project (SI‑2) setting out all X50 wages employees employed by John Holland at the X50 work site and their positions.  Mr Ingham says that these wages employees are paid the wages prescribed by the Workplace Expansion Agreement referable to the positions they hold as described in that Agreement.  Mr Ingham says the work undertaken by the employees on the X50 work site is work carried out in relation to the matters described in Appendix 1 to the Agreement under the scope of works for X30.  Mr Ingham also says that all of the work which John Holland is currently performing for PCQ at the Terminal pursuant to contract Q08‑004 is performed within the areas designated by PCQ and John Holland as the X50 work site, located on the eastern side of the Terminal. 

66                  As to the scope of work undertaken on the X50 work site, Mr Bradley (an AMWU official) accepted in cross‑examination that he had looked at work being done at the X50 work site and that the work, at least that he had seen done, was included within the definition of the scope of works for X30 in Appendix 1 to the Agreement (T73, ll 37 to 42).  Mr Bradley also accepted that the terms of the Workplace Expansion Agreement, subject to the reference to X30 in the Agreement, do apply to all of the work that he had seen performed at the X50 work site (T74, ll 19 and 20).  Mr Bradley also accepted that the entrance signs to the X25 work site refer only to the X25 Project and there is “no reference whatsoever to X30 anywhere” (T71, l 20).  Mr Bradley also seemed to place particular emphasis upon the term X50 as a critical point of differentiation in the application of the Workplace Expansion Agreement to work undertaken on the X50 site.  Mr Bradley was asked:

Mr Hatcher:      If the work is the same, and you’ve agreed with me that the only work that is being done is described in the X30 scope of works, is it just the label X50 that you rely upon?

Mr Bradley:      Yes. 

67                  Similarly, Mr Robinson (a CFMEU official) seemed to accept that the X50 Project involved the construction of a new coal port terminal, a new conveyor, expansion of an existing conveyor and all work associated with putting in a new berth and that the X30 Project represented the same work (T105, ll 5 to 19).  Mr Robinson takes the view that because the Agreement refers to X25 and X30, X50 represents a separate project under a different title and that “make[s] a difference” (T105, ll 27 to 39).  Similarly, Mr Ong (an official of the CEPU and ETU) accepted that the work he had seen done on the X50 work site, he guessed, fell within the “very sort of work described in the Appendix 1” (T86, ll 21 to 26).  Nevertheless, Mr Ong thought that it was clear to him that X50 was a separate project from an X25/X30 project.  Mr Ong also said that he thought he had seen a sign directing an access seeker to either “X30” or possibly “X25 and X30” on the one sign.  Mr Ong also gave this evidence:

Mr Ong:           At one stage I had a brief conversation with Mr Ingham about work being done on X25 and X30. 

Mr Hatcher:      Yes, and what do you say was the response?

Mr Ong:           The response was he pointed to X25 and – well, I can only truthfully say X25 over there. 

68                  The Unions raise a number of objections to the notion that the proper construction of the Workplace Expansion Agreement is that the parties intended it to apply to, that is, cover the scope of work of contract Q08‑004.  First, they say that the Contract was made on 29 July 2008, 13 weeks after the making of the Agreement on 17 April 2007 and, having regard to Mr Stokoe’s evidence, the final form of the Contract emerged after many meetings over seven months.  Second, Mr Stokoe’s evidence concerning the evolution of the references to “X30 Expansion Project” and “X50 Expansion Project” is no more than “interesting” and cannot be relied upon in construing the Agreement because the factual matters going to PCQ’s abandonment of the phased approach to expansion and the adoption in March 2008 of the description X50 Expansion to describe expansion works going beyond X25, was simply not known to the AWU.  The use of the description X50 Expansion or X50 Project was one essentially confined within PCQ.  Third, no evidence has been adduced that either John Holland or the AWU intended the scope of work within the Agreement to be identical to the scope of work described in the Invitation to Tender and although the Unions accept that there is almost identical overlapping of terminology in the scope of work for X30 in Appendix 1, certain work identified in the Invitation to Tender is not contained within the Workplace Expansion Agreement.  They say that in the absence of evidence as to a consensus in the application of the Invitation to Tender to the Agreement, the Court is not entitled to rely upon the Invitation to Tender in the construction of the Agreement. 

69                  Therefore, it is said, the Agreement must be construed only by reference to the natural and ordinary meaning of the words in the Agreement. 

70                  Fourth, the crucial word in clause 4.1 of the Agreement which determines the application of the Agreement, is the word “at” as it signifies a place or geographical point of occupation and thus the Agreement is to apply at a place of X25 and X30 Expansion, and only at that place.  It is site‑specific and the site is not the site of an X50 Expansion.  Moreover, the ordinary and natural meaning of the words “the Ports Corporation of Queensland Abbot Point Coal Terminal X25 and X30 Expansion” and the conjunction, is necessarily a reference to one location and not two locations.  The Unions say that it is common ground between all parties in these proceedings that there is no separate physical location known as “Ports Corporations of Queensland Abbot Point Coal Terminal X30 Expansion”. 

71                  Fifth, construction of the Workplace Expansion Agreement by reference to an analysis of the tasks to be performed as part of the relevant expansion activities is to be rejected on the footing that if that approach had been the intention of the parties, clause 4.1 of the Agreement would have adopted the application words, “as applying to all work within the description of work set out in Appendix A”, rather than the words, “This Agreement shall apply to the parties at the Ports Corporation of Queensland Abbot Point Coal Terminal X25 and X30 Expansion as outlined in Appendix A …”.  Consistent with this view of a site‑specific application, the Agreement otherwise uses the terms “the Project” and “Project layout” and makes other references to the term “the Project”.

72                  Sixth, it is not clear that the reference to Appendix A in clause 4.1 is to be taken as a reference to Appendix 1 to the Agreement.

73                  Seventh, in the alternative, because neither John Holland nor the AWU led evidence of the objective facts known to those parties at the time of making the Agreement in April 2008, the Court, it is said, is not able to form a view as to whether the Agreement covers work done on the X50 site.  Eighth, the scope of work described as X30 in Appendix 1 is not consistent with the scope of work described in Contract Q08‑004.  There is therefore something more to be done, that is, additional work not covered by the Agreement.  The Unions say that the departure in the symmetrical relationship between the Invitation to Tender, the Agreement and the Contract can be seen by first recognising that the Invitation to Tender describes an aspect of the electrical work as:

·                      HV cabling between the Main and Wharf Substations

·                      General lighting & power to wharf & jetty structures

·                      PA system extension

·                      Cathodic protection of marine structures

and that work is not part of the scope of electrical work in Appendix 1 to the Agreement.  Secondly, Mr Stokoe gave evidence that the scope of work appearing in the Contract was wider than the scope recited in the Invitation to Tender at least in these aspects of the electrical works.  First, clause 2.5.1 of the Technical Specification describes the requirements for a wharf substation fire suppression system.  Second, clause 2.5.3 describes control system modifications.  The Unions say that Mr Stokoe conceded that in the course of negotiations for the final contract, it was likely that additional works were added to the Technical Specification that were not in the Invitation to Tender and some work was possibly omitted.  The Unions say that it follows that if the work done at the X50 site in part falls within the Contract scope of works, it is not open to conclude that all of the work performed at the X50 work site is covered by the Workplace Expansion Agreement.  In other words, some work is “Agreement‑free”. 

74                  The Unions say that although it is not admissible to construe the Workplace Expansion Agreement by reference to the conduct of John Holland in seeking in November 2008 to amend Appendix 1 by introducing a new subheading for the scope of works inserting X50 and new text under the subheading, it nevertheless remains “interesting” that the new text is more closely aligned with clause 1 of MD‑2 (Technical Specification Revision 1 of 30 April 2008).  Clause 1 of that document is in the same terms as Revision 3 of 3 June 2008. 

Conclusions in relation to the coverage of the Agreement and Contract issues

75                  Mr Stokoe is PCQ’s General Manager Construction.  He is responsible for all works required to be undertaken for the expansion of the Terminal to achieve a throughput capacity of 50mtpa.  He is familiar with the development of the planning for the expansion, implementation decisions, changes to the phased expansion of the Terminal, contract arrangements, the work carried out under the relevant contracts and the work done by John Holland at the X25 and X50 work sites.  He is an impressive witness at arms‑length from the participants to the controversy, John Holland, the Unions and the AWU.  I accept all of his evidence.  I accept that there are two work sites at the Terminal, an X25 work site and an X50 work site.  There is no separate X30 work site.  I am satisfied that the proposed incremental X30 and X35 phases of Terminal development were assimilated within an X50 expansion.  I accept that there are no signs to a separate X30 project or X30 work site. 

76                  I also accept the evidence of Mr Ingham.  He too is familiar with the layout of the Terminal site, the configuration of the X25 and X50 work sites, access arrangements, the number of employees deployed by John Holland at each work site and their classification and payment arrangements.  He is familiar with the work undertaken and to be undertaken at each work site by John Holland employees. 

Essential approach

77                  In construing the Workplace Expansion Agreement, the aim is to isolate and identify the meaning the parties intended in adopting the language they chose.  That meaning is found by giving those words their natural and orthodox meaning while recognising that the chosen words must be viewed broadly in the context of the Agreement as a whole and not too literally, assessed in the context of the practical setting within which the Agreement was intended to operate. 

78                  No agreement operates in a vacuum, especially an agreement intended to comprehensively address the wages and conditions of employment of men and women doing work.  Nothing could be more adapted to the most applied and practical focus of the mind of the authors of such a document than the nature of the work to be done, the classifications that would apply to men and women doing particular work and the rates of pay and loadings applicable to such work. 

79                  It follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work.  As to these principles see the adoption of the observations of Street J in George A. Bond & Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 214 ALR 56, (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131]. 

80                  Clause 4.1 of the Agreement applies the Agreement at PCQ’s Terminal X25 and X30 Expansion as outlined in Appendix A.  Appendix 1, relevantly Appendix A, identifies, inclusively not exhaustively, work men and women are to do in undertaking the X25 Expansion.  Appendix 1 also identifies, inclusively not exhaustively, work men and women are to do in undertaking the X30 Expansion.  There is a very substantial correlation between the work John Holland employees would undertake as described in the Invitation to Tender for contract Q08‑004 if it won the tender, and the work to be undertaken by John Holland employees as described under the subheading “Scope of Works for X30 includes the following” in Appendix 1 to the Workplace Expansion Agreement.  The Invitation to Tender of 21 December 2007 explained that PCQ was then planning to expand the Terminal facilities to 50mtpa and explained the broad content of the “next stage” of the expansion.  The letter sets out the scope of works described broadly as the “Marine Works” which was to be the subject of contract Q08‑004.  Nothing could be more plain than that the parties intended the Agreement to apply to the works the subject of the tender for contract Q08‑004 described in the Agreement under the heading X30.  It is true that four items in the Invitation to Tender under the heading “Electrical Works’ are not replicated in Appendix 1.  However, Appendix 1 otherwise closely adopts the scope of works in the Invitation to Tender which suggests the parties intended the Agreement to apply to the tendered Marine Works.  By March 2008, the Marine Works had come to be described by PCQ as part of its X50 Expansion.  It may be that John Holland and the AWU did not come to use that term in March 2008 to describe the scope of the Marine Works.  However, it is clear that the Marine Works had become a part of the works required to be done to achieve an expansion to 50mtpa and hence an X50 Expansion.  Mr Stokoe made it plain that all works beyond the X25 works required to expand the facility to 50mtpa became the X50 Expansion.  Accordingly, the notion that the Agreement applies at a separate X30 Expansion site or X30 project site does not give the Agreement, conditioned by Appendix 1, the true meaning and intention of the parties.  It was an Agreement to cover the work done. 

81                  Moreover, the Invitation to Tender was directed to a scope of work (comprehensively adopted as the scope of work in the Agreement), which was to be the subject of contract Q08‑004.  A detailed Technical Specification was in evidence from 30 April 2008, and the Technical Specification the subject of the Contract was dated 3 June 2008 and is in precisely the same terms as the earlier Technical Specification.  It is true that the Technical Specification is more extensive in the detail or content of the works required to be done than the content of Appendix 1 to the Agreement.  However, adopting a practical approach, the Agreement which was designed to regulate industrial engagement between an employer, its employees and a Union, seeks to express the intention of the parties to bring the offshore or Marine Works set out under the 26 bullet point topics at [50] under the coverage of the Agreement, rather than express an intention to prescriptively isolate the content of each and every element of those works as if the Agreement was intended to prescriptively anchor a contractor to each and every specific technical detail required to perform the works and discharge and acquit a contract for works.  The terms of the Agreement and these contextual events suggest that the Agreement was not intended to be a surrogate or analogue of a Technical Specification.  Mr Stokoe recognises that some detail might have been added in formulating the final version of the Technical Specification that went beyond the Invitation to Tender.  That is to be expected.  Nevertheless, to the extent of its prescriptive more detailed operation, the Technical Specification prescribes subsets of work falling within the scope of the offshore or Marine Works broadly captured, and in some respects captured in detail, in the Agreement. 

82                  Both the Invitation to Tender and contract Q08‑004 isolate works relating to the construction of Berth 2 to the east of existing Berth 1; the construction of a second jetty Conveyor C334, including all structural, mechanical and electrical works associated with the outloading conveyor; and the construction of shipping gallery Conveyor C335 and associated C335 Drive Tower.  The 26 bullet points comprising Appendix 1 at [50] are directed to the same subject matter.  I am satisfied having regard to the evidence of Mr Ingham and Mr Stokoe and a consideration of the documents that the work being done on the X50 work site under contract Q08‑004 is work falling within the scope of the Agreement and the work is thus covered by the Agreement.  I am satisfied that when the permit holders under s 737 of the Act, Mr Bradley, Mr Lowth, Mr Robinson and Mr Ong purported to exercise rights of entry under s 760 of the Act on 19 November 2008, 13 February 2009 and 5 March 2009, the work being carried out on the X50 work site by John Holland employees was covered by the Agreement and John Holland is bound to apply the terms and conditions of the Agreement to employees performing work under it.  Mr Ingham gave evidence that John Holland is paying all of its employees on the X25 and X50 work sites at the Terminal in accordance with the terms and conditions, classifications and rates of pay prescribed by the Agreement. 

Issues 2 and 3 (the List of Issues is set out at [24])

83                  Having regard to these considerations, the answers to the questions posed under Coverage Issues 2 and 3 [24] are:

1.                  2(a) - Yes

2.                  2(b) – Yes

3.                  3(a) – Yes

4.                  3(b) – Yes

5.                  3(c) – Yes.

Issues 4 and 5

84                  The NAPSA, Metals Award and Construction Award do not apply to work carried out by John Holland employees on the X50 work site because that work is covered by the Workplace Expansion Agreement.  However, on the assumption that the Agreement does not apply, John Holland accepts that some of its employees may, subject to an analysis of the particular work, be covered by the Metals Award and the Construction Award.  As to the NAPSA, John Holland says and the Unions accept that NAPSA does not apply to John Holland, as a question of construction of the coverage clause, cl 1.4.1 of the Award.  John Holland also says that NAPSA cannot apply to it because it has not, as at the date of the hearing, employed any person to carry out any electrical work on the X50 work site.  Mr Ingham gave evidence of the Project Wages Personnel Manning Plan and the Manning Forecast for the X50 work site in relation to the predictions as to the total number of electrical trade employees to be employed at the X50 work site throughout 2009.  Mr Ingham and Mr Stokoe gave evidence that electrical works had not commenced on site.  Electrical work was not due to commence on site until May 2009.  The Unions concede that the only application of NAPSA on the X50 work site is its application to the work carried out by electrical subcontractors to John Holland and the employees of those subcontractors. 

85                  The Unions say that electrical work has been carried out by subcontractors notwithstanding the evidence of Mr Ingham and Mr Stokoe.  The evidence of that work is given by Mr Ong.  Mr Ong gave evidence that he went on to the X50 work site to determine whether John Holland employees were carrying out electrical work and to speak to employees of an electrical contractor, Murray Instrument & Electrical.  Mr Ong entered the X50 work site on 19 November 2008 and 13 February 2009.  Mr Ong said in cross‑examination that he saw evidence of electrical work carried out on the X50 site consisting of “pulling cables, temporary power and switchboards”, and that work had been done by either Murray Instrument & Electrical or John Holland employees.  In his affidavit of 9 April 2009, Mr Ong said that in the course of walking towards the smoko huts with other officials, he stopped to inspect some switchboards.  Mr Ong gave this further evidence in this affidavit.  At one point he was standing apart from the other organisers and Mr Ingham said to him, “What are your concerns?” and he said, “I have had calls about construction wiring not being compliant and guys have complained about overflowing toilets and being told to go to other toilet blocks”.  Mr Ingham responded, “We don’t have any electricians here”.  Mr Ong said, “I have inspected some boards already”.  Mr Ingham said, “The electricians are all at X25, maybe the boards they are complaining about are over there”.  Mr Ong said, “I need to make sure of that myself.  I have had calls and they said they were here”.  Mr Ingham said, “X25 or X50?”  Mr Ong responded, “I wasn’t sure”.  Mr Ingham’s evidence is that Mr Ong then said, “What am I doing here then, I should be at X25”.  This is denied by Mr Ong.

86                  Mr Ong said that he spoke to employees of the contractor and John Holland electricians on the evening of 12 February 2009.  Mr Ong could not identify the John Holland employees.  Mr Ong said that he went on to the X50 work site to see if there were any John Holland electricians on site.  He accepted that he did not speak to any John Holland electricians on site and did not ask any John Holland employees when speaking with them whether there were any electricians on site.  Mr Ingham contended that he had told Mr Ong on 19 November 2008 on site that John Holland had no electricians on site.  Mr Ong, in cross‑examination, said that he would not be doing his job if he accepted everything Mr Ingham told him.  Mr Ong did not contend that he spoke to any electricians on site on either 19 November 2008 or 13 February 2009.  However, Mr Ong gave this evidence in cross‑examination. 

Mr Hatcher:      And you didn’t choose to find out whether there were any electricians there.

Mr Ong:           Well, the only way I could do that was to enter the site, see if there were electricians there. 

Mr Hatcher:      But when you went on the site you didn’t see whether there were any electricians there, did you?

Mr Ong:           Well, I did, yes.  I mean, there was obviously electrical work being done there.

Mr Hatcher:      But, sir, not by John Holland employees? 

Mr Ong:           Well how was I to know that at this stage?

Mr Hatcher:      Perhaps you might have asked. 

Mr Ong:           Asked who?

Mr Hatcher:      The John Holland employees that you addressed. 

Mr Ong:           That – at that stage, yes, I could have asked. 

87                  This exchange with Mr Ong seems to show not only that Mr Ong did not make enquiries of the employees as to whether electricians were on site but also that the point of distinction emphasised by John Holland about the electrical work was that any such work that Mr Ong thought had been carried out, was being done by Murray Instrument & Electrical rather than John Holland employees.  That seems consistent with the evidence of Mr Ingham that no John Holland employees had been engaged in electrical work as reflected in the manning plans for 2009, on the X50 work site. 

88                  Mr Ong’s evidence does suggest that some electrical work such as the installation of temporary power and switchboards observed by him had been carried out by a contractor.  The evidence does not establish that electrical work was being carried out at the date of Mr Ong’s entry to the X50 work site by contractors to John Holland.  There may have been some earlier work.  Mr Ong in his own evidence was not sure whether the discussions he had with men about construction wiring related to the X25 or X50 work site.  Mr Ong did not see or speak to any electricians on the X50 work site nor ask the employees he did speak with whether electricians were on the X50 work site.  I am satisfied that no employees of John Holland had been or were conducting electrical work on the X50 work site having regard to the evidence of Mr Ingham and Mr Stokoe and the work plans and manning plans for the X50 work site managed by Mr Ingham.  I am satisfied that at the time of Mr Ong’s entry on 19 November 2008 and 13 February 2009 there were no employees of John Holland who were eligible to become members of the CEPU/ETU. 

89                  In any event, since the Workplace Expansion Agreement covers electrical work on the X50 work site, NAPSA has no application to any of the work carried out on the X50 work site.  The evidence relating to the entries to site by the permit holders demonstrates that entry was for the purpose of enabling permit holders to speak with John Holland employees rather than the employees of contractors to John Holland. 

Issue 6

90                  Having regard to the foregoing observations, none of John Holland’s employees engaged in work at the X50 work site were “eligible employees” of the CFMEU, AMWU, CEPU/ETU for the purposes of s 760 of the Act.  None of John Holland’s employees can be said to have been carrying out work on the X50 work site covered by an award or collective agreement binding on the AMWU, CFMEU or CEPU/ETU whilst the Agreement applied to work carried out on the premises by those employees (s 349(1) of the Act). 

Issue 7

91                  By reason of the application of the Workplace Expansion Agreement to work undertaken by John Holland employees at the X50 work site, Mr Bradley, Mr Lowth, Mr Robinson and Mr Ong did not have a valid right of entry to the X50 work site on 19 November 2008, 13 February 2009 or 5 March 2009. 

Issue 8

92                  The next question that arises is:  Did the CFMEU, AMWU or CEPU by reason of the conduct of their officials on 13 February 2009 and/or 5 March 2009 contravene s 767(1) or s 768(1) of the Act?  These provisions are civil remedy provisions for the purposes of the Act (ss 767(2) and 768(3)) and the Court may order a person who has contravened either provision to pay a pecuniary penalty.  Accordingly, the contravening conduct must be established to the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 and the Court is required to take into account the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged (s 140(2) Evidence Act 1995 (Cth)).  The Briginshaw standard of proof should be applied to all questions of fact in controversy (Pine v Doyle (2005) 143 IR 98; [2005] FCA 977, per Merkel J; Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009). 

93                  Section 767(1) is relevantly in these terms. 

767(1)  A permit holder exercising or seeking to exercise rights … under s 760 must not intentionally hinder or obstruct any person or otherwise act in an improper manner. 

94                  Therefore, were the permit holders exercising or seeking to exercise rights under s 760 of the Act?  Did a Union official hinder or obstruct any person during the events of entry on either day?  Who was hindered or obstructed?  Did a Union official otherwise act in an improper manner during the events of entry and if so, by what conduct?  Was the conduct intentional? 

95                  Section 768(1) provides, as it applies in this case, that a Union official must not in the circumstances mentioned in s 768(2) engage in conduct with the intention of giving another person the impression, or recklessly as to whether another person would get the impression, that the official (or a third person) is authorised by Pt 15 of the Act to enter the X50 work site for the purpose of holding discussions with John Holland employees carrying out work on the X50 work site under the Contract. 

96                  The circumstances within which the conduct must occur are circumstances where the Union official (or third person) is not authorised to so enter for that purpose and the Union official knows or has reasonable grounds to believe that he (or the third person) is not authorised by s 760 to enter for that purpose.  Therefore, what is the relevant conduct?  Was it engaged in intentionally to create the relevant impression or recklessly in the relevant sense?  Did the Union official know that he (or any other person from his Union or other third person) was not authorised to enter the X50 work site for the s 760 purpose?  If not, did the Union official have reasonable grounds to believe that he was not authorised on 13 February 2009 and 5 March 2009 to enter the X50 work site for the s 760 purpose?

97                  John Holland relies on the following evidence of Mr Ingham and Mr Davis in seeking to make out the integers of these provisions. 

98                  On 17 November 2008, Mr Bradley (AMWU) sent by facsimile a notice to John Holland of his intention to enter the John Holland Abbot Point Project on 19 November 2008.  Mr Bradley purported to rely on s 760 of the Act and the notice was said to meet the requirements of s 738 of the Act.  On 17 November 2008, Mr Lowth (AMWU) also sent such a notice.  John Holland says those notices failed to identify the actual premises to be entered and did not comply with the Act. 

99                  At approximately 9.00am on 19 November 2008, Mr Ingham was advised by a security guard at the eastern gate, by telephone, that four Union officials were waiting at the gate and wanted to see a representative of John Holland.  At the time Mr Ingham received the guard’s telephone call, he was working at an office next to the X25 work site offices, near the western gate.  The distance from the western gate to the eastern gate is approximately five kilometres.  It takes approximately five to 10 minutes to drive the distance.  When Mr Ingham received the call, he sought out Mr Brad Whitbourne, John Holland’s Area Manager, and asked Mr Whitbourne to drive him to the eastern gate.  They arrived at the security gate at approximately 9.15am.  On arrival, Mr Ingham asked the four Union officials to tell him the basis on which they were seeking entry to the X50 work site.  Mr Bradley and Mr Lowth said they sought entry to the X50 work site in reliance on the notices of 17 November 2008 and a contended right of entry under s 760 of the Act.  Mr Ingham responded by saying that Mr Patten, John Holland’s Employee Relationship Manager, Northern Region, had advised the AMWU that the Union did not have a lawful right of entry to the X50 work site under s 760 of the Act.  Mr Ong (CEPU/ETU) said he sought entry under the Workplace Health and Safety Act 1995 (Qld) (“the Qld Act”) to investigate contended safety breaches related to construction wiring.  Mr Robinson (CFMEU) said he sought entry under the Qld Act to investigate amenities.  Mr Ingham says he told Mr Ong and Mr Robinson that the Qld Act had no application to the X50 work site as John Holland was covered by Commonwealth Occupational Health and Safety legislation. 

100               Mr Ingham gave evidence that on 31 October 2006 John Holland was declared a corporation for the purposes of the Safety Rehabilitation and Compensation Act 1988 (Cth).  John Holland became a licence holder under that Act and a non‑Commonwealth licensee within s 5 of the Occupational Health and Safety Act 1991 (Cth) and was thus subject to Commonwealth law. 

101               Mr Ingham says that he told Mr Ong and Mr Robinson that John Holland was not subject to the Qld Act and they did not have a right of entry under the Qld Act.  Mr Ingham says he again told the four officials that they had no right of entry and asked them to leave.  Mr Ingham telephoned Mr Elder, John Holland’s Human Resources Manager, Northern Region, and was told that the officials had no right of entry.  After receiving that advice, Mr Ingham again told the four men that they had no right of entry to the X50 work site.  The four officials nevertheless walked through the access gate and down the road towards the work areas.  Mr Ingham telephoned a PCQ employee, Mr Lonsdale.  Mr Lonsdale went to the eastern gate, drove along the road leading to the X50 work site areas, intercepted the four officials on the road and spoke to them.  Mr Lonsdale returned to the gate.  Mr Martin, another PCQ employee, also arrived at the eastern gate.  Mr Ingham, Mr Martin and Mr Lonsdale then drove along the road and intercepted the four officials.  Mr Ingham says he again told the officials that they had no right of entry to the X50 work site and asked them to leave.  Each Union official refused to leave and said they had a right to enter the site and talk to their members.  By approximately 10.15am, the four officials had walked the distance of two to three kilometres to reach the work site areas (Work Areas 2 and 3).  Mr Ingham, Mr Whitbourne and Mr Cameron Green, John Holland’s Area Manager Offshore, had driven to the work areas to wait for the Union officials to arrive.  Mr Ingham says he spoke to the officials again at the work site and told each of them they had no right of entry and ordered them to leave the site immediately.  They refused and said they wanted to speak to their members.  Mr Ingham said that would not happen.  These exchanges took place outside the huts or rooms where the employees take lunch and morning tea breaks.  Mr Ingham says he had an exchange with Mr Ong in these terms.  Mr Ong asked, “Where are the electrical works?  I want to inspect them?”  Mr Ingham said, “We don’t have any electrical work.  There are no electricians engaged on X50.  There are electricians employed on X25”.  Mr Ong said, “What am I doing here then?  I should be at X25” 

102               PCQ employees called the police.  The four officials left the site through the eastern security gate at approximately 11.15am. 

103               On 20 November 2008, the CFMEU sent by facsimile to John Holland a “Notice to Initiate a Bargaining Period (s 423)” by which CFMEU intended “to try to make a collective agreement” under the Act concerning John Holland’s “operation located at Abbot Point X50 Project” governing the employment of “persons who are eligible to be members of the CFMEU”.

104               On 20 November 2008, the AMWU sent John Holland a facsimile of a notice in the same terms except that the collective agreement was to apply to employees “who are eligible to be members of the AMWU”.  On 21 November 2008, the CEPU sent John Holland a facsimile of a notice in the same terms except that the collective agreement was to apply to all employees “who are members or eligible to be members of the CEPU electrical division”. 

105               On 24 November 2008, Mr Stephen Sasse, the Group General Manager Human Resources & Organisational Strategy for John Holland, wrote to the CFMEU, AMWU and CEPU to set out the basis on which John Holland contended that the Unions and their officials had no right of entry to premises described as the Abbot Point Construction Project Site for occupational health and safety purposes pursuant to the Workplace Relations Act 1996 or the Qld Act.  Mr Sasse contended in the letter that the officials had been told on at least four occasions to leave the premises and that their conduct was hindering or obstructing John Holland officers in the conduct of the building and construction works at the premises. 

106               On 26 November 2008, the State Secretary of the AMWU, Mr Andrew Dettmer, responded to Mr Sasse’s letter in relation to Mr Bradley and Mr Lowth’s entry on 19 November 2008.  Mr Dettmer’s letter, in part, reads:

Prior to entering the site, both Mr Bradley and Mr Lowth sent Entry Notices on 17 November 2008 pursuant to Section 738 of the [Act] in order to hold discussions with employees.  This entry is authorised by section 760 of the [Act], as the employees are AMWU members, and as there is no collective agreement in place, they are carrying out work covered by the [Metals Award].

The AMWU has lodged an Initiation of Bargaining Period Notice with John Holland to commence negotiations for a union collective agreement for the Abbot Point X50 project.  I trust that John Holland will not obstruct AMWU officials from holding discussions with members at the project to obtain their input and feedback into these negotiations. 

107               On 3 December 2008, Mr Sasse responded to Mr Dettmer’s letter which is, in part, in these terms:

You state that the named officials entered the above site on 19 November 2008 in reliance on s.760 of the [Act].  We advise that such entry is unavailable.  In order to rely on s.760 you will know that there must be “eligible employees”, as there defined.  You have incorrectly stated that the [Metals Award] applies.  In fact, it is the [Workplace Expansion Agreement] which applies.  [This] Agreement regulates the employment of all persons on the project to the exclusion of any award or agreement.  The AMWU is not bound by the Agreement.  The employees in these circumstances cannot be “eligible employees”, regardless of whether they are members of the AMWU. 

Furthermore, the relevant officials were advised prior to their entry to the site that entry was not available pursuant to s.760 of the Act, for the reasons set out above.  In the face of that advice, their entry was trespass as stated in our letter of 24 November 2008.  Your letter now confirms that the entry was a deliberate trespass... 

We note you have referred to a meeting scheduled for 12 December 2008 following the AMWU having initiated a bargaining period in respect of the project.  Given what is stated above, you will understand that that meeting has been scheduled as a courtesy to the AMWU.  As we are advised, during the currency of the Agreement the initiation of a bargaining period is moot in respect of employees whose employment is covered by the Agreement. 

108               On 10 February 2009, Mr Lowth served on John Holland an “Entry Notice” in reliance upon ss 738 and 760 of the Act as a basis for proposed entry to premises described as “John Holland Abbot Point Coal Terminal Project” on 13 February 2009.  On 10 February 2009, Mr Ong served an Entry Notice in respect of premises described as “Abbot Point, Bowen” pursuant to ss 738 and 760 for entry on 13 February 2009 to hold discussions with employees.  Mr Robinson served a similar notice on 11 February 2009 describing the premises as “John Holland Abbot Point Coal Terminal Project” and Mr Bradley served a similar notice on 10 February 2009 in the same terms.  Each notice relied upon ss 738 and 760 of the Act. 

109               On 12 February 2009, the solicitors for John Holland, Herbert Geer, wrote to Mr Dettmer (Secretary AMWU) and the Secretary of the CFMEU and the Secretary of the CEPU in response to the Entry Notices issued by the officials of each Union.  The letter to Mr Dettmer, in part, is in these terms:

We have been provided with a copy of [the relevant Entry Notice issued by the relevant Union official] purporting to be notices of entry authorised by s.760 of the [Act] giving notice of your intention to enter our client’s premises at Abbots Point on Friday, 13 February 2009 (“Purported Notices”)

You have previously been advised in correspondence from our client dated 3 December 2008 that the [Workplace Expansion Agreement] (“Agreement”) applies to work performed at the Abbots Point Coal Terminal (the “Project”).  The Agreement comprehensively prescribes the wages and conditions of employment for the employees covered by the Agreement and further the Agreement expressly provides that it is “stand alone”.  Your union is not a party to the Agreement and as such the Agreement is not binding on your union as is required by the provisions of s.760 of the Act.  We note that in the past you have sought to rely upon the [Metals Award].  Given the “stand alone” nature of the Agreement, the provisions of that Award do not have application to our client’s employees on the Project. 

110               The letter set out the definition of “eligible employees” in s 760 of the Act.  The letter then says:

Given that the Agreement has exclusive application to the Project and the Agreement is not binding on your union within the meaning of s.760(a), your union has no right of entry to the Project pursuant to s.760 of the Act. 

In the circumstances you are on notice that any attempt to enter the premises at the Project in accordance with the Purported Notices shall be declined and any refusal to leave the premises will result in the matter being referred to the Queensland Police.

111               The letter to the Secretary of the CFMEU and the Secretary of the CEPU is in substantially the same terms as the letter to Mr Dettmer except that those letters do not refer to the earlier letter of 3 December 2008 which was only written to Mr Dettmer.  Paragraph 2 of each letter addresses the central contention that the Workplace Expansion Agreement expressly covers the work performed and neither Union is a party to the Agreement. 

112               On 12 February 2009, the CEPU/ETU responded and said that the Workplace Expansion Agreement applies to the parties at PCQ’s Terminal X25 and X30 Expansion and does not apply to the X50 Project.  The letter contended that Mr Ong was entitled to enter the premises under s 760 of the Act.  On 12 February 2009, Herbert Geer responded reasserting John Holland’s position. 

113               On 13 February 2009, Mr Dettmer responded and made the same point made in the CEPU/ETU letter that the Agreement applied at PCQ’s Terminal X25 and X30 Expansion but did not apply to “the X50 project”.  Mr Dettmer contended that employees working on the site were working pursuant to the Metals Award and that Mr Bradley and Mr Lowth were entitled pursuant to s 760 of the Act to enter “premises at Abbot Point at the X50 project”. 

114               Upon Mr Ingham’s arrival at the eastern gate at approximately 9.40am on 13 February 2009, Mr Ingham saw Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson standing at the security gate next to the entrance to that part of the Terminal.  Mr Ingham walked towards the officials and said:

You are not authorised to be here.  I have received advice that you’ve got no legitimate basis to enter the site.  I’d like you to leave the site now. 

The officials, led by Mr Ong, walked past Mr Ingham and commenced walking towards the X50 work areas.  The security guard walked in front of Mr Ong and stood about two metres in front of him with arms upward.  As Mr Ong went to walk around the security guard, the guard sought to prevent Mr Ong from further entering the premises.  Mr Lonsdale was present and asked the officials whether they wished to go to the PCQ offices “and discuss it”, that is, their entry to the X50 work site.  The officials did not respond and continued walking towards the work site areas about two kilometres further along the road.  By approximately 10am the officials had reached the work site areas.  They sat down outside facilities called the crib huts or crib rooms.  Mr Ingham had driven to the work area.  Mr Cameron Green was again present.  Mr Brad Whitbourne was present.  Mr Evan Morgan, John Holland’s Construction Manager, was also present.  One of the Union officials said, “We will wait here to talk to the employees”.  Mr Ingham approached each Union official individually and said directly to each man, “You are not authorised to be on the site.  Please leave immediately”.  One of the officials, although Mr Ingham cannot recall which, said, “We are not leaving until we speak to the employees”.  The officials remained at the crib huts and did not leave the site. 

115               At approximately 12.05pm Mr Bradley said, “If you give us 15 minutes with the employees we’ll leave the site straightaway”.  Mr Ingham told Mr Bradley that the men were not due to have their break until 1.30pm.  The officials remained at the crib huts until the employees arrived to have their lunch.  Mr Ingham and Mr Green waited with the officials.  Mr Ong took a photograph of the pile splice laydown yards.  The employees broke into two groups occupying each of the two crib huts.  Mr Ingham told the employees, in these terms, in each room that four Union officials were on site:

Four union officials are here on site.  They are not authorised to be here as we have refused their right of entry to the Site.  We will be reporting the matter to the ABCC.  The union officials are going to speak with you.  This meeting is not authorised by John Holland and we will be taking the matter further. 

116               Mr Bradley and Mr Robinson spoke to the employees in one crib room and Mr Lowth and Mr Ong addressed the employees in the other room.  Mr Ingham sat in the crib room with Mr Bradley and Mr Robinson.  Mr Morgan, Mr Smith and Mr Whitbourne sat in the crib room with Mr Lowth and Mr Ong.  Mr Bradley asked Mr Ingham to leave the crib room.  He refused.  Mr Bradley and Mr Robinson addressed the employees.  Mr Ingham says the officials made statements in these terms:

There is no industrial instrument in place to cover the work on X50.  John Holland tried to vary the existing agreement to include X50 last year but they weren’t successful. 

Since there is no agreement in place, we’ve got a lawful right to enter this site.  Last year we initiated a bargaining period but John Holland ignored us. 

We’ve tried to negotiate with John Holland and we have been refused.  We are now going to fight for an agreement that contains proper rosters, and paid travel time to and from the project. 

We are going to pursue [John Holland] industrially, legally and in the media. 

If you are approached by the ABCC you do not have to talk to them and you should contact the Union. 

The AWU are probably going to come sniffing around here but don’t sign anything. 

Does anyone have any question or comments? 

117               There was no response.  One of the officials said, “Let’s stick together.  We’ll be back”.  The Union officials were then transported to the security gate by car and left the site at 1.50pm. 

118               On 27 February 2009, Herbert Geer sent a letter by facsimile to the Secretary of the CFMEU, AMWU and CEPU.  The letter referred to Herbert Geer’s earlier letter of 12 February 2009 and the Notices of Entry issued by each Union official in reliance upon ss 738 and 760 of the Act, in relation to the entry on 13 February 2009.  The letter is 20 pages in length and sets out the background to the expansion program at the Terminal from 21mtpa to 25mtpa, the further expansion to 50mtpa and the contended relationship between the Invitation to Tender, the Agreement and contract Q08‑004.  The letter also addresses the shiploader contract Q08‑005.  The letter identified the basis upon which John Holland contended that work undertaken by its employees on the X50 work site under contract Q08‑004 was covered by the Workplace Expansion Agreement. 

119               On 4 March 2009, Mr Bradley served a document on John Holland giving notice of an intention to enter the John Holland Abbot Point X50 Coal Terminal Project on 5 March 2009 in reliance upon ss 738 and 760 of the Act.  On 4 March 2009, Mr Robinson served a document on John Holland giving notice of his intention to enter “X50 project Abbot Point – John Hollands” on 5 March 2009 in reliance on ss 738 and 760. 

120               John Holland contends that at all material times it was not the occupier of the X50 work site. 

121               On 4 March 2009, Herbert Geer sent a letter to the CFMEU in response to Mr Robinson’s Entry Notice.  Herbert Geer referred to the earlier detailed letter of 27 February 2009 and said:

Please be advised that should Mr Robinson seek to enter our client’s premises in accordance with the purported notice, our client will decline entry and inform him that he is not to enter the premises and any attempt to enter and remain on the premises will result in proceedings for trespass. 

122               The letter advised the CFMEU that John Holland would take proceedings in respect of the threatened entry in reliance upon the Entry Notices. 

123               On 5 March 2009, Mr Ingham was advised that an official from the AMWU and an official from the CFMEU had arrived at the eastern access gate.  Mr Ingham, Mr Green and another John Holland representative, Mr Smith, drove over to the eastern access gate.  Upon arrival, Mr Ingham told Mr Robinson and Mr Bradley that they did not have any authority to enter the X50 work site.  The officials said that they had given 24 hours’ notice of their intention to enter as required by the Act.  Mr Ingham said to Mr Robinson, “Have you seen the letter sent to your Union on 27 February?”  Mr Robinson said, “Yes”.  Mr Ingham asked Mr Bradley, “Have you seen the letter sent to your Union on 27 February?”  Mr Bradley said, “No”.  Mr Ingham handed Mr Bradley a copy of the letter.  When he saw the letter, Mr Bradley agreed that he had seen the letter.  Mr Ingham asked Mr Robinson whether Mr Robinson had seen a copy of the facsimile of Herbert Geer’s letter to the Secretary of the CFMEU sent on 4 March 2009.  Mr Robinson said he had seen that letter.  Mr Bradley said, “We have a right of entry and we are entitled to enter the site”. 

124               Mr Robinson and Mr Bradley walked past security onto the site and began walking along the road to the work areas.  Mr Ingham walked behind and said to them:

You have been directed to leave the premises, but you have refused to do so.  You have been advised that you are not authorised to enter these premises and have been provided with a copy of correspondence from John Holland legal advisers which identifies the basis for that position.  You have nevertheless entered the Company’s premises.  The Company intends to initiate proceedings against you, the AMWU and the CFMEU for unlawful trespass.  You are acting unlawfully and you should immediately remove yourself from the premises. 

125               Mr Ingham caused photographs and a video to be taken.  Mr Ingham, Mr Green and Mr Smith went by car to the crib rooms in the work areas.  At approximately 1.00pm, Mr Robinson and Mr Bradley arrived at the crib room at the X50 work site area at the end of the road.  Mr Ingham again said to the officials the words set out at [124].  Mr Ingham directed the officials to leave the premises.  Mr Ingham then asked the officials, “Have you read the letter from Herbert Geer to your Unions dated 27 February?”  They said words to the effect, “Yes we have.  The Union’s position is that there is no agreement covering X50 so we are here to talk to our members”.  At approximately 1.30pm, employees entered the crib room.  Mr Robinson and Mr Bradley then entered the crib room.  Mr Ingham followed them into the room.  Mr Ingham told the employees that the officials were not authorised to be on site, that entry had been refused and the proposed meeting was not authorised by John Holland.  Mr Robinson and Mr Bradley spoke to the employees and said this.

The Unions’ position is that there is no industrial agreement in place to cover the work on X50. 

Since there is no agreement in place, we’ve got a lawful right to enter this site. 

We’ve tried to negotiate with John Holland and we have been refused.  We are now going to fight for an agreement that contains proper rosters and paid travel time to and from the project 

…

John Holland has commenced proceedings against the Unions.  John Holland is attempting to intimidate and threaten people.  We’ll be back. 

126               Mr Robinson and Mr Bradley left the crib room and commenced walking back towards the main gate.  They entered another crib room approximately 300 metres from the eastern gate in another work area.  Mr Ingham also entered the second crib room.  He heard Mr Bradley say to the employees words to the same effect as the statements made earlier in the other crib room at [125]. 

127               At approximately 1.50pm, Mr Robinson and Mr Bradley left the second crib room and walked towards the eastern gate.  They left the Terminal at about 1.55pm. 

128               Apart from a contest surrounding the interaction between Mr Ong and the security guard in seeking to discourage the officials from entering the X50 work site, and a conversation between Mr Ong and Mr Ingham concerning whether electricians were engaged in work on the X50 work site or X25 work site, the evidence of each Union official is substantially similar to that of the John Holland witnesses, in relation to the events of entry. 

19 November 2008

129               As to the events of 19 November 2008, Mr Ong says in his affidavit of 9 April 2009 that Mr Ingham refused the men entry twice at the gate; the men entered the site; a security guard attempted to stop further entry; Mr Lonsdale attempted to get the men to leave the site to “sort it out”; Mr Mallum of PCQ told the men that they were trespassing; the organisers said nothing and kept walking; Mr Ingham told the men that they could not go into the site sheds; and, in discussion with the police and Mr Ingham, Mr Ong asserted a right of entry and Mr Ingham said he believed the men had entered the site illegally. 

130               Mr Robinson in his affidavits of 14 April 2009 and 22 April 2009 says that Mr Bradley asserted at the gate a right of entry to speak to members; Mr Ingham refused entry to the officials twice at the gate; Mr Robinson asserted a right of entry under Workplace Health and Safety legislation; a security guard attempted to stop the officials entering the site; Mr Ingham intercepted the men on the road, told them they had no right of entry and asked them to leave; the men were later again told to leave the site; and, at the crib rooms at the end of the access road, the men were again told to leave the site by Mr Ingham. 

131               Mr Bradley by his affidavit of 9 April 2009 says he asserted a right of entry and was denied entry at the gate; the men entered the site; a security guard attempted to stop them further entering the site; Mr Ingham intercepted the men on the road and again told them they had no right of entry and were trespassing; Mr Ingham told the men to leave the site at the crib huts; and Mr Bradley continued to assert a right of entry to hold discussions with CFMEU members. 

132               Mr Lowth by his affidavit of 9 April 2009, gives evidence in substantially the same terms as the other officials although Mr Lowth says one of the officials said the organisers only wanted to have access to their members to “discuss the log of claims for an agreement at the X50 project”. 

13 February 2009

133               As to the events of 13 February 2009, Mr Ong says that Mr Ingham denied their entry at the gate because the organisers were not a party to the Agreement; the organisers contended that the Agreement did not cover the X50 work site; a security guard attempted to stop further entry; Mr Ingham at the crib huts did not tell the officials to leave the site immediately; and Mr Ingham at 1.30pm told the workers in one of the crib huts that the meeting was illegal and the organisers had entered the site illegally.  Mr Ong also says in his affidavit that he told the workers assembled in the crib hut that the officials were on site because they believed there was no agreement for the X50 work site and they wanted to pursue one.  Mr Ong told the workers that the officials were within their rights to enter the site and told the workers not to say anything because it was likely that they might get the sack. 

134               Mr Robinson says that the officials were told at the gate that they were not entitled to enter the site; Mr Bradley and Mr Ong asserted a right of entry; Mr Ingham again said that the men were not entitled to enter the site; the officials entered the site; a security guard attempted to stop further entry; Mr Ingham intercepted the officials and again told them to leave the site; the officials kept walking; at the crib huts, Mr Ingham addressed the organisers as a group; Mr Bradley said the officials would hold discussions with the workers at their next break; at 1.00pm the workers entered the huts for lunch and Mr Ong and Mr Lowth went to one hut while Mr Bradley and Mr Robinson went into another; Mr Ingham told the workers that the presence of the officials on site was unauthorised; Mr Bradley told the workers that the officials were trying to negotiate an agreement with John Holland and in particular to secure a fly‑in/fly‑out clause. 

135               Mr Bradley says that the organisers at the gate told Mr Ingham they would enter the site to speak with their members; Mr Ingham told the officials that there was already an Agreement in place in relation to the site and that John Holland did not recognise their right of entry; the men entered the site; a security guard attempted to stop them; John Holland representatives intercepted the men on the road and told them that they had no right to be on site and should leave; when the officials reached the crib huts at approximately 10.10am, Mr Ingham again told them they could not enter the huts; Mr Bradley told Mr Ingham that the officials would leave the site if they could have 15 minutes with the workers; Mr Ingham refused; at 1.30pm the workers entered the huts; Mr Ong and Mr Lowth went to one hut and Mr Bradley and Mr Robinson went into another; Mr Ingham told the workers that the officials were on site illegally; Mr Bradley told the workers that the Unions believed there was no current agreement in place for the X50 work site, they had initiated a bargaining period, John Holland was refusing to negotiate an agreement to cover the site, the Unions were aware of health and safety issues and the dismissal of some members; Mr Bradley said that the Union was going to negotiate rather than fight for an agreement. 

136               Mr Lowth says that the officials were refused entry by Mr Ingham at the gate; Mr Ingham did not recognise the right of entry of the officials; the officials entered the site; a security guard attempted to prevent further entry; as the officials walked towards the crib huts about one kilometre along the road, they were intercepted and told to turn around and go back; the officials continued walking; Mr Ong and Mr Lowth entered one of the crib rooms at about 1.30pm; 12 workers were present; Mr Ingham told them that the meeting was illegal and that the organisers were on site illegally; Mr Ong explained the process by which the Unions planned to secure an agreement for the X50 work site; Mr Ong and Mr Lowth told the workers not to speak up.  The officials left after about 10 minutes. 

5 March 2009

137               As to the events of 5 March 2009, Mr Robinson relied upon an entry notice from the AMWU; Mr Ingham asked Mr Robinson and Mr Bradley if they had seen the correspondence from Herbert Geer of 27 February 2009; they said they had seen the letter; Mr Robinson said he had seen the facsimile from Herbert Geer of 4 March 2009; Mr Bradley contended that Mr Ingham was obstructing the officials and that they were going to enter the site; Mr Ingham told the officials that they did not have authority to enter and that they had been directed to leave and refused to do so; Mr Ingham told the officials that they had been advised they were not authorised to enter and that the correspondence from John Holland’s legal advisers identified the basis for that position; Mr Ingham told the officials that John Holland would initiate proceedings against them and their Unions for trespass and that they were acting unlawfully and should leave the site; the organisers entered the site; the organisers arrived at the crib rooms and waited outside; Mr Ingham repeated his previous statement and again asked the organisers whether they had read the letter of 27 February 2009 from Herbert Geer; Mr Bradley said that the officials had a right of entry and that he had showed Mr Ingham the relevant entry documents.  The organisers entered the crib rooms at 1.30pm; Mr Ingham told the workers that the officials were acting unlawfully and had been asked to leave but had refused to do so; Mr Bradley told the workers that they were not on site unlawfully; Mr Bradley told the workers that they did not necessarily want anyone to ask questions or make comments but they should feel free to, that the officials knew of threatening and intimidating behaviour and health and safety problems, that the Unions were open to negotiation but John Holland had refused, that the Unions had been involved in negotiations but John Holland had decided to sign an agreement with the AWU and had not contacted the ETU or the AMWU, that John Holland had commenced proceedings against the AMWU and CFMEU, that the officials did not want bosses in on Union meetings but they were refusing to leave, and that the officials would be back for another report. 

138               Mr Robinson says that he and Mr Bradley entered another crib hut at approximately 1.45pm and told 12 employees that John Holland had chosen not to negotiate with them and had taken action against them, that no worker should talk or ask questions because they might suffer reprisals from John Holland Management and that workers did not have to answer questions from the ABCC without two weeks’ written notice.

139               Mr Bradley agrees with Mr Robinson’s account.  Mr Bradley says that in the second crib hut at approximately 1.45pm he told the employees that the Unions were still open to negotiation with John Holland. 

140               Leaving aside the contest between the parties as to the conduct of the security guard and a conversation between Mr Ingham and Mr Ong concerning Mr Ong’s contended remark that he should be at the X25 work site, I find that the events described at [98] to [127] occurred. 

The cross‑examination of the officials and Mr Dettmer

141               In the course of the cross‑examination of the permit holders and also Mr Dettmer, the witnesses gave evidence concerning the circumstances informing their belief about the application of the Agreement to the X50 work site and related matters.  In the course of cross‑examination, Mr Bradley after giving evidence of his opinion that there is a division between a combined X25 and X30 work site on the one hand and a separate X50 work site on the other, gave this evidence:

Mr Bradley:      There’s a definitive fence between the X25/X30 site and the X50 site. 

Mr Hatcher:      Yes.  And when you say X25/X30 site, on what basis do you characterise it as the X25/X30 site?

Mr Bradley:      Because it has a separate entrance, and there are signed entrance – entrance signs, and there is a security hut.

Mr Hatcher:      Yes.  And the entrance signs refer to the X25 project, don’t they?

Mr Bradley:      Yes. 

Mr Hatcher:      There is no reference whatsoever to X30 anywhere? 

Mr Bradley:      Only in the agreement.

…

Mr Hatcher:      Have you seen anything other than piles being spiced on the X50 site and the steel tubing that you’ve [given] evidence of?

Mr Bradley:      No.

Mr Hatcher:      Have you been on the X25 site?

Mr Bradley:      No.

Mr Hatcher:      Why not?

Mr Bradley:      We don’t have right of entry to that site.  We’re not signatory to the agreement. 

Mr Hatcher:      And you accept that unless you were signatory to the agreement you wouldn’t have a right of entry?

Mr Bradley:      We accept that, yes.

Mr Hatcher:      Yes, and the basis, you say, for having a right of entry on the X50 site is because it’s called X50 rather than X30.  Is that the case?

Mr Bradley:      There is nothing in the scope and application of the agreement to cover X50. 

Mr Hatcher:      If the work is the same, and you’ve agreed with me that the only work that is being done is described in the X30 scope of works, is it just the label X50 that you rely upon?

Mr Bradley:      Yes. 

…

Mr Hatcher:      How do you determine whether there is an award or an agreement applying at [a] workplace for your organisation? 

Mr Bradley:      In the case of X50 there was …

Mr Hatcher:      I’m asking in general terms, sir, in your experience as an organiser?

Mr Bradley:      In general terms.  If there is no agreement and those employees come under the terms of our rules of coverage, then they would be covered by the award and we would have right of entry under the award. 

Mr Hatcher:      Thank you, sir.  And the first thing you do is look at the work they’re performing? 

Mr Bradley:      Yes. 

Mr Hatcher:      And you then compare that work, those duties, against an award which covers members of your union?

Mr Bradley:      Yes.

Mr Hatcher:      So did you have a look at the work that was being done at the X50 site?

Mr Bradley:      Yes. 

                        …

Mr Hatcher:      And you saw, you’ve given evidence, that the work that was being done was work that’s included within the definition of the scope of works for X30 in the agreement?

Mr Bradley:      Yes. 

Mr Hatcher:      You knew at all relevant times that John Holland was saying to you this is work that is covered by this agreement?

Mr Bradley:      Yes. 

Mr Hatcher:      And you satisfied yourself that the work was in fact covered by that agreement?

Mr Bradley:      No. 

Mr Hatcher:      The only basis upon which you formed a different view is because there was a sign at the front that said X50.

Mr Bradley:      No. 

Mr Hatcher:      On what other basis?

Mr Bradley:      The other basis is that one of our members called us, called the CFMEU, and the company John Holland tried to amend the scope and application of the X25, X30 agreement to include X50. 

Mr Hatcher:      … So there were only two bases upon which you assert a right of entry?

Mr Bradley:      Yes. 

Mr Hatcher:      One is that there is a sign that says X50, and the second is the proposed variation of the agreement?

Mr Bradley:      Yes. 

Mr Hatcher:      You’ve made no independent assessment of whether the terms of the agreement apply to the work that’s being performed?

Mr Bradley:      No. 

Mr Hatcher:      And in fact, you would agree that the terms of the agreement, subject to the reference to X30, does apply to all the work that you’ve seen performed?

Mr Bradley:      Yes.

Mr Hatcher:      You knew that it was contended by John Holland that the agreement did apply to the work?

Mr Bradley:      Yes. 

Mr Hatcher:      And you determined, in knowing defiance of John Holland’s position, to go on the site simply on the basis of the sign at the front and the proposed variation?

Mr Bradley:      Yes. 

142               Mr Ong gave this evidence:

Mr Hatcher:      Mr Ong, did you understand that there was any work that John Holland would have on the Abbot Point site that would not be covered by the agreement they were seeking to negotiate?

Mr Ong:           … certainly it was explained in negotiations “We’re doing X25 and X30”, so certainly in the negotiations we would be covering all the work that’s put into X25 and X30. 

Mr Hatcher:      And you knew that X30 was simply a label for a series of tasks that had to be performed?

Mr Ong:           I just took it as … parts of the job, X25 and X30.

Mr Hatcher:      And you knew that the parts of the job related to particular tasks that had to get completed at Abbot Point?

Mr Ong:           I just knew that we were doing X25 and X30.

Mr Hatcher:      But you had a draft agreement, didn’t you?

Mr Ong:           Yes.

Mr Hatcher:      And the draft agreement had an appendix 1? … Mr Ong, you did have a draft document that had an appendix 1, such as the appendix 1 which appears in the agreement?

Mr Ong:           To the best of my recollection, I believe there was an appendix 1 which set down, I think, a scope of X25/X30. 

                        …

Mr Hatcher:      You read appendix 1 in the draft agreement?

Mr Ong:           Brushed over it.  …  We mainly concentrated on … the main body of the agreement. 

Mr Hatcher:      And you have read appendix 1 in the agreement that was entered with [AWU]?

Mr Ong:           Yes.

Mr Hatcher:      And you have compared them?

Mr Ong:           No. 

                        …

Mr Hatcher:      But your union couldn’t exercise coverage in relation to X25, could it? 

Mr Ong:           Well, after the agreement was done it couldn’t, no. 

Mr Hatcher:      And it couldn’t exercise coverage in relation to X30, could it? 

Mr Ong:           After the agreement was done, no. 

Mr Hatcher:      If the [Workplace Expansion Agreement] covered the work then your union couldn’t claim any rights in relation to that work.

Mr Ong:           … – industrially, no, but certainly if there were safety issues on the site then I would have believed we had access to it. 

                        …

Mr Hatcher:      You were intent on going on that site whether the agreement applied or not.

Mr Ong:           No, that’s not the case.

Mr Hatcher:      … You made no investigation – comparison between the scope of works that was dealt with under your proposed agreement and the scope of works dealt with under the actual agreement.  You’ve told us that?

Mr Ong:           Well, I don’t think that’s true.  I was given a copy of the … actual agreement.  I looked at the scope of works and it didn’t cover X50 so we believed we had …

Mr Hatcher:      You went on the X50 site.  What work did you see being done?

Mr Ong:           All sorts of pipe work being lifted and welded and …

Mr Hatcher:      The very sort of work described in the appendix 1.

Mr Ong:           Yes, I guess. 

Mr Hatcher:      Yes.

Mr Ong:           But it was clear the scope said X25, X30.  That was our understanding, that there was no coverage for X50.  That was the whole reason for making entry to the site. 

Mr Hatcher:      Where was X30, sir?

Mr Ong:           … All I could go on was a fence line that ran straight down the middle of the job. 

Mr Hatcher:      So you saw a fence?

Mr Ong:           … Yes. 

Mr Hatcher:      Well, weren’t you keen to find where X30 might be?

Mr Ong:           I assumed it was over with X25.  …  I had a brief conversation with Mr Ingham about work being done on X25 and X30.  …  The response was he pointed to X25 and – well, I can only truthfully say X25 over there. 

Mr Hatcher:      Well, weren’t you interested in the work that was the subject of this proposed agreement?  Fairly detailed provision for work that had to be done under X30, wasn’t it?

Mr Ong:           I guess so. 

Mr Hatcher:      And you knew that John Holland were saying, “You’ve got no rights here.  There’s an agreement covering it”? 

Mr Ong:           Yes, but we disagreed with that.

Mr Hatcher:      And you knew what the agreement was?

Mr Ong:           X25 and X30.

Mr Hatcher:      … And you didn’t have a look at the scope of works in the agreement to determine whether that is the work that was being done?

Mr Ong:           We looked at the title of it.  X25 – the scope of works covered X25 and X30. 

Mr Hatcher:      Sir, you don’t determine whether an industrial instrument applies to members of the CEPU just by looking at the title, do you?

Mr Ong:           No.  I determine whether an agreement applies to my members by its coverage and whether I’m a party to that agreement. 

143               Mr Ong was cross‑examined by Mr Herbert on behalf of the AWU in the course of which these exchanges took place:

Mr Herbert:      Were you told or did you believe that X25, X30 was a site as distinct from a group of activities?

Mr Ong:           No, my belief was that they were sites. 

Mr Herbert:      So the X25, X30 was a place?

Mr Ong:           Yes, designated project.

Mr Herbert:      … And if work was being done in that place it was covered by the agreement and if work wasn’t being done in that place it wasn’t being covered by that agreement …?

Mr Ong:           Yes, I guess you could look at it that way. 

Mr Herbert:      … And where did you get the idea from, that X25, X30 was a place? …

Mr Ong:           Purely just my understanding when we started negotiations.  We were negotiating an agreement to cover X25, X30. 

…

Mr Herbert:      And what’s meant by the labels X25 and X30 is not a place at all, is it?

Mr Ong:           Well, it says there the scope of work, so no, it wouldn’t be taken as a place. 

Mr Herbert:      It’s not a place?

Mr Ong:           No. 

Mr Herbert:      It’s all those things – structures, activities, work functions, work duties, outcomes, a job of work.  Is that right? 

Mr Ong:           Yes. 

Mr Herbert:      So you were told when you were negotiating an agreement, weren’t you, that it was – the agreement that you were talking about was a job of work, not about a place or a site?

Mr Ong:           I guess I would have taken it as one and the same. …

Mr Herbert:      This work – not this place, this work?

Mr Ong:           Well this area of work, X25, X30. 

Mr Herbert:      Well, you’re saying that X25 and X30 is a place, not a set of activities?

Mr Ong:           Well, there’s going to be activities going on in there.  It’s a project, but I guess it’s just what we saw as this agreement would designate those areas that this agreement was covering.

Mr Herbert:      Yes, those areas of work, not areas of land.

Mr Ong:           Okay, yes. 

Mr Herbert:      Is that right?  Do you agree with that?

Mr Ong:           I guess so, yes.

Mr Herbert:      So long as the work that’s listed in the appendix, is being done at Abbot Point, then it’s covered by the agreement?

Mr Ong:           Well, I disagree with that, and that’s the whole reason why we tried to get something done for X50 afterwards. 

Mr Herbert:      … Why do you disagree with it?

Mr Ong:           Well, because the way that the site was set up and divided, X25, X30, we assumed that we had done an agreement or we were negotiating an agreement for that, and then the AWU had done an agreement for those areas of work.  So we still had access to try and enter into an agreement for X50.  …  Our belief the whole way through was that there was an agreement in place with the AWU for X25 and X30 which still allowed us an avenue to pursue an agreement for X50. 

Mr Herbert:      If work is set out in one of those paragraphs in the appendix to an agreement …, within the scope of work of X30, for example, … - if that work is being done anywhere on the Abbot Point site, you would agree, wouldn’t you, that it’s still covered by that agreement?

Mr Ong:           No, that wasn’t my belief and it isn’t my belief.  …  If it [work within the description of the scope of works of X30] wasn’t performed in X25 or X30, in those areas, then I believe that there was no agreement in place. 

Mr Herbert:      Where does it say that it [the work] has to be carried out on one corner of the site as opposed to another corner of the site, or one side of a fence as opposed to another side of a fence?

Mr Ong:           [Mr Ong quoted clause 4.1 of the Agreement] 

Mr Herbert:      Where does it say that the work outlined in appendix A has to be carried out on one side of a fence or the other side of a fence?

Mr Ong:           [Mr Ong read the words “Scope of Works for X25, Scope of Works for X30” from the Agreement] 

Mr Herbert:      Where does it say … about which side of the fence it has to be done? …

Mr Ong:           Well, it doesn’t mention anything about a fence. 

Mr Herbert:      So if the fence came down …, where then does the work need to be done in order for it to be covered by this agreement? …

Mr Ong:           Well, if John Hollands hadn’t designated X25, X30, then I guess we wouldn’t be arguing this.  They would have one agreement that covered Abbot Point, but our belief all the way along was that they had done an agreement for X25 and X30 and then the job had expanded out to start another project on the Ports Corp of X25‑X50, I apologise.  So our belief all along was, we don’t have an agreement for X25 and X30, but there’s no agreement in place for X50 so we believe we have a right of entry. 

                        …

Mr Herbert:      So, the sign on the gate was the thing that determined whether the agreement applied?

Mr Ong:           No – well I guess so.

Mr Herbert:      Yes?

Mr Ong:           I guess so. 

Mr Herbert:      So it’s a sign on the gate?

Mr Ong:           Well, that was designating that area as X50 or that project as X50 compared to the other projects as X25 and X30. 

                        …

Mr Herbert:      It [the Agreement] covered the X25, X30 work wherever it was performed at Abbot Point. 

Mr Ong:           I honestly believe that there were designated areas of work. 

Mr Herbert:      … The Agreement covers work; it doesn’t cover a piece of land; isn’t that right?

Mr Ong:           No, the Agreement covers work for X25 and X30.  That was my understanding and has always been my understanding. 

                        …

Mr Herbert:      The question is whether – did you or did you not know, when you tried to enter this site, that if the agreement covered work, it covered that work wherever it was performed at Abbot Point?

Mr Ong:           That wasn’t my belief at the time, no. 

Mr Herbert:      So your belief was that it only covered that work if it was done in a particular geographical area, is that right?

Mr Ong:           X25 or X30. 

                        …

Mr Herbert:      And I think you said that you didn’t pull out your draft of the agreement or a copy of the AWU agreement and examine it before you tried to get onto the site? 

Mr Ong:           At what entry?

Mr Herbert:      At any of the entries that you – that are the subject of these proceedings.

Mr Ong:           No.  On the second entry I had a look at the agreement to see whether the scope covered X25, X30, X50 and it only said X25 and X30. 

Mr Herbert:      And you took that as meaning a geographical location?

Mr Ong:           I did. 

Mr Herbert:      And where was the geographical location of X30 by reference to any signage or anything else on the site?

Mr Ong:           Well, I believed it was with X25.  …  I didn’t see any sign for X30. 

144               Mr Robinson was cross‑examined.  He has been an organiser with the CFMEU for approximately eight months.  He had the carriage of coverage at Abbot Point on behalf of the CFMEU and was the responsible officer for the CFMEU.  Notwithstanding that, Mr Robinson agreed that he did not take any steps to satisfy himself independently of speaking to Mr Bradley, Mr Lowth or Mr Ong as to the coverage of the work that was being done at Abbot Point.  Mr Robinson said he told his superiors that the X50 project was commencing and that it involved an expansion of the Coal Port Terminal and to his knowledge, the construction of a new conveyor and associated works relating to a new berth.  Mr Robinson said that when he went on site he knew that there was an agreement with another Union in relation to X25 and X30 and that, “X50 was separate to X25, X30, with no coverage from any unions to our knowledge”.  Mr Robinson said that X50 was not included within X25, X30 and was a separate construction site to X25, X30.  Mr Robinson said that the project was under a different title and that makes a difference to the workers.  Mr Robinson accepted that the work done by a worker is the important thing in determining coverage.  This exchange occurred:

Mr Hatcher:      It’s not the title at all.  You saw the work that was being done when you went on the X50 site, didn’t you?

Mr Robinson:    I did.

Mr Hatcher:      And you saw that it was the work to put the new berth in?

Mr Robinson:    Well, yes, to my knowledge, yes. 

Mr Hatcher:      And you knew that that was the work for the X30 project described in the agreement?

Mr Robinson:    No. 

Mr Hatcher:      Did you look?

Mr Robinson:    No. 

145               Mr Lowth was cross‑examined.  Mr Lowth agreed that all of his Union members at Abbot Point were being paid in accordance with the terms and conditions of the Agreement wherever they were working at Abbot Point whether behind the X25 fence or the X50 fence.  Mr Lowth agreed that he knew in early November that the agreement with the AWU was being so applied to all employees.  This exchange occurred:

Mr Hatcher:      And you’ve had access to the agreement [Agreement] that was being applied?

Mr Lowth:        I haven’t read it, no. 

Mr Hatcher:      Why not?

Mr Lowth:        I had no coverage on the X25 or X30 project. 

Mr Hatcher:      You were maintaining that you had coverage on X50?

Mr Lowth:        Correct.

Mr Hatcher:      You knew that John Holland was saying you didn’t have coverage. 

Mr Lowth:        Correct.

                        …

Mr Hatcher:      Do you say you didn’t know that John Holland was contending that the AWU agreement applied to the work that was being done at what you’ve characterised as the X50 site?

Mr Lowth:        Not prior to my first visit, no.

Mr Hatcher:      … All right.  Let’s then go to your first visit.  …  So after November 2008 you were aware that your members were being paid under the AWU agreement and that John Holland said the AWU agreement applied to the work?

Mr Lowth:        Correct. 

Mr Hatcher:      And you didn’t have a look at the agreement?

Mr Lowth:        No, I didn’t. 

146               In cross‑examination with Mr Herbert, this exchange occurred:

Mr Herbert:      The expressions X25 and X30 where they appear in the agreement, the meaning of those terms in the agreement and, therefore, the coverage of the agreement, your knowledge about that, not having read the agreement yourself, came from Mr Bradley?

Mr Lowth:        Yes, it did. 

                        …

Mr Herbert:      So whatever Mr Bradley told you you accepted as being a correct assessment of where the boundaries of X25, X30 agreement stopped and where the area was free for new agreement?

Mr Lowth:        Correct.

Mr Herbert:      … So you formed no independent judgement yourself based on any assessment of the agreement and what it actually said?

Mr Lowth:        No, only after the member was contacted – contacted me to say that he had been asked to sign a document to extend the coverage of the X25, X30 agreement. 

Mr Herbert:      Yes, but leaving aside that something – this other document.  I’m talking about the agreement under which your members are paid.  Because you never saw it you never formed any independent view about what it meant, you relied on Mr Bradley?

Mr Lowth:        On the coverage of the X25, X30, I did, yes.  …  I did rely on Mr Bradley’s advice on the X25, X30, yes. 

147               Mr Dettmer gave evidence and was cross‑examined.  Mr Dettmer gave evidence about good industrial practice in these terms:

Mr Hatcher:      But when there’s a claim that the [an] agreement applies and it’s a claim that’s seriously pressed with the threat of legal action.

Mr Dettmer:     Yes. 

Mr Hatcher:      You know that there is something that needs to be enquired into? 

Mr Dettmer:     Most certainly. 

Mr Hatcher:      Yes?

Mr Dettmer:     You should inquire into it, yes. 

Mr Hatcher:      You can’t just ignore such claims?

Mr Dettmer:     No. 

Mr Hatcher:      Because it is quite possible that the claim could be right? 

Mr Dettmer:     Yes, and also quite possible that the contrary would be the case, yes. 

Mr Hatcher:      Did you ever look to the scope of works under the agreement that is in question in these proceedings?

Mr Dettmer:     Yes, I did.

Mr Hatcher:      You did?

Mr Dettmer:     Not with a lawyer’s view, but with a common sense understanding, and my understanding was that this agreement specifically applied to the X25 – in fact, I refer to the explanation provided by Mr Stokoe in his affidavit in response to mine.  My understanding was previously that it was the X25 and X30 agreements, and it was then explained in Mr Stokoe’s affidavit, and not before, I might add, to me that the X21 and X25 agreements were projects – were what was covered by it.

                        …

Mr Hatcher:      Might the witness be shown this document? 

Mr Dettmer:     Sorry, which part are you referring to?, Appendix 1?

Mr Hatcher:      Appendix 1.

Mr Dettmer:     Yes. 

Mr Hatcher:      If you go under the heading “Structural Steel Work including Jetty Conveyor C334 Gallery Trusses”.

Mr Dettmer:     Yes. 

Mr Hatcher:      That’s very specific work to be done, isn’t it?

Mr Dettmer:     Well, it may well be.  I must say that I haven’t read this part of the agreement. 

Mr Hatcher:      So when you were considering Mr Sasse’s correspondence and the correspondence from Herbert Geer that suggested that your organisers were conducting themselves contrary to law, you didn’t have regard to this?

Mr Dettmer:     Not the Appendix, no. 

Mr Hatcher:      I see.

Conclusions as to Issue 8

148               A contravention of s 767(1) involves intentional conduct of hindering or obstructing a person.  A contravention of s 768(1) involves intentional conduct in circumstances where a person has relevant knowledge or alternatively reasonable grounds to believe a certain state of affairs.  The Unions contend that the Union officials did not have the requisite intention because they engaged in conduct with an honest and reasonable belief that their conduct did not involve a contravention of either provision.  That is said to follow because no Union official intended to hinder Mr Ingham in the performance of his duties.  They say that their intention was to enter the site to hold discussions with employees on the footing that they were entitled to do so under s 760 of the Act. 

149               As to s 768(1), there is no doubt on all the evidence that the Union officials on 13 February 2009 and 5 March 2009 entered the site with the intention of meeting with John Holland employees and giving them the impression that the officials were authorised by Part 15 of the Act to enter the X50 work site for the purpose of holding discussions with those employees carrying out work on the site.  The officials say that they believed they were authorised to do so and did not know that no such authority existed, and that they did not have reasonable grounds on either day when entering the site to believe that they were not authorised for that purpose. 

150               The Unions say that the evidence supporting those conclusions is this. 

151               Mr Bradley and Mr Ong had been involved in negotiations with John Holland in early 2008 with a view to reaching a certified agreement in respect of the X25 and X30 site.  I am satisfied that they were involved in such negotiations which did not result in an agreement.  I also accept that there is no evidence that during the course of those negotiations any statement was made that the work arrangements then under negotiation concerning the X25 and X30 expansion were intended to become part of an X50 expansion with a designation of a work site called the X50 work site.  The Unions say that to the extent that Mr Ong turned his attention to the scope of the draft document given to him by John Holland in the course of those negotiations, the document mentioned only the terms X25 and X30 expansion.  They say that consistent with their view of the limited operation of the Agreement ultimately made with the AWU, John Holland on 3 November 2008 put a proposal to its employees to amend Appendix 1 to the Agreement to insert the words “X50”.  The proposal was rejected.  Mr Ong and Mr Bradley say that this information available to them reinforced their belief arising out of their earlier negotiations that the Agreement did not cover the X50 work site. 

152               I accept that there was a proposal put by John Holland on 3 November 2008 to amend Appendix 1 to insert a reference to X50 and delete the reference to X30.  I also accept that the document made textual changes to the description of the scope of works to be inserted under the proposed new subheading “The Scope of Works for X50 includes the following …”.  I also accept the evidence of Mr Ingham that there were other aspects of the proposed amendment which influenced the decision to put a proposal for an amendment to Appendix 1 to the employees.  Nevertheless, as to the description of the Scope of Works for X30, the amendment proposed a new description of X50 and some textual change.  A close comparison of the text of Appendix 1 and the proposed new Appendix 1 shows that there are some dissimilarities but the essential text is faithful to the content of the marine or offshore works of Appendix 1 as it stood. 

153               Nevertheless, I accept that the realisation by Mr Ong and Mr Bradley and through them by Mr Lowth and Mr Robinson that John Holland had proposed an amendment to the title of the expansion work to change “X30” to “X50”, would have reinforced in their minds a differentiation between the description X25 and X30 and activities comprising work to be done under the banner or label X50, whether that distinction was real or not. 

154               The Union officials gave evidence in cross‑examination that they believed the Agreement did not apply to the X50 work site.  Mr Ong was pressed about that matter, as the quoted transcript reflects.  Mr Robinson and Mr Lowth relied upon the views formed by Mr Bradley and Mr Ong about whether the Agreement applied to work carried out on the X50 work site.  The officials emphasised in their evidence that they could see a physical differentiation between the X50 work site and the X25 work site, with each work site isolated by a physical fence.  Moreover, the Union officials say they accepted that the Agreement applied to the X25 site.  Therefore in their minds they proceeded, they say, in the belief that the X50 work site was necessarily different and apart from the X25 work site and thus the Agreement applied differentially.  The Unions further say that the exchanges of correspondence between Mr Sasse and Mr Dettmer and the other Unions did not make plain the contended basis upon which the Agreement was said to cover work carried out on the X50 work site.  The Unions also say that the officials believed there were employees who were either members or eligible to become members of the relevant Unions, and since, in their view, the Agreement did not apply to the X50 work site, they enjoyed a right under s 760 of the Act to enter premises and conduct discussions with those employees.  In effect, the Unions say that such conduct is the core orthodox business of each Union, and the officials contend that they honestly and reasonably believed they had a right under the Act to do what they did. 

155               The position seems to me to be this. 

156               By the end of the events that took place on 19 November 2008, each Union official understood that John Holland contended that none of the Union officials had a right to enter the X50 work site.  That contention was put to the officials on many occasions by Mr Ingham at different points along the continuum of the conduct on that day.  The evidence of the officials and of John Holland makes it plain that John Holland did not accept that the officials had a right of entry.  John Holland said their conduct was unlawful with the result that they were trespassing.  When each official left the site that day they could not have been in any doubt that their contended right of entry was more than controversial, disputed and opposed.  What they then knew was that John Holland contended that they had no right of entry.  They also knew that to the extent that each official relied upon s 760 of the Act, John Holland contended that no right of entry arose under that section. 

157               It is true that Mr Ingham did not spell out the precise basis upon which John Holland contended that work falling within the Agreement with the AWU was work being undertaken on the X50 work site and that that work had been subsumed within PCQ’s planned X50 Expansion rather than any separate, incremental or phased expansion project.

158               I accept that when the Union officials entered the site on 19 November 2008 each of them believed that work undertaken on the X50 work site was something other than an X25 and X30 expansion, notwithstanding that none of the officials had considered precisely why that might be so.  Each of them made an assumption that because the sign directing access seekers to an X50 site was signage for a site other than the X25 (and possibly, in their mind, X30) site and the location of that site was at a different geographical area of the Terminal, the X50 work site was physically something other than an X25/X30 expansion.  Thus, they reasoned, activities on the X50 work site, so distinguished, must be a different project at a different place and thus the Agreement with the AWU had no role to play. 

159               By the end of 19 November 2008, however, each Union official knew that there was a real issue about their right to enter the site.  At that point, a Union official acting for and on behalf of his or her Union could not reasonably simply continue to assert a contrary position without seeking to understand whether that position was well placed or not.  On 24 November 2008, Mr Sasse wrote to the CFMEU, the AMWU and the CEPU seeking to deal with the notion that any Union official might be entitled to enter the site in reliance upon particular workplace health and safety legislation.  Mr Dettmer responded to that letter, dealt with that issue and asserted the right of entry under s 760 of the Act as there was no collective agreement in place.  On 3 December 2008, Mr Sasse responded to Mr Dettmer’s notion about s 760 and told him that entry was unavailable on that footing because there were no “eligible employees” for the purposes of s 760 because the Workplace Expansion Agreement applied so as to regulate the “employment of all persons on the project” to the exclusion of any award or agreement.  Mr Sasse pointed out that the Agreement was not binding on the AMWU.

160               Notwithstanding that response, Mr Bradley and Mr Lowth on behalf of the AMWU served notices in reliance upon ss 738 and 760 of the Act for entry to the site on 13 February 2009.  Mr Ong and Mr Robinson also served notices in reliance on those provisions for entry on 13 February 2009.  On 12 February 2009, the solicitors for John Holland wrote to Mr Dettmer referring to the earlier letter of 3 December 2008.  The letter describes the entry notices of Mr Bradley and Mr Lowth as “purported notices” and makes the point that the Agreement comprehensively prescribes conditions of employment of work performed by John Holland’s employees at the Abbot Point Coal Terminal.  The letter of 12 February 2009 is addressed to a “skilled addressee”.  Mr Dettmer is very experienced and an impressive Union official.  Mr Sasse’s letter would, in the ordinary course, have put Mr Dettmer on reasonable enquiry about whether the Agreement had the effect of covering work undertaken by John Holland at the Abbot Point Coal Terminal, as contended by Mr Sasse and John Holland.  Mr Dettmer could only reasonably determine that question by looking at and considering the description of the work covered by the Agreement itself as set out in Appendix 1 and asking himself whether that work was the work being done on site at the moment of entry.  That was the analytical leadership that was required by the permit holders and officers of the Unions demanding to enter the premises and therefore rejecting John Holland’s objections.  Had enquiry been made, those enquiries would most likely have revealed PCQ’s abandonment by March 2008 of the phased X30 and X35 expansions in favour of an X50 expansion, the subsuming of the Appendix 1 work within an X50 expansion and the carrying out of that work on a site described as the X50 work site. 

161               A similar letter was written by Mr Sasse to the CFMEU and the CEPU. 

162               The CEPU responded by asserting that the Agreement applied at PCQ’s Terminal X25 and X30 expansion but did not apply to the X50 project.  Mr Dettmer took the same position in his letter of 13 February 2009. 

163               The four officials entered the site on 13 February 2009.  Mr Ingham maintained the position that the officials had no right of entry and made that position plain to them again.  Mr Ingham asserted that position to the employees at the meeting that day.  Mr Ingham notes the content of what was said to the employees in the meetings.  The officials told the employees that there was no agreement in place for the site, they had a right of entry and the Unions would fight for an agreement and pursue John Holland industrially and legally. 

164               When Mr Bradley entered the site on 13 February 2009, he placed particular emphasis upon the consideration that X50 was a label or term not used in the Agreement.  Mr Bradley accepted that in general terms in determining whether employees fall within the rules of coverage of the Union, the first thing to do is to look at the work the men or women are performing and compare that work or those duties with an award which covers members of Mr Bradley’s Union.  Mr Bradley believed that the Agreement did not apply because there was separate signage to a separate area and John Holland had attempted to amend Appendix 1 to the Agreement.  Mr Bradley placed particular emphasis upon the separate signage as a differentiating factor.  Mr Bradley accepted that he elected to enter the X50 work site in knowing defiance of John Holland’s position simply on the basis of the sign at the front of the work site and the proposed variation.  He had no evidence before him that any work other than Appendix 1 work was being carried out at the X50 work site. 

165               Mr Ong believed that X25 and X30 was a different site or a different place and although John Holland asserted that the officials had no right of entry, the officials disagreed with that position.  Mr Hatcher asked Mr Ong whether he had a look at the scope of works in the Agreement to determine whether that work was being done on the X50 work site.  Mr Ong said that he looked at the title of the Agreement which showed that the scope of works covered X25 and X30 (see clause 4.1).  Mr Hatcher put to Mr Ong that it was not Mr Ong’s usual practice to determine whether an industrial instrument applies to members of the CEPU by just looking at the title.  Mr Ong agreed that the proper course was to determine whether an agreement applies to CEPU members by its coverage and whether the CEPU is a party to the Agreement.  Mr Ong in cross‑examination with Mr Herbert pressed his position that he assumed that the site was divided up and that an agreement had been reached with the AWU as to X25 and X30 and that the CEPU had an opportunity to enter into an agreement with respect to X50.  Mr Robinson did not look at the Agreement at all.  Nor did Mr Lowth.  Mr Dettmer gave evidence of good or best industrial practice and agreed that when a party contends that an agreement applies and the claim is seriously pressed with the threat of legal action, the basis for that claim is something that needs to be enquired into and ought not to just be ignored, for the reason that the claim may be good or bad and the merits of the position should be determined.  Mr Dettmer said that he looked at the Agreement but he did not read Appendix 1, which sets out the scope of work the employees would be undertaking on the site to be entered. 

166               In the absence of any careful examination of the content of the Agreement, including Appendix 1, and a proper assessment of the work covered by the Agreement so as to inform a person’s judgement as to whether the work being undertaken on the X50 work site was within the field of that work, the conduct of entering the X50 work site in purported reliance upon s 760 of the Act to conduct discussions with employees of John Holland was not reasonable.  On 13 February 2009, the Union officials had reasonable grounds before them for believing that entry to the site was not authorised. 

167               The Abbot Point Coal Terminal is a significant coal loading facility for the export of coal.  There is a Workplace Expansion Agreement between the employer, its employees and the AWU which provides for terms and conditions of employment in the performance of work.  Entry to such a site by Union officials, who assert a right to engage with employees in the context of encouraging them to the view that the relevant officials might seek to establish another agreement, fly‑in/fly‑out terms or the formulation of a new log of claims, with the resultant potential for dislocation of a settled industrial situation, ought reasonably to only occur in circumstances where those officials and their Unions have reached a considered view about the right of entry after having carefully assessed the claim by the employer that the officials have no right of entry.  The election to rely upon a descriptive label or a separate sign or a proposed amendment to Appendix 1, without looking carefully at the Agreement and Appendix 1 to understand clearly the scope of work it covered, is plainly unreasonable conduct. 

168               On 27 February 2009, Herbert Geer sent a lengthy letter to the CFMEU, AMWU and CEPU setting out in 20 pages a detailed analysis of the view that work undertaken by John Holland employees at the X50 work site is covered by the Agreement. 

169               Notwithstanding that letter, Mr Bradley and Mr Robinson served further notices of entry for 5 March 2009.  Mr Robinson and Mr Bradley agreed that they had seen the letter.  The inference is that Mr Robinson and Mr Bradley elected to enter the site on the footing that they disagreed with that letter.  However, Mr Robinson agreed that he did not look at the Agreement.  He could not have carefully considered the letter in the context of the Agreement.  Mr Lowth agreed that although he knew from November 2008 that all of his members were being paid under the Agreement, he did not look at the Agreement either.  Mr Dettmer did not read Appendix 1 to the Agreement.  There was simply no focused analysis by the Unions or their officials as to whether the objection made by John Holland might be correct.  The clear inference is that the Unions and their officials had already determined that the reference in the Agreement to X25 and X30 necessarily meant that the Agreement could not apply to work done on the X50 work site. 

170               Whether a person has reasonable grounds to believe that entry is not authorised involves an objective assessment of whether facts were before that person sufficient to induce a reasonable person to believe that grounds existed for denying authority to enter.  That view is consistent with the approach to the notion of “reasonable grounds” in George v Rockett (1990) 93 ALR 483 and Rema Industries and Services Pty Ltd v Coad & Ors (1992) 107 ALR 374.  In determining whether reasonable grounds for a belief exist, there is a relationship between the objective facts that must engender such a belief and the role, standards and duties of the person confronting the relevant facts.  In this case, the officials are permit holders under the Act and Mr Dettmer is an experienced State Secretary of the AMWU.  In the face of an employer’s objection to entry in the manner of 19 November 2008 and correspondence from the employer pressing that objection, a permit holder and the Unions as organisations, must necessarily give consideration to the merits of the employer’s claims and form a view as to whether the claims are well placed or not.  If the Unions and the permit holders are satisfied that the claims are misplaced, the demonstrated consideration of the claims is very likely to suggest that the relevant person when seeking to enter the site had reasonable grounds for believing that entry was authorised even though events may subsequently demonstrate that entry was not authorised.  Persons in the position of permit holders or officers of Unions cannot be said to have acted reasonably in the absence of reasonable investigation and enquiry into objections made and strongly pressed denying the very right of entry relied upon by those seeking entry.  That follows because statutory rights of entry to premises carry with the exercise of those rights corresponding duties of enquiry to be reasonably satisfied that entry is authorised in the context of the facts and circumstances before the entry seeker.  That corresponding duty is not only a function of a balance between rights and obligations but derives from Part 15 of the Act, the objects recited in s 736 of the Act and the regime established for granting permits to enter. 

171               As to s 768(1), I am satisfied that the four Union officials entered the site on 13 February 2009 and engaged in the conduct of holding meetings with John Holland employees with the intention of giving those employees the impression that the officials were authorised by Part 15 of the Act to enter the site for that purpose.  I am satisfied that the circumstances prevailing at that time were that the Union officials were not authorised by Part 15 of the Act to enter the site for the purpose of holding those meetings and I am further satisfied that the Union officials had on 13 February 2009 reasonable grounds to believe that they were not authorised by Part 15 of the Act to do so.  I am further satisfied that Mr Robinson and Mr Bradley entered the site on 5 March 2009 and engaged in such conduct again with the intention of giving the relevant employees the impression that the officials were authorised by Part 15 of the Act to do so for the relevant purpose.  I am further satisfied that entry occurred in circumstances where Mr Robinson and Mr Bradley had reasonable grounds to believe that they were not authorised by Part 15 of the Act to do so.

172               Accordingly, I am satisfied the contraventions of s 768(1) of the Act have been made out. 

173               As to s 767(1), I am satisfied that Mr Bradley, Mr Robinson and Mr Lowth on 13 February 2009 and Mr Bradley and Mr Robinson on 5 March 2009, purported to exercise rights under s 760 of the Act notwithstanding that no such rights subsisted.  I am satisfied that each Union official entered the site for the purpose of and with the intention of seeking to convene a meeting with John Holland’s employees consistently with the notices they had given under ss 738 and 760 of the Act.  John Holland accepts that some of its employees were eligible to become members of the CFMEU and the AMWU although there were not “eligible employees” on site for the purposes of s 760.  John Holland contends that it has no employees who were eligible to become members of the CEPU/ETU.  The position in relation to Mr Ong is a little less clear.  As a result of the entry to the site on 19 November 2008 and the conversation he deposes to with Mr Ingham, it seems that it was unclear to Mr Ong whether workers were engaged in electrical work at the X25 work site or the X50 work site.  Mr Ingham had made it plain to Mr Ong that John Holland had no employees engaged in electrical work at all on the X50 work site.  Mr Ong’s notice of entry seems to be confined to entry for the purpose of holding discussions with employees of John Holland.  Nevertheless, for the purposes of s 767(1), I accept that Mr Ong was purporting to exercise rights under s 760 although it may not have been clear to him that there were, in fact, employees of John Holland on site who may have been eligible to become members of the CEPU.  The question of whether a person is seeking or purporting to enter premises in reliance on s 760 of the Act is itself a question of fact. 

174               There are three remaining questions. 

175               The first is whether Mr Ingham was hindered or obstructed by the Union officials (that is, a permit holder) on 13 February 2009 or 5 March 2009 as a question of fact (Pine v Doyle; Standen v Feehan; O’Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1).  The second is whether the officials engaged in that conduct intentionally.  The third is whether the conduct of the officials offended the prohibition upon a permit holder otherwise acting in “an improper manner” and whether that conduct must be engaged in intentionally.  There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties.  He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland’s objections.  He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site.  Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts.  His election to wait and be present was a function of managing the consequences of unauthorised entry. 

176               I accept that the Union officials did not enter the X50 work site on 19 November 2008 with the intention of hindering or obstructing Mr Ingham or other employees of John Holland.  At that time, the officials thought that X25 and X30 meant something different from X50 and they believed John Holland had attempted to change Appendix 1 to introduce a reference to X50.  I accept that in a practical sense the understanding of each permit holder that John Holland had taken steps on 3 November 2008 to propose a change to Appendix 1 to introduce a reference to X50 must have suggested to them and reinforced in their mind that John Holland thought the Agreement did not apply to the expansion work on the X50 site.  They still thought that when they entered the site on 13 February 2009 because they continued to act on assumptions they had made.  However, by 13 February 2009, John Holland had repeatedly made its strong objections clear on 19 November 2008 and correspondence asserting its position had ensued.  The officials had not considered the content of the work described in Appendix 1 to the Agreement.  Nevertheless and notwithstanding Mr Dettmer’s acceptance that good practice required an examination of John Holland’s claims, the officials entered the site on 13 February 2009 and 5 March 2009 without making enquiries that would have been likely to reveal the subsuming of the Appendix 1 work within the X50 Expansion adopted by PCQ. 

177               The question then is whether the officials are to be taken to intend the natural consequences of their conduct.  It must have been plain to the officials that a senior officer of John Holland would be compelled to respond to the events of entry on those days by dealing with the men at the gate, engaging with the men as they continued to walk towards the crib huts and by engaging with them at the crib huts.  The officials may not have intended to substantially impede Mr Ingham from performing any of his duties in the ordinary way but equally, they must have been aware that what they were doing by entering the site, progressing along the road and seeking to convene meetings with the employees, was likely to impede Mr Ingham in the course of his normal duties due to the chronology of events.  Yet, the officials nevertheless decided to enter the site and continue to maintain a presence on the site until they had completed the things they perceived they were entitled to do.  It is unrealistic to think that Mr Ingham in the context of John Holland’s claims, objections and correspondence would simply leave the site to the officials and not engage with them on their right of entry in circumstances where John Holland viewed the matter sufficiently seriously that it would take proceedings about it.  Accordingly, it seems to me that the officials must be taken to have intended the natural consequences of their conduct of entry in circumstances where they had not investigated carefully the merits of John Holland’s position and they knew John Holland held strong objections. 

178               Although it is true that Mr Ingham was free to leave the gate and free to choose not to intercept the officials on the road and free to choose not to engage with the officials at the crib huts or be present during the course of their address to the employees, it is unrealistic to think that Mr Ingham would not maintain that degree of engagement on the act and consequences of entry, on behalf of John Holland.  The permit holders must be taken to have been aware that entry on 13 February 2009 and 5 March 2009 would impede either Mr Ingham or others in a similar position to Mr Ingham within John Holland and in that knowledge they elected to enter the site. 

179               Accordingly, I find that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner found at [98] to [127] amount to a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland.  I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described (Pine v Doyle (supra); Leonard v Morris (1975) 10 SASR 528).  Accordingly, I am satisfied that contraventions of s 767(1) occurred on 13 February 2009 and 5 March 2009. 

180               As to the third question, s 767(1) may contemplate that in circumstances where a permit holder acts unreasonably by purporting to exercise a right of entry to premises under s 760, the act of entry is not only unauthorised but may constitute acting in an improper manner.  The act of entry may be improper because it is unreasonable as the permit holder has failed to investigate, either alone or in conjunction with his or her Union, whether strongly held and articulated grounds of objection to entry have any merit.  Ignoring an obligation to subject those objections to any reasoned assessment before seeking to exercise a contended right of entry seems to suggest that in seeking to exercise a contended right of entry, the permit holder is acting “in an improper manner”. 

181               The conduct satisfying the second limb must be conduct or an act other than the Act of hindering or obstructing a person.  Mr Ingham was hindered in the performance of his duties by being required in any practical sense, to deal with the events of unauthorised entry and the determination of the permit holders to meet with and address the employees on site.  The section however engages conduct in the course of seeking to exercise a right of entry.  The quality of the conduct engaged, is hindering and obstructing any person and the second limb engaging the notion of otherwise acting in an improper manner, takes its character from intentional acts of hindrance and obstruction.  In other words, the question asked by the section is what manner of act did the permit holder do or fail to do in the course of seeking to exercise a right of entry?  The act of entry itself is not engaged by s 767(1) of the Act.  I am not satisfied that any contravention of s 767(1) of the Act has occurred by reason of the second limb of that section. 

Issue 9

182               The question does not arise. 

Issue 10

183               Issue 10 requires a consideration of whether industrial action is threatened, impending or probable for the purposes of s 39(1) of the Building and Construction Industry Improvement Act 2005 (Cth).  In the course of evidence it became plain that none of the permit holders nor any of the Unions had sought to enter the X25 work site, on the footing that they accepted that the Agreement plainly enough applied to those premises.  It necessarily follows that upon a determination that the Agreement applies to the X50 work site, there is no basis for concluding that either the permit holders or their Unions are or would threaten unlawful industrial action or that such action is impending or probable. 

184               The question of the pecuniary penalty to be imposed in respect of the contraventions of s 767(1) and 768(1) is to be the subject of a separate determination. 

185               On 1 July 2009 the following Commonwealth Acts commenced operation, the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.  Having regard to the findings, it seems to me that declarations ought to be made in terms of paras 1, 3, 4, 5 and 6 of the Further Amended Application filed by John Holland on 28 April 2009 in proceeding QUD63 of 2009.  Paragraph 7 of the Further Amended Application seeks an order for a permanent injunction restraining the CFMEU, AMWU and CEPU from engaging in any industrial action at or in connection with the operation of John Holland at Abbot Point pursuant to PCQ’s X50 Expansion project until further order. 

186               It seems to me that I should entertain further submissions in relation to the scope of relief to be the subject of further orders in proceeding QUD63 of 2009 having regard to whether any of the legislation of the Commonwealth mentioned at [182] has particular application or implications for remedies arising out of conduct that occurred prior to the commencement of the new legislation. 

187               The formal orders in QUD63 of 2009 for present purposes will simply be that the proceeding is to be listed for further argument on the question of the scope of the relief to be the subject of final orders in that proceeding, at a date to be nominated by the Court suitable to counsel for the parties. 

188               The appropriate order in proceeding QUD66 of 2009 is that the Application is dismissed.  Although it seems to follow that the costs of that proceeding ought to be ordered against the first to seventh applicants, the question of costs has not been addressed.  Accordingly, I am willing to hear the applicants in QUD66 of 2009 on the question of costs.  Proceeding QUD66 of 2009 ought to be listed together with QUD63 of 2009 in order that the question of costs might be determined.  I will hear the parties in relation to the question of costs in proceeding QUD63 of 2009. 

I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:         24 July 2009

Counsel for the Applicant in QUD63 of 2009 and the First Respondent in QUD66 of 2009:	Mr G Hatcher SC with Ms S Moody
Solicitor for the Applicant in QUD63 of 2009 and the First Respondent in QUD66 of 2009:	Mr M Davis, Herbert Geer Lawyers
Counsel for the First, Second and Third Respondents in QUD63 of 2009 and the First to Seventh Respondents in QUD66 of 2009:	Mr J Pearce
Solicitor for the First, Second and Third Respondents in QUD63 of 2009 and the First to Seventh Respondents in QUD66 of 2009:	Mr D Quinn, Carne Reidy Herd, Solicitors
Counsel for the Eighth Respondent in QUD63 of 2009:	Mr A Herbert
Solicitor for the Eighth Respondent in QUD63 of 2009:	Mr D Pegg, Sciaccas Lawyers
Counsel for the Intervener, Australian Building and Construction Commissioner:	Mr M Brady
Solicitor for the Intervener, Australian Building and Construction Commissioner:	Mr M Procter, Deacons Lawyers

Date of Hearing:	23 and 24 April 2009
Date of Final Submissions:	19 May 2009
Date of Judgment:	24 July 2009