FEDERAL COURT OF AUSTRALIA

 John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2010] FCA 834

THE COURT DIRECTS THAT:

1.                  The Applicant and the First, Second and Third Respondents file and serve written submissions by 6 September 2010 identifying:

(a)                the issues each of those parties consider to be the matters to be further considered by the primary judge having regard to the reasons of the Full Court set out in the reasons for judgment of Dowsett J and Spender J in support of the Orders made in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90; and

(b)               the basis upon which each of those parties contend that Directions Orders ought to be made for leave to adduce further evidence in the proceeding and the issues, remitted for further consideration, to which such evidence would be relevant.

2.                  Consideration will be given to the written submissions of the parties with further Directions to be made on the papers unless a party wishes to be heard in relation to proposed directions to be made arising out of the written submissions contemplated by Order 1.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     This matter was listed for directions on 29 July 2010 consequent upon the Full Court setting aside Orders 5, 6, 7, 8, 9 and 10 of the Orders made on 13 August 2009 concerning the imposition of pecuniary penalties upon the First, Second and Third Respondents  consequent upon findings on 24 July 2009 of contraventions by those respondents of ss 767(1) and 768(1) of the Workplace Relations Act 1996 (Cth) (the “Act”) by conduct on 13 February 2009 and contraventions of those sections by the First and Third Respondents on 5 March 2009: Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 per Dowsett J (Spender J agreeing).

2                     By Order 3, the Full Court ordered that the matter (that is, proceeding 63 of 2009) be remitted to the primary judge for further consideration.

3                     Order 3 contemplates, it seems to me, that the primary judge is to give further consideration to those issues identified by the Full Court which were either not addressed in the primary reasons in resolving the questions agreed by the parties for resolution set out at [24] of the reasons for judgment of 24 July 2009 (John Holland Pty Ltd v [CFMEU] [2009] FCA 786) or were addressed on a footing which having regard to the reasons of Dowsett J (Spender J agreeing) reflect the application of an incorrect test for determining whether contraventions of the sections are made out by the applicant.

4                     In other words, the primary judge is required to consider those particular matters identified by the Full Court having regarding to the evidence adduced by the parties in conducting a trial directed to the agreed questions.  Those questions remain the same questions to be answered on the evidence adduced by the parties. 

5                     The issues which require further consideration are these.  At [28] Dowsett J sets out s 760 of the Act.  At [33] Dowsett J sets out the finding at [91] of the primary reasons that by reason of the application of the Workplace Expansion Agreement to work undertaken by John Holland employees at the X50 worksite, the union officials did not have a valid right of entry to the X50 worksite on 19 November 2008, 13 February 2009, and 5 March 2009.  At [38] Dowsett J emphasises those integers of s 760 which authorise entry, namely, that the person is:

[38]… a permit holder; who enters the premises ‘for the purposes of holding discussions with eligible employees who wish to participate in those discussions’.

6                     At [39] Dowsett J elaborates upon the emphasis at [38] of the need to demonstrate entry by the relevant person for the required purpose.  After the reference to the role played by the defined term “eligible employee”, his Honour said this:

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

7                     The reference in the last sentence of the passage quoted above is a reference to the contention of the unions that the question of whether contraventions of ss 767 and 768 arise is to be answered, in part, on the footing that if the union officials had reasonable grounds for believing that entry to the site was authorised by s 760 of the Act, they could not have held the relevant intention required by those sections.

8                     At [40] Dowsett J addresses the finding at [91] in the primary reasons and the conclusion that by operation of the Agreement, the permit holders did not have a valid right of entry to the X50 worksite.  His Honour at [40] says:

This conclusion was based upon the finding that John Holland’s employees at the X50 worksite were not eligible employees.  That finding in turn, was based upon a finding that they were not carrying out work which was covered by an award or collective agreement which was binding upon the [unions].  Such work was regulated by the Expansion Agreement to which those unions were not parties, and pursuant to which the operation of otherwise relevant awards was excluded. 

9                     Having made those observations, Dowsett J concluded at [40]:

In my view, that was not the question posed by s 760.  The relevant question was whether the permit holders had the prescribed purpose, which question was not addressed.  

[emphasis added]

10                  So, the first matter that requires the further consideration of the primary judge is whether, on the evidence, the union officials as permit holders had the prescribed purpose when entering the premises on the relevant days.  That question was required to be answered by the questions as framed on the evidence as adduced.  I am not presently satisfied that the trial of the proceeding should be re-opened for the purpose of enabling the parties to adduce further evidence on that question as it is not a new question but one which engaged the controversy of the parties at the trial at the time.  In fact, at [173] of the primary reasons this finding is made:

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 right 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 ………  [F]or 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. 

11                  In considering this issue, that is, the relevant question of whether the permit holders had the prescribed purpose, it seems to me that the parties ought to be called upon to make written submissions addressed to that question which identify any finding of fact upon which any party might wish to rely or any finding of fact any party contends ought to be made and the evidence adduced at trial in support of the findings sought.

12                  The second matter required for further consideration is the relationship between s 760 and s 767(1) having regard to the evidence and findings made or to be made concerning the question of purpose.  As to the statutory relationship, Dowsett J observed at [41] (Spender J agreeing) that:

In the present case, s 767(1) will be engaged only if a permit holder is exercising, or seeking to exercise rights under s 767.  If s 760 is not engaged (because the permit holder lacks the prescribed purpose) then there are no relevant rights for the purposes of s 767(1).  In other words, s 767(1) regulates the way in which a person exercises his or her right of entry pursuant to s 760 … Although the distinction between a power and a right may be a narrow basis for distinguishing [the decision in Pine v Doyle (2005) 143 IR 98 at [14]-[18]], I am unpersuaded that a permit holder can be described as exercising, or seeking to exercise a right under s 760 if there is no such right because of the absence of the requisite purpose.

13                  Dowsett J then observes that he would prefer to leave the Pine v Doyle question unresolved “largely because it has not been argued”. 

14                  The next matter concerns the contended hindrance or obstruction of Mr Ingham in the performance of his duties by the unions (through their officials) said to be in contravention of s 767(1).  Dowsett J at [45] observes that a difficulty with the approach reflected in the primary reasons on that matter is that:

… the allegation of hindrance or obstruction depends upon the permit holders’ entry to the site being unauthorised.   If such entry was so authorised by s 760, then Mr Ingham’s conduct was simply his reaction to lawful conduct, presumably acting in accordance with his duty.  Lawful entry can hardly constitute hindrance or obstruction for the purposes of s 767(1).  Thus, whether the decision in Pine v Doyle is correct or not in a respect which I have identified above, the alleged hindrance or obstruction depends upon unauthorised entry. 

[emphasis added]

15                  Dowsett J at [45] concludes those observations by saying: “in any event the question of whether entry was authorised has not been addressed in accordance with s 760.”  Accordingly this further matter turns upon a consideration of the question of purpose as required by s 760. 

16                  A further matter which requires consideration is whether any hindrance or obstruction is intentional for the purposes of s 767.  The question is one of subjective intention and it may be possible to infer subjective intent from objective facts.  The question that arises for further consideration is whether the evidence establishes the subjective intention of the union officials at the time of the relevant conduct.  Submissions should be directed to that question having regard to the state of evidence at the conclusion of the trial.  A further consideration of that question does not warrant re-opening the trial to enable further evidence to be adduced. 

17                  So far as the contended contraventions of s 768 are concerned, Dowsett J notes at [47] that whether entry was authorised is to be answered by reference to s 760 and as that question has not been resolved in accordance with s 760 as earlier mentioned, the contended contraventions of s 768 have not been established.  At [48] Dowsett J addresses a matter to be considered in relation to s 768(1). 

18                  It seems to me that these matters are to be further considered by the primary judge having regard to the state of the existing evidence and that further submissions should be made concerning each of them.  However I can see no basis upon which the proceeding is to be, in effect, re-tried on the footing that the applicant will generally file further affidavits, the respondent will file further affidavits in response, and the applicant will file further affidavits in reply, with further discovery to occur.

19                  Accordingly, I propose to make directions that the parties file submissions identifying the grounds upon which it is said that, in effect, the trial ought to be re-opened with leave given to file further evidence.  The parties framed the questions for determination at trial and adduced evidence directed to those questions.  There are no new questions.  There are simply matters for further consideration as I have outlined.

Associate:

Dated:         6 August 2010