FEDERAL COURT OF AUSTRALIA

John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union

[2011] FCA 770

THE COURT ORDERS THAT:

1.    The applicant’s claims for orders for the imposition of a pecuniary penalty upon the first, second and third respondents in respect of contended contraventions of sections 767 and 768 of the Workplace Relations Act 1996 (Cth) are dismissed.

2.    The costs of and incidental to the further consideration of the matters remitted to the primary judge pursuant to the orders of the Court made on 16 July 2010 are reserved.

3.    The applicant shall lodge written submissions (if any) in relation to costs within three weeks.

4.    The respondents shall lodge written submissions (if any) in relation to costs within a further three weeks of the receipt of submissions from the applicant.

5.    The disposition of costs will be addressed on the papers unless any party wishes to be heard orally in relation to costs.

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

Background and context to these reasons

1    These proceedings concern further consideration of matters remitted to the primary judge by the Full Court on the question of whether contended contraventions of ss 767(1) and 768(1) of the Workplace Relations Act 1996 (Cth) (the “WR Act”) are made out against one or more of the respondents having regard to the test to be applied in the light of the Full Court’s decision: Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90.

2    The sections of the WR Act are, relevantly, in these terms:

SECTION 767    HINDERING, OBSTRUCTION ETC. IN RELATION TO THIS PART

767(1)    A permit holder exercising, or seeking to exercise, rights:

(a)    under section 747, 748 or 760; or

(b)    …

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

767(2)    Subsection (1) is a civil remedy provision.

SECTION 768    MISREPRESENTATIONS ABOUT RIGHT OF ENTRY

768(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.

768(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.

3    These provisions are contained in Part 15 of the WR Act which addresses “Right of Entry”. The objects of Part 15 (in addition to the objects set out s 3 of the WR Act) are these as recited in s 736 of the WR Act:

SECTION 736    OBJECTS OF THIS PART

736    In addition to the object set out in section 3, this Part has the following objects:

(a)    to establish a framework that balances:

(i)    the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of industrial laws, industrial instruments and OHS laws; and

(ii)    the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment;

(b)    to ensure that permits to enter premises and inspect records are only held by persons who understand their rights and obligations under this Part and who are fit and proper persons to exercise those rights;

(c)    to ensure that occupiers of premises and employers understand their rights and obligations under this Part;

(d)    to ensure that permits are suspended or revoked where rights granted under this Part are misused.

4    Sections 767 and 768 are contained in Division 6 of the WR Act entitled “Right of entry to hold discussions with employees”. Division 6 commences with s 760 which is in these terms:

SECTION 760    RIGHT OF ENTRY TO HOLD DISCUSSIONS WITH EMPLOYEES

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

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

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

5    Section 760 authorises entry to premises by a permit holder who enters those premises for a statutory purpose, namely, “the purposes of holding discussions with any eligible employees who wish to participate in those discussions”. Section 760 creates a permissive authority to enter premises for those purposes. Section 763 contains, consistent with the objects, a limitation on rights of entry in these terms:

SECTION 763    LIMITATION ON RIGHTS – ENTRY NOTICE

763    This Division does not authorise entry to premises, or subsequent conduct on the premises, unless all the following conditions are satisfied:

(a)    the permit holder gave an entry notice to the occupier of the premises at least 24 hours, but not more than 14 days, before the entry;

(b)    the entry notice specifies section 760 as the section that authorises the entry;

(c)    the entry is on a day specified in the entry notice.

6    In the “principal judgment” (John Holland v Construction Forestry Mining and Electrical Union [2009] FCA 786), the Court found at [171] that Mr Bradley and Mr Lowth on behalf of the third respondent (“AMWU”), Mr Ong on behalf of the second respondent (“CEPU” and “ETU”) and Mr Robinson on behalf of the first respondent (“CFMEU”) had contravened s 768(1) of the WR Act on 13 February 2009 by entering the relevant work site and engaging in the conduct of holding meetings with employees of the applicant (“Holland”) with the intention of giving those employees the impression that the officials were authorised to enter the work site for that purpose in circumstances where the officials were not authorised under Part 15 of the WR Act to enter the site for that purpose and the officials had reasonable grounds to believe that they were not so authorised by Part 15. The italic emphasis given to the matters above reflects the sequence of integers which were found, on the facts, to have occurred thus giving rise to a finding of a contravention of s 768(1).

7    A finding of a contravention of s 768(1) was made in similar terms arising out of the conduct of Mr Robinson and Mr Bradley in relation to the events of 5 March 2009: [171] of the principal judgment.

8    As to s 767(1), the Court found at [173] of the principal judgment 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 WR Act notwithstanding that no such rights subsisted. The Court further found at [176] that 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 work described in Appendix 1 to the Workplace Expansion Agreement (“the Expansion Agreement”) in issue in the principal proceeding, within the expansion project undertaken by Ports Corporation Queensland (“PCQ”) within the Abbot Point Coal Terminal (“the Terminal”), to expand the facility to 50 million tonnes per annum (50mtpa).

9    The Court concluded that it must have been plain to the officials that a senior officer of Holland, Mr Ingham, would be compelled to respond to the events of entry and that the conduct of the officials would be likely to impede Mr Ingham in the course of his duties with the result that the acts of entry by the permit holders on both dates in the manner found at [98] to [127] of the principal judgment was a hindrance and obstruction of Mr Ingham in the conduct of his duties to Holland. The Court found at [179] that the conduct of the officials on those days was intentional in the sense that the conduct was “unreasonable” and the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances would impede Mr Ingham.

10    In the course of these reasons it will be necessary to examine the findings made in the principal judgment in relation to aspects of the conduct of the officials on 13 February 2009 and 5 March 2009 and further consider aspects of those findings and other evidence relevant to the further consideration of contended contraventions of ss 767 and 768 of the WR Act by one or more of the respondents.

11    In the remedial and civil penalty judgment (John Holland v Construction Forestry Mining and Electrical Union (No. 2) [2009] FCA 865) (“the second judgment”), the Court made two declarations arising out of the determination of the construction question concerning the coverage or application of the Expansion Agreement to “work” performed by employees of Holland at PCQ’s Terminal in relation to the expansion project and, more particularly, the exhaustive coverage of that Expansion Agreement to all work performed by those employees with the result that by operation of the WR Act none of John Holland’s employees were carrying out work on the site covered by an award or collective agreement binding on the AMWU, CFMEU or CEPU/ETU. It followed, by reason of that construction of the Expansion Agreement (in the context of the matters considered on the issue in the principal judgment), that there were no “eligible employees” on the relevant premises for the purposes of s 760 of the WR Act.

12    Apart from those declarations (and a declaration as to the invalidity of particular Bargaining Period Notices), the Court by orders 5, 6, 7, 8 and 9 of the second judgment, ordered the relevant respondent to pay a pecuniary penalty in respect of that respondent’s contraventions of ss 767(1) and 768(1) of the WR Act. By order 10 of the remedial judgment, the Court ordered that the pecuniary penalties imposed upon the first, second and third respondents by orders 5, 6, 7, 8 and 9 be paid to Holland pursuant to s 841 of the WR Act.

13    The first, second and third respondents appealed from the determinations made in the principal judgment and, in an operative sense, the declarations and orders made in the second judgment. In the result, the Full Court allowed the appeal in part and set aside orders 5, 6, 7, 8, 9 and 10 of the second judgment. The Full Court ordered that the matter be remitted to the primary judge for further consideration. The declarations mentioned earlier in relation to coverage were not disturbed by the Full Court.

14    On 6 August 2010, the Court ordered the parties to file and serve written submissions by 6 September 2010 identifying the issues each of the parties considered 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 the reasons of Spender J in support of the orders made by the Full Court. The Court further ordered that the parties file and serve written submissions identifying the basis upon which each of the parties contended that further 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: John Holland v Construction Forestry Mining and Electrical Union [2010] FCA 834.

15    Written submissions were filed by the parties directed to those matters having regard to observations in the reasons for judgment in support of the above directions orders.

16    Having regard to those submissions, the Court on 23 September 2010 made the following directions:

THE COURT DIRECTS THAT:

1.    The applicant, first, second and third respondents and the intervener file and serve written submissions by 21 October 2010 which address the following questions:

    (a)    whether, when they entered the premises described as the X50 Expansion Site at the Abbot Point Coal Terminal (Worksite), the following individuals did so for the purpose of holding discussions with any eligible employees of the applicant who wished to participate in those discussions:

(i)    Mr Robinson, an official of the first respondent, on 13 February 2009 or 5 March 2009;

(ii)    Mr Ong, an official of the second respondent, on 13 February 2009;

(iii)    Mr Bradley, an official of the third respondent, on 13 February 2009 or 5 March 2009;

(iv)    Mr Lowth, an official of the third respondent, on 13 February 2009.

(b)    if a relevant entry was not for the purpose of holding discussions with any eligible employees of the applicant who wished to participate in those discussions:

(i)    whether the entry amounted to “exercising, or seeking to exercise rights” under s 760 of the Workplace Relations Act 1996 (Cth) (“WR Act”); and, if so,

(ii)    whether any conduct by the individual during his entry amounted to hindering or obstructing any person or otherwise acting in an improper manner; and, if so,

(iii)    whether the conduct in (b)(ii) was intentional and a contravention of s 767 of the WR Act,

(c)    if each of the elements of (b) are satisfied in respect of any particular individual, what pecuniary penalty ought to apply?

(d)    if a relevant entry was for the purpose of holding discussions with any eligible employees of the applicant who wished to participate in those discussions:

(i)    whether the entry amounted to “exercising, or seeking to exercise, rights” under s 760 of the WR Act; and, if so,

(ii)    whether any conduct of the individual during his entry amounted to hindering or obstructing any person or otherwise acting in an improper manner; and, if so,

(iii)    whether the conduct in (d)(ii) was intentional and contravened s 767 of the WR Act;

(e)    if each of the elements of (d) are satisfied in respect of any particular individual, what pecuniary penalty ought to apply?

(f)    if a relevant entry was not for the purpose of holding discussions with any eligible employees of the applicant who wished to participate in those discussions:

(i)    whether the individual knew, or had reasonable grounds to believe that his entry was not authorised by s 760 of the WR Act; and, if so,

(ii)    whether the individual intended to give employees of the applicant at the Worksite the impression, or was reckless as to whether the applicant’s employees at the Worksite would get the impression, that his entry was authorised by s 760 of the WR Act; and

(iii)    whether the conduct contravened s 768(1) of the WR Act.

(g)    if, although a relevant entry was not for the purpose of holding discussions with any eligible employees of the applicant who wished to participate in those discussions, a permit holder’s entry amounted to “exercising, or seeking to exercise, rights” under s 760 of the WR Act, does s 768 of the WR Act apply to that conduct and if so did a permit holder engage in a contravention of s 768(1) of the WR Act on either 13 February 2009 or 5 March 2009?

(h)    if the answer to (f) and (g) is yes in respect of any individual, what pecuniary penalty should apply?

2.    In formulating submissions addressing the questions identified at Direction 1, the parties should identify all findings of fact made by the primary judge in the primary judgment upon which a party relies in support of any proposition in answer to a question and all findings of fact a party contends ought to be made by the primary judge and the evidence in support of such a finding in determining the questions to be answered at Direction 1.

3.    The applicant, first, second and third respondents and the intervener file and serve written submissions in reply by 1 November 2010.

4.    Each party identify in its written submissions filed and served pursuant to Direction 1 whether the party wishes to be heard orally in support of its submissions. The proceedings shall be listed for the hearing of oral submissions in support of the written submissions in the event that any party wishes to be heard orally. Otherwise, the questions to be addressed at Direction 1 will be answered on the papers.

5.    The costs are reserved.

17    In accordance with those directions, the applicants filed and served written submissions; the first, second and third respondents filed and served submissions; the applicant filed and served submissions in reply; the Intervener, the Australian Building and Construction Commissioner filed and served submissions and the first, second and third respondents filed and served further submissions in reply. By order 4 of the above orders, each party was directed to identify in the written submissions whether it wished to be heard orally in support of the written submissions. The directions provided for the listing of the matter for the hearing of oral submissions in the event that any party wished to be heard orally. The first to third respondents indicated that they wished to be heard but by their submissions of 3 November 2010 they said they no longer wished to be heard orally. The applicant made no request in its written submissions to be heard orally in support of its submissions. The Intervener initially said that it wished to be heard. On 19 November 2010, the Intervener said that since no other parties had requested an oral hearing, the Intervener no longer wished to be heard orally either.

18    In the conduct of the trial, the parties formulated an agreed list of issues (together with agreed definitions) to be determined, in these terms:

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?

19    At [25] of the principal judgment, the Court also noted these matters in relation to the agreed list of issues:

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.

20    As the sub-headings in the agreed list indicate, issue 2 concerned the relationship between the work performed (pursuant to contact Q08-004) by Holland employees at a work site described as the X50 work site, PCQ’s Expansion Project and the Expansion Agreement. Issue 3 concerned the question of whether work undertaken by the relevant employees constituted work covered by the contract; whether the work represented part of PCQ’s X50 Expansion Project; and whether the work was work comprehensively covered by the Expansion Agreement.

21    Issues 2 and 3 have been dispositively dealt with by the principal judgment and the decision of the Full Court.

22    The principal judgment is to be read in conjunction with these reasons for the purpose of giving context to the issues in controversy, the factual background to all of the matters going to issues 2 and 3 to the extent that those matters give context to a further consideration of other issues and for reference to all definitional terms. Reference will also be made to the principal judgment as the orders of the Full Court require the relevant matters to be further considered in the context of the Full Court’s observations and elements of the previous findings will be examined in the course of these reasons. The findings made in the principal judgment remain on foot unless varied by these reasons and further findings. At [11] of the principal judgment, the position adopted by the Unions as to the relationship between the application of the Expansion Agreement to work on the X50 site and entry by the officials upon the site under s 760 is noted in these terms:

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. …

The reasons for judgment of the Full Court

23    It should be noted that the factual analysis in the primary judgment of the conduct of the relevant individuals was framed not only by the list of issues but also by reference to the notion that if entry to the work site was not authorised by s 760 of the WR Act (because the Expansion Agreement provided exhaustive coverage of all of the work thus rendering none of Holland’s employees “eligible employees” for the purposes of s 760), no contravention of either ss 767(1) or 768(1) could arise in the event that the Union officials had reasonable grounds to believe that the work was not covered. Thus an analysis was urged upon the Court of the contextual facts and circumstances confronting each of the relevant individuals when electing to enter the work site on 13 February 2009 and 5 March 2009 so as to determine whether (or not) the steps each of them took to enter the site on those days might be regarded as based upon reasonable grounds for believing that the agreement was not binding.

24    The question of whether the individuals held reasonable grounds for believing that the Enterprise Agreement was not binding in relation to work at the X50 site was in controversy on the facts and required dispositive findings by the Court in the context particularly of issues 7, 8 and 9 in the agreed issues list. A determination of that matter also involved the relationship between those issues and issues 4 and 5 in the agreed list of issues.

25    In the reasons for judgment of the Full Court, Dowsett J noted at [34] the finding in the principal judgment that the Expansion Agreement operated upon the workplace pursuant to s 349(1) of the WR Act so that there could be no relevant eligible employee at the X50 work site. At [90] of the principal judgment the Court concluded by observing that none of 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 WR Act. The Court found in the principal judgment that none of Holland’s employees could be said to have been carrying out work on the X50 work site covered by an award or collective agreement binding on the CFMEU, AMWU, CEPU/ETU whilst the Expansion Agreement applied to work (as it was found to do) carried out on the premises by those employees: [90]. At [91] of the principal judgment, the Court concluded that by reason of the application of the Expansion Agreement to work undertaken by Holland’s employees at the X50 site the Union officials did not have a valid right of entry to the X50 work site on three particular dates including 13 February 2009 and 5 March 2009.

26    At [35] of his Honour’s reasons, Dowsett J notes that one of the grounds of appeal asserted error in holding, in the principal judgment, that Messrs Bradley, Ong, Lowth and Robinson “did not have reasonable grounds for believing” that entry to the site was authorised on 13 February 2009 under s 760 of the WR Act; error in holding that Messrs Bradley and Robinson did not have reasonable grounds for believing that entry to the site on 5 March 2009 was authorised under s 760; error in holding that Messrs Bradley, Ong, Lowth and Robinson had contravened s 767(1) and s 768(1) of the WR Act on 13 February 2009; and error in holding that Messrs Bradley and Robinson had contravened s 767(1) and s 768(1) on 5 March 2009.

27    At [36], Dowsett J observed that the appellant’s election to frame that ground of appeal in those terms seemed to assert (consistent with the treatment of the argument by the parties at trial) that if the individuals had reasonable grounds for believing that entry to the site was authorised pursuant to s 760 of the WR Act, the holding of that reasonable belief would be an answer to the contended contraventions of ss 767 and 768.

28    At [38], Dowsett J observes that s 760 authorises entry to premises by a permit holder who enters those premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. At [39], Dowsett J observes that authority to enter pursuant to s 760 is not dependent upon satisfying the definition of whether the relevant employees are “eligible employees”. Dowsett J observes at [39] that the permit holder must rather satisfy the requirement that he or she had the required purpose. His Honour at [39] observes:

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

                                [emphasis added]

29    Dowsett J concludes those remarks by observing at [39] that authorisation pursuant to s 760 is “not dependent upon the permit holder having reasonable grounds for a particular belief” [emphasis added].

30    At [40], Dowsett J made this observation as to the finding at [91]:

40.    At [91], the primary judge dealt with the question of authorisation, concluding that because of the operation of the Expansion Agreement the permit holders ‘did not have a valid right of entry to the X50 work site’. This conclusion was based upon the finding that John Holland’s employees at the X50 work site 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 appellants. 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.

31    At [40], Dowsett J then further observed that in his Honour’s 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”.

32    That is a question that now needs to be further addressed.

33    At [41], Dowsett J made these observations about the relationship between s 767(1) and s 760:

41.    In the present case, s 767(1) will be engaged only if a permit holder is exercising, or seeking to exercise rights under s 760. 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.

                                [emphasis added]

34    At [41], Dowsett J observed that such an approach to the relationship between s 760 and s 767(1) may be inconsistent with the approach taken by Merkel J in Pine v Doyle (2005) 143 IR 98 at [14] to [18] in which Merkel J concluded that a purported, but unlawful exercise of a power of entry, would engage a prohibition on hindering or obstructing in the exercise of a statutory power to enter. Dowsett J observes that although a distinction between a power and a right may be a narrow basis for distinguishing Pine v Doyle, his Honour was unpersuaded that a permit holder could 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 [41].

35    His Honour then observed that he would prefer to leave that question unresolved largely because it had not been argued.

36    Submissions have now been directed to that question.

37    At [42], Dowsett J addresses the notion of “hindrance or obstruction” of an individual for the purposes of s 767(1). His Honour notes the matters referred to in [148], [175], [178] and [179] (cross-referenced to [98] to [127]) of the principal judgment. The applicants contention was and is that Mr Ingham was intentionally hindered or obstructed in contravention of s 767(1) by the Union officials in the performance of his duties on the relevant two days. At [148] of the principal judgment, the Court observed that Mr Ingham on both days was diverted from discharging his normal duties by being compelled to deal with the events of entry on the two days. The content of that matter is set out at [148]. At [178] of the principal judgment, the Court observed that the permit holders must be taken to have been aware that entry on those two dates would impede either Mr Ingham or others in a similar position to Mr Ingham within Holland and in that knowledge they elected to enter the site. At [179] of the principal judgment, the Court found that the acts of entry on those two dates in the manner as determined at [98] to [127] constituted a hindrance or obstruction of Mr Ingham in the conduct of his duties to Holland. The Court found at [179] 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 [the 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”.

38    The applicant also contends that the conduct of the Union officials also satisfies the statutory description that the officials, in contravention of s 767(1), “otherwise act[ed] in an improper manner”.

39    At [45], Dowsett J observes that if entry upon the site was authorised under s 760, then Mr Ingham’s conduct simply represented his corresponding reaction in the discharge of his duties to Holland, to lawful conduct on the part of the Union officials, and “[L]awful entry can hardly constitute hindrance or obstruction for the purposes of s 767(1)”. Dowsett J notes at [45] that “the alleged hindrance or obstruction depends upon unauthorised entry” and further observes that “[a]ssuming entry was unauthorised but that s 767(1) was nonetheness engaged … it may still be arguable that there was no hindrance or obstruction” [emphasis added].

40    It follows that in Dowsett J’s view, s 767(1) is only engaged if entry is lawful under, relevantly, s 760 but if s 767(1) is engaged (even though no right under s 760 is exercised or sought to be exercised) the facts may demonstrate that Mr Ingham was, in responding to the events of entry, doing the very things that fell to him as part of his orthodox duties to Holland rather than, by force of those responses, being hindered or obstructed in the conduct or discharge of his duties to Holland.

41    At [46], Dowsett J observes that the requirement in s 767(1) that any hindrance or obstruction be intentional prima facie requires that there be a subjective intention to hinder or obstruct. Dowsett J at [46] observes that “[I]t is not sufficient that the relevant conduct was willed and that the permit holder ‘must be taken to have been aware’ of such hindering or obstructive effect”. Section 767 says nothing about deemed intention. Dowsett J also observes at [46] that it may be sufficient (in establishing subjective intention) that the permit holder acts, knowing that there will be a hindering or obstructive effect. In other words, it may be possible to infer the subjective intention of the relevant person from objective facts.

42    These matters are also further addressed in these reasons.

43    As to s 768, Dowsett J said this:

47.    In considering s 768, it is convenient to commence with the circumstances prescribed in s 768(2). The case was conducted upon the basis that the relevant “thing” for the purposes of s 768(2)(a) was entry to the X50 work site. See the reasons for judgment at [95]. Whether such entry was authorised was to be answered by reference to s 760. As that question has not been resolved in accordance with s 760, the alleged breaches of s 768 have not been established. It is not necessary to consider s 768(2)(b) save to observe that it refers to reasonable grounds to believe that a relevant person was not authorised pursuant to Pt 15, and not to reasonable grounds for believing that such person was authorised.

48.    As to s 768(1) the case appears to have been conducted on the basis that the relevant “second” persons were employees of John Holland, and that the union officials deliberately or recklessly gave the impression that they were authorised pursuant to Pt 15 to enter the site for the purpose of holding meetings with them. The primary judge appears to have found an actual intention to that effect as required by s 768(1)(a), rather than recklessness as required by s 768(1)(b). His Honour also found that Mr Robinson and Mr Bradley had reasonable grounds to believe that they were not authorised pursuant to Pt 15 to enter the premises. However that finding probably reflects the erroneous approach to s 760 which I have previously identified.

44    The matters mentioned at [47] and [48] are further addressed in these reasons. At [49], Dowsett J concluded that the findings concerning the operation of the Expansion Agreement should stand but that all other questions concerning the alleged infringements of ss 767 and 768 should be remitted for further consideration (including questions relating to penalties).

45    I have examined in some detail the observations of Dowsett J as Spender J adopts those observations at [3] of his Honour’s reasons and the reasons of Dowsett J and Spender J represent the majority views on the relevant questions. Spender J, apart from agreeing with Dowsett J, also observed at [7] that if s 760 is not engaged because the relevant permit holder lacks the prescribed purpose, then s 767(1) has no operation, because it applies, relevantly only to a permit holder “exercising, or seeking to exercise a right under s 760” and in his Honour’s view, s 767(1) regulates the way in which a person exercises his or her right of entry pursuant to s 760. His Honour further observes at [7] that if entry on 13 February 2009 and 5 March 2009 was authorised by s 760, the conduct of Mr Ingham was “no more than performing his ordinary duties as an employee of John Holland”. Spender J made these further observations:

8.    For myself, the relevant question under s 760 was whether the permit holder had the prescribed purpose. If the permit holder had that purpose, then it is a question whether there was an actual intentional hindrance or obstruction of any person; in my view, it is highly unlikely that the conduct of the union officials could, in those circumstances, constitute a hindrance or obstruction of Mr Ingram [Mr Ingham], he doing no more or less than what his duties as an employee of John Holland required him to do.

9.    Alternatively, if the permit holder did not have the prescribed purpose, then s 767 is not engaged, in my opinion.

10.    In any event, it is highly contentious whether the conduct of the union officials on the two relevant dates could, as a matter of fact, constitute a hindrance or obstruction of Mr Ingham. The observations of Merkel J in Pine v Doyle … are in my view apposite.

11.    Section 768 is concerned with prohibiting intentional or reckless misrepresentation as to authorisation under Part 15 of the WR Act.

46    As to s 768, Spender J at [12] agrees with Dowsett J that whether entry was authorised is to be answered by s 760 and as that question has not been resolved in accordance with s 760 the alleged breaches have not been established.

Did Messrs Bradley, Ong, Lowth and Robinson have the required purpose under s 760 when entering the premises on 13 February 2009 and did Messrs Bradley and Robinson have the required purpose when entering the premises on 5 March 2009?

47    That question is to be answered by ascertaining on the evidence whether the permit holder has satisfied the requirement that he or she had (that is, subjectively held) the required purpose (Dowsett J [39] and [40]; Spender J [3], [7]-[9]). In order to answer that question (and all matters remitted for further consideration) I have reconsidered the transcript of the proceedings, all of the affidavit material, the submissions of the parties, the findings reflected in the principal judgment and the second judgment and the written submissions of the parties consequent upon the orders described at [16].

Mr Terry Bradley

48    Mr Bradley gave this evidence in his affidavit sworn and filed 9 April 2009.

49    From late 2008, Mr Bradley had direct contact with AMWU members working for Holland at the Terminal. Amongst those members were five employees (subsequently confirmed by Mr Bradley as AMWU members) who said they worked at the X25 site and an area of the Terminal Mr Bradley described as the X50 site. Four of them said they were boilermakers. One said he was a rigger. Mr Bradley believed the four boilermakers worked at the Terminal area which he called X50 and that those employees were engaged in work involving callings within the relevant coverage rules of the AMWU.

50    Mr Bradley was aware of a Holland project at the Terminal to increase coal loading output to 25mtpa and he understood the reference to X30 concerned an expansion in out-loading capacity to 30mtpa. Mr Bradley described both these expansion activities as “projects” taking place within the boundaries of the Port Authority area. Mr Bradley had not been to the X25 or X30 sites (as he described them) “because [he had] no right of entry for those sites” (para 12). Mr Bradley understood the reference to X50 to be a reference to a project to increase output capacity to 50mtpa by constructing a second ship berth off-shore, a jetty conveyor and transfer towers. Mr Bradley asserted that the site of this expansion work is “in a different geographic location to the X25 and X30 sites” (para 15).

51    Mr Bradley described the route to the access point for the area of the Terminal he described as the X50 site. His evidence was that the visitor enters upon the Abbot Point access road (off the Bruce Highway) and proceeds towards a T intersection. Shortly before the T intersection is a red signpost marked “John Holland X50” with an arrow pointing straight ahead. Just beyond that sign is a large white sign with arrows pointing to “Western Access” to the left. At the intersection is a red signpost marked “John Holland X25” with an arrow pointing to the left. Approximately 1.5 kilometres further along the Abbot Point access road is another red sign marked “John Holland X50” with an arrow pointing to the right. Near that sign is a white PCQ sign marked “Eastern Access”. These signs are located at the entrance to a car park “adjacent to the X50 entrance gate and security hut” (para 23). On entering the car park the visitor is confronted with another white PCQ sign marked “X50 Project You Are Entering a John Holland Work Site” (para 24).

52    These signs were regarded by Mr Bradley as recognition by Holland and PCQ of a project called X50, conducted at a project site distinct from X25 and X30 projects undertaken at X25 and X30 sites. Mr Bradley accepted in cross-examination that he did not see any X30 sign in the course of his passage along the Abbot Point access road past the various signposts directing visitors to parts of the Terminal.

53    Mr Bradley was involved in early discussions with representatives of Holland about a proposed “Enterprise Bargaining Agreement” (“EBA”) concerning work “for X25 and X30” (para 27). Mr Bradley says that those discussions were only about X25 and X30 and at no time did Holland’s representatives use the term X50. Mr Bradley attended a meeting at Holland’s office in Brisbane on 18 February 2008. Also present were Mr Ong (CEPU/ETU) and Mr Pegg and Mr Spence from Holland. Mr Pegg provided Mr Bradley and Mr Ong with “general information about the X25 and X30 sites” (para 29). On 25 February 2008, Mr Bradley attended another meeting at Holland’s Brisbane office to discuss “a greenfields agreement” he sought to achieve with Holland for the AMWU. Mr Ong, Mr Pegg and Mr Spence were present and Mr Ong similarly sought such an agreement for the CEPU. Mr Pegg presented Mr Bradley and Mr Ong with “a draft agreement for the X25 and X30 projects” (para 32). Mr Bradley and Mr Ong sought additional terms. Proposed terms were further discussed between the same participants at another meeting on 7 April 2008. Each side left the meeting to consider their position.

54    About two weeks later, Holland advised Mr Bradley of the Expansion Agreement reached with the AWU. Mr Bradley and Mr Ong agitated for an “agreement for the X25 and X30 projects …” (para 43) between Holland and the AMWU and CEPU at a meeting on 2 June 2008 with Holland’s representatives (Mr Wyatt, Group Manager and Mr Elder, Human Resources Northern Regions Manager). The AMWU and CEPU were offered an agreement on the same terms as the AWU agreement. No such agreement was reached with them.

55    Mr Bradley first became aware of the X50 project in early November 2008. Mr Bradley was told by an officer of the CFMEU that Holland had sought to amend the Expansion Agreement with the AWU by proposing a resolution to the employees “to extend it to the X50 project” (para 50). Mr Bradley understood that the employees voted against the proposal. Mr Bradley was told the same information by Mr Lowth. These statements made to Mr Bradley (whether correct or not in their content) informed Mr Bradley’s thinking and caused him to discuss such information with officers of the AMWU and “other unions” which resulted in a decision “to go to the X50 site to visit our members” (para 52). Mr Bradley says at para 55 that his “purpose in entering the site [on 19 November 2008] was to hold discussions with members and persons eligible to [be] members of the AMWU about the agreement that we intended to negotiate for the X50 site”.

56    On 17 November 2008, Mr Bradley had sent Holland notice of his intention to enter the site on 19 November 2008 in reliance upon s 760. Mr Lowth had also given Holland on 17 November 2008 notice of his intention to enter the site on 19 November 2008 in reliance upon s 760. Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson entered the site on the morning of 19 November 2008. Mr Ong asserted a right of entry under the Workplace Health and Safety Act 1995 (Qld) (“WH&S Act (Q)”) rather than s 760 consequent upon a compliant notice. Mr Robinson asserted a right of entry under the WH&S Act (Q) to investigate amenities rather than in reliance upon s 760 consequent upon a compliant notice.

57    For present purposes, it is sufficient to note that Mr Ingham told Mr Ong and Mr Robinson that Commonwealth law applied (see [100] and [101] of the principal judgment) not the WH&S Act (Q) and thus no right of entry arose under that Act. Mr Ingham told all four officials that they had no right of entry to the site and asked them a number of times to leave.

58    Exchanges took place between Mr Ingham and the officials concerning their contended right to be on the premises. The officials ultimately left the site after approximately two hours. In the course of the exchanges, Mr Ong asked Mr Ingham (according to Mr Ingham’s evidence) where the electrical works were being undertaken and Mr Ingham responded by saying “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”. Mr Ong denies this version of the conversation (see [87] of these reasons).

59    After the events of 19 November 2008, the events described at [103] to [113] of the principal judgment occurred.

60    For ease of contextual reference in these reasons, I will mention the relevant matters here.

61    On 20 November 2008, the AMWU and the CFMEU (and on 21 November 2008 the CEPU) each sent Holland a notice purporting to initiate a bargaining period for a collective agreement concerning Holland’s “operation located at … X50” (adjusted in the manner described at [103] and [104] of the principal judgment). On 24 November 2008, Mr Sasse wrote to the AMWU, CFMEU and CEPU asserting that the officials on 19 November 2008 had no right of entry to premises described as the Abbot Point Construction Project Site. On 26 November 2008, Mr Dettmer (the State Secretary for the AMWU) responded to Mr Sasse’s letter saying that s 760 authorised entry; notices had been given; no collective agreement was in place; the Metals Award applied and bargaining notices had issued for the negotiation of a collective agreement for “the Abbot Point X50 project”.

62    On 3 December 2008, Mr Sasse responded to Mr Dettmer’s letter.

63    Mr Sasse said that s 760 did not authorise entry because the Expansion Agreement applied (not the Metals Award) so as to regulate the employment of “all persons on the project” and as the AMWU is not bound by the Expansion Agreement, Holland’s employees could not be “eligible employees” (for the purposes of s 760). Mr Sasse also said that the officials had been told prior to entry that entry was not available to them under s 760 (for the reasons set out above).

64    The events between 20 November 2008 and 3 December 2008 reveal exchanges between Mr Sasse and Mr Dettmer with Holland putting the exhaustive coverage of the Expansion Agreement at the “Abbot Point Construction Project site” (and thus Holland’s view of the exclusion of s 760) to the AMWU and Mr Dettmer’s assertion of the operation of s 760 in its application to work at what he described as the Abbot Point X50 Project. Mr Sasse’s letter of 3 December 2008 puts the exhaustive coverage point more plainly than before.

65    Mr Dettmer’s analytical response to Holland’s contentions is mentioned further shortly.

66    On 10 February 2009, Mr Bradley, Mr Ong and Mr Lowth each served entry notices on Holland in reliance upon ss 738 and 760 for entry to premises described as “John Holland Abbot Point Coal Terminal Project” or “Abbot Point Bowen”. Mr Robinson served an entry notice relying on ss 738 and 760 on 11 February 2009 describing the premises in the long form above.

67    On 12 February 2009, Holland’s solicitors wrote to Mr Dettmer asserting the exhaustive scope of the Expansion Agreement with the contended consequence that s 760 provided no right of entry to the premises as there were no “eligible employees” engaging s 760 (see [109] and [110] of the principal judgment as to the content of the letter). The exhaustive coverage point was put in the same terms by Holland’s solicitors to the CFMEU and CEPU.

68    On 12 February 2009, the CEPU responded saying the Expansion Agreement applied to the X25 and X30 Terminal expansion and not to the X50 Project and thus s 760 authorised Mr Ong’s entry. Mr Dettmer responded on 13 February 2009 making the same point made by Mr Ong. Mr Dettmer also said that Holland employees on the site were covered by the Metals Award and that Mr Bradley and Mr Lowth were entitled to enter “premises at Abbot Point at the X50 project”.

69    Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson entered the premises on the morning of 13 February 2009.

70    For present purposes, it is sufficient to note that Mr Ingham told the four officials that they had no authority to enter the premises. Mr Ingham asked the men to leave the site. Particular actions took place on the site until the officials left after approximately four hours.

71    Mr Bradley says that he was aware that on or about 19 November 2008 the AMWU had given Holland a notice to initiate a bargaining period for a collective agreement in relation to the X50 site. Mr Bradley says that on 26 November 2008 he spoke to Mr Patten of Holland who said that Holland would not negotiate “an agreement for X50 as it is already covered by the X25, X30 Agreement” (para 94). Mr Bradley says that he caused the entry notices to be given on 10 February 2009 to Holland on behalf of himself and Mr Lowth. At para 97, Mr Bradley says that “[T]he purpose of the entry was to hold discussions with employees about the enterprise bargain which the AMWU was seeking to pursue on behalf of members at the X50 site”. Mr Bradley says that on the morning of 13 February 2009 he, together with Mr Ong, Mr Lowth and Mr Robinson met with employees of Holland as they waited to be taken to the work site. Approximately 140 members were in attendance “from the X25, X30 and X50 sites” (para 102). At para 107, Mr Bradley says that he addressed Mr Ingham (and Mr Ingham’s companion) before entering the site in these terms: “We are going on site to speak to our members and we have provided a right of entry notice” (ss 738 and 760). Mr Bradley describes the events that took place until he and the other officials left the site.

72    On 27 February 2009, Holland’s solicitors sent a letter to the CFMEU, AMWU and CEPU referring to their earlier letter of 12 February 2009. The letter set out extensively (20 pages) the background to the expansion program at the Terminal from 21mtpa to 25mtpa and the further expansion to 50mtpa. The letter sets out Holland’s view of the relationship between the Invitation to Tender issued by PCQ, the Expansion Agreement struck with the AWU and Contract Q08-004. The letter identifies the basis upon which Holland contended that work done by its employees under Contract Q08-004 on the X50 work site was covered by the Expansion Agreement.

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

74    On 4 March 2009, Holland’s solicitors wrote to the CFMEU in response to Mr Robinson’s notice, referring to their earlier detailed letter of 27 February 2009 and said that Mr Robinson’s entry to the premises in reliance upon the notice would be resisted.

75    On 5 March 2009, Mr Bradley and Mr Robinson entered the X50 site gate after signing in at the security hut. Some exchanges took place with Mr Ingham in which Mr Ingham asserted that the officials had no right to enter the premises. The officials were directed to leave the premises. Mr Green and Mr Smith, representatives of Holland, were present.

76    Mr Bradley was cross-examined as to the factors which caused him to believe that the X50 site was a separate site on which work other than work covered by the Expansion Agreement was undertaken by relevant employees. Mr Bradley characterised X25/X30 as one site and the X50 site as another on the footing that each had a separate entrance with separate entrance signs and a separate security hut. Mr Bradley accepted that there were no signs anywhere on site to X30. Mr Bradley contended that there was nothing in the scope of work in the Expansion Agreement which applied that agreement to work undertaken at the X50 site. Mr Bradley accepted that the only work being done on the X50 site was work described in the X30 scope of works.

77    Mr Bradley was asked whether it was just the label X50 upon which he relied. Mr Bradley said yes. Mr Bradley accepted that the first thing to examine when determining the question of coverage is to examine the scope of the work being performed. Mr Bradley accepted that the work being done on the X50 site was work included within the definition of the scope of works for X30 in the Expansion Agreement. Mr Bradley asserted that he had not satisfied himself that the work done was “in fact covered by [the Expansion Agreement]” and two reasons were advanced for that view. First, that the site by its signage recognised a separate site for X50 and secondly, Mr Bradley understood from his Union’s members, that Holland had “tried to amend the scope and application of the X25, X30 Agreement to include X50”. Mr Bradley accepted that even though he understood that Holland contended that the Expansion Agreement applied to cover the work, Mr Bradley elected to “go on the site simply on the basis of the sign at the front and the proposed variation”.

78    I accept that these two general considerations informed Mr Bradley’s thinking when electing to enter the X50 site on 13 February 2009 and 5 March 2009. I also accept that Mr Bradley’s thinking in relation to entry on those two days was informed by the events he describes in his affidavit as set out at [49] to [56] of these reasons and that Mr Bradley’s purpose of entry on those days was informed by the earlier contextual matters (at least as he understood those matters) already mentioned: X25 and X30 were two projects and X50 was another; X50 was a separate project at a separate site; the X50 project had separate signs; although negotiations had failed, an X25 and X30 EBA had been the subject of separate negotiations with no reference to X50, between Mr Bradley and Mr Ong and Holland representatives from early 2008; Holland had sought to vary the Enterprise Agreement, as he understood it, to extend the agreement to the X50 project; and Mr Bradley understood that boilermakers were engaged in work on the X50 site attracting relevant coverage.

79    Mr Bradley is an organiser employed by the AMWU.

80    Mr Bradley’s State Secretary is Mr Dettmer and Mr Dettmer on 26 November 2008 and 13 February 2009 had responded to letters from Holland or its solicitors asserting the position that s 760 authorised entry on the footing that no collective agreement covering work done on the X50 site was in place. I also accept that the position adopted by Mr Dettmer is likely to have informed Mr Bradley’s mind and reinforced his view that the Expansion Agreement did not cover work done at the X50 site. Although Mr Bradley identifies in his affidavit and in cross-examination the factors that informed his thinking, he does not say that he examined the sequence of tasks set out in Annexure 1 to the Expansion Agreement to consider whether the tasks undertaken on the X50 site fell within the scope of the annexure. More particularly, Mr Dettmer in forming his view about whether the Expansion Agreement covered work done on that part of the Terminal site called X50, accepted in cross-examination that when considering Mr Sasse’s correspondence and the letters from Holland’s solicitors asserting Holland’s position about coverage and exhaustion, Mr Dettmer did not read the appendix to the Expansion Agreement at all.

81    In the primary judgment, I observed that the analytical leadership required of Mr Dettmer as an experienced State Secretary and that of Mr Bradley required those gentlemen to consider carefully whether the scope of work described in the Annexure accurately described the work actually being done (and to be done) on the relevant site so as to enable those men to reach an informed view about whether the Expansion Agreement applied to that work. The evidence does not suggest that such a step was undertaken. Mr Dettmer said that he did not read the annexure.

82    The failure of Mr Dettmer and Mr Bradley to carefully consider the scope of work described in the annexure document may simply mean that although leaders of the AMWU acted unreasonably in not turning their mind to that central matter, they nevertheless formed a view (as it turns out an incorrect view) that the Expansion Agreement did not apply to cover the work of the employees on the X50 site, for the reasons they gave, and I am satisfied that there is a basis (as earlier described at [78]) upon which Mr Bradley held that view so as to support the contention of Mr Bradley that when he entered the X50 site gate adjacent to the security hut on 13 February 2009 and 5 March 2009 he had, subjectively, the required purpose under s 760 of the WR Act, that is to say, he entered the premises for the purposes of holding discussions with eligible employees of Holland (whether or not those employees met the definition of “eligible employees” under s 760) who expressed a wish to participate in discussions about the terms of a possible collective agreement concerning the work his Union’s members (or those employees eligible to be members of his Union) were undertaking, and thus his entry was authorised.

83    I so find.

Mr Peter Ong

84    In his affidavit sworn and filed 9 April 2009 Mr Ong gave this evidence.

85    Mr Ong has been an organiser employed by the ETU for over nine years.

86    Mr Ong deposes to his participation with Mr Bradley in negotiations with Holland from 18 February 2008 “for a project agreement for the Abbot Point X25 and X30 site” (para 13). Mr Ong says that these negotiations were initiated by Holland. Mr Ong also says that in these negotiations there was no mention of X50. Mr Ong describes the issues discussed with Holland about such an agreement. Mr Ong says he was provided with a draft agreement some time after the first meeting and before the second meeting on 7 April 2008. Mr Ong was aware that the AWU was also negotiating with Holland for a collective agreement. Mr Ong was told by Mr Bradley that Holland had struck a single agreement with the AWU.

87    Mr Ong says that in early November 2008 members of his Union working at the Abbot Point site raised concerns about occupational health and safety issues which Mr Ong elected to pursue.

88    Mr Ong says that he came to learn that Holland had attempted to vary the Enterprise Agreement with the AWU “covering the X25/X30 site to cover the new X50 site but that the employees had rejected the proposal in a variation ballot” (para 26). Mr Ong says that this was the first time that he became aware of a distinction between the X25/X30 and X50 sites. Mr Ong also says that on the basis of that information, he understood that there was “no greenfield agreement covering the X50 site”.

89    Mr Ong says that with others he went to the entrance to the X50 site on 19 November 2008. Mr Ong describes the events that day. Mr Ong says that in the course of those events he told Mr Ingham that he had received calls about construction wiring. Mr Ingham said that Holland did not have any electricians on that part of the site. Mr Ong said that he had inspected some switchboards at the side of the road and Mr Ingham said that the electricians are all at X25 and perhaps the boards they were complaining about were over there (pointing to another site). Mr Ong deposes to references by Mr Ingham to X25 on the one hand and X50 on the other.

90    At paras 95 and 96, Mr Ong says that his purpose in entering the site on 13 February 2009 was to hold discussions with employees about the enterprise bargain which the ETU was seeking to pursue on behalf of members at the X50 site. Mr Ong met with about 30 employees of Holland from the Abbot Point site late in the afternoon on 12 February 2009 and told those employees that he had a right of entry for the following day. Mr Ong met with employees the following morning and then went to the X50 site entrance. Mr Ong describes the events that took place on the site that day.

91    Mr Ong was also cross-examined about these matters.

92    Mr Ong said that in the course of the negotiations he understood that he was negotiating an agreement that would be covering “all work that’s put into X25 and X30”. Mr Ong said that he had been provided with a draft agreement by Holland which, as he recalled, contained an Appendix 1 which set down a scope of work for X25/X30. Mr Ong said that he brushed over the appendix and mainly concentrated on the body of the agreement. Mr Ong accepted that he had not compared that appendix with Appendix 1 to the Expansion Agreement with the AWU. On being pressed on these matters, Mr Ong said that he had been given a copy of the agreement with the AWU and that he had looked at the scope of works and considered that it did not cover X50. Mr Ong accepted that pipe work being lifted and welded on the X50 site was the very sort of work described in Appendix 1. Although accepting that proposition, Mr Ong said that it was clear (to him) that the scope of the works 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 Ong assumed that the X30 site must have been “over with X25”. Mr Ong referred to the conversation with Mr Ingham where Mr Ingham pointed to that site. Mr Ong was pressed about the notion that he did not look at the scope of the works covered by the Expansion Agreement to determine whether that work was the work being done and said that he looked at the title to the Expansion Agreement and understood that it applied to X25 and X30 scope of works. Mr Ong accepted that the title is not determinative and that he determines whether an agreement applies to his Union’s members by “its coverage and whether I’m a party to that agreement”.

93    In cross-examination by counsel for the AWU, Mr Ong disagreed with the proposition that the Expansion Agreement covered work being done at Abbot Point because:

… the way that 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.

94    Mr Ong said that his belief was that if the work “wasn’t performed in X25 or X30, in those areas, then I believe that there was no agreement in place”. After being pressed further, Mr Ong said:

… if John Holland 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 … . Then 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.

                        [see p 64 [143], principal judgment]

95    Mr Ong also said that the sign on the gate played a part in determining whether the Expansion Agreement applied as it designated an area as X50 or a project as project X50 “compared to the other projects as X25 and X30”. Mr Ong said that he “honestly believe[d] that there were designated areas of work”. He said that on the second entry [13 February 2009, Mr Ong’s first entry having occurred on 19 November 2008] he “had a look at the [Expansion Agreement] to see whether the scope covered X25, X30, X50 and it only said X25 and X30” and he understood the differentiation to represent separate “geographical locations”.

96    On 21 November 2008, the CEPU/ETU sent Holland the bargaining notice previously described. On 24 November 2008, Mr Sasse wrote to the CEPU/ETU asserting that the officials on 19 November 2008 had no right to entry to the particular premises. On 10 February 2009, Mr Ong caused an entry notice to be served on Holland in reliance upon ss 738 and 760 for entry to “Abbot Point Bowen” on 13 February 2009. On 12 February 2009, Holland’s solicitors wrote to the CEPU in the same terms as the letter to Mr Dettmer and the CEPU responded on that day by asserting that the Expansion Agreement applied only to the X25 and X30 Terminal expansion and not to the X50 project with the result that s 760 provided authority for Mr Ong’s entry.

97    I accept that Mr Ong formed a view that the Expansion Agreement did not apply to cover the work of the relevant employees (so far as Mr Ong was concerned) on the X50 site, for the reasons given by him: X25 and X30 were projects separate and distinct from X50 and each such project involved a separate site; the X50 project had separate signage; Mr Ong had been involved with Mr Bradley in seeking to negotiate a collective agreement for work described as X25 and X30; and Mr Ong came to learn that Holland had sought to vary the agreement reached with the AWU covering the X25/X30 site to cover the new X50 site which caused him to believe that there was no greenfield agreement covering the X50 site. I am satisfied that there is therefore a basis upon which Mr Ong held the view that the Expansion Agreement did not cover work on the X50 site and that when he entered the X50 site gate on 13 February 2009 he had, subjectively, the required purpose under s 760 of the WR Act because he entered the premises for the purposes of holding discussions with eligible employees of Holland (whether or not those employees met the definition of “eligible employees”) who expressed a wish to participate in discussions about the terms of a possible collective agreement concerning the work his Union’s members (or those employees eligible to be members of his Union) were undertaking, and thus his entry was authorised.

98    I so find.

Mr W (Kane) Lowth

99    Mr Lowth gave this evidence in his affidavit sworn and filed 9 April 2009.

100    Mr Lowth is an organiser employed by the AMWU and has been employed by the Union since September 2003. Mr Lowth says that he was contacted in November 2008 by a member of the Union employed by Holland who was working at the X50 site at Abbot Point. Mr Lowth understood from a conversation with that employee that Holland had given notice to employees “at the X50 site to extend the coverage of the X25/X30 enterprise agreement to the X50 site”. This was the first time Mr Lowth became aware of the existence of a site called the X50 site. Mr Lowth sent a notice of entry on 17 November 2008 to Holland for entry on 19 November 2008. Mr Lowth says at para 9 that “[M]y purpose for entering the site was to speak with members and eligible members about terms and conditions of their employment and the desirability of making an agreement with John Holland for the X50 project”. Mr Lowth says that he, Mr Bradley, Mr Ong and Mr Robinson went to the entrance to the X50 site on 19 November 2008. Mr Lowth describes the signs to and at the X50 site consistent with the evidence of Mr Bradley. He describes the security hut and boom gate entrance to the site so described.

101    On 10 February 2009, Mr Lowth caused an entry notice in reliance upon ss 738 and 760 of the WR Act to be given to Holland. At para 70, Mr Lowth says that the purpose of the entry was “to hold discussions with employees on 10 February”. Mr Lowth meant to refer to 13 February 2009 as the notice (WKL 4) is dated 10 February but refers to an operational date of Friday, 13 February 2009. The purpose, he says, of those discussions related to the enterprise bargain which the AMWU was seeking to pursue on behalf of its members at the X50 site.

102    Mr Lowth describes the meeting that he, Mr Ong, Mr Bradley and Mr Robinson had with employees of Holland (off the Terminal site) on the morning of 13 February 2009 before the Union officials entered the X50 site. At that meeting, Mr Ong explained to the employees the history of the negotiations with Holland for a collective agreement concerning X25/X30 work, the AWU’s involvement in similar negotiations and the AMWU’s proposal for a collective agreement for the X50 site. After the employees left by bus to the Terminal site, the officials went to the entrance to the X50 work area. Mr Lowth describes the events that took place on that day.

103    Mr Lowth was cross-examined about these events. Mr Lowth accepted that all of his Union members working at the Terminal were being paid in accordance with the terms and conditions of the Expansion Agreement whether they were working behind a fence said to divide the X25 site from the X50 site or beyond the fence on the X50 site. Mr Lowth agreed that he knew in early November that the Expansion Agreement with the AWU was being applied to all employees. Mr Lowth gave evidence that although he had had access to the Expansion Agreement that was being applied, he had not read it. He said that was so because his Union had no coverage on the X25 or X30 project. He agreed that he was maintaining the position that the AMWU had coverage on relevant work done on the X50 site. Mr Lowth agreed that after his first visit in November 2008 he understood that AMWU members were being paid under the Expansion Agreement and that Holland contended that that agreement applied to all work. Mr Lowth also agreed that notwithstanding that understanding, he did not look at the agreement.

104    In cross-examination by counsel for the AWU, Mr Lowth agreed that his knowledge of the expressions X25 and X30 where they appeared in the agreement, the meaning of the terms and the coverage or scope of the agreement, “came from Mr Bradley” as Mr Lowth had not read the agreement. Moreover, Mr Lowth accepted that whatever Mr Bradley told him as the correct assessment of where the boundaries of the X25/X30 agreement stopped and the area free for a new agreement began, he had accepted. Mr Lowth said that he had been contacted by an AMWU member and told that the member had been asked to sign a document to extend the coverage of the X25/X30 agreement. On the coverage question, Mr Lowth accepted that he relied upon Mr Bradley’s advice as to the scope of X25/X30.

105    Plainly enough, Mr Lowth’s view as to the scope of the Expansion Agreement was heavily reliant upon the views Mr Bradley had formed. Both Mr Bradley and Mr Lowth were organisers for the same Union. Mr Lowth had heard Mr Ong explain aspects of the history of the negotiations concerning X25/X30 and Mr Lowth understood and proceeded upon the basis that the AMWU had no coverage in relation to work undertaken on the site described as X25 or X30 but that X50 was a different site, a different project and a new or fresh opportunity.

106    No doubt, Mr Lowth was also influenced by Mr Dettmer’s views (as Mr Lowth’s State Secretary of the Union) about the scope of coverage of the Expansion Agreement and the operation of s 760 in relation to work undertaken at the X50 site and that view, I infer, is likely to have been communicated to Mr Lowth by Mr Bradley. Although Mr Lowth acted, in part, based upon his own understanding and otherwise heavily reliant upon Mr Bradley, I am satisfied that there is a basis (namely, a belief that the projects and sites were separate; Mr Bradley’s advice; and Holland’s proposal to extend the existing agreement to X50) upon which Mr Lowth held the view that the Expansion Agreement did not apply so as to cover work of the relevant employees on the X50 site and that when he entered the X50 site gate on 13 February 2009 he had, subjectively (although perhaps derivatively by reason of his reliance upon Mr Bradley’s thinking), the required purpose under s 760 of the WR Act, that is to say, he entered the premises that day for the purposes of holding discussions with eligible employees of Holland (whether or not those employees met the definition of eligible employees) who expressed a wish to participate in discussions about the terms of a possible collective agreement concerning the work his Union’s members (or those employees eligible to be members of his Union) were undertaking, and thus his entry was authorised.

107    I so find.

Mr Michael Robinson

108    Mr Robinson swore two affidavits in the proceeding. One sworn and filed 14 April 2009 and the other sworn and filed 22 April 2009. The principal affidavit is the affidavit of 14 April 2009.

109    Mr Robinson gave this evidence.

110    He is an organiser employed by the CFMEU. He commenced that role in August 2008.

111    Mr Robinson says that soon after commencing his position as an organiser, he was contacted by CFMEU members working for Holland at the X50 site. He says the X50 site is geographically distinct from an area he describes as X25 and X30. The X50 site is contained, he says, in an area east of a railway line which dissects the two sites with a fence running parallel to the railway line along the eastern side thus creating a boundary between the two sites.

112    Mr Robinson held meetings at a hotel in Bowen and at a BP Service Station in September and October 2008 with CFMEU members (and other employees) employed by Holland at Abbot Point. Based on those meetings, Mr Robinson understood that at least six members were working at the X50 site and approximately 20 people, working at the X50 site, were eligible to be CFMEU members involving classifications relating to riggers, scaffolders, painters and machine operators.

113    Mr Robinson says that some time in October in the course of those meetings at Bowen he was told by a CFMEU member working at the X50 site that Holland management had provided to employees at the X50 site an agreement similar to the agreement in place at the X25 and X30 sites. Mr Robinson was told that the majority of employees on the X50 site voted to reject the agreement.

114    On 19 November 2008, Mr Robinson entered the X50 site. He cannot recall what arrangements were put in place for entry. Mr Robinson says that he was inexperienced and did not engage with the Holland representatives very much. Mr Bradley did so.

115    On 11 February 2009, Mr Robinson faxed an entry notice to Holland for entry to “John Holland Abbot Point Coal Terminal Project” on 13 February 2009. Mr Robinson says he arrived at the X50 site on 13 February 2009 and met the other organisers. Mr Robinson describes the events of entry that occurred on that day.

116    On 4 March 2009, Mr Robinson sent an entry notice to Holland for entry to the “X50 project Abbot Point – John Holland” on 5 March 2009. At para 97, Mr Robinson says that the notice identified that he intended to enter the site on 5 March 2009 “for the purpose of holding discussions with employees”. Mr Robinson describes the events of entry that occurred on 5 March 2009.

117    Upon entry to the site that day, Mr Robinson and Mr Bradley were met by Mr Ingham, Mr Green and another Holland representative, Mr Smith at the eastern access gate. Mr Ingham asserted to Mr Robinson and Mr Bradley that they did not have authority to enter the X50 work site. Mr Robinson was asked whether he had seen the letter dated 27 February 2009 from Holland’s solicitors to the CFMEU. Mr Robinson said that he had seen the letter. Mr Bradley also accepted that he had seen the version of that letter sent to the AMWU. Mr Robinson was asked whether he had seen a copy of Holland’s solicitor’s letter to the Secretary of the CFMEU sent on 4 March 2009 in response to Mr Robinson’s entry notice. Mr Robinson agreed that he had seen that letter. Mr Bradley asserted that the officials had a right of entry and were entitled to enter the site. They proceeded to do so. As they did so, Mr Ingham walked behind them and continued to assert that they had no right to be on the premises.

118    Mr Robinson was cross-examined about these matters. Mr Robinson accepted that he did not take any steps independently of speaking to Mr Bradley, Mr Lowth or Mr Ong to satisfy himself as to the coverage of the work that was being done at Abbot Point. Mr Robinson says that he passed on to senior members of his Union information that “the X50 project was kicking off”. Mr Robinson understood that a new conveyor was being installed and that all of the work associated with putting in a new berth would be undertaken. Mr Robinson said that he “knew that X25, X30 had an agreement with another union, and that X50 was separate to X25, X30 with no coverage from any unions to our knowledge”. As to separateness, Mr Robinson said that “X50 isn’t included on the X25, X30 agreement”.

119    Although Mr Robinson seemed to accept that the work designated X30 was the same as the X50 site work, Mr Robinson maintained that the separateness of the construction site from X25, X30 made a difference. Mr Robinson seemed to have difficulty in explaining precisely the nature of that difference and he also seemed to recognise that the critical matter was the work that was being done rather than the title adopted as a descriptor of that work. Mr Robinson accepted that he saw work being done on the X50 site involving work associated with putting in a new berth. Mr Robinson said that he did not know that that work was the work for the X30 project described in the agreement because he did not look at the Expansion Agreement.

120    In cross-examination by counsel for the AWU, Mr Robinson gave answers which emphasised in his mind a point of distinction between the X25/X30 site and the X50 site. He said that he had been to the X25/X30 site on the western side of the railway line that he described in evidence and he had been to the entry site for X50 which is separate and on the eastern side. Mr Robinson maintained that the work on the X50 site is separate from the work on the X25/X30 site and that he had been told so by members. Its separateness was emphasised in Mr Robinson’s mind because he had been approached by members “with an amended agreement”.

121    Mr Robinson was at the dates of entry to the X50 site an inexperienced organiser who had been in the role for only approximately eight months at the latest date of entry of 5 March 2009. He formed no independent views about the scope of coverage of the Expansion Agreement and on that issue he relied upon the opinions of Mr Bradley, Mr Lowth and Mr Ong who were more experienced organisers than Mr Robinson. He accepted their views as correct. He believed that X25/X30 and X50 were different sites physically differentiated in the way he described in his evidence. He regarded that physical separation as significant although he could not explain any point of difference in the work undertaken on the X50 site that he had seen to that described in Appendix 1. Nevertheless, he relied upon the views of the other organisers and in terms of his own direct experience, he relied upon the point of physical separation and his knowledge of (or at least his understanding of) Holland’s attempt to extend by a vote of the employees the existing collective agreement to work undertaken on the X50 site. Whether these views were correctly held or not is not to the point. I am satisfied and accept that on the basis of these views, Mr Robinson’s subjective purpose of entry to the X50 site on 13 February 2009 and 5 March 2009 was for the purpose of holding discussions with eligible employees of Holland who expressed a wish to participate in discussions about the terms of a possible collective agreement concerning the work his Union’s members (or those employees eligible to be members of his Union) were undertaking, and thus his entry was authorised under s 760 of the WR Act.

122    I so find.

Aspects of the earlier findings

123    At [153] of the principal judgment, the Court accepted that the realisation by Mr Ong and Mr Bradley and through them Mr Lowth and Mr Robinson that Holland had proposed an amendment to the title of the expansion work to change X30 to X50 (and some textual changes although not essential ones ([152] principal judgment)) would have reinforced in their minds the differentiation between the description X25 and X30 on the one hand and activities comprising work to be done under the banner or label X50 on the other hand, whether that distinction was real or not.

124    At [158] of the principal judgment, the Court accepted that when the 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. Each of them made the assumptions described at [158] and they reasoned that activities on the X50 site must be a different project at a different place and thus the agreement with the AWU had no role to play.

125    At [164], the Court found that Mr Bradley believed that the agreement did not apply for the reasons there identified. At [173], the Court found that each of the Union officials on the relevant days purported to exercise rights under s 760 and the Court found that each Union official entered the site (on the relevant days) for the purpose of and with the intention of seeking to convene a meeting with Holland’s eligible employees consistently with the notices they had given under ss 738 and 760 of the Act. At [176], the Court accepted that the steps Holland took on 3 November 2008 to propose a change to Appendix 1 to introduce a reference to X50 must have suggested to each official and reinforced in their mind that Holland thought the Expansion Agreement did not apply to the expansion work on the X50 site. The Court found that each of the officials thought that the Expansion Agreement did not apply to the X50 site when they entered the site on 13 February 2009. The Court found at [176] that each of the officials continued to act on the assumptions they had made when they entered the X50 site on 13 February 2009.

126    There is no reason to depart from any of these findings which are entirely consistent with the findings otherwise made in these reasons.

127    Because the resolution of the question of whether entry to the X50 site on 13 February 2009 and 5 March 2009 was authorised by s 760, was said to turn upon asking whether the officials objectively had reasonable grounds for believing entry was authorised rather than whether the officials had the required purpose (supported by some basis for a belief as to the relevant matters giving rise to their holding the required purpose), the Court gave consideration to whether the officials acted reasonably in asserting a right of entry on those days.

128    As to that matter, the Court found these things: that entry on 19 November 2008 was based on the belief described at [158] of the principal judgment; after the events of entry on 19 November 2008 the officials knew that Holland strongly contested their right of entry in reliance upon s 760; Holland had put its position as to coverage and the role of s 760 to Mr Dettmer and the CFMEU and CEPU/ETU and the Unions had responded contending that s 760 continued to operate for the reasons already mentioned; Mr Dettmer could only reasonably determine whether his contention that the Expansion Agreement did not cover the work at the X50 site was right (and thus address Holland’s central point which Mr Dettmer conceded had to be properly considered), by carefully reading the description of work in the Expansion Agreement (that is, the work described in Appendix 1) so as to satisfy himself that that work was the work done on the X50 site; Mr Dettmer did not read Appendix 1; nor did Mr Robinson; Mr Lowth relied upon Mr Bradley’s view; and Mr Ong relied upon the separate designation of the site and the earlier 2008 negotiations.

129    At [166], the Court found that in the absence of any careful examination of the content of the Expansion Agreement including Appendix 1 and any proper assessment of the work covered by the agreement so as to inform the judgment of Mr Dettmer and the other Union officials as to whether work undertaken on the X50 site fell within the agreement, the conduct of the officials in entering the X50 site in purported reliance upon s 760 of the Act to conduct discussions with employees of Holland was not reasonable and thus on 13 February 2009 the officials had reasonable grounds before them for believing that entry to the site was not authorised. At [169], the Court found that no focused analysis by the Unions occurred as to whether the objections made by Holland might be correct as the Unions had already determined that the references in the agreement to X25/X30 necessarily meant that the agreement could not apply to work done on the X50 site. At [176], the Court found that 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 undertaken by PCQ and therefore by Holland under the contract. At [171], in the context of a discussion of s 768(1), the Court found that the officials were not authorised by Part 15 to enter the premises and that on 13 February 2009 the officials had reasonable grounds to believe that they were not authorised by Part 15 to enter the X50 site. At [171], the Court also found that on 5 March 2009 the officials had reasonable grounds to believe that they were not authorised by Part 15 to enter the X50 site.

130    However, the failure of the officials to properly read and consider the agreement and in particular Appendix 1 and form a view about whether the work recited in the appendix reflected the work done on the X50 site goes to whether reasonable grounds to believe a certain state of affairs existed (or not) whereas the question to be determined is whether the Union officials entered the premises for the prescribed purpose supported by some basis in the evidence for that purpose. This subjective assessment of purpose does not depend upon whether the purpose was reasonably formed or not but simply whether, in fact, the officials entered for the prescribed purpose and genuinely acted upon that purpose.

131    I have found that they did so enter holding the prescribed purpose.

132    It follows that the permit holders entered the X50 site under the authority of s 760 on 13 February 2009 and 5 March 2009 and thus relevant rights were engaged for the purposes of s 767(1): Construction Forestry Mining and Electrical Union v John Holland [2010] FCAFC 90 at [41] and [3].

Events of entry and post-entry conduct

133    At [128] of the principal judgment, the Court finds that apart from a contest on the affidavits between Mr Ong and a security guard about the extent to which and manner in which that guard sought to discourage or prevent Mr Ong on 13 February 2009 from entering the site and continuing to walk along the road towards the area of the crib (smoko) huts (and a conversation between Mr Ong and Mr Ingham about the presence of electricians on the X50 site), the evidence of each Union official is substantially similar to that of Holland’s witnesses concerning the events of entry and the meetings in the crib huts.

134    Those matters are set out (in the principal judgment) at [99] to [102] as to the events of 19 November 2008 (although no contravention is asserted in respect of that entry), [114] to [117] as to the events on 13 February 2009 and [123] to [127] as to the events of 5 March 2009. The evidence of the officials as to the events that occurred on entry is addressed at [129] to [132] as to the events on 19 November 2008; [133] to [136] as to the events on 13 February 2009; and [137] to [139] as to the events on 5 March 2009.

135    The findings as to the conduct on the relevant days are made at [140] of the principal judgment.

The limits of the grant

136    A central contention of Holland as to s 760 is this.

137    Section 760 authorises entry to premises by a permit holder if the permit holder has the prescribed purpose (supported by evidence of that purpose) and each of the integers ((a), (b) and (c)) of s 763 are satisfied. The satisfaction of those integers coupled with the holding of the prescribed purpose engages a power to enter the relevant premises within the limits of the grant, namely, entry. Having authority to enter premises, however, does not confer authority or permission, it is said, to engage in conduct beyond the limits of the grant. Although the permit holder may have had the prescribed purpose on entry (a matter denied on the facts by Holland), the permit holder was not authorised by s 760 to then hold discussions with employees of Holland because there were no eligible employees on site. Once the permit holders embarked upon holding discussions with Holland’s employees none of whom were eligible employees (as the Full Court upheld), the permit holders necessarily, it is said, exceeded the limitations of the grant.

138    Section 760 seems to me to operate on this footing.

139    It confers authority (provided the pre-conditions of s 763 are satisfied) upon a permit holder to enter premises provided he or she has the prescribed purpose. That authority extends to all facets of entry. It does not end on crossing the boundary or entering through the gate. The authority to enter authorises the conduct of entry expressed as passage through the gate, progression along the access road to the place where the men and women work or congregate in their breaks, waiting at the place of congregation for the breaks to occur and entry to the areas (crib huts or smoko huts) where discussions might be held with those who wish to do so. It is an authority coupled with a purpose. The purpose is the purpose of holding discussions with eligible employees.

140    Section 760 goes beyond mere entry because it confers authority coupled with a purpose (which must be held so as to authorise entry) which is also the purpose for entry.

141    There would be little point in the legislation conferring a right upon a permit holder to enter premises provided he or she subjectively holds the prescribed statutory purpose of holding discussions with eligible employees and then denying the permit holder the right to hold any discussions on the footing that, as a matter of objective construction of the relevant pre-existing collective agreement, there are no eligible employees on the entered premises.

142    Section 760 authorises the permit holder to enter premises (for the relevant purpose) and conduct discussions with employees who are, or are eligible to be, members of the permit holder’s Union and who wish to participate in discussions concerning a possible collective agreement provided the permit holder when conducting those discussions does so for the purpose of engaging with eligible employees who wish to so participate, whether those employees are “eligible employees” as defined under s 760 or not. The subjectively held purpose of entry includes giving expression to the purpose. Provided the conduct does not go beyond entry and the subsequent expression of the purpose for entry (holding discussions with those employees the permit holder believes to be eligible employees), s 760 authorises both entry and the subsequent discussions. Consistent with the objects of the WR Act set out in s 736 (see [3] of these reasons) s 760 must operate in an applied practical way in an industrial relations environment.

143    Section 763 recognises the inter-relationship between entry authorised under s 760 and subsequent conduct related to entry. It provides that Division 6 ( within which s 760 falls) does not authorise “entry to premises or subsequent conduct on premises unless” the permit holder has given an entry notice as required; the entry notice specifies s 760 as the section authorising entry; and the entry occurs on the day specified. Section 763 seems to suggest that the subsequent conduct on the premises of holding discussions for the purposes of s 760 entry does fall within the scope of the authority conferred by s 760 if the three integers are satisfied.

144    As to entry, once s 760 is engaged because the permit holder has the prescribed purpose, s 760 confers authority to enter as a matter of law not merely as a matter of fact. Entry is a question of fact. The source of the legal authority to enter is a matter of law. If s 760 properly authorises conduct giving expression to the purpose by holding meetings in the belief that those who might wish to engage in the discussions are eligible employees, the discussions, when undertaken, are also lawful by reference to s 760.

The first limb of s 767

145    The first limb of s 767(1) provides that a permit holder exercising rights under s 760 (or seeking to do so) must not intentionally hinder or obstruct any person. The Full Court observed that the requirement that any hindrance or obstruction be intentional prima facie requires that there be subjective intention to hinder or obstruct and thus it is not sufficient that the relevant conduct was willed although objective facts may give rise to inferences about the primary fact in issue, namely, the state of mind of the official when engaging in the relevant conduct. The discussion of the Full Court’s approach to construction is set out at [37] to [41] and [45] of these reasons.

146    There are two questions on the facts in relation to the first limb of s 767(1). First, if the entry of the officials on each day was authorised under s 760, can the conduct of the officials relied upon by Holland constitute hindering or obstruction? Secondly, did the officials subjectively intend to hinder and obstruct any person?

147    The officials contend in their evidence that they did not intend to hinder or obstruct Mr Ingham in the performance of his duties to Holland. Their intention, they say, was to enter the site to conduct discussions with eligible employees of Holland who expressed a wish to participate in discussions about the terms of a possible collective agreement concerning the work done on the X50 site by each official’s Union’s members (or those employees eligible to be members of the relevant Union). To conduct those discussions the officials had to enter, they say, the site and proceed along the access road to the area of the crib huts where the employees took their breaks and had their lunch.

148    At [175] of the principal judgment, the Court found that Mr Ingham on 13 February 2009 and 5 March 2009 was diverted from discharging his normal duties to Holland by the conduct of the officials having regard to the events of entry (and the manner of execution their purpose). At [175], the Court said this:

… [Mr Ingham] 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.

149    At [177], the Court said this:

… 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.

150    At [178], the Court said this:

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.

151    Also at [178], the Court said this:

… 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.

152    At [179], the Court found that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner as found in the principal judgment constituted a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland.

153    Having regard to the purpose as found, each of the officials entered the site on the relevant days in the exercise of rights pursuant to s 760.

154    At [45] of his Honour’s reasons in the Full Court, Dowsett J observed that if entry upon the site was authorised under s 760, Mr Ingham’s conduct (as found) simply represented his corresponding reaction in the discharge of his duties to Holland, to lawful conduct on the part of the Union officials, and “[L]awful entry can hardly constitute hindrance or obstruction for the purposes of s 767(1)”. Spender J was of the same view at [7] (see [45] of these reasons). As a matter of principle (although the question is always to be determined in the context of the particular legislation), the notion that the lawful exercise of rights of itself (without more by some form of positive act or failure (negative act)) does not constitute hindrance or obstruction of another is supported by authority: Schubert v Lee (1946) 71 CLR 589; Leonard v Morris (1975) 10 SASR 528 at 533 (per Bray CJ) and 543-544 (per Wills J); Curran v Thomas Borthwicks & Sons (1990) 26 FCR 241 at 257 and 258 (per Gray J).

155    In ascertaining whether any of the permit holders hindered or obstructed Mr Ingham or any other person on either 13 February 2009 or 5 March 2009, Holland accepts that conduct which is both permitted by the right or power of entry and within the scope of the grant of entry under s 760 cannot amount to an unlawful obstruction or hindrance. Holland also accepts that nor can such conduct be conduct which is improper under the second limb of s 767(1).

156    Holland, of course, contends that the conduct of engaging Holland’s employees in discussions is conduct exceeding the grant of authority under s 760.

157    Mr Ingham who was employed as Holland’s Employee Relations Manager at the material times engaged with the officials in the course of the events of entry as each official exercised a lawful right of entry under s 760, and whilst the circumstances of entry; passage to the crib huts; waiting for the break times to meet with the employees; meeting and addressing the employees; and leaving the site, made it necessary for Mr Ingham to engage with those events, he did so, in response to the exercise of a right of entry, in his capacity as Holland’s Employee Relations Manager. Although he was diverted from duties he would otherwise have performed in his role but for the events of entry by the Union officials, I accept that “[t]he fact that the employee concerned would otherwise be engaged in some other work will not mean that he or she has been hindered or obstructed” (Curran v Thomas Borthwicks & Sons, per Gray J at 257, final paragraph) by the permit holder in the course of the exercise of an authority conferred under s 760.

158    In Pine v Doyle (2005) 143 IR 98 at [19] the parties in that proceeding accepted the correctness, as a matter of principle, of Gray J’s above observation (and thus the matter was not in controversy). Nevertheless, applying that principle Merkel J at [21] observed:

… I doubt that there has been a hindrance or obstruction in the present case as it was open to Arnel [the person said to have been hindered or obstructed] to choose to follow, or not to follow, the respondent during his visit. Put simply, Arnel, was not requested or required by the respondent to participate in the site inspection and whether he followed the respondent around was entirely a matter for him to decide. The mere fact that Arnel saw it as his duty to follow the respondent is not likely to convert the site visit into a hindrance or obstruction of Arnel.

                                [original emphasis]

159    Merkel J at [21] also observed:

The position might be otherwise if the respondent requested or required Arnel to follow him, or if Arnel’s participation in the visit was an inevitable or necessary consequence of his entry. However, that is not what occurred in the present case.

                                [emphasis added]

160    Pine v Doyle was a case in which the power of entry was exercised for a purpose for which the power was not conferred and was therefore not a lawful exercise of the power: Merkel J at [14]. In the present case, the right of entry was lawful as the permit holders had the prescribed purpose under s 760. Further, the conduct of holding discussions is properly regarded as the expression of the s 760 purpose and within the authority so conferred. Although Merkel J approached the question of whether the conduct in issue might constitute hindering and obstructing a relevant person on the footing that the power (rather than, as here, the right of entry) had been exercised as a matter of fact rather than as a matter of law (Merkel J at [15]), Merkel J accepted the possibility that if the affected person’s participation in the permit holder’s visit was an inevitable or necessary consequence of the permit holder’s entry, Gray J’s proposition in Curran might not hold good.

161    However, where the permit holder’s conduct of entry is lawful (and not simply a factual event to be addressed by the relevant person responding to entry) and the conduct involves matters such as registration at the security hut, entry, progression along the access road, waiting at the crib huts, entering the huts, and then talking to those who might wish to participate (as found), the supervision of and engagement in the events of entry by Mr Ingham (and other Holland staff), although a necessary consequence of entry, was nevertheless a function, not, as previously found at [175] of the principal judgment, of managing the consequences of unauthorised entry, but rather a function of responding to lawful entry.

162    Whilst it is true that the observations of the Full Court on this issue at [45], [3] and [7] are not central to the Full Court’s decision, the impressions reflected in the judgments of Spender J and Dowsett J seem to me to be well placed once the conduct of Mr Ingham and other Holland employees is seen to be responsive to the events of lawful entry authorised by s 760 even though the actions of Mr Ingham and other Holland employees were directly consequential upon entry and made necessary by entry.

Intention to hinder or obstruct

163    More fundamentally however, the Court accepted at [176] that the Union officials did not enter the work site on 19 November 2008 with the intention of hindering or obstructing Mr Ingham or other employees of Holland. Further, at [176] the Court found that the Union officials still thought, when they entered the site on 13 February 2009, that the X50 site represented work other than the work attributed to the X25/X30 site and they relied upon that assumption when so acting as informing their purpose. The Court further found however that by reason of the strong expressions of opinion by Holland; the correspondence which had been exchanged between the parties; the failure on the part of Mr Dettmer and the Union officials to thoroughly examine Appendix 1 to the Expansion Agreement and properly form a view about coverage, the officials had, objectively, reasonable grounds to believe that they were not authorised by s 760 to enter the X50 site.

164    At [177], the Court found that although the officials may not have intended to substantially impede (that is to say, hinder or obstruct) Mr Ingham from performing his duties in the ordinary course, the officials must have been aware that by entering the site and progressing along the road so as to undertake the relevant meetings with employees, Mr Ingham would be likely to be impeded in the discharge of his normal duties.

165    These observations concerning the likely state of awareness of the Union officials as to the consequences for Mr Ingham of their entry and whether reasonable grounds existed upon which the Union officials had a reason to believe that they were not authorised to enter the X50 site, were directed to an objective assessment based upon found facts from which inferences might be drawn as to the intention of the individuals. The approach adopted in the primary judgment was to determine the intention of the individuals upon entry on 13 February 2009 and 5 March 2009 on the footing that the individuals must be taken to intend the natural consequences of their conduct. In other words, the Union officials were to be taken as intending to hinder or obstruct Mr Ingham when electing to embark upon the events of entry. However, as to the question of intentional hindrance or obstruction, the evidence must show as to “the mental element … that the respondent advert to the likely consequences of his conduct” [emphasis added] (Pine v Doyle (2005) 143 IR 98 at [22]).

166    The subjective intention of the officials is inextricably bound up in their essential purpose. The Court accepts and has found that when the officials entered the X50 site they had the prescribed purpose in mind for all the reasons already mentioned and although the description of the work in Appendix 1 was not examined so as to lead to an informed view about coverage which, in turn, would have informed the mind of those seeking entry, the Court has found that the views held by the Union officials as to the contended lack of coverage of the Expansion Agreement rested upon a sufficient foundation of fact, so far as they believed matters to be, so as to support the relevant subjective purpose of entry. That purpose continued to inform the conduct of the officials in the sense that none of them had an intention to hinder or obstruct Mr Ingham. Their intention was to enter the site under the authority conferred upon them, in their view, by s 760 and proceed along the access road to the crib huts so as to give effect to their purpose.

167    I accept that viewing the matter subjectively and independently of any question of what might have been objectively reasonable, each of the Union officials entered the X50 site for the prescribed purpose, and in giving effect to that purpose, had no intention of hindering or obstructing Mr Ingham or any other officer of Holland in the discharge of his or their duties.

168    It follows therefore that the conduct in question of causing Mr Ingham to be diverted from his other tasks did not amount to acts of hindrance or obstruction but was rather a response to lawful entry and further, the officials did not hold a subjective intention of hindering or obstructing Mr Ingham in the execution of their purpose.

The second limb of s 767(1)

169    The second limb of s 767(1) provides that a permit holder exercising rights under s 760 (or seeking to do so) must not otherwise act (that is, other than intentionally hinder or obstruct any person) in an improper manner.

170    Holland contends that conduct which might fall within the description of acting in an improper manner focuses upon an objective assessment of the conduct rather than an assessment of whether each permit holder acted in an intentionally improper manner. I accept that the test is an objective test. If the conduct falling within the second limb of s 767(1) required the relevant person to intentionally act in an improper manner, the section would have said so.

171    Holland also contends, as mentioned earlier, that the conduct of the permit holders in holding meetings with employees of Holland on 13 February 2009 and 5 March 2009 exceeded the limits of the grant and because the Union officials engaged in that conduct without reading Appendix 1 (and thus without caring whether there were any “eligible employees” on site), their conduct involved otherwise acting in an improper manner. Once it is accepted that the Union officials entered the site lawfully because they had the required purpose, it is difficult to identify conduct of entry on the part of each Union official that constitutes acting “in an improper manner”. It is not suggested that any of the officials made threats to Mr Ingham or other Holland employees or otherwise behaved in an intimidatory or otherwise improper manner.

172    As to the further conduct of giving expression to the purpose of entry by holding discussions with Holland employees (at least those wishing to so engage), it seems to me that once it is accepted (as I find) that the Union officials engaged in that conduct on the footing that they were giving expression to the purpose they had on entry, the conduct of giving effect to the purpose by doing the very thing they lawfully entered the site to do, is authorised by s 760. Even if the subsequent conduct is not authorised by s 760, giving effect to the purpose by holding meetings is not in my view otherwise acting in an improper manner as the conduct is the very conduct contemplated as conduct consistent with entry.

Section 768

173    Section 768 is concerned with prohibiting intentional or reckless misrepresentation as to authorisation under Part 15: Spender J at [11]. Section 768(1) provides that a person must not, in particular circumstances, engage in conduct with the intention of giving another the impression, or reckless as to whether that person would get the impression, that the first person (or a third person) is authorised by Part 15 to do a particular thing. The particular circumstances are that the first person (or the third person) is not authorised by Part 15 to do that thing; and the first person knows, or has reasonable grounds to believe, that he or she (or the third person) is not authorised by Part 15 to do that thing.

174    At [47], Dowsett J observed that the case had been conducted at trial on the footing that the relevant “thing” was entry to the X50 work site (the subject of the contended authority under Part 15) and whether such entry was authorised was to be answered by reference to s 760. The Full Court determined that the contended breaches of s 768 had not been made out as the question of entry under s 760 had not been determined by applying the subjective test. That question has now been determined.

175    Holland contends that its case was and is that the Union officials deliberately and recklessly gave the relevant Holland employees the misleading impression that the officials were authorised by Part 15 to enter the X50 work site for the purpose of holding discussions with those employees. Holland says that the application of s 768 in a given case is not dependent upon whether s 760 is engaged because the question posed by the section is whether the particular thing is authorised by Part 15.

176    Holland contends that there are two relevant “things” for the purposes of s 768(2)(a) (see [2] of these reasons). The first is entry to the X50 work site and as to that matter, Holland says the evidence is not sufficient to discharge the onus of showing that the officials had the prescribed purpose. I have found that the officials have made out on the evidence that they had the prescribed purpose on entry. Entry, to the extent that it represents a relevant “thing” was lawful. There was no misrepresentation on either day as to that thing.

177    If one of the things said to constitute the giving of a deliberately and recklessly misleading impression on the part of the Union officials for the purposes of s 768 is a statement of authority to enter the work site, the question of whether a person is authorised or not to enter will be determined by whether the permit holder had the prescribed purpose under s 760 and as to such a case (based on that “thing”) the application of s 768 is dependent upon s 760 as Dowsett J observes at [47] (and Spender J at [3]).

178    The second thing engaging s 768 is said to be a deliberate and reckless misrepresentation by the Union officials made to the particular employees to whom the officials spoke on 13 February 2009 and 5 March 2009 at the crib huts to the effect that they were authorised by Part 15 to speak to “eligible employees” on the X50 site and/or speak to Holland’s employees at large (and contractors). I have found that when the officials addressed those employees that elected to participate in the discussions on those days at the crib huts, the officials were giving expression to the purpose for which they entered the site, that is, to hold discussions with those members of their respective Unions (or those persons eligible to be members) who wished to participate in a discussion concerning a potential collective agreement between the relevant Union and Holland. I accept that the officials did not deliberately or intentionally seek to give those employees a false impression of their authority to hold a discussion with those employees. I accept that they believed that they had authority under s 760 to enter the work site and hold the discussions they held. They believed that their entry was lawful because the Expansion Agreement did not, they thought, apply to the X50 site (for the reasons mentioned earlier) and they had the prescribed purpose on entry and had given a notice in reliance upon s 760.

179    Their entry to the premises was lawful and that purpose and belief actuated the holding of the meetings as the expression of the purpose. Section 760 properly construed authorised the holding of the discussions on the basis earlier identified.

180    Since entry was lawful, there was no deliberate or reckless misrepresentation as to entry. Since the holding of the discussions was the expression of the purpose and was also within the scope of the authority under s 760 having regard to the subjective purpose held by the permit holders, there was no deliberate or reckless misrepresentation as to the holding of the discussions on 13 February 2009 and 5 March 2009.

Post-entry conduct on a particular assumption

181    If the holding of the discussions immediately consequent upon the events of entry was not authorised by s 760 and the proper construction and application of that section to the facts of this case is that even though entry itself was lawful (because the officials had the prescribed purpose as found), yet nevertheless, they could do nothing on the site to give effect to the purpose of entry (as Holland contends), a question arises as to whether the officials knew that they had no such post-entry authority and intentionally misled the Holland employees on each day about that matter.

182    I find that they did not know and nor did they believe that they had no right or authority to engage in the conduct of holding the meetings.

183    A second question arises (if the post-entry holding of discussions was not authorised by s 760) as to whether the permit holders nevertheless recklessly gave the relevant Holland employees the misleading impression that the officials were authorised to hold the discussions they conducted.

184    The circumstances which caused the Court to conclude in the primary judgment that the officials had before them reasonable grounds to believe that they were not authorised by Part 15 are set out principally at [116] to [171]. Those matters, at their fundament, concerned the failure of the officials to consider the description of the work in Appendix 1 and compare that work with the work actually undertaken on the X50 site; the importance of the facility generally; the failure to address the description of the work in the context of the letters from Holland’s solicitors setting out firstly, the proposition and then secondly, an elaboration of the basis for the contention as to coverage of the agreement with the AWU; and the failure on the part of the officials who entered and Mr Dettmer on behalf of the AMWU to bring a proper analytical discipline to the question of whether the work comprehended by the Expansion Agreement covered the particular work done on the site.

185    All of those circumstances resulted in a conclusion in the primary judgment that the officials had before them reasonable grounds to believe that they were not authorised by Part 15 to do the things they did. Those things were entry for the purposes of holding discussions with particular employees wishing to participate in those discussions. The case was conducted at trial on the footing that the resolution of the construction question would determine whether there were “eligible employees” on site (or not) which would determine the validity of entry or authority to enter. The authority to enter, of course, is not determined by the construction question but rather whether the permit holders had the prescribed purpose. In approaching the question of whether contraventions of s 767 or s 768 arise on the evidence, the parties urged upon the Court a consideration of whether the officials acted reasonably in entering the premises and undertaking the post-entry discussions.

186    If it is assumed that the post-entry conduct of holding discussions consequent upon lawful entry was not authorised by s 760, a question remains whether the officials acted recklessly in giving the relevant employees the impression that they were authorised under Part 15 to hold those discussions.

187    Although the officials had reason to believe that they were not authorised to hold the post-entry discussions (assuming the correctness of the contended limitations in the grant), it is difficult to conclude that their conduct was “reckless”.

188    First, they lawfully acted upon the assumption that they had a right of entry by reason of the purpose they held under s 760.

189    Secondly, that assumption and purpose continued to inform their decision to hold the meetings, the purpose of their entry.

190    Thirdly, although reasonable grounds as to the post-entry conduct were before the officials to enable them to conclude that the X50 work was covered by the AWU agreement, that was a matter about which minds might nevertheless differ.

191    Fourthly, the notion of reasonable grounds to believe a particular matter informs a threshold of conduct which is significantly less than reckless conduct. The officials had sufficient information available to them to reasonably conclude that the Expansion Agreement covered the work on the X50 site and that Holland’s employees were covered by the AWU agreement for the purposes of s 760. It follows that the officials unreasonably thought otherwise. They were wrong about the construction question as to coverage but not reckless in the views they held having regard to the basis upon which they had the prescribed purpose which continued to inform and actuate their conduct in holding the discussions.

192    They had a right of entry and they believed that right conferred authority to hold the discussions. Since the officials entered the site lawfully, acting upon the purpose they had formed, the post-entry conduct in the context of the considerations mentioned above, does not constitute a reckless disregard of whether the employees would get a false impression as to the right of the officials to engage in the discussions the subject of their lawful entry.

193    In any event, the Court has found that s 760 conferred upon them authority to enter and to give expression to the purpose of entry by holding the discussions the subject of the purpose.

Conclusion

194    It follows that no contravention of either s 767(1) or s 768(1) is made out on the evidence applying the Briginshaw v Briginshaw (1938) 60 CLR 336 standard, having regard to the observations of the Full Court as to the operation of the relevant sections in CFMEU v John Holland [2010] FCAFC 90.

Associate:

Dated:    8 July 2011