FEDERAL COURT OF AUSTRALIA

Ramsay v Sunbuild Pty Ltd [2014] FCA 54

THE COURT ORDERS THAT:

1.    The parties provide a set of orders that give effect to these reasons by 4.00 pm on 14 February 2014.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Two separate questions are posed

1    On the application of Sunbuild Pty Ltd, the respondent, I ordered that the following questions that have arisen in these proceedings be decided as separate questions under r 30.01 of the Federal Court Rules 2011:

(a)    In the circumstances as alleged in the amended statement of claim, were any of the applicants a “permit holder who is entitled to enter” the site, as defined in the amended statement of claim, “in accordance with this Part” within the meaning of s 501 of the Fair Work Act 2009 (Cth) (the FWA)?

(b)    In the circumstances as alleged in the amended statement of claim, were any of the applicants a “permit holder exercising rights in accordance with this Part” within the meaning of s 502 of the FWA?

2    For the reasons that follow, the answers to these questions are:

(a)    On the assumption that each of the applicants complied with all of the provisions of Division 3 of Part 3–4 of the FWA, yes, all of the applicants were permit holders who were entitled to enter Sunbuild’s worksite in accordance with Part 3–4 within the meaning of s 501 of the FWA; and

(b)    On the assumption that all of the applicants complied with all of the provisions of Division 3 of Part 3–4 of the FWA, yes, all of the applicants were permit holders exercising rights in accordance with Part 3–4 within the meaning of s 502(1) of the FWA.

3    As may be apparent from their terms, these questions raise two relatively narrow points of statutory construction involving ss 501 and 502 of the FWA. Before embarking on that exercise it is appropriate to briefly outline the factual context in which these questions arise. In doing so I will, as both parties submitted I should, assume that the applicants will be able to establish at trial all of the factual allegations they have pleaded in their amended statement of claim. However, as will be obvious from the answers to the two questions above, and as will appear a number of times in these reasons, the amended statement of claim does not plead all of the facts material to the applicants’ claim. Nonetheless, during the hearing of this matter, Mr Wyvill SC, for Sunbuild, stated that his client wanted this matter to be dealt with on the substance of the issues raised and not to be waylaid by pleadings issues. Consistent with this attitude, I have proceeded to make assumptions about a number of unpleaded matters, in most cases based on the facts that have been pleaded. In the process, I have been careful to ensure that I am not being asked to determine any hypothetical questions. While this approach is not entirely satisfactory, it has allowed me to determine these questions in these proceedings as quickly, inexpensively and efficiently as possible in keeping with the tenets of Part VB of the Federal Court of Australia Act 1976 (Cth).

Three attempts were made to enter Sunbuild’s worksite

4    The four applicants are all officers of the Construction, Forestry, Mining and Energy Union (CFMEU). At the time of the events in issue in these proceedings, each of them held an entry permit issued under s 512 of the FWA and a Work Health and Safety entry permit issued under s 134 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (the WHS Act).

5    Between June and July 2013, Sunbuild was engaged in demolition work at a site at the corner of Smith and Bennett Streets in the central business district of Darwin. On three separate occasions in that period the applicants attempted to enter Sunbuild’s worksite to inspect it: Mr Ramsay and Mr Huddy separately on one occasion each; and Mr Vink and Mr Mitchell together on the third occasion. On each occasion the applicants claimed to hold a reasonable suspicion that Sunbuild was contravening the WHS Act, specifically they suspected that the workers on that site were being exposed to asbestos. All four applicants were refused entry to the site, although Mr Ramsay and Mr Huddy each eventually gained entry. Mr Huddy did so twice on the same occasion.

6    On the occasion Mr Ramsay gained entry to the worksite, he claims a water sprinkler was turned on and directed at him and he was later told that the police would be called. On the occasion of Mr Huddy’s entry to the worksite, he claims he produced his WHS entry permit to the construction manager and requested a copy of any safe disposal plan that had been prepared in relation to any asbestos on the site. He claims that this request was refused and he was then told to leave the site, following which he was yelled at, pushed and shoved. At about the same time, he claims an evacuation siren was sounded and he then left the site. He returned to the site a short time later and while there spent approximately 20 minutes taking notes and photographs. At the end of that period, two Northern Territory Work Safe inspectors and a Northern Territory police officer arrived at the site and Mr Huddy left with them.

7    As a consequence of these events, Mr Ramsay and his fellow applicants (who I will refer to jointly in the balance of these reasons as Mr Ramsay, except where the context requires otherwise) commenced these proceedings alleging that Sunbuild had contravened ss 501 and 502(1) of the FWA. By way of relief, they seek declarations, injunctions and penalties which they seek to have payable to them, relying upon ss 539 and 546 of the FWA.

8    In his amended statement of claim, Mr Ramsay pleads that s 117 of the WHS Act provides a right to enter a “workplace” to inquire into a suspected contravention of the WHS Act which affects “relevant” workers on that workplace. The definitions in the WHS Act of the expressions “workplace” and “relevant worker” are set out at [62] below. During the hearing of this matter, Mr Friend SC, for Mr Ramsay, stated that Mr Ramsay would, in due course, seek to further amend his amended statement of claim to plead that he and his fellow applicants also had a right of entry to the Sunbuild worksite in accordance with s 494 of the FWA. Mr Wyvill did not oppose my dealing with this matter on the basis that the amended statement of claim would be further amended in this manner, so that is the way I will proceed.

The critical provisions of the FWA and the WHS Act

9    Sections 501 and 502 of the FWA provide:

501    Person must not refuse or delay entry

    A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

Note:    This section is a civil remedy provision (see Part 4-1).

502    Person must not hinder or obstruct permit holder

(1)    A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.

(3)    Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.

10    Section 494 of the FWA provides:

Official must be permit holder

(1)    An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.

Note:    This subsection is a civil remedy provision (see Part 4–1).

Meaning of State or Territory OHS right

(2)    A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises, is a State or Territory OHS right if the right is conferred by a State or Territory OHS law, and:

(a)    the premises are occupied or otherwise controlled by any of the following:

(i)    a constitutional corporation;

(ii)    a body corporate incorporated in a Territory;

(iii)    the Commonwealth;

(iv)    a Commonwealth authority; or

(b)    the premises are located in a Territory; or

(c)    the premises are, or are located in, a Commonwealth place; or

(d)    the right relates to requirements to be met, action taken, or activity undertaken or controlled, by any of the following in its capacity as an employer:

(i)    a constitutional corporation;

(ii)    a body corporate incorporated in a Territory;

(iii)    the Commonwealth;

(iv)    a Commonwealth authority; or

(e)    the right relates to requirements to be met, action taken, or activity undertaken or controlled, by an employee of, or an independent contractor providing services for, any of the following:

(i)    a constitutional corporation;

(ii)    a body corporate incorporated in a Territory;

(iii)    the Commonwealth;

(iv)    a Commonwealth authority; or

(f)    the exercise of the right will have a direct effect on any of the following in its capacity as an employer:

(i)    a constitutional corporation;

(ii)    a body corporate incorporated in a Territory;

(iii)    the Commonwealth;

(iv)    a Commonwealth authority; or

(g)    the exercise of the right will have a direct effect on a person who is employed by, or who is an independent contractor providing services for, any of the following:

(i)    a constitutional corporation;

    (ii)    a body corporate incorporated in a Territory;

    (iii)    the Commonwealth;

    (iv)    a Commonwealth authority.

Meaning of State or Territory OHS law

(3)    A State or Territory OHS law is a law of a State or a Territory prescribed by the regulations.

(Emphasis in original)

11    Section 117 of the WHS Act provides:

(1)    A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

(2)    The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

The competing constructions of sections 501 and 502(1) of the FWA

12    Mr Wyvill submitted that ss 501 and 502(1) could not apply to Mr Ramsay because those sections only applied if he was entitled to enter Sunbuild’s worksite “in accordance with this Part”, or if he was exercising rights “in accordance with this Part” respectively. Mr Wyvill contended that Mr Ramsay’s entitlement to enter Sunbuild’s worksite did not arise under Part 3–4 of the FWA because that Part did not provide for any entitlement to enter Sunbuild’s site for occupational health and safety (OHS) purposes. For the same reason, he submitted, Mr Ramsay was not exercising any rights in accordance with Part 3–4 of the FWA. He submitted that Division 3 of Part 3–4 (ss 494 to 499 inclusive), could not be read as conferring any such entitlement or right. Rather, he submitted that Division 3 was concerned with “the regulation of the exercise of rights or entitlements that arise outside the [FWA]”. He submitted that the only freestanding entitlement or right of entry to Sunbuild’s worksite for OHS purposes was that contained in s 117 of the WHS Act. To support these submissions, he relied upon the Explanatory Memorandum to the Bill introducing the FWA, which provided:

1975. [Division 3] imposes additional requirements on permit holders exercising a right of entry under State or Territory OHS legislation. It does not override entry rights under these laws. These rights are expressly saved by clause 27. State and Territory OHS laws contain their own conditions which can be imposed on permit holders exercising OHS rights of entry. These conditions continue to apply.

1976. This Division does not confer additional rights of entry on permit holders.

13    Further, Mr Wyvill submitted that ss 144 and 145 of the WHS Act were the equivalent provisions to ss 501 and 502(1) of the FWA respectively. He noted that both ss 144 and 145 were identified in s 254 of the WHS Act as WHS civil penalty provisions. This was significant, so he submitted, because s 260 of the WHS Act provides that only the regulator or an inspector may bring proceedings for a contravention of a WHS civil penalty provision. Mr Wyvill submitted that this provision was consistent with the Second Report to the Workplace Relations Minister’s Council on the National Review into Model Occupational Health and Safety Laws (the Second Model OHS Laws Report) submitted to the Commonwealth Minister for Employment and Workplace Relations on 30 January 2009. Mr Wyvill noted that recommendation 224 of the Second Model OHS Laws Report was to the effect that the Model OHS laws then under consideration should provide that “only an official who is acting in the course of a public office or duty may bring a prosecution for a breach of the Act”. Mr Wyvill also relied upon s 267 of the WHS Act, which relevantly provides that nothing in that Act is to be construed as “conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act”. Since the FWA provides a right to a person affected to bring civil proceedings for a contravention of, among many other provisions, ss 501 and 502(1) of the FWA (see at [70] below), Mr Wyvill submitted that if Mr Ramsay’s construction of those provisions is correct, there would be a lack of harmony or a clash between the FWA and the Model OHS laws process, of which both the Commonwealth and Northern Territory were a part. He submitted this could not have been intended. Mr Wyvill referred to a number of authorities dealing with issues of inconsistency or repugnancy between Commonwealth and Territory laws, in particular Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 (Momcilovic). Based on these submissions, Mr Wyvill submitted that the answer to both of the separate questions above must be “no”.

14    Mr Friend submitted that, reading Part 3–4 of the FWA as a whole and particularly having regard to the objects of that Part as set out in s 480, the combined effect of ss 494 and 512 within that Part was to grant to Mr Ramsay an entitlement to enter Sunbuild’s worksite for OHS purposes. Since this right of entry was dependent upon these provisions of the FWA, Mr Friend submitted that the FWA created “a different type of right of entry” from that in the WHS Act. That being so, Mr Friend submitted Mr Ramsay was able to enforce that right under ss 501 and 502 of the FWA. He submitted that in this respect the FWA operated concurrently with the WHS Act.

15    In the alternative, Mr Friend submitted that, even if Mr Ramsay did not have an independent right of entry under the FWA, ss 501 and 502(1) nevertheless applied in the circumstances of this case because Division 3 of Part 3–4 of the FWA regulated his right of entry under the WHS Act by providing in s 494(1) that he could not exercise that right unless he had an entry permit under the FWA. He submitted that this requirement and the related requirements in ss 495 to 499 of the FWA were sufficient to satisfy the words “in accordance with this Part” in ss 501 and 502(1). In support of these submissions, Mr Friend relied upon three decisions dealing with subsections 767(1) and (3) of the Workplace Relations Act 1996 (Cth) (the Workplace Relations Act), one of the predecessor Acts to the FWA. Section 767(1) was the loose equivalent of s 500 of the FWA (see [53] below) and s 767(3) was the loose equivalent of s 501 (see [9] above). Section 767 relevantly provided:

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

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

(b)    under an OHS law in accordance with section 756 or 757;

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

…

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

(a)    under section 747, subsection 748(8) or (10) or section 760; or

(b)    under an OHS law in accordance with section 756.

16    Section 756 of the Workplace Relations Act (mentioned in (1)(b) and (3)(b) above) was to similar effect as s 494 of the FWA. It provided:

(1)    An official of an organisation who has a right under an OHS law to enter premises must not exercise that right unless the official:

(a)    holds a permit under this Part; and

(b)    exercises the right during working hours.

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

Note:    See Division 8 for enforcement.

17    First, in support of his submission that the combined effect of ss 494 and 512 of the FWA was to create an independent right of entry to Sunbuild’s worksite, Mr Friend relied upon Darlaston v Parker (2010) 189 FCR 1; [2010] FCA 771 (Darlaston), where Flick J rejected a submission that the applicants did not have a right of entry under an OHS law to enter premises for the purposes of s 756 of the Workplace Relations Act and said (at [80]):

The submission advanced on behalf of the applicant is thus accepted. It is not considered that the decision in John Holland is now a bar to a conclusion, should it be necessary, that Messrs Hanlon, Kera and Mitchell had a right of entry. It is now clear that Messrs Hanlon, Kera and Mitchell did have a right of entry for the purposes of the State and Commonwealth legislation.

(Bold emphasis added)

18    Based on this passage, Mr Friend submitted that Flick J had held that there was a right of entry under both the Workplace Relations Act and a separate right of entry under the applicable State OHS legislation.

19    Secondly, in support of his alternative argument, Mr Friend relied upon Setka v Gregor (No 2) (2011) 195 FCR 203; [2011] FCAFC 90 (Setka) at [21] where Lander, Tracey and Yates JJ stated:

… s 756(1) did not create or confer a right but rather, as the Federal Magistrate rightly noted, assumed the existence of a right and regulated its exercise. The relevant right was conferred by the OHS Act. ...

(Bold emphasis added)

20    Mr Friend submitted that there was no distinction between stating, as s 767 did, “under an OHS law in accordance with section 756 …” and stating, as s 501 does, “in accordance with this Part”.

21    Mr Friend also relied upon some similar observations made by another Full Court in Hogan v Riley (2010) 182 FCR 583; [2010] FCAFC 30 (Hogan) per Finn, Lander and Jessup JJ at [17], as follows:

In our view, the federal magistrate was in error to hold that the operation of subs (3) of s 767 was conditional upon the relevant permit holder complying with subs (1). Subsection (3) takes as its starting point the existence of an entitlement to enter arising under an OHS law. The provisions of s 767 appear to be drawn carefully so as not to interfere with, or to qualify, that entitlement. They regulate the behaviour of those who would seek to exercise that entitlement, and of those whose co-operation is necessary to render it effective. While we do not agree with the federal magistrate that the two subsections are to be regarded as “mirror provisions”, we agree with his Honour that they deal with the conduct both of permit holders and of those who may be in a position to impede or obstruct entry to premises. The two subsections do, however, establish free-standing norms of conduct, the operation of neither being dependent upon compliance (by the person who would presumptively benefit) with the other.

(Emphasis added)

22    Mr Friend submitted that the objects of Part 3–4 of the FWA set out in s 480 (see at [45] below) supported this alternative argument. In response to Mr Wyvill’s submissions about the limitation contained in s 260 of the WHS Act as to who may bring proceedings for a contravention of a WHS Act civil penalty provision, Mr Friend submitted that the Commonwealth FWA cannot be construed by reference to the provisions of the Territory WHS Act. In any event, he submitted that, on this aspect, there was no inconsistency or disharmony between the two pieces of legislation. To the contrary, he submitted that s 263 of the WHS Act contained a clear recognition that a person may be pursued under either the WHS Act or the FWA in relation to substantially the same conduct. Section 263 of the WHS Act provides:

A court must not make an order against a person under section 259 for contravention of a WHS civil penalty provision if an order has been made against the person under a civil penalty provision under an Act of the Commonwealth or a State in relation to conduct that is substantially the same as the conduct constituting the contravention.

23    In reply, Mr Wyvill submitted that any decision under the Workplace Relations Act must be approached with caution because it involved different wording, noting that s 767 specifically referred to a right of entry “under an OHS law”. He submitted that terminology was significantly different to “in accordance with this Part” in ss 501 and 502(1) of the FWA. Mr Wyvill also submitted that s 263 of the WHS Act was directed to double jeopardy under the equivalent model laws in force in other jurisdictions, and not to a contravention of the FWA.

The exercise in statutory construction – text, context and general purpose

24    It is now well-established that legislative provisions like ss 501 and 502(1) must be construed “by reference to the language of the instrument viewed as a whole”; by considering: “the context, the general purpose and policy of a provision and its consistency and fairness…”, and beginning by: “… examining the context of the provision that is being construed”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]. Further, “[t]he language which has actually been employed in the text of the legislation is the surest guide to legislative intention” and historical considerations and extrinsic materials “cannot be relied upon to displace [its] clear meaning”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].

A complex legislative and statutory context

25    Before turning to examine the text of these two provisions, it is appropriate to outline in a little detail the complex legislative and statutory context in which they exist.

26    Plainly, the FWA is a piece of Commonwealth legislation. Its objects are described in s 3 to include:

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a)    providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

27    The FWA is divided into six chapters, the most significant of which, for present purposes, are (see s 4(1) of the FWA):

(a)    Chapter 2, which provides for terms and conditions of employment;

(b)    Chapter 3, which sets out rights and responsibilities of employees, employers and organisations in relation to that employment;

(c)    Chapter 4, which provides for compliance with, and enforcement of, the FWA; and

(d)    Chapter 5, which provides for the administration of the FWA by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman.

28    Sections 501 and 502 of the FWA appear in Chapter 3. The content of that Chapter is described in s 6(1) of the FWA in these terms:

Chapter 3 sets out rights and responsibilities of national system employees, national system employers, organisations and others (such as independent contractors and industrial associations).

29    It is divided into six parts. The apposite part for present purposes is Part 3–4. That Part is stated in s 6(5) of the FWA to be:

… about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws. In exercising those rights, permit holders must comply with the requirements set out in the Part.

30    The constitutional foundation for the FWA stems from the definitions of the expressions “national system employee” and “national system employer” in ss 13 and 14. First, a “national system employee” is defined in s 13 to mean an individual who “is employed, or usually employed, … by a national system employer”. Then, national system employer is defined in s 14(1) as follows:

A national system employer is:

(a)    a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b)    the Commonwealth, so far as it employs, or usually employs, an individual; or

(c)    a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d)    a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i)    a flight crew officer; or

(ii)    a maritime employee; or

(iii)    a waterside worker; or

(e)    a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f)    a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

(Notes omitted)

31    These expressions are given an extended meaning by ss 30C and 30D of the FWA, but it is not necessary to consider those provisions for present purposes. The expressions “constitutional corporation”, in paragraph (a) above, and “constitutional trade or commerce”, in paragraph (d) above, are defined in s 12 of the FWA, as follows:

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

(a)    between Australia and a place outside Australia; or

(b)    among the States; or

(c)    between a State and a Territory; or

(d)    between 2 Territories; or

(e)    within a Territory.

32    It is apparent from their terms that these provisions variously rely upon what is commonly described as the corporations power in s 51(xx) of the Constitution (in relation to s 14(1)(a)), the trade and commerce power in s 51(i) of the Constitution (in relation to s 14(1)(d)) and the Territories power in s 122 of the Constitution (in relation to s 14(1)(e) and s 14(1)(f)). Substantially identical provisions to these were considered by the High Court in New South Wales v Commonwealth of Australia (2006) 229 CLR 1; [2006] HCA 52 (the Work Choices case): see at [8]. As its name implies, that case involved the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the Work Choices Act) which was the immediate predecessor to the FWA. In the Work Choices case, all of the plaintiffs’ challenges to the constitutional validity of the Work Choices Act, including provisions that were substantially equivalent to ss 13 and 14 above, were rejected: see at [422]. Specifically, in relation to the reliance on the corporations power, see at [197]–[198] and, in relation to the use of the Territories power, see at [337] and [343].

33    In addition to founding the FWA on these constitutional heads of power, the FWA contains an express intention on behalf of the Commonwealth Parliament to “cover the field” with this legislation: see Northern Territory v GPAO (1999) 196 CLR 553 (GPAO) at [53], the Work Choices case at [365] and Momcilovic at [475] per Heydon J. It does that in Part 1–3 of Chapter 1 under the heading “Application of this Act”. That Part includes Division 2 (ss 26 to 30) under the heading “Interaction with State and Territory laws”. Section 26(1) provides:

This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

34    The expression “State or Territory industrial law” is defined quite broadly in s 26(2) to be:

(a)    a general State industrial law; or

(b)    an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

(i)    regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);

(ii)    providing for the establishment or enforcement of terms and conditions of employment;

(iii)    providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;

(iv)    prohibiting conduct relating to a person’s membership or non‑membership of an industrial association;

(v)    providing for rights and remedies connected with the termination of employment;

(vi)    providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or

(c)    a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or

(d)    a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or

(e)    a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or

(f)    a law of a State or Territory that entitles a representative of a trade union to enter premises; or

(g)    an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or

(h)    either of the following:

(i)    a law that is a law of a State or Territory;

(ii)    an instrument of a legislative character made under such a law;

that is prescribed by the regulations.

35    Subsection 26(2)(f) above is obviously particularly germane for present purposes.

36    Furthermore, s 26(4) of the FWA provides that:

A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

(a)    all employers and employees in the State or Territory; or

(b)    all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.

37    If that was where this issue was left, s 26 of the FWA would clearly operate to apply to the exclusion of any rights of entry provided for in State or Territory legislation, for example, under s 117 of the WHS Act. In that event, s 109 of the Constitution would apply to exclude the effect of inconsistent State legislation (see GPAO at [53] and [57]) and, in the case of the Northern Territory, a similar outcome would likely follow from the construction of the later enactment: the FWA, as it affected the legislative power of the Northern Territory under the relevant provisions of the earlier enactment: the Northern Territory (Self-Government) Act 1978 (Cth) (the Self-Government Act): see GPAO at [54] and [60]–[61] and the authorities quoted by Mildren J in Rockman v Smallridge (2012) 33 NTLR 56; [2012] NTSC 56 (Rockman) at [18]–[24].

38    On this point, it is also worth adding that, from the outset of self-government, s 53 of the Self-Government Act contained a number of limitations on the power of the Northern Territory Legislative Assembly to make laws about industrial matters. For example, ss 53(5) prevented the Northern Territory Legislature from “conferring on any court, tribunal, board, body, person or other authority in power with reference to the hearing and determining of disputes, claims, or matters relating to terms and conditions of employment”.

39    However, the operation of s 26 of the FWA is qualified by s 27. That section identifies a number of State and Territory laws that are not excluded by the operation of s 26. In particular, s 27(1) provides:

Section 26 does not apply to a law of a State or Territory so far as:

(b) (sic)    the law is prescribed by the regulations as a law to which section 26 does not apply; or

(c)    the law deals with any non‑excluded matters; or

(d)    the law deals with rights or remedies incidental to:

(i)    any law referred to in subsection (1A); or

(ii)    any matter dealt with by a law to which paragraph (b) applies; or

(iii)    any non‑excluded matters.

Note:    Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers.

40    The expression “non-excluded matters” is defined in s 27(2) to include, among many other things: “(c) occupational health and safety”. It should also be noted that, while s 27(2)(p) of the FWA includes as “non-excluded matters” any other matters prescribed by the regulations, no relevant matters have been prescribed.

41    Interestingly, the corresponding provision to s 27(2)(c) above in the Workplace Relations Act (s 16(3)(c)) provided: “occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety)”. Further still, the note to that section stated that:

Part 15 (Right of Entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law in a State or Territory. The prerequisites apply even though the law deals with such entry for a purpose connected with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that.

Part 15 of the Workplace Relations Act contained the provisions of that Act that were referred to in the decisions relied upon by Mr Friend in his submissions, eg ss 756 and 767 (see at [17]–[21] above).

42    On this aspect, it is also worth highlighting the note below s 27(1) of the FWA (see at [39] above). That note expressly identifies an entry to premises for the purpose described in s 27(2)(c) above (see at [40] above), viz occupational health and safety, as a matter that is incidental to that non-excluded matter notwithstanding the identification in s 26(2)(f) (see at [34] above) of a law providing for entry to premises by a trade union representative, as a State or Territory industrial law that was intended to be excluded by the provisions of s 26(1). It should also be noted that the corresponding provision to s 26(2)(f) of the FWA in the Workplace Relations Act (s 16(1)(e)) was in substantially identical terms.

43    Since the Northern Territory’s WHS Act deals with occupational health and safety, it follows that the WHS Act deals with a non-excluded matter under s 27(2)(c) and is therefore not caught by the provisions of s 26. It follows further from these provisions, as the heading to Division 2 of Part 3–4 implies (see at [33] above), that in relation to this particular matter, the Commonwealth’s FWA and the Northern Territory’s WHS Act are intended to operate interactively.

The particular statutory context of PART 3–4 OF THE FWA

44    As mentioned above, the two provisions in question in these proceedings appear in Part 3–4 of the FWA. That Part is entitled “Right of entry”. It is divided into six Divisions as follows:

(a)    Division 1 – Introduction

(b)    Division 2 – Entry rights under this Act

(c)    Division 3 – State or Territory OHS rights

(d)    Division 4 – Prohibitions

(e)    Division 5 – Powers of the FWC

(f)    Division 6 – Entry permits, entry notices and certificates.

45    The object of Part 3–4 of the FWA is stated in s 480 as follows:

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a)    the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i)    this Act and fair work instruments; and

(ii)    State or Territory OHS laws; and

(b)    the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c)    the right of occupiers of premises and employers to go about their business without undue inconvenience.

46    Division 2 which, as noted above (at [44]), is entitled “Entry rights under this Act”, contains a number of provisions which define the circumstances in which premises may be entered for the purposes of the FWA. An example is s 481, which deals with an entry to premises to investigate a suspected contravention of the FWA, or a term of a Fair Work instrument. It relevantly provides:

(1)    A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:

(a)    whose industrial interests the organisation is entitled to represent; and

(b)    who performs work on the premises.

(2)    The fair work instrument must apply or have applied to the member.

(3)    The permit holder must reasonably suspect that the contravention has occurred, or is occurring. The burden of proving that the suspicion is reasonable lies on the person asserting that fact.

(Notes omitted)    

47    Section 482 of the FWA then provides what rights a permit holder may exercise when he or she is on the premises. They extend to the following (see s 482(1)(a) – (c) inclusive):

(a)    inspect any work, process or object relevant to the suspected contravention;

(b)    interview any person about the suspected contravention:

(i)    who agrees to be interviewed; and

(ii)    whose industrial interests the permit holder’s organisation is entitled to represent;

(c)    require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non‑member record or document) that is directly relevant to the suspected contravention and that:

(i)    is kept on the premises; or

(ii)    is accessible from a computer that is kept on the premises.

(Notes omitted)

In addition to these rights, s 483 of the FWA allows a permit holder to give written notice requiring an affected employer to produce, or provide access to, a record or document that is directly relevant to the suspected contravention, either at the premises, or at another place agreed upon by the permit holder and the affected employer. The expression “affected employer” is defined in s 482(2).

48    Similar provisions to ss 481 to 483 are found in ss 483A to 483C respectively, relating to the investigation of suspected contraventions affecting TCF (Textile, Clothing and Footwear) award workers.

49    Finally, apart from these investigation-related entries to premises, s 484 allows a permit holder to enter premises for the purposes of holding discussions with employees or TCF award workers in the particular circumstances described therein.

50    After describing the circumstances in which a permit holder may enter premises for the various purposes as described above and the rights that may be exercised in connection therewith, ss 486 to 493 of Division 2 contain a number of requirements with which a permit holder has to comply when entering or remaining on premises under those provisions. Those requirements include: under s 487, giving an entry notice which complies with s 518; under s 488, complying with any conditions of a permit holder’s permit; under s 489, if requested to do so or if inspecting/accessing documents, producing his or her authority documents for inspection; under s 490, only entering during working hours (see 490(1)), or during mealtimes or other breaks if entering under s 484 (see s 490(2)); and under s 491, complying with any reasonable request of the occupier to comply with an OHS requirement applying to the premises.

51    Turning then to Division 3 of Part 3–4 (ss 494 to 499), as is noted above (at [44]) it is entitled “State or Territory OHS rights”. The first provision of Division 3, s 494, is particularly important for present purposes. Unlike ss 481, 483A and 484 (see at [46], [48] and [49] above respectively), s 494 does not expressly permit a person to enter premises and exercise rights thereon. Instead, it places a prohibition on the exercise of a State or Territory OHS right. It provides: “An official of an organisation must not exercise [that right] unless the official is a permit holder.” The right concerned is described in s 494(2) as “A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises …” and that right is then defined as a “State or Territory OHS right”, if it is conferred by a State or Territory OHS law and the premises, the right concerned, or the exercise of that right is connected with one of the circumstances described in s 494(2), cf the constitutional foundations for the FWA discussed at [30]–[32] above. In this matter, the most obvious connecting circumstance is that Sunbuild’s worksite was located in the Northern Territory: see s 494(2)(b). The expression “State or Territory OHS law” is defined in s 494(3) to mean a law prescribed by the regulations. The WHS Act is prescribed as such in reg 3.25 of the Fair Work Regulations 2009 (Cth). It follows that the right of entry in s 117 of the WHS Act is a Territory OHS right to which the prohibition in s 494(1) applies.

52    The balance of Division 3 of Part 3–4 sets out a series of requirements similar to those set out in Division 2 (see [50] above) including: under s 495 (cf s 487), giving at least 24 hours’ written notice before exercising a right to inspect employee records (but, it should be noted, not an entry notice under s 518); under s 496 (cf s 488), complying with any conditions of a permit holders entry permit; under s 497 (cf s 489), if requested to do so, producing his or her entry permit for inspection; under s 498 (cf s 490), only entering during working hours; and under 499 (cf s 491), complying with any reasonable request of the occupier to comply with an OHS requirement applying to the premises.

53    Some of the more important provisions of the remaining Divisions of Part 3–4 of the FWA need to be mentioned. First, Division 4 is entitled “Prohibitions”. As well as ss 501 and 502, it contains s 500 which is relevant for present purposes. It provides:

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note 1:    This section is a civil remedy provision (see Part 4–1).

(Other notes omitted)

54    The note to this section raises a matter that was mentioned by Mr Wyvill in submissions. Many of these provisions, including ss 494(1), 501 and 502(1) of the FWA, are similarly expressed to be civil remedy provisions under Part 4–1 of the FWA. That Part includes s 539, which sets out a table of sections of the FWA that may be enforced as civil remedy provisions by a confined group of persons (see at [70] below). Item 25 of that table, under the heading “Part 3–4 – Right of Entry”, identifies, among other provisions, ss 494(1), 495(1), 496, 497, 498, 499, 500, 501 and 502(1) as such provisions.

55    Division 5 of Part 3–4 describes various powers of the Fair Work Commission (FWC). They include the powers to deal with disputes about the operation of Part 3–4 (s 505), to take action against permit holders (s 507) and to revoke, or suspend, entry permits (s 510).

56    Finally, the expression “permit holder” is defined in s 12 of the FWA to mean: “a person who holds an entry permit.” Then, for the meaning of the expression “entry permit”, one is directed to s 512. That section appears in Division 6 of Part 3–4. It allows the FWC to issue an entry permit to an “official of an organisation” upon application being made to it by an “organisation”. The expression “organisation” is defined in s 12 of the FWA to mean an organisation registered under the Registered Organisations Act. The latter expression is in turn defined in s 12 of the FWA to mean the Fair Work (Registered Organisations) Act 2009 (Cth). Before issuing an entry permit to an official of such an organisation, the FWC has to be satisfied that the official is a fit and proper person to hold a permit: see s 512. In doing so it has to take into account the matters set out in s 513(1) including: whether the official has received appropriate training about the rights and responsibilities of a permit holder; whether the official has ever been convicted of an offence against an industrial law, or a law of the Commonwealth, State or a Territory or a foreign country involving entry to premises, fraud, dishonesty, intentional use of violence against another person, intentional damage or destruction of property; whether the official, or any other person, has ever been ordered to pay a penalty under the FWA or any other industrial law in relation to action taken by the official; and “any other matters that the FWC considers relevant.”

57    At this point, it is appropriate to interpolate that there is no allegation in the amended statement of claim that Mr Ramsay and his fellow applicants were “officials of an organisation” within these provisions of the FWA. However, it is alleged that all four applicants held an entry permit under s 512 of the FWA (see at [4] above). As is noted above, in order to obtain an entry permit under s 512 of the FWA, the CFMEU must have been an “organisation” under the provisions of the FWA when the applications for those permits were made. That is, the CFMEU must have been registered as an organisation under the Registered Organisations Act. Taking into account these matters, I will assume that the CFMEU is registered as an organisation under the Registered Organisations Act and is therefore an “organisation” under the provisions of the FWA. Furthermore, I will also assume that each of the applicants must have been “officials” of the CFMEU, as that expression is defined in s 12 of the FWA. It should be added that the fact that Mr Ramsay and his fellow applicants were “officers” within the meaning of the WHS Act is pleaded in the amended statement of claim, but their status in that respect is not germane to the pertinent provisions of that Act.

58    Before leaving Part 3–4 of the FWA, it is worth recording that substantially identical provisions to these provisions were also unsuccessfully challenged in the Work Choices case: see at [279]–[287].

Some further context in THE WHS ACT

59    The other component of this interactive legislative relationship between Commonwealth and Northern Territory laws on OHS matters is obviously the Northern Territory’s WHS Act. As its title suggests (see [4] above), the WHS Act is a part of the national Model OHS laws scheme mentioned above (see at [13]). The history of that scheme was outlined by the Minister in her second reading speech on the Bill for the WHS Act in the Northern Territory Legislative Assembly, as follows:

On 3 July 2008, the Northern Territory, along with the Commonwealth and the other states and territories, signed the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA). The IGA provides for the harmonisation of workplace health and safety laws by way of model legislation and for the establishment of Safe Work Australia.

… Since Safe Work Australia was established in September 2009, it has led to the development of a National Model Work Health and Safety Bill, the National Model Bill, under the auspices of the Workplace Relations Ministerial Council.

The development of the National Model Bill followed a comprehensive review of Australia’s occupational health and safety laws by a panel of independent experts. During the 2008 review, the panel consulted widely with business, and employer and union groups, took submissions from the public, and made a number of recommendations.

While the National Model Bill was being developed through Safe Work Australia, extensive consultation and negotiations were undertaken across the country.

…

All jurisdictions have progressed the drafting of the legislation, and in New South Wales, Queensland, and the Australian Capital Territory, the bills have passed. The bill is currently before the respective parliaments in South Australia, Tasmania, and the Commonwealth and is yet to be introduced in Western Australia and Victoria and, of course, here in the NT.

60    During the hearing of this matter, I was informed that, in addition to the Northern Territory and the three jurisdictions mentioned in the Minister’s speech (above), the national Model OHS law has now been passed in the Parliaments of South Australia, Tasmania and the Commonwealth: for the latter, see Work Health and Safety Act 2011 (Cth). However, it has not been passed in the Parliaments of Victoria or Western Australia.

61    The central provision of the WHS Act, for present purposes, is the right to enter a workplace contained in s 117. That section is already set out at [11] above and does not require repeating here. The contrasts with the terms of s 494 of the FWA will be noted (see at [10] and [51] above). Conversely, it is quite similar in its terms to ss 481, 483A and 484 of the FWA (see at [46], [48] and [49] above respectively) in that it gives a permit holder permission to enter a workplace for a stated purpose, in its case “inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker”.

62    The expression “workplace” is defined in s 8 of the WHS Act to mean: “a workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work”. The expression “relevant worker” is defined in s 116 of the WHS Act as:

… in relation to a workplace, means a worker:

(a)    who is a member, or eligible to be a member, of a relevant union; and

(b)    whose industrial interests the relevant union is entitled to represent; and

(c)    who works at that workplace.

63    The expression “relevant union” is defined in the same section to mean: “… the union that a WHS entry permit holder represents”. Finally, the expression “WHS entry permit holder” is defined in s 4 of the WHS Act to mean: “… a person who holds a WHS entry permit” and the expression “WHS entry permit” is defined in the same section to mean: “… a WHS entry permit issued under Part 7”.

64    While most of these expressions are pleaded in the amended statement of claim and it is also alleged that the persons employed on Sunbuild’s worksite were “eligible to be members of the CFMEU and the CFMEU was entitled to represent their interests …”, the facts necessary to bring Sunbuild’s worksite within the expression “workplace”, to bring the workers present at Sunbuild’s worksite within the expression “relevant worker”, and to bring the CFMEU within the expression “relevant union”, are not pleaded. Again, I will adopt Sunbuild’s urgings to address the substance of the issues in dispute in this matter and I will therefore assume that Mr Ramsay will ultimately further amend his statement of claim to allege the facts necessary to bring his case within all these defined terms.

65    Section 118 of the WHS Act is similar to ss 482 (see at [47] above) and 483B of the FWA. It describes the rights that may be exercised while a permit holder is at a workplace, as follows (see s 118(1)(a) – (e) inclusive):

While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act:

(a)    inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;

(b)    consult with the relevant workers in relation to the suspected contravention;

(c)    consult with the relevant person conducting a business or undertaking about the suspected contravention;

(d)    require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that:

(i)    is kept at the workplace; or

(ii)    is accessible from a computer that is kept at the workplace;

(e)    warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.

66    Section 119 provides that, with some exceptions, as soon as practicable after entering the workplace, the permit holder must give notice of the entry and the suspected contravention. Divisions 4 and 5 of Part 7 (ss 123 to 140 (inclusive)) describe the “[r]equirements for WHS entry permit holders” and “WHS entry permits”. They include a number of requirements about the exercise of the right of entry similar to those set out in Divisions 2 and 3 of Part 3–4 of the FWA: see at [50] and [52] above. In particular, under s 123, a permit holder must not contravene a condition of the WHS entry permit; under s 125, a permit holder must have his or her entry permit and photographic identification available for inspection on request; under s 126, a permit holder may only enter a workplace during usual working hours; and under s 128, a permit holder must comply with any reasonable request of the occupier to comply with an OHS requirement applying to the workplace.

67    Significantly, s 124 of the WHS Act contains a prohibition that is similar in effect to s 494(1) of the FWA (see at [51] above). It provides that: “A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the [FWA].” Consistent with this provision, to obtain a WHS entry permit s 133 of the WHS Act provides that an official concerned must: be “… an official of the union”: s 133(a); that he or she must “… [have] satisfactorily completed the prescribed training”: s 133(b); and that he or she must hold, or will hold “an entry permit under the [FWA]”: s 133(c).

68    A number of other provisions of the WHS Act are similar to the right of entry provisions in the FWA above. For example, as Mr Wyvill pointed out in his submissions, ss 144, 145 and 146 of the WHS Act are substantially similar to ss 501, 502 and 500 of the FWA respectively, although notably s 144 includes the words “without reasonable excuse” and ss 145 and 146 include the word “unreasonably”. Each of these three provisions is expressed to be a WHS civil penalty provision.

69    Turning to enforcement, s 255 of the WHS Act allows proceedings to be brought in the Northern Territory Work Health Court for a contravention of a WHS civil penalty provision. Importantly for Sunbuild’s case, s 255 is qualified by ss 260 and 267. As Mr Wyvill pointed out, s 260 provides that such proceedings may only be brought by the regulator or an inspector authorised by the regulator. And, s 267 relevantly provides:

Except as provided in Part 6 and Part 7 and Division 7 of this Part, nothing in this Act is to be construed as:

(a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act; or

…

70    Neither party disputed that the effect of ss 260 and 267 of the WHS Act was that Mr Ramsay himself was unable to bring proceedings against Sunbuild for a contravention of a civil penalty provision of the WHS Act. This is to be contrasted with the position under the FWA where the applicable item in the table contained in s 539 (Item 25) gives both “a person affected by the contravention” and “an inspector” the right to apply to the Federal Court of Australia or the Federal Circuit Court of Australia in relation to a contravention of the civil remedy provisions in, among many other provisions, ss 501 and 502(1) of the FWA.

71    Although it is not mentioned in the amended statement of claim, in his originating application Mr Ramsay relies upon s 539 to seek the imposition of penalties on Sunbuild so I will assume that he (and his fellow applicants) claims to be “a person affected by” the contraventions in question. On that assumption, s 539 of the FWA will apply to give him (and his fellow applicants) a personal right to bring these proceedings.

Sunbuild’s inconsistency or repugnancy argument is rejected

72    Before turning to identify the features of the context and purpose of Part 3–4 of the FWA that are pertinent to the construction of ss 501 and 502(1), it is convenient to deal first with Sunbuild’s inconsistency or repugnancy arguments (see [13] above). It is apt to begin that consideration with the broad purpose of the FWA. Section 3 of the FWA states that its object or purpose is, in part, to provide a framework for workplace relations that, among other things, provides “… workplace relations laws that are fair to working Australians, are flexible for businesses, [and] promote productivity and economic growth for Australia’s future economic prosperity …”. The constitutional foundations for the FWA are contained in the definitions of the critical expressions in, among other sections, ss 12 to 14 inclusive. Substantially similar provisions to those were considered and upheld by the High Court in the Work Choices case.

73    The application of the FWA is set out in Part 1–3, the main operative provisions of which are ss 26 and 27. Section 26 makes it clear that the FWA is intended to “cover the field” to the exclusion of the State or Territory industrial laws defined in subs 26(2). However, in relation to the matters set out in s 27 of the FWA, the States and Territories are permitted to make laws which are intended to operate interactively with the laws of the Commonwealth. Occupational health and safety is one of those matters. Relying upon that warrant, the Northern Territory Legislative Assembly passed the WHS Act. In doing so, it used the national Model OHS law that had been adopted by the Commonwealth and most of the States and Territories (see [59]–[60] above). In that process, the Northern Territory Legislative Assembly obviously could not make laws dealing with industrial matters, or employment generally, as its power to do so is expressly excluded by s 26 of the FWA (cf the observations in the Work Choices case at [51]) and that limitation is reinforced by s 53 of the Self-Government Act. I should interpolate that there is no suggestion in this matter that any of the provisions of the WHS Act strays into any of those excluded areas.

74    Nonetheless, the paramount position of the Commonwealth Parliament in relation to industrial matters, elucidated above, makes it incontrovertible that the Commonwealth retains the exclusive power to make whatever industrial laws it considers are appropriate. Permitting the States or Territories to make laws on occupational, health and safety matters under s 27(2)(c) of the FWA does not, in my view, affect this paramount position, whether that relates to occupational, health and safety matters, or industrial law matters generally. It necessarily follows that, if the Commonwealth Parliament chose to make such laws in a way that gave rise to a relevant inconsistency or repugnancy with a law made by the Northern Territory Legislative Assembly – even the Northern Territory’s WHS Act – then clearly that law would give way to the Commonwealth law: see the various authorities cited in Rockman at [18]–[24].

75    However, it is unnecessary to consider that issue in this matter because neither s 260 of the WHS Act, nor any other provision of that Act pointed to by Sunbuild, falls into that category. Sunbuild did not (and could not) argue that s 260 of the WHS Act operated to prevent Mr Ramsay bringing proceedings under s 539 of the FWA. If it had, that may have given rise to the second of the three classes of inconsistency discussed by Gummow J in Momcilovic: see at [238]–[245], particularly at [242] and [243]. Since that argument was not put, this is not a situation such as arose in GPAO where a provision of a Northern Territory law had a direct effect on a provision of a Commonwealth law. In that case, a provision of the Community Welfare Act 1983 (NT) was relied upon by the manager of the Child and Family Protective Services unit within the relevant Northern Territory government department to refuse to produce documents under a subpoena issued by the Family Court of Australia under the Family Law Act 1975 (Cth) and Rules. In this respect, I should add that Sunbuild also did not argue that s 79 of the Judiciary Act 1903 (Cth) had any relevant effect on s 260 of the WHS Act, or on this issue more generally. Nor is this a situation where a Commonwealth Act has expressly modified the terms of a Northern Territory law, as happened in Rockman. Instead, the provisions of Part 3–4 of the FWA were intended to add requirements to those in the WHS Act without otherwise affecting them. This is confirmed by the Explanatory Memorandum to the Bill for the FWA. There, Division 3 of Part 3–4 was said to impose “additional requirements on permit holders exercising a right of entry under State or Territory OHS legislation”, whilst not overriding those rights, but expressly saving them: see at [12] above.

76    Instead, at its highest, Sunbuild’s case is that, on Mr Ramsay’s interpretation, there is a disharmony or clash between the provisions of s 260 of the WHS Act and s 539 of the FWA that is said to give rise to a relevant inconsistency or repugnancy. That is said to arise essentially because the former provision does not allow someone in Mr Ramsay’s position to bring proceedings for a contravention of the applicable provisions of the WHS Act, whereas the latter does for a contravention of the corresponding provisions of the FWA. For the reasons set out below, this characterisation of the relationship between the apposite provisions of these two pieces of legislation is, in my view, erroneous. Nonetheless, even if this disharmony or clash did amount to a relevant inconsistency or repugnancy between the FWA and the WHS Act, two things are relatively clear. First, the provisions of Part 3–4 of the FWA that are in contention in this case could not be characterised as laws dealing with OHS matters. Instead, as ss 6(1) and 6(5) of the FWA state (see at [28] and [29] above), and as the title to Part 3–4 clearly implies, they relate to a particular industrial matter, viz the rights of union officials to enter work premises. That this is, by nature, an industrial matter is apparent from the provisions of s 26(2)(f) of the FWA (see at [34] above). This analysis helps explain why the WHS Act defers to the FWA on this matter by provisions such as ss 124 and 133 (see at [67] above). It would therefore follow from the reasoning set out above (at [74]) that, in this situation, the provisions in Part 3–4 of the FWA would prevail. Secondly, I agree with Mr Friend’s submissions that, in the present circumstances, there is no basis upon which the provisions of the WHS Act could be used to construe the provisions of the FWA. This is so, in my view, even though the WHS Act is a part of the national Model OHS law scheme of which the Commonwealth is a part, evidenced by the fact that it has itself passed the national Model OHS law through the Commonwealth Parliament: see at [59]–[60] above. On this aspect, it is worth adding that Sunbuild does not suggest there is any relevant disharmony or clash between the provisions of the FWA and those of the Work Health and Safety Act 2011 (Cth), nor between the provisions of the latter and the WHS Act.

77    More fundamentally, I do not consider this so-called disharmony or clash amounts to a relevant inconsistency or repugnancy in the sense discussed in the authorities on this issue. All that has happened in the apposite provisions of these two pieces of legislation is that each Legislature has provided a different system for the enforcement of what are, essentially, procedural provisions within each relating to the rights of entry to premises by union officials. They are procedural provisions, in my view, because they only apply to the enforcement of a civil penalty provision under the WHS Act, or a civil remedy provision under the FWA. Moreover, neither has any application in relation to proceedings for the substantive offences under the WHS Act that are set out in Part 2 Division 5 (ss 30 to 34 inclusive). For those offences, the applicable enforcement provisions are those set out in Part 13 Division 1 (ss 230 to 233). If the FWA and the WHS Act had created different norms of conduct, criminal procedures, or levels of penalties, in relation to those offences, then that may have required a consideration of the issues discussed in Momcilovic. However, that is not the situation here.

78    The significant differences between the two systems of enforcement for these procedural provisions are as follows. First, as is noted above at [68], ss 144 to 146 of the WHS Act include unreasonableness as an element of the contravention. There is no such element in the contraventions described in ss 500 to 502 of the FWA. Secondly, s 144(2) of the WHS Act places a reverse evidential burden on the accused to show he or she had such a reasonable excuse. There is no similar reverse onus in s 501 of the FWA. Finally, there is a significant difference between the time limits set for the bringing of contravention proceedings. Section 544 of the FWA fixes that time limit at six years after the day on which the contravention occurred, whereas s 261 of the WHS Act fixes it at two years.

79    These different systems for the enforcement of the civil penalty, or civil remedy provisions of these two pieces of legislation operate as separate systems not having any obvious effect on the other, apart from the fact that the conduct constituting a contravention of both is similar, but importantly, not the same. Each Legislature has therefore chosen to adopt a different set of procedural rules which create some advantages and some disadvantages. Within this setting, I consider the difference between the right to bring proceedings under s 539 of the FWA and the limitation in s 260 of the WHS Act, falls into the same category. For these reasons, I do not consider there is any merit in Sunbuild’s argument that any disharmony or clash between these provisions of these two pieces of legislation (if it exists at all) gives rise to any relevant inconsistency or repugnancy.

80    Finally, on this aspect, it is necessary to deal with the submissions about the effect of ss 267 and 263 of the WHS Act. First, turning to s 267 of the WHS Act (set out at [69] above), for the reasons given above, I do not consider that provision could have any impact on the construction of any of the provisions of the FWA. Even if it could, Sunbuild did not point to any corresponding provision of the FWA whose construction might be affected by it. It is therefore unnecessary to determine whether that provision only applies to the enforcement of the civil penalty provisions in the WHS Act, or to a right of action in civil proceedings more generally. As to s 263 of the WHS Act, while it, too, could not be used in construing the provisions of the FWA, there is merit in the argument put on behalf of Mr Ramsay that this provision supports his position that the WHS Act effectively acknowledges the existence of these independent but parallel systems for the enforcement of the civil penalty, or civil remedy provisions, of the WHS Act and the FWA respectively. In this respect, I reject Mr Wyvill’s argument that s 263 of the WHS Act is solely directed to avoiding double jeopardy in proceedings for contraventions of the equivalent Model OHS laws in force in other jurisdictions. Specifically, the reference to “an Act of the Commonwealth” would, in my view, clearly encompass both the provisions of the Work Health and Safety Act 2011 (Cth) and the FWA.

The context and purpose of Part 3–4 of the FWA

81    It is now convenient to consider the context and purpose of Part 3–4 of the FWA before turning to consider the text of ss 501 and 502(1).

82    Section 480 of the FWA (see at [45] above) states that the object of Part 3–4 is to “establish a framework for officials of organisations to enter premises” which balances the rights of all the parties concerned: organisations, employees, employers and the occupiers of premises. The provisions of Part 3–4 of the FWA summarised above (at [44]–[58]) were therefore intended to constitute that “framework”. Within that framework, Division 2 and Division 3 of Part 3–4 of the FWA operate quite differently. The former grants various rights of entry to premises for the purposes of the FWA. The latter identifies (in s 494) the rights of entry to premises that exist under State or Territory OHS legislation and, where the exercise of those rights falls into one of the defined set of circumstances in s 494(2), prohibits the officials of the organisations concerned from exercising those rights without first holding an entry permit under the FWA (see the discussion in [51] above). It follows that, insofar as any right to enter premises for OHS purposes is concerned, the Commonwealth Parliament has not created its own right of entry under that framework.

83    Having mentioned this issue, it is convenient, at this point, to digress to deal with some of the arguments put on behalf of Mr Ramsay. To begin with, for the reasons given above, I reject Mr Ramsay’s argument that an independent right of entry for OHS purposes has been created by the combined effect of ss 494 and 512, or indeed any other provision in Part 3–4 of the FWA. Plainly, the ordinary meaning of the text of each of those provisions does not create a new right of entry to premises. This is also confirmed by the Explanatory Memorandum (see at [12] above), which clearly states that Division 3 of Part 3–4 of the FWA “does not confer additional rights of entry …”. I also reject Mr Friend’s submission in support of that argument that, in Darlaston (see [17] above), Flick J held that such a right had been created under the loosely equivalent provisions of the Workplace Relations Act. To begin with, it is clear from the preceding passages to the paragraph of Darlaston relied upon ([80]) that, in that part of his reasons, Flick J was only considering whether there was a right of entry under the New South Wales OHS law. Indeed, his Honour’s remarks appear under the heading “A right of entry under an OHS law?” His Honour concluded that there was, and added that, since there was a right of entry created under s 747 (the broad equivalent of the corresponding provision in Division 2 of the FWA: see at [46]–[49] above), there was therefore a right of entry “for the purposes of the State and Commonwealth legislation.” Plainly, his Honour did not say that the latter contained a right of entry for OHS purposes. If there were any doubt about this, it is removed in an earlier part of his Honour’s reasons where he makes it abundantly clear that he does not consider any such right of entry was conferred under the corresponding provisions of the Workplace Relations Act. At [39], Flick J said:

Unlike other provisions within Part 15 (eg, s 747 within Div 4), Div 5 itself confers no right of entry. That right is to be found in the present proceeding in s 77 of the NSW OHS Act.

Part 15 of Division 5 was the broad equivalent of Part 3–4 Division 3 of the FWA: see Darlaston at [34].

84    On the other hand, I agree with Mr Ramsay’s alternative argument that, notwithstanding the fact that the rights of entry for OHS purposes are conferred solely by State or Territory OHS legislation and Division 3 of Part 3–4 of the FWA merely regulates those rights, Mr Ramsay is able to rely upon ss 501–502 of the FWA to enforce those rights. This conclusion also finds some support in the Full Court decisions cited: Setka and Hogan. While I agree with Mr Wyvill’s submission that decisions on different legislation involving different expressions should be approached with caution (see, for example, McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646; [2005] HCA 55 at [40]), s 494 of the FWA and s 756 of the Workplace Relations Act deal with the same issue – rights of entry under State or Territory OHS laws – and those provisions are similar in their terms albeit that the latter includes the additional words “under an OHS law”.

85    On this footing, I consider the part of Setka emphasised at [19] above provides some guidance in construing s 494 of the FWA. I also consider the part of Hogan emphasised at [21] above has the same effect, although it requires a brief explanation. The issue addressed in the first and second sentences at [17] of Hogan was whether an official of an organisation who had allegedly hindered or obstructed others while gaining entry to premises in contravention of s 767(1) of the Workplace Relations Act (the broad equivalent of s 500 of the FWA) could still claim the protection of s 767(3) of that Act (the broad equivalent of s 501 of the FWA). The Full Court held that that official could. Excluding the observations in the third sentence at [17] of Hogan (emphasised at [21] above), the balance of [17] of Hogan is directed to the interaction between ss 767(1) and 767(3) of the Workplace Relations Act not, as was suggested during oral submissions, to the corresponding rights of entry that may exist under Commonwealth or State and Territory laws.

86    Returning to the context and purpose of Part 3–4 of the FWA, in order to obtain an entry permit under the FWA, those officials of organisations identified in s 494(1) of the FWA (see at [56] above) must, among other things, meet the “fit and proper person” test required by s 512 and the other criteria set out in that section and s 513 of the FWA. Significantly for present purposes, this requirement is interlinked with the proscription in s 124 of the WHS Act (see at [67] above) that a WHS permit holder must not enter a workplace under the WHS Act unless he or she holds an entry permit under the FWA. And, this is further reinforced by one of the criteria an official of a union must satisfy under s 133 of the WHS Act to obtain a WHS entry permit: he or she must already hold, or will hold, an entry permit under the FWA (see at [67] above). Finally, it should also be noted that the FWC has the power under s 510 of the FWA to revoke or suspend an entry permit where it is satisfied that any of the events identified in s 510(1) have occurred. They include a situation where the permit holder has been found to have contravened s 503(1), which prevents a person from making misrepresentations about things authorised by Part 3–4 (see s 510(1)(a)); a situation where the permit holder has been ordered to pay a pecuniary penalty under the FWA in relation to a contravention of Part 3–4 (see s 510(1)(b)); and a situation where a permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action which was not authorised by that law (see s 510(1)(f)). One significant consequence of such a suspension or revocation is that the entitlement and rights of that official to enter premises under the provisions of both the FWA and the WHS Act would coincidentally be suspended or revoked.

87    Thus, one of the main effects of all of these provisions is to allow the Commonwealth Executive to control the standards, qualifications and conduct of those officials of organisations who are regulated by Commonwealth laws, whether they seek to exercise entry rights to premises under the WHS Act or State or Territory OHS legislation. With respect to the latter, the Commonwealth Parliament has therefore sought to use the framework mentioned in s 480 (see at [82] above) to achieve a part of the object of Part 3–4 of the FWA: namely, to balance the rights of all concerned where the officials of organisations governed by Commonwealth legislation seek to enter premises utilising rights conferred under State or Territory legislation. Having established this framework, it is unsurprising that the Commonwealth has included provisions in Part 3–4 of the FWA to enforce compliance with it, on the one hand, and to protect those officials who exercise rights in compliance with it, on the other. Accordingly, if an official of an organisation were to enter premises to pursue an inquiry under a State or Territory OHS law, in one of the circumstances identified in s 494(2) of the FWA, without first obtaining an entry permit, or having obtained an entry permit, intentionally hindered or obstructed someone while entering those premises, it is quite consistent with the object and purpose of these provisions that he or she should be liable to be prosecuted under Part 4–1 of the FWA for a breach of the civil remedy provisions in s 494(1) or s 500. From the opposite perspective, if such an official has obtained an entry permit and sought to enter premises for such a purpose and in one of those defined circumstances, it is equally consistent with the object and purpose of these provisions that he or she should be able to seek the protection of provisions such as ss 501 and 502(1) to prevent him or her being hindered or obstructed in that exercise.

88    So, in summary, what the Commonwealth Parliament has done in Part 3–4 of the FWA is to exercise its powers to make laws in relation to industrial matters and put in place a set of provisions affecting a particular group of people connected with a particular category of organisations over which it has regulatory control under its industrial laws, viz the officials of organisations that are registered under the Commonwealth’s Registered Organisations Act (see at [56] above). As a consequence, Part 3–4 of the FWA requires that whenever those officials wish to enter premises and exercise rights conferred on them under Division 2 of the FWA, or under State or Territory OHS legislation, provided the latter occurs in any of the circumstances defined in s 494(2) (see at [10] above), they must first obtain an entry permit under s 512 of the FWA.

89    With these observations about the statutory and legislative context to, and general purpose of, Part 3–4 in mind, it is necessary, finally, to turn to the text of ss 501 and 502 of the FWA.

The text of sections 501 and 502(1) do not support Sunbuild’s construction

90    Section 501 requires that “a permit holder who is entitled to enter the premises in accordance with this Part” must not be refused entry, nor have his or her entry unduly delayed.

91    Section 502(1) is similarly brief. It requires that “a permit holder exercising rights in accordance with this Part” must not be intentionally hindered or obstructed. The only presently relevant difference between the text of ss 501 and 502(1) is that the words “entitled to enter” after the words “a permit holder who is” are replaced with the words “exercising rights”. Both expressions are then immediately followed by the expression “in accordance with”.

92    Sunbuild argues that Mr Ramsay had no entitlement under Part 3–4 of the FWA to enter its worksite for OHS purposes, nor any rights to exercise under that Part. Thus, it argues, Mr Ramsay was not a person who was entitled to enter its premises, or to exercise rights, “in accordance with this Part”. For his part, Mr Ramsay argues that both sections are directed to the additional requirements that must be met before any entitlement to enter the worksite arose, or any rights existed to be exercised there. He argues that those additional requirements include that contained in s 494, combined with s 512, which together required him to hold an entry permit under the FWA before he could enter Sunbuild’s worksite, or exercise any rights there. For the sake of completeness, it should be added that, for fairly obvious reasons, there does not appear to be any dispute in this matter that Sunbuild’s worksite was “premises” for the purposes of the applicable provisions of the FWA, eg that they were premises located in the Territory: see s 494(2)(b) of the FWA and the observations at [51] above. Further, I have already assumed above that Mr Ramsay will ultimately further amend his amended statement of claim to plead the facts necessary to establish that Sunbuild’s worksite was a “workplace” for the purposes of the applicable provisions of the WHS Act: see at [64] above. For the reasons that follow, I consider Sunbuild’s arguments must be rejected.

93    The defect in Sunbuild’s argument occurs at two levels. First, I do not consider Sunbuild’s argument is supported by the language or text of ss 501 and 502(1) of the FWA. Specifically, I consider it unduly focuses on the entitlement to enter premises that is referred to in s 501 and the rights that are referred to in s 502(1) and assumes that each of these concepts must find its origins in Part 3–4 of the FWA. In my view, this undue concentration on the entitlement and rights in those two sections distorts the true meaning and construction of them. Instead, when these two provisions are read as a whole and in their proper context, I consider that the critical focus in each of them is on the requirement that the person intending to enter the premises, or exercise any rights there, must have become a permit holder complying with Part 3–4.

94    As has already been noted above (at [56]–[57] and [86]), a person can only become a “permit holder” under Part 3–4 of the FWA if he or she is an official of an organisation that is registered under the Registered Organisations Act and if he or she meets the fit and proper person test and the other conditions set out in ss 512 and 513 of the FWA and is thereafter issued an entry permit by the FWC. It follows that, once an official of such an organisation becomes a permit holder under Part 3–4 of the FWA, subject to him or her having a valid purpose and meeting the other requirements of that Part, he or she becomes “a permit holder who is entitled to enter the premises in accordance with this Part”. In other words, I consider the proper focus is on his or her compliance with Part 3–4, not on the underlying entitlement he or she may have under that Part to enter premises, or any rights associated therewith. Of course, if the official concerned does not have a proper purpose for entering the premises, whether under Division 2 of the FWA, or under a State or Territory OHS law, he or she will not have that underlying entitlement. If that is an issue in proceedings brought under s 501 or s 502(1), then it will be necessary to examine the applicable provision concerned. However, I do not consider s 501 or s 502(1) requires that entitlement or those rights to stem from Part 3–4 itself.

95    This construction is supported by the meaning that has ordinarily been given to the expression “in accordance with”. In various, albeit context-specific situations, that expression has been held to mean: “in conformity with”, or “consistently with”: see La v Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151 at 158; Walker v Wilson (1991) 172 CLR 195 at 208; Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 at [251]; H J Heinz Co Australia Ltd v Kotzman [2009] VSC 311 at [44]; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322 at [52]. This is to be contrasted with an expression such as “under this Part”, which has been held to mean (in the context of administrative law): “in pursuance of”, or “under the authority of”: see Evans v Friemann (1981) 53 FLR 229 at 238; Australian National University v Burns (1982) 64 FLR 166 at 173; Sellars v Woods (1982) 45 ALR 113 at 121; and Chittick v Ackland (1984) 1 FCR 254 at 263.

96    Applying the former meaning, it follows that the words “in accordance with” in ss 501 and 502(1) do not refer to a permit holder’s entitlement to enter premises or exercise rights under Part 3–4 of the FWA, but rather to his or her having acted in conformity with the provisions of that Part and gained the status of a permit holder under it. Alternatively, if, as Sunbuild essentially argues, ss 501 and 502(1) of the FWA were intended to refer only to the permission or authority that has been granted to a permit holder in the various provisions of Division 2 (ss 481 to 484 inclusive), and at the same time distinguish the provisions of Division 3 which do not grant any such permission or authority, one would have expected them to use an expression such as “under this Part” in the place of the expression “in accordance with this Part”.

97    Secondly, I consider Sunbuild’s argument runs counter to the context and general purpose of the provisions of Part 3–4 outlined above (see at [81]–[87]). In particular, it is inconsistent with the general purpose of Part 3–4 that ss 501 and 502(1) are not available to protect a permit holder from hindrance or obstruction if he or she has complied with the requirements of that Part whether they apply to the officials or organisations exercising rights under Division 2 or, as is the present case, Division 3 as it applies to the rights conferred by State or Territory OHS laws.

98    Before concluding on this aspect, it is necessary to address an alternative argument put by Mr Wyvill for Sunbuild. As I understood that submission, it was that, in defining the meaning of the expression “State or Territory OHS right”, s 494(2) of the FWA identifies “a right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises”. Thus, even if by virtue of s 494(2), s 501 of the FWA could be construed to apply to the entitlement to enter premises under State or Territory OHS laws, eg s 117 of the WHS Act, the same construction could not apply to s 502(1) of the FWA because, once entry has occurred, the only other right identified in s 494(2) is the right to “inspect or otherwise access an employee record of an employee that is on premises”. It follows, so this argument goes, that s 502(1) could not be construed to apply to the exercise of any broader set of rights, for example those defined in s 118 of the WHS Act. While this argument has some superficial attraction, I do not consider it can be accepted.

99    It is true that the absence of a defined set of rights in Division 3 of Part 3–4 of the FWA (cf s 482 in Division 2 of Part 3–4) may suggest that s 502(1) has no application to any broader set of rights being exercised under State or Territory OHS law, however I do not consider that construction is supported by the text, context or purpose of these provisions. As to the purpose of these provisions discussed above, this construction would mean that s 501 would be available to protect a permit holder at the point in time when he or she is entering premises, but the FWA would offer no protection to that permit holder thereafter when he or she is pursuing the primary object of that entry, viz inquiring into suspected contraventions of the applicable OHS law. It would also mean that, once on the premises, the permit holder would have to comply with the additional requirements of ss 495 to 499 of the FWA, but would not be offered any protection under the FWA having done so.

100    As to context, it is self-evident that s 502(1) of the FWA appears immediately after s 501. This has some significance when one turns to the text of these two provisions. By its terms, s 501 is confined to the entitlement to enter premises and to the particular point in time at which a permit holder seeks to gain that entry. By contrast, the text of s 502(1) refers more broadly to the permit holder “exercising rights”. Properly construed, that must, in my view, extend to conducting the inquiries into the contraventions for which the entry to the premises is being undertaken and all matters incidental thereto. This is partly confirmed by the text of s 502(3), which provides that, without limiting s 502(1), that subsection “extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises”. It follows from its text and context that s 502(1) is directed more generally to all those things that are either integral to, or incidental to, the entry to premises for the purpose of conducting inquiries thereon in relation to the suspected contraventions of State or Territory OHS legislation. For these reasons, I reject Sunbuild’s alternative argument.

CONCLUSION – both questions should be answered in the affirmative

101    In conclusion, it is necessary to apply this construction of ss 501 and 502(1) to the particular circumstances of this matter. For the purposes of s 501, the critical requirement under which Mr Ramsay was entitled to enter Sunbuild’s worksite under s 117 of the WHS Act was that he had complied with the provisions of Part 3–4 of the FWA, including the requirement that he be a permit holder. Since, for the purposes of this application, there is no dispute that Mr Ramsay was a permit holder under the FWA and since there is also no dispute that he held a legitimate purpose to enter Sunbuild’s worksite under s 117 of the WHS Act, viz to investigate his reasonable suspicion of a contravention of the WHS Act due to the presence of asbestos on that site, I consider he was a permit holder who was entitled to enter Sunbuild’s worksite in conformity with, and thus in accordance with, the provisions of Part 3–4 of the FWA. It follows that, if he did comply with all the relevant applicable requirements of Part 3–4, he was entitled to the protection of s 501 of the FWA. Subject to the qualification discussed below, question (a) (see at [1] above) must therefore be answered in the affirmative.

102    As to the second question, once Mr Ramsay complied with the provisions of Part 3–4 and obtained an entry permit under the FWA, he was entitled to inquire into the suspected contraventions of the WHS Act at Sunbuild’s worksite provided that he acted in conformity with all the relevant applicable requirements of that Part. It therefore follows that, if he did comply with all those requirements, he was entitled to rely upon the protection of s 502(1) of the FWA. Again, subject to the qualification discussed below, question (b) (see at [1] above) must be answered in the affirmative.

103    The qualification affects both questions. In his amended statement of claim, Mr Ramsay pleads that the applicants were permit holders under the FWA, thereby satisfying s 494(1) of the FWA. However, there is no allegation in the amended statement of claim relating to the other requirements of Division 3, namely ss 495 to 499. For example, there is no allegation that Mr Ramsay and his fellow applicants entered Sunbuild’s worksite during working hours as required by s 498. The time of entry is pleaded for Mr Huddy – 6.45 am – and for Mr Vink and Mr Mitchell – 8.30 am, however no time of entry is pleaded for Mr Ramsay himself. Moreover, Sunbuild’s normal working hours are not pleaded anywhere. Of potentially less importance, there is also no allegation in the amended statement of claim that the applicants: complied with their permit conditions (s 496), produced their entry permit if required to do so (s 497), and/or complied with any applicable OHS requirement (s 499). Nonetheless, consistent with the approach I have taken throughout these reasons, I will assume for present purposes that Mr Ramsay and his fellow applicants will ultimately further amend their statement of claim to allege the facts necessary to establish they complied with those requirements. I will therefore answer both questions based on that assumption.

104    For these reasons, the answers to the two separate questions are therefore:

(a)    On the assumption that each of the applicants complied with all of the provisions of Division 3 of Part 3–4 of the FWA, yes, all of the applicants were permit holders who were entitled to enter Sunbuild’s worksite in accordance with Part 3–4 within the meaning of s 501 of the FWA; and

(b)    On the assumption that all of the applicants complied with all of the provisions of Division 3 of Part 3–4 of the FWA, yes, all of the applicants were permit holders exercising rights in accordance with Part 3–4 within the meaning of s 502(1) of the FWA.

Associate:

Dated:    11 February 2014