FEDERAL COURT OF AUSTRALIA

Kirby v JKC Australia LNG Pty Ltd (No 2) [2015] FCA 1113

THE COURT ORDERS THAT:

1.    The First Respondent be restrained, and an injunction is hereby issued restraining it, whether by itself or by its servants or agents, until the hearing and determination of this matter or until further order, from refusing, delaying, hindering or obstructing officials of the Fourth Applicant, who hold permits issued under s 512 of the Fair Work Act 2009 (Cth) and s 134 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (the WHS Act), access to a workplace at the Ichthys On-Shore Construction Project at Blaydin Point under s 117 of the WHS Act by reason only that a “relevant worker” within the meaning of s 116 of the WHS Act is not present at the workplace at the time entry is sought.

2.    The First Respondent be restrained, and an injunction is hereby issued restraining it, whether by itself or by its servants or agents, until the hearing and determination of this matter or until further order, from refusing, delaying, hindering or obstructing officials of the Fourth Applicant, who hold permits issued under s 512 of the Fair Work Act and s 134 of the WHS Act, access to a workplace at the Ichthys On-Shore Construction Project at Blaydin Point under s 117 of the WHS Act by reason only of, or for reasons which include the reason that, an assertion that the identified suspected contravention has already been rectified.

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

EX TEMPORE REASONS FOR JUDGMENT

1    On 18 September 2015, the Court issued one interlocutory injunction in this action and declined to issue two other interlocutory injunctions sought at that time by the applicants: Kirby v JKC Australia LNG Pty Ltd [2015] FCA 1070. Each of the injunctions then sought related to the exercise by the applicants of rights of entry under the Fair Work Act 2009 (Cth) (the FW Act) and the Work Health and Safety (National Uniform Legislation) Act 2011 of the Northern Territory (the WHS Act).

2    The applicants have now sought, by an interlocutory application filed on 29 September, further interlocutory injunctions. Each of these applications relates only to the exercise of rights of entry under s 117 of the WHS Act and concerns only the first respondent, JKC Australia LNG Pty Ltd (JKC).

3    The circumstances of the applicants, of the respondents and of the Ichthys On-Shore Construction Project at Blaydin Point in the Northern Territory (the Project) are set out in the Court’s reasons of 18 September. Those reasons also set out the principles relating to the grant of interlocutory injunctions. These reasons should be read in conjunction with the reasons of 18 September.

4    It is however appropriate to say a little more about the right of entry under s 117 of the WHS Act. Section 117(1) permits a WHS entry permit holder to enter a “workplace” for the purposes of enquiring in to a suspected contravention of the WHS Act which “relates to, or affects, a relevant worker”. The WHS entry permit holder must reasonably suspect before entering a workplace that the contravention has occurred or is occurring (subs (2)). A “workplace” is defined in s 8 of the WHS Act to mean:

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. ...

5    A “relevant worker” for the purpose of s 117 is defined in s 116 as follows:

“Relevant worker”, 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.

6    The rights which a WHS entry permit holder may exercise, having entered a workplace, are those specified in s 118 of the WHS Act. Broadly speaking, they are rights of inspection, consultation, requiring the production for inspection and copying of relevant documents, and a right to warn persons of risk perceived by the WHS entry permit holder.

7    It is not necessary for the Court to address the first injunction sought by the applicants. That is because JKC has offered, and the applicants have accepted, an undertaking which addresses the subject matter of the proposed injunction.

8    The following four injunctions sought by the applicants have a common format, but seek a restraint in respect of separate reasons for the refusal or impairment of the exercise of a right of entry under s 117. In effect, the applicants seek interlocutory injunctions restraining JKC from refusing, delaying, hindering or obstructing officials of the CEPU from accessing, pursuant to s 117 of the WHS Act, a workplace at the Project by reason only that, or for reasons which include the reason that:

(a)    a relevant worker within the meaning of s 116 of the WHS Act is not present at the workplace at the time entry is sought;

(b)    no written notice of entry has been given prior to the entry;

(c)    the identity of the subcontractor responsible for the workplace has not been stated on the entry notice or is not otherwise stated by the permit holder; and

(d)    an assertion that the suspected contravention identified by the permit holder has already been rectified.

9    The words which preface each of these proposed injunctions “by reason only that or for reasons including the reason that” are, in my opinion, important in indicating the relatively narrow scope of the injunctions sought by the applicants. Contrary to what appears to be supposed by the deponents of some of the affidavits relied upon by the respondents, the Court is not being asked to authorise forms of general or unfettered access under s 117 of the WHS Act. The proposed interlocutory injunctions seek instead to address particular reasons said to have been given by JKC for refusing or impairing access sought by officials of the CEPU.

10    The second injunction sought seeks to restrain a refusal or an impairment of the exercise of a right of entry by reason only that, or for reasons which include the reason that, a “relevant worker” is not present at the workplace at the time at which entry is sought. The applicants submit that the WHS Act does not contain any indication that this consideration is by itself sufficient to disentitle a permit holder from entering to carry out a s 117 inspection.

11    JKC acknowledges that there is a real argument that a worker may not have to be actually present at the time of entry in the workplace in order for the permit holder to have the entitlement granted by s 117. It did not point to any provision in the WHS Act which indicates that the circumstance that a worker is not present at a workplace at the time of the proposed inspection is sufficient by itself to disentitle the permit holder from entering and none is readily apparent.

12    There is evidence from Mr Malone that, on 24 September, Ms Steenstrup, an Employee Relations Advisor engaged by JKC, twice told him that his access to identified areas was refused because he did not have members or potential members “working in that area today”.

13    In her affidavit, Ms Steenstrup appears to corroborate at least to some extent Mr Malone’s assertion. She says at [72]:

I informed Mr Malone that based on the advice from Kentz, there were no relevant workers working in the area on that day and that there would not be access to those areas.

14    Paragraph 75 of Ms Steenstrup’s affidavit also seems to confirm that she was determining whether or not Mr Malone could have the access which he sought by reference to whether or not there were relevant workers working in the area on that day of his proposed inspection.

15    Accordingly, I consider that the applicants have made out a prima facie case for an interlocutory injunction in this respect, but that is so only insofar as the requirement that there be a worker present at the time of the proposed inspection is the sole matter relied upon by JKC. I would not regard it as appropriate to include in the injunction the words “or for reasons including the reason that” because, on my present understanding of the WHS Act, it may well be the case that the circumstance that a relevant worker is not physically present in the workplace at the time of the proposed inspection is, in combination with other matters, sufficient to disentitle a permit holder from entering under s 117. The wider wording sought by the applicants would have the effect of precluding JKC from refusing entry in these circumstances.

16    In considering the balance of convenience, it is appropriate to note again that any injunction should be confined to refusals or impairments of entry by reason only that a relevant worker within the meaning of s 116 of the WHS Act is not present at the workplace at the time entry is sought. If that injunction is not issued and the status quo is permitted to continue, JKC may well continue to prevent access for that reason alone, and, accordingly, there would be an interference with the exercise of the rights seemingly contemplated by the WHS Act. On the other hand, if the injunction is granted, the circumstance that a relevant worker is not in the workplace sought to be inspected at the time of the inspection will not be able to be relied upon by itself to preclude inspection. It is not easy to identify any detriment which would be suffered by JKC or its contractors in that circumstance.

17    JKC submitted that damages would be an adequate remedy for the applicants, but it is difficult to see how the applicants may, in the event that the injunction is not issued, suffer a loss which would be compensable in damages.

18    I will address later the submission of JKC as to the effect of the application which it made yesterday to the Fair Work Commission (the FWC).

19    The third injunction sought is that JKC be restrained from refusing or impairing a right of entry by reason only that, or for reasons including the reason that, no written notice of entry under s 117 has been given prior to entry.

20    In my opinion, the applicants have not made out a case for the grant of such an injunction. The evidence relied upon by the applicants is that contained in [164] of Mr Malone’s affidavit, but that does not reveal an insistence by JKC that a notice of entry be provided before entry for a s 117 purpose. It indicates only that the JKC employee, Ms Garland, wished to conduct the discussions concerning Mr Malone’s request at a particular place, namely, the CSNT office located near the entrance to the Project site. Accordingly, I decline the application sought in [4] of the interlocutory application.

21    The proposed fourth interlocutory injunction is a restraint on JKC from refusing or impairing entry by reason only that, or for reasons which include the reason that, the identity of the subcontractor responsible for the workplace is not stated on the entry notice or otherwise stated by the permit holder.

22    I decline to issue that injunction. In the circumstances of the Project site, an injunction in those terms is likely to lack utility. The evidence of JKC, which I did not understand the applicants to challenge, is that, having regard to the nature of the site and the responsibilities for the work carried out on the site, JKC considers it appropriate to involve in s 117 inspections the subcontractor responsible for the work in the area to be inspected.

23    Obtaining that involvement can take time and necessarily requires identification by JKC of the subcontractor involved. It is this process which accounts for some of the delays experienced by Mr Malone and which have given rise to the applicants’ concerns.

24    However, on my understanding, the delays about which the applicants are concerned will not be averted by the injunction they seek. Such an injunction would not preclude JKC itself from seeking to identify the contractor involved and from seeking to involve the contractor by having the contractor present at the time of the inspection. This means that there is likely to be some time lapse even if the name of the contractor is not included on the notice of entry or is not otherwise provided by the permit holder. Thus, even if the injunction is granted, it seems that it would have little practical effect.

25    Thus, I am not satisfied that the proposed injunction concerning the identity of the subcontractor would have practical utility, and I decline that part of the application.

26    That leaves the proposed injunction concerning refusal of entry on the ground that the suspected contravention has been rectified.

27    Mr Malone has deposed to having been told by Ms Steenstrup twice on 24 September 2015 that he could not inspect areas in respect of which he had given notice of suspected contraventions of the WHS Act because the matters of concern had been rectified earlier that day. Ms Steenstrup has deposed that, instead of refusing Mr Malone access to these areas on that basis, she had said, after hearing from the subcontractors involved, that the concerns had been rectified:

Well, you don’t need to go to that area then, if it’s been fixed. You are going to be provided with documentation.

28    The difference between the respective accounts of Mr Malone and Ms Steenstrup cannot be resolved on the present application, but I am satisfied that the evidence does indicate that there is an issue arising from the claimed effect of rectification work.

29    It is not readily apparent that the WHS Act does authorise a refusal of access on the ground that the suspected contravention identified by the permit holder has, since the provision of the notice, been rectified. I did not understand JKC’s submissions to point to any provision which has this effect. Accordingly, I consider that the applicants have established a prima facie case for an interlocutory injunction in this respect.

30    The balance of convenience favours the applicants. The circumstance that a permit holder is told that a suspected contravention has been rectified tends to confirm that the suspicion formed by the permit holder had some basis, and it is understandable that in that circumstance the permit holder would wish to inspect the area in question.

31    The evidence did not indicate practical inconvenience to JKC or its contractors if they are precluded from refusing access to an area on the ground that the shortcoming identified in the entry notice has been rectified. One might think that inspection in those circumstances could promote the purposes of the right of entry granted by s 117.

32    JKC submitted that, in the event that the injunction sought by the applicant was refused, damages would be an adequate remedy for any detriment they suffered. I do not accept that submission. It is not readily apparent that there could be loss to the applicants for which damages could be awarded, let alone that such damages could be an adequate remedy.

33    JKC emphasised the circumstance that yesterday (7 October) it had applied to the FWC under s 505 of the FW Act. It submits that this Court should not make orders which might intrude upon or impede the exercise by the FWC of its conciliatory or arbitral functions. I do regard this as being a relevant circumstance.

34    On 18 September, I drew the parties’ attention to the ability of the FWC to assist in the underlying disputes evident in the respective affidavits of the parties. It is unfortunate that it was only yesterday that steps have been taken to invoke the Commission’s assistance. I continue to encourage the parties to explore alternative means of resolving the disputes between them, including by invoking the assistance of the FWC in that respect.

35    An inspector from WorkSafe in the Northern Territory has attributed to Ms Steenstrup the statement that, if the applicants withdraw the present litigation, JKC will then negotiate the present issues about rights of entry raised by the CEPU. The implication in the statement is that JKC is not willing to negotiate these issues unless the present litigation is withdrawn. It is not, of course, known at this stage whether the statement attributed to Ms Steenstrup is an accurate statement of JKC’s attitude or whether it continues to be an accurate statement of JKC’s attitude. I refer to it for the purpose of emphasising the Court’s view that it is desirable for the parties to attempt to resolve by negotiation their present differences, even while this litigation remains current, and that the fact of the continuance of the litigation should not be a reason by itself for those negotiations not to occur.

36    I put to one side the issues concerning the possible limits of the jurisdiction of the FWC to deal with disputes relating to s 117 rights of entry which have been raised by the applicants. Nevertheless, I am not satisfied that the referral of the underlying dispute to the FWC is a reason for the Court to decline to issue the injunctions sought by the applicants which I would otherwise regard as appropriate. That is because the applicants have established a prima facie case that fetters are being imposed on their exercise of their rights of entry which are not authorised by the WHS Act itself. I emphasise that that is a prima facie case only. The balance of convenience also favours the applicants. The Court should, in those circumstances, grant the interlocutory relief to which the applicants are otherwise entitled while at the same time encouraging the parties to endeavour to resolve their disputes by reference to the FWC as and when appropriate.

37    For these reasons, I am satisfied that the injunctions sought by the applicants in [3] and [6] of the interlocutory application of 30 September 2015 are appropriate, save only that, in relation to the application sought in the third paragraph, the injunction will not include the words “or for reasons, including the reason that”.

38    The applicants also seek leave to amend the originating application. That application is not opposed by JKC. The second and third respondents have not been present this morning, and so I have not heard from them in that respect. Despite that, I am satisfied that it is appropriate for the leave to amend to be granted.

39    JKC seeks an amendment of the order made by the court on 18 September by the inclusion of the prefatory words “…subject to any order of the Fair Work Commission”. JKC wishes the FWC to be able to exercise its function unimpeded by the order of this Court.

40    Despite that good intention, I am not prepared to amend the Court’s order in the way proposed. It is desirable, in my opinion, for this Court’s orders to be self-contained. That aim would be lost if the order became subject to an order of another entity, such as the FWC. It is also desirable for the Court to keep control of its own orders, so that the conduct which is restrained is clear and apparent and not subject to any uncertainty which might arise from an order made by the FWC.

41    Accordingly, I decline JKC’s application. I will, of course, grant the parties liberty to apply, so that it will be open to any party to apply to the Court for some variation of the injunction issued on 18 September should the circumstances change as a result of some action or recommendation by the FWC.

Associate:

Dated:    20 October 2015