FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    Section 494(1) of the Fair Work Act 2009 (Cth) (“FW Act”) provides that:

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

2    Section 494(2) relevantly defines “State or Territory OHS right” as “[a] right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises … if the right is conferred by a State or Territory OHS law …”.

3    The respondent (“Mr Powell”) is an employee and an organiser of the Construction, Forestry, Mining and Energy Union (“CFMEU”). Mr Powell was, at all relevant times, an “official of an organisation” within the meaning of s 494(1) but not a “permit holder” within the meaning of s 494(1). Agreed facts also record that on four occasions between 21 May 2014 and 28 October 2014, Mr Powell came onto a construction site (“the premises”) occupied by Kane Constructions Pty Ltd (“Kane”). On each occasion, Mr Powell entered the premises he did so for the purpose of assisting the duly elected health and safety representative for the premises (“HSR”) and in response to a request made by the HSR pursuant to s 58 of the Occupational Health and Safety Act 2004 (Vic) (“OH&S Act”).

4    The issue which arises for determination is whether upon entering the premises on each of the occasions in question, Mr Powell was exercising a “State or Territory OHS right” for the purposes of s 494 of the FW Act. If he was exercising such a right, and given that Mr Powell was an official but not a permit holder, it would follow that Mr Powell contravened s 494(1). The applicant (“Director”) seeks a declaration to that effect as well as penalties pursuant to s 546(1) of the FW Act.

5    As is made apparent by s 494(2), a “State or Territory OHS right” is a right conferred by a State or Territory OHS law. It is accepted that the OH&S Act is a “State or Territory OHS law” for the purposes of s 494 of the FW Act. The Director contended that s 70(1) of the OH&S Act conferred the “State or Territory OHS right” which Mr Powell exercised on each occasion he entered the premises. As s 70(2) is also relevant, I will set out s 70(1) and (2):

Obligation to persons assisting health and safety representatives

(1)    An employer, any of whose employees are members of a designated work group must allow a person assisting a health and safety representative access to the workplace unless the employer considers that the person is not a suitable person to assist the representative because of insufficient knowledge of occupational health and safety.

(2)    If an employer does not allow a person assisting a health and safety representative access to the workplace, the representative may apply to the Magistrates' Court for an order—

(a)    directing the employer to allow that access; and

(b)    specifying the terms and conditions of that access.

6    That provision needs to be read with s 58 of the OH&S Act where the powers of an HSR are specified including at s 58(1)(f) the power to seek assistance. Section 58(1) of the OH&S Act relevantly provides:

Powers of health and safety representatives

(1)    A health and safety representative for a designated work group may do any of the following—

…

(f)    whenever necessary, seek the assistance of any person.

Does s 70(1) confer a right of entry upon a person assisting?

7    The Director submitted that the obligation on the employer imposed by s 70(1) of the OH&S Act to allow a person who is assisting an HSR access to the workplace should be characterised as giving rise to a corresponding entitlement, that is, a right on the part of the assistant to enter the workplace. That is the right that the Director contended Mr Powell exercised on each of the four occasions he entered the premises occupied by Kane. The Director said that on each occasion, that entry, made pursuant to the authority conferred on Mr Powell by s 70(1) of the OH&S Act, involved the exercise of a “State or Territory OHS right” by Mr Powell within the meaning of s 494 of the FW Act.

8    There are a number of steps in the Director’s submission. First, the Director points to the obligation or duty placed upon the employer to allow access to the person assisting the HSR (“the assistant”). I agree that such an obligation is imposed. I consider it to be a legal obligation including because it is imposed by law (s 70(1)) and enforceable according to law (s 70(2)).

9    Second, the Director says that a correlative of the obligation imposed on the employer is the conferral of a right upon the assistant. There are, however, a number of hurdles which confront that step in the Director’s contention.

10    I should commence by identifying the relevant inquiry. While s 494(2) makes it clear that s 494(1) is addressing a “right conferred by a State or Territory OHS law”, the meaning of the word ‘right’ must be taken from the lexicon of the FW Act. The relevant inquiry should begin with what s 494(1) means by the word ‘right’ and then look to whether such a thing has been conferred by s 70(1) of the OH&S Act upon an assistant.

11    The word ‘right’ can have a variety of meanings both within legal discourse and in ordinary usage. Some meanings do not hold a right to be the correlative of any duty. It is common, for instance, to refer to a liberty or a privilege to do a thing free from interference as a right to do that thing. As Gummow J said in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664 at 672 (emphasis added):

It has long been notorious that the term "right" has no definite or stable connotation and bears a variety of meanings according to the connection or context in which it is used.

Furthermore, as Professor Stone has said, “Legal relations habitually referred to as ‘rights’ are found to break up, when precision is sought, into rights and privileges, powers and immunities as well”: Stone J, The Province and Function of Law (2nd ed, Maitland Publications, 1950) at 127.

12    The use of the word ‘right’ in a Commonwealth statute has been explored in relation to s 36(3) of the Migration Act 1958 (Cth). By s 36(3) Australia is taken to not have protection obligations in respect of a non-citizen if the non-citizen has not availed him or herself of a right to enter and reside in a third country. In Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35, a five judge Full Court was constituted to resolve the “active debate” in relation to the correct application of s 36(3), including inconsistencies between the approaches of successive Full Courts (at [44]–[71]).

13    One aspect of the debate revolved around whether the right contemplated by s 36(3) as a disentitling criterion of protection in Australia should be construed strictly as a legally enforceable claim-right correlative of a duty. In Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154 Stone J (with whom Gray J and Lee J agreed) upheld the decision of the primary judge finding that the right contemplated must be legally enforceable. On the other hand a differently constituted Full Court in V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 57 (Black CJ, Hill and Tamberlin JJ) left undisturbed the analysis of Allsop J in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408. Allsop J found as follows (at [31]):

I see no reason to restrict the meaning of the word “right” to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question.

14    In SZRHU Buchanan J (with whom Tracey, Flick, Robertson and Griffiths JJ agreed) resolved the debate in favour of the analysis of Allsop J. His Honour found no reason to prefer a strict view of the word ‘right’ and concluded that nothing pointed to Parliament intending the word ‘right’ to be limited to something legally enforceable (at [78]).

15    The Director’s submission relied upon the Hohfeldian conception of a claim-right correlative of a duty, or, as Allsop J put it at 419 of V856/00A “… what might be described as a right in the strict sense, having the Hohfeldian ‘jural correlative’ of duty”. At least implicitly, then, that submission may be regarded as having accepted that when s 494(1) of the FW Act speaks of a right it means a right in the strict sense and not merely a liberty, a permission or privilege lawfully given. I acknowledge, however, that to some extent, the Director’s submissions suggested that the word ‘right’ should be interpreted broadly in accordance with the underlying purpose of Part 3-4 of the FW Act.

16    Whether or not the Director accepted it to be so, to my mind, when s 494(1) refers to a “right” it is speaking of a legal right in the strict sense. A number of indicators tend to that conclusion. First, as I later explain, Part 3-4 does not evince an intent to regulate all of the ways that entry onto premises by an official of a registered organisation may occur. For instance, as the extract from the Explanatory Memorandum to what became the FW Act (set out at [1919]) stated, Part 3-4 “does not affect the ability of an occupier of premises to invite any person onto … premises”. That Part 3-4 does not intend to regulate a liberty, permission or privilege of that kind tends against the idea that other liberties, permissions or privileges were intended to be caught.

17    Second, where Part 3-4 itself confers a right of entry what is conferred is not a liberty, permission or privilege but is recognisable as a legal right in the strict sense.

18    Third, unlike s 36(3) of the Migration Act, an amplifying phrase like “howsoever that right arose or is expressed” does not appear in s 494. The absence of such an expression tends to the view that a narrow rather than a broad conception of a ‘right’ was intended.

19    Fourth, the expression is used in a provision which is not only a civil penalty provision but which also imposes strict liability. In that context, it ought to be presumed that only a right unambiguously conferred as a legal right was intended to be caught. That would tend to the conclusion that only a right conferred by law and enforceable under the law as a right in the strict sense is contemplated by s 494.

20    I turn then to consider whether a legal right in the strict sense is conferred by s 70 of the OH&S Act and, if so, upon whom such a right, or indeed any right, is conferred.

21    I have no difficulty in coming to the view that s 70 in combination with s 58(1)(f) confers a legal right in the strict sense upon the HSR. Those provisions provide the HSR with a legally enforceable right to require the employer to allow the assistant access onto premises for the purpose of providing assistance to the HSR. What is provided is a claim-right correlative to the obligation imposed upon the employer.

22    There are at least three reasons why I think that whilst it is clear that s 70 confers a right on the HSR, it does not confer a right upon the assistant. First, the interest which the duty is imposed to protect is that of the HSR. The HSR’s interest in being assisted is the entirety of the rationale for the imposition of the duty. The duty has not been imposed upon the employer by reference to any discernible interest of the assistant. Second, it is only the HSR who can enliven the right to access because it is only the HSR who, pursuant to the power under s 58(1)(f), can enliven the obligation or duty to provide access. The assistant has no capacity to enliven any right to access. Third, the capacity to enforce the right is given to the HSR and not to the assistant. It is only the HSR who is given the power to obtain redress for the violation of the HSR’s interest which the right seeks to protect.

23    To my mind those features of s 70(1) tend to the conclusion that it is only the right of the HSR which is the concomitant of the duty upon the employer. It is clear that the duty to provide access is a duty owed by the employer to the HSR. It is unlikely that s 70 intends that the employer owes a duty to the assistant. When an assistant enters premises he or she does so as an incident of the right conferred upon the HSR to compel the employer to allow the assistant access to the workplace.

24    The Director contended that the text of s 70(1) and the heading to s 70 show that the obligation imposed by s 70(1) is “directed” to the assistant. But that submission confuses a subject of the obligation specified by s 70(1) (the assistant) with the person to whom that obligation is owed (the HSR). There can be no doubt that the person who is to be given access is the assistant. The words “must allow a person assisting a [HSR] access” specify the subject of the obligation. Neither those words nor the heading meaningfully suggest that the obligation is directed to or owed to the assistant given that the imposition of the duty is not directed to the interests of the assistant and that the assistant has neither the capacity to enliven the obligation nor the capacity to enforce it.

25    I would add that the grammatical style adopted for many of the headings in Division 6 of Part 7 of the OH&S Act uses the word “to” to indicate to what subject the obligation is directed and not to whom the obligation is owed. In any event, the point made by the Director about the heading to s 70 is countered by the heading to Div 6 in which s 70 is found. Division 6 is headed “Obligation of employers to health and safety representatives”.

26    The Director also contended that, if it were the case that the assistant was not conferred a right by s 70(1), then it may follow that an assistant would have no right known to the law to enter or remain on workplace premises, and in consequence could not rely on s 9(3) (which uses the word “right”) of the Summary Offences Act 1966 (Vic) (Summary Offences Act) in answer to a charge of wilfully entering, or neglecting or refusing to leave premises contrary to s 9(1)(e) or (f) of that Act. That contention assumes that s 70 was drafted with the specific terminology employed by s 9(3) in mind. I doubt that it was.

27    In any event, s 9 of the Summary Offences Act relevantly provides (emphasis added):

Wilful destruction, damage etc. of property

(1)    Any person who—

…

(e)    without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or

(f)    neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or

…

shall be guilty of an offence.

…

(3)    Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game.

28    Two points can be made about the Director’s reliance on s 9. First, it is not correct to say, as at least initially the Director did, that s 9(3) relies upon the existence of a right when clearly a “fair and reasonable supposition that [the person] had a right” suffices. Second, an assistant’s exculpation from a contravention of s 9 would not be reliant upon s 9(3) in any event. The scope of s 9(1)(e) or (f) does not extend to a person who has a “lawful excuse” for entering or staying. In that expression ‘lawful’ means not forbidden rather than expressly authorised and the adequacy of the excuse will be dependent upon whether, in the circumstances, the trespass is justified: Wilson v McDonald (2009) 253 ALR 560 at [58]–[62] (Martin CJ, with whom Wheeler JA and Beech AJA agreed). That the employer was legally bound to provide access to the assistant as a consequence of the employer’s obligation to the HSR, would, it seems to me, suffice to provide an assistant with a lawful excuse. It would not be necessary for the assistant to have the legal right to enter in order to have a lawful excuse.

29    That the right conferred upon the HSR may shield the assistant from an action in trespass does not demonstrate that a legal right is conferred upon the assistant. Even if it is the case that s 70 provides more than a shield to the assistant and that a positive permission is given for the assistant to enter the workplace where each of the necessary preconditions are satisfied, that permission is not conferred upon the assistant. It is merely an incident of the exercise of the legal right conferred upon the HSR to compel the employer to provide access to the assistant. The permission is not a legal right in the strict sense and whilst it is likely a right in the broader sense it is not conferred upon the assistant.

30    Although not of itself determinative, a further indicator pointing to the conclusion that no right is conferred upon the assistant is that the language typically utilised by Part 7 of the OH&S Act when conferring a right (there referred to as a “power”) is not found in s 70. When provisions in Part 7 confer a capacity to do something or to require something, the text of the provision tends to identify the provision as dealing with the power of a particular category of person and then, typically, sets out what that person “may do”. So, to take as an example the provision which confers rights upon the HSR, s 58 is headed “Powers of health and safety representatives”, s 58(1) identifies what may be done by the HSR and does so by setting out what the HSR “may do”. I will say more shortly about Part 8 of the OH&S Act which confers rights of entry upon union officials. For present purposes I note that the same or similar language is there used when a right is conferred.

31    In contrast, nowhere does the OH&S Act use the word “power” in reference to an assistant and nor does it speak of what an assistant “may do” or “may require” or say that an assistant “may enter”.

32    For those reasons, whilst I accept that s 70(1) (in combination with s 58(1)(f)) confers a legal right on an HSR to require the employer to facilitate access for the assistant, I do not accept that a legal right (whether in the strict or broad sense) is conferred upon an assistant.

If a right is conferred on the assistant is it a s 494 “right of entry”?

33    If I am wrong and s 70 does confer a right upon an assistant, a further question arises as to whether the right conferred is the kind of right that s 494(1) contemplates. The answer to that question involves an exercise of statutory construction in relation to which well-established principles are to be applied.

34    A legislative provision like s 494 must be construed “by reference to the language of the instrument viewed as a whole”, with an understanding that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). The task of statutory construction must begin with the consideration of the text itself, the language which has been actually employed being the surest guide to legislative intention; although the meaning of the text may require consideration of the context, general purpose and policy of the provision and, in particular, the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).

35    Recourse to context, including purpose, as Project Blue Sky requires, may disclose that the ordinary grammatical meaning of the text of a provision was not intended. An ungrammatical legal meaning may involve reading in words of limitation or extension as Gageler and Keane JJ explained in the following passage at [65]–[66] in Taylor v The Owners–Strata Plan No 11564 (2014) 253 CLR 531:

[65]    Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always” ([Project Blue Sky] at 384 [78]). Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation (eg, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 310-311, 319-321; MacAlister v The Queen (1990) 169 CLR 324 at 330). The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

[66]    Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.

36    The text of s 494(2), which defines “State or Territory OHS right”, includes the “right to enter premises” conferred by a State or Territory OHS law. Other than that the “right” must be conferred by an OHS law, the word ‘right’ as there utilised, is not otherwise textually qualified or limited. But when recourse is had to the context, general purpose and policy of s 494, it becomes apparent that the statutory text is capable of being read as conditioned by a further limitation. If the rights contemplated by s 494 are to take colour from their context and, in particular, the subject matter addressed by Part 3-4, support emerges for the conclusion that s 494 is to be understood as only addressing an industrial right, specifically a right of entry conferred upon a representative of a trade union for a representational purpose.

37    There is a long history in Australian industrial law and practice of rights of entry being conferred upon representatives of trade unions (officers or employees) for the purpose of facilitating a representative role accorded to trade unions by the law in question. Industrial rights of entry were initially only conferred by industrial laws or industrial instruments made thereunder. In more recent decades and, for the purpose of investigating suspected breaches of those laws, laws dealing with occupational health and safety have also conferred upon representatives of trade unions a right to enter premises where work is being performed by employees that the trade union represents.

38    In the federal sphere, and prior to 1973, industrial rights of entry were conferred by awards made under the Conciliation and Arbitration Act 1904 (Cth) (“C&A Act”). In Federated Clothing Trades of the Commonwealth of Australia v Archer (1919) 27 CLR 207 (“Archer’s Case”), the High Court held that a claim that an officer of a union may inspect a workplace, wages books and timesheets, was capable of creating an industrial dispute as to an “industrial matter”, and thereby confer jurisdiction upon the Conciliation and Arbitration Commission to make an award. At 216–217, and by reference to the definition of “industrial matter” in the C&A Act, Higgins J identified the connection between the right of entry claimed and the representative functions of unions under the C&A Act in the following observation at 216-217:

In effect, the claim is that if the employer use the services of any member he shall not only observe certain conditions of labour, but that he shall enable the union to which the employee belongs to see that any agreement or award is being obeyed; and that the union, being an organization of employees devised for their mutual protection under the encouragement of the Act (sec. 2 (VI.)) shall be enabled to carry out its functions effectively. To me, these claims seem to be claims as to matters “relating to the rights or duties of employers or employees,” and to “the terms and conditions of employment”; as well as to “matters pertaining to the relations of employers and employees,” and “questions of what is fair and right in relation to any industrial matter.”

39    A description given in 1947 of what a typical right of entry clause in an award might provide was included in the following passage quoted in Meneling Station Pty Limited v Australasian Meat Industry Employees’ Union (1987) 22 IR 149 (Keely, Gray and Ryan JJ) at 154:

As to the use that had been made of that power, Foenander, Industrial Regulation in Australia (published in 1947), in dealing with the “usual provisions in an award” says (at 26-27 and 28):

2.    The Right of Entry Clause

A typical right of entry clause in an award provides for the right of accredited union officials to enter the premises of the factory or workshop, or other place of work, at reasonable times for the purpose of … transacting the legitimate business of the union – e.g., … the inspection of time and wages records ...

Judge O’Mara in the Keefer Brothers Pty. Ltd. Case warned employers that he took a ‘serious view of any deliberate and unmitigated refusal to produce time and wages records’ [47 CAR at 563] for inspection by union officials. The Court, in fact, regards the union official while exercising the right of entry allowed to him, as acting in the capacity of a court officer for purposes of policing the award. [Clothing Trades Case (1928) 26 CAR 76 at 91.]

40    The importance of industrial rights of entry to the federal industrial relations system has been noted on a number of occasions. In Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No 2) (1991) 36 IR 219 at 220, Gray J said this:

The rights given by s 286 [right of entry for the purpose of ensuring the observance of an award or an order of the Commission] are a vital part of the process of enforcement of the awards, which in turn are at the very heart of the system of conciliation and arbitration which is set up by the Industrial Relations Act 1988.

That observation was referred to by Peterson J, Williams DP and Hodder C in Australian Federation of Air Pilots v East-West Airlines (Operations) Limited (1992) 40 IR 426 at 427-428:

There is no doubt that the rights of entry and inspection of records are “a vital part of the process of enforcement of awards, which in turn are at the very heart of the system of conciliation and arbitration which is set up by the Industrial Relations Act 1988”: Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No 2) (1991) 36 IR 219 at 220. The importance of such rights has long been recognised originally by the inclusion of right of entry clauses in awards and then by the introduction into the federal legislation in 1973 of the predecessor to the now s 286 of the Act.

41    More recently, in Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 at [18], Tracey J made the following observation as to the nature and importance of rights of entry under the FW Act:

The Act provides a detailed scheme to regulate the exercise, by union officials, of their right to enter an employer’s premises. Various restrictions are placed on the right of entry to minimise inconvenience to the employer or disruption to productive work. Provided, however, that the right of entry is exercised in accordance with the provisions of the Act, union officials are entitled to unimpeded access to business premises for prescribed purposes. This is an important right which enables unions to recruit members and protect the industrial interests of their members.

42    In 1973, s 42A of the C&A Act was enacted. This was the first time that a federal statute provided directly for industrial rights of entry. Pursuant to s 42A, the secretary of a registered organisation or a branch thereof was empowered to authorise an officer (including an employee) of the union to enter any premises in which work was being carried on and to which an award binding on the union was applicable. The right to enter applied also to the premises of an employer bound by the award. For the purposes of “ensuring observance of the award” the authorised officer was empowered to inspect any work, books or documents and interview any employee eligible for membership of the union. The right of entry was given subject to any conditions provided for by the relevant award and the further condition that employees not be hindered or obstructed in the performance of their work. An officer exercising the right of entry was required to provide evidence of his or her authorisation where requested to do so. Section 42A(3) prohibited a person from hindering or obstructing the authorised officer in the execution of the right of entry power.

43    When in March 1989 the Industrial Relations Act 1988 (Cth) (“IR Act”) replaced the C&A Act, the substance of what had been provided for by s 42A was thereafter addressed, without significant change, by ss 286 and 306 of the IR Act.

44    Whilst between 1973 and 1996 industrial rights of entry could be authorised by either an award or by the IR Act, as W J Ford observed (Ford W J, “Being There: Changing Union Rights Of Entry Under Federal Industrial Law” (2000) 13 Australian Journal of Labour Law 1 at 3, footnotes omitted):

With the passage of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (‘WROLA Act’) the shift from award entitlement to statutory entitlement was emphatically confirmed and completed, the ‘new’ Act effectively putting an end to the continued relevance of right of entry provisions in federal awards and so, for the most part, to the AIRC’s substantive arbitral authority in this regard. Irrespective of whether powers of entry are now — or might perhaps be able to be made, with the exercise of sufficient ingenuity — allowable award matters under s 89A of the current statute, s 127AA has rendered any and all extant award provisions dealing with the subject unenforceable and therefore of no practical effect.

45    Apart from negating awards as a source of authority for rights of entry, the 1996 amendments (which repealed s 286 of the IR Act, amended s 306, and renamed that Act the Workplace Relations Act 1996 (Cth) (“WR Act”)), introduced a number of new features to the right of entry regime provided for by federal industrial law. The capacity of unions to authorise their own officers or employees to enter premises was replaced by a permit system through which a permit could be issued to an employee or officer of an organisation by a Registrar of the Industrial Relations Commission (“IRC”) on the application of that organisation (s 285A). Only permit holders were authorised to exercise right of entry powers (ss 285B(1) and 285C(1)). For the first time, misbehaviour in the exercise of the right of entry could lead to the loss of the capacity to exercise such a right by the revocation of the permit (s 285A(3)).

46    The WR Act right of entry scheme provided by Div 11A, headed “Entry and inspection of premises etc. by organisations”, provided that a permit holder may enter premises for broadly two purposes. Each purpose had a representational connection. Firstly, to investigate a suspected breach of the WR Act, or an award, an order of the IRC or a certified agreement that bound the organisation of which the permit holder was an officer or employee (s 285B). For that purpose, the permit holder was empowered to require the production and inspection of timesheets, pay sheets and other documents and inspect work, machinery, appliances, as well as interview employees in relation to the suspected breach. Secondly, for the purpose of holding discussions with employees who are members of or eligible for membership of the permit holder’s organisation. Under this power, the permit holder could only enter premises in which work was being carried on to which an award binding on the permit holder’s organisation applied (s 285C). Whilst exercising right of entry powers, permit holders were prohibited from intentionally hindering or obstructing any employer or employee. Occupiers, employers and other persons were variously prohibited from refusing or delaying entry, failing to produce documents and otherwise hindering or obstructing a permit holder in the exercise of his or her powers (s 285E).

47    On 14 December 2005 the Workplace Relations Amendment (Work Choices) Act 2005 (“Work Choices amendments”) introduced a number of significant changes to the right of entry regime in the WR Act. Right of entry was thereafter dealt with by Part 15 of the WR Act headed “Right of entry”. Section 736 headed “Objects of this Part” was in the following terms (emphasis added):

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

(a)    to establish a framework that balances:

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

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

...

48    The prescribed purposes for the exercise of the right of entry powers under the WR Act were maintained. A right of entry to investigate suspected breaches of the Act or industrial agreements to which the permit holder’s organisation was bound was provided by s 747. A right of entry to hold discussions with employees who were members of or eligible to become members of the permit holder’s organisation was provided by s 760. However, for the first time, the exercise by officials of organisations (that is unions registered as organisations under federal industrial law) of right of entry powers conferred under “OHS law” (a law of a State or Territory prescribed by regulations made under the WR Act) was brought within the regulatory umbrella of federal industrial law.

49    Division 5 of Part 15 of the WR Act headed “Entry for OHS purposes” included the legislative predecessor to s 494 of the FW Act. Section 756 of the WR Act provided:

Permit required for OHS entry

(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.

50    A number of additional conditions or limitations on the exercise of the right to enter were introduced by the Work Choices amendments. Furthermore, the system for the issue, suspension or revocation of permits became far more prescriptive. It may fairly be supposed that those changes were intended to provide a greater level of scrutiny of the conduct of permit holders. The Registrar (of the Australian Industrial Relations Commission) was empowered to impose conditions that limited the circumstances in which a permit had effect (s 741) and a fit and proper person test was introduced. That test needed to be satisfied in order for an official to be granted a permit (s 742). The grounds for the revocation of a permit were extended (s 744).

51    Relevantly, the fit and proper person criteria which set out the matters to which a Registrar had to have regard included (at ss 742(2)(f) and (g)):

(f)     whether a court, or other person or body, under a State or Territory industrial law or an OHS law, has cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law;

(g)    whether a court, or other person or body, under a State or Territory industrial law or an OHS law, has disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

52    Further, s 742(4) prohibited a Registrar from issuing a permit to an official at a time when:

(a)    a suspension, imposed by a court or other person or body, applies under a State or Territory industrial law or an OHS law to a right of entry for industrial or occupational health and safety purposes that the official has under that law; or

(b)    a disqualification, imposed by a court or other person or body, prevents the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or an OHS law.

53    The grounds upon which a permit could be revoked or suspended were set out in s 744(5) and relevantly included:

…

(c)    a court, or other person or body, under a State or Territory industrial law, cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or

(d)    a court, or other person or body, under a State or Territory industrial law, disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law; or

(e)    the holder has, in exercising a right of entry under an OHS law, engaged in conduct that was not authorised by that law.

54    The Explanatory Memorandum in introducing Part 15 referred to the provisions just set out and said:

2419.    The proposed right of entry provisions would expand the grounds for suspension and revocation of permits and would require a Registrar to suspend or revoke a permit in certain circumstances, including where the permit holder’s right of entry under State law has been cancelled or suspended. The AIRC would also be explicitly empowered to make orders to address abuse of the right of entry system.

55    In 2009 the regime again changed with the passage of the FW Act. The FW Act is divided into six chapters including Chapter 3 which the guide to the FW Act, in s 4(1)(b), describes as setting out “rights and responsibilities of employees, employers and organisations in relation to that employment”. Section 6 provides an overview of Chapter 3. That provision is headed “Rights and responsibilities of employees, employers, organisations etc” and at s 6(1) states:

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

56    An overview of Part 4 of Chapter 3 (ie Part 3-4) is given in s 6(5) as follows (emphasis added):

(5)    Part 3-4 is 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.

57    The application of the FW Act is dealt with in Part 1-3. Division 2 thereof, headed “Interaction with State and Territory laws”, includes s 26(1) which states that the FW 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”. The expression “State or Territory industrial law” is then defined in s 26(2). By s 26(2), the exclusion in s 26(1) extends to “a law of a State or Territory that entitles a representative of a trade union to enter premises” (s 26(2)(f)).

58    However, occupational health and safety laws are excepted from any exclusionary effect and rights of entry conferred by those laws are also excepted. Section 27(1) provides that s 26 does not apply to a law of a State or Territory so far as the law deals with any “non-excluded matters” (s 27(1)(c)). Section 27(2)(c) identifies that “occupational health and safety” is a “non-excluded matter”. Section 27(1)(d) and the note to s 27(1) are of particular relevance:

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

    …

(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.

59    Those provisions essentially mirrored their predecessors enacted by the Work Choices amendments. Relevantly s 16(1)(e) stated that the WR Act was intended to apply to the exclusion of “a law that entitles a representative of a trade union to enter premises” but, s 16(3) included the following as a “non-excluded matter” (emphasis added):

(c)    occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety);

60    The note under s 16 said this (emphasis added):

Note:    Part 15 (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of 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.

61    It is evident then, that both the WR Act and the FW Act were intended to operate to the exclusion of a law of a State or Territory that entitled a representative of a trade union to enter premises, other than for an occupational health or safety law providing for such a right of entry. In that respect, the FW Act and the WR Act were intended to operate interactively. The same conclusion was arrived at by Reeves J in Ramsay v Sunbuild Pty Ltd (2014) 221 FCR 315 at [43].

62    As stated previously, s 494 appears in Part 3-4 of the FW Act. Part 3-4 is entitled “Right of entry”. Part 3-4 contains seven Divisions. What Part 3-4, including each Division thereof, “is about” is set out at s 478 which is entitled “Guide to this Part” (emphasis added):

This Part is 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.

…

Division 3 sets out requirements for exercising rights under State or Territory OHS laws.

63    Section 480 of the FW Act then sets out the objects of Part 3-4 (emphasis added):

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.

64    As its title foreshadows, Division 2 sets out the rights of entry provided under the FW Act. The circumstances and conditions under which a right of entry to investigate 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 … whose industrial interests the organisation is entitled to represent” is provided for by s 481. Section 482 then sets out the rights that may be exercised by the permit holder. Additionally, s 483 allows a permit holder, in specified circumstances, to require an affected employer to provide additional access to records or documents. Similar rights to those in ss 481–483 are found in ss 483A–483C but are specific to the investigation of suspected contraventions affecting textile, clothing and footwear award workers.

65    Section 484 deals with entry to hold discussions with employees. It provides:

Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a)    who perform work on the premises; and

(b)    whose industrial interests the permit holder's organisation is entitled to represent; and

(c)    who wish to participate in those discussions.

...

66    Sections 486–493 then set a number of requirements which a permit holder must comply with when exercising rights of entry. Those requirements include the giving of an entry notice, complying with conditions of a permit holder’s permit, producing for inspection (when requested) the permit holder’s authority documents, only entering during working hours or during meal times or other breaks if entering to hold discussions under s 484 and complying with any reasonable request of the occupier to comply with OH&S requirements applying to the premises.

67    Turning then to Division 3 entitled “State or Territory OHS rights”, the first section is s 494. Although earlier set out in part, I should here set it out in full (other than for the matters listed by s 494(2)(a)–(g) that provide the constitutional foundation for the operation of s 494). Section 494 provides:

Official must be permit holder to exercise State or Territory OHS right

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:

…

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

68    The Explanatory Memorandum at [1916] said this in relation to Div 3:

Under Division 3, permit holders are required to meet certain requirements in exercising a right of entry under a State or Territory OHS law …

69    At [1975] the Explanatory Memorandum also relevantly said:

This Division 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.

70    As to s 494(2), the Explanatory Memorandum relevantly said at [1979]:

…They cover rights conferred by a State or Territory OHS law that allows or authorises entry to premises or inspection or access to employee records on the premises …

71    Section 495 provides that a permit holder must not exercise a State or Territory OHS right to inspect or otherwise access an employee record unless the occupier of the premises or any affected employer has been given a written notice setting out the permit holder’s intention to exercise the right and the reasons for doing so. Such a notice must be given at least 24 hours before the permit holder exercises the right. Section 496 requires that in exercising a State or Territory OHS right, a permit holder must not contravene a condition imposed on his or her entry permit. Section 497 requires that a permit holder not exercise a State or Territory OHS right unless the permit holder produces an entry permit for inspection when requested to do so by the occupier of the premises or an affected employer. Section 498 restricts the exercise of a State or Territory occupational health and safety right to working hours. The final provision of Part 3-4 is s 499. That requires that a permit holder not exercise a State or Territory OHS right unless the permit holder complies with any reasonable request to comply with an occupational health and safety requirement that applies to the premises.

72    A permit holder exercising or seeking to exercise rights in accordance with Part 3-4 is prohibited from intentionally hindering or obstructing any person or otherwise acting in an improper manner (s 500). Section 501 prohibits a person from refusing or unduly delaying the entry onto premises of a permit holder entitled to enter premises in accordance with Part 3-4. Section 502 provides that a person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with Part 3-4. Section 503 deals with misrepresentations and prohibits a person from taking action with the intention of giving the impression, or being reckless as to whether the impression is given, that the doing of a thing is authorised by Part 3-4 if it is not so authorised. Section 504 then deals with the unauthorised use or disclosure of information or documents obtained in the investigation of a suspected contravention.

73    A number of authorities have recognised that the obligations imposed upon a permit holder by Part 3-4 (or Part 15 of the WR Act) apply in relation to the permit holder’s exercise of a right of entry conferred under a State or Territory occupational health or safety law: Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 at [15]–[18] (Buchanan, Reeves and Bromberg JJ); Ramsay at [87] (Reeves J); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [12]–[13] (Mansfield J); Hogan v Riley (2010) 182 FCR 583 at [17] (Finn, Lander and Jessup JJ); John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) (2009) 178 FCR 461 at [50] (Moore J). Correspondingly, a person exercising a State or Territory right of entry enjoys the protections provided to a permit holder by Part 3-4 including those in ss 501 and 502 which prohibit entry being delayed or refused and prohibit a permit holder being hindered or obstructed in the exercise of the right of entry powers: Bragdon at [19]; Ramsay at [87]; Hogan at [17].

74    Division 5 of Part 3-4 then deals with the powers of the Fair Work Commission (“Commission”). Sections 505 and 506 address the Commission’s capacity to resolve disputes about the operation of Part 3-4 and the binding nature of the Commission’s orders. More relevantly for current purposes are the terms of ss 507-511. Section 507 empowers the Commission to impose conditions on an entry permit and suspend or revoke an entry permit issued to a permit holder. In deciding whether to take any such action, the Commission must take into account the “permit qualification matters” (s 507(2)). Those matters are also relevant and must also be taken into account when the Commission exercises its power under s 512 to issue an entry permit. That provision provides that on the application made by an organisation, the Commission may issue to an official of the organisation an entry permit if the Commission is satisfied that the official is a fit and proper person to hold the entry permit. For that purpose and, as I have said, for the purpose of imposing any conditions or suspending or revoking a permit, the Commission must take into account the “permit qualification matters” including, relevantly, the following matters set out at s 513(1)(f):

…

(f)    whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i)    cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii)    disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

…

75    By reason of s 510(1), the Commission must revoke or suspend each entry permit held by a permit holder if it is satisfied that certain specified matters have happened since the first of those permits was issued. One of the matters identified is at s 510(1)(f) as follows:

(f)    the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.

76    Section 514 also addresses rights of entry under a State or Territory OHS law and provides:

When the FWC must not issue permit

The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a)    applies to the official's exercise of; or

(b)    prevents the official from exercising or applying for;

a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.

77    There are two final observations to make as to rights of entry under the FW Act. Section 152 entitled “Terms about right of entry” prohibits the inclusion of terms in a modern award “that require or authorise an official of an organisation to enter premises … to hold discussions with, or interview, an employee; or … to inspect any work, process or object”. There are also prohibitions on terms which may be included in an enterprise agreement made under the FW Act. In approving an enterprise agreement, the Commission must be satisfied that the agreement does not include any “unlawful terms” (s 186(4)). Moreover, an “unlawful term” in an enterprise agreement has no effect (s 253(1)). Section 194 defines “unlawful terms” to include:

…

(f)    a term that provides for an entitlement:

(i)    to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or

(ii)    to enter premises to hold discussions of a kind referred to in section 484;

other than in accordance with Part 3-4 (which deals with right of entry); or

(g)    a term that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3-4 (which deals with right of entry); or

…

78    Putting to one side for the moment Division 3 of Part 3-4, it is beyond doubt that Part 3-4 is dealing with what would be conventionally described as an industrial right, in this case, the right of a representative of a trade union to enter premises and carry out various tasks for the purpose of providing representation to persons who are eligible to be or who are members of that union. Every kind of right of entry conferred by Part 3-4 is conferred upon a trade union official and is expressly linked in purpose to the representation by the official’s trade union of the interests of the employees that the trade union either represents or is entitled to represent. The very same observation can be made of the rights which were conferred by Part 15 of the WR Act and, prior to the making of the Work Choices amendments, of the rights conferred by ss 285A-285E of the WR Act and prior thereto by s 286 of the IR Act and s 42A of the C&A Act. The existence of a representational purpose whenever a right of entry has been conferred by or under a federal industrial law may be traced back to Archer’s Case itself and the necessity for a right of entry to be characterised as an “industrial matter”. Was it intended then that a right of a different character should be regulated by the right of entry regime provided for by federal industrial law when Part 15 of the WR Act was enacted and a right of entry under an OHS law was, for the first time, brought within that regime?

79    At the time the Work Choices amendments were enacted, the Australian Capital Territory, New South Wales, Victoria and Western Australia each had legislation dealing with a right of entry to investigate a suspected contravention of an occupational health and safety law: Pt 5 Div 5.4 Occupational Health and Safety Act 1989 (ACT) (“ACT OHS Act”); Pt 5 Div 3 Occupational Health and Safety Act 2000 (NSW) (“NSW OHS Act”); Pt 2 Div 2G Industrial Relations Act 1979 (WA) (“WA IR Act”) and, as earlier identified in relation to Victoria, Pt 8 of the OH&S Act.

80    In each case the relevant provisions provided for a regime to regulate the right of entry conferred. In each case the right of entry was confined to a right exercisable by a representative of a union to whom a permit or other standing authority was issued either by that person’s union or by a designated authority, on the application of that person or his or her union: s 75 ACT OHS Act; s 76 NSW OHS Act, incorporating Ch 5 Pt 7 Industrial Relations Act 1996 (NSW) (“NSW IR Act”); s 49J WA IR Act and Pt 8 Div 2 OH&S Act. In each case the permits or authorities issued could be suspended or revoked by reason of the holder’s conduct in exercising the right: s 76 ACT OHS Act; s 299(4) NSW IR Act; s 49J(5)–(7) WA IR Act and s 85 OH&S Act. Under each regime there was a representational connection between the exercise of the right of entry conferred and the interests of employees who were members or eligible to become members of the permit or authority holder’s union: s 77(1)(b) ACT OHS Act; s 77 NSW OHS Act; s 87(1) OH&S Act; s 49I(1) WA IR Act. That is to say, that before any right of entry accrued, it was necessary for there to be workers employed at the premises to be entered who were members or eligible to be members of the permit or authority holder’s union.

81    The rights of entry conferred by each of those regimes may fairly be characterized as industrial rights. They were, in each case, rights provided to a representative of a trade union for the purpose of the trade union providing representation to its members or those eligible for membership. That the purpose of the representation was related to health and safety does not deny the industrial character of the rights conferred. To the contrary, the health and safety of employees is a common purpose of the industrial representation of employees by trade unions.

82    It is the exercise of those industrial rights which, in my view, Part 15 sought to bring into the WR Act’s existing scheme for regulating industrial rights of entry. The contextual indicators tend in support of the proposition that the intended expansion of the WR Act’s right of entry regime was confined to rights of the same industrial character as those already dealt with by that regime. The object in s 736(a)(i) spoke of establishing a regime or “framework” which, whilst referring to the investigation of breaches of OHS laws, described the rights in question as “the right of organisations to represent their members”. Section 16(3)(c) referred to entry under the not excluded OHS laws as “entry of a representative of a trade union to premises”. The note to s 16 said of Part 15, that it set prerequisites “for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory”. The reference in ss 742 and 744 of the WR Act to State or Territory regimes under which a right of entry could be cancelled, suspended or its holder subject to disqualification could only have been referring to a right conferred upon a union official because it was only union officials who could hold a permit or other right of entry authority under the State or Territory regimes.

83    Between the enactment of the Work Choices amendments and the passage of the FW Act, Queensland and the Northern Territory incorporated into their OHS laws regimes for the regulation of rights of entry of authorised union representatives in similar terms to those States and Territories whose regimes predated the Work Choices amendments: Pt 7A Workplace Health and Safety Act 1995 (Qld) (“QLD WHS Act”); Pt 4 Div 7 Workplace Health and Safety Act 2007 (NT) (“NT WHS Act”). Specifically, those regimes provided for the issue of revocable authorities to officers or employees of a trade union on the application of the trade union (Pt 7A Div 3 QLD WHS Act; ss 50–52 NT WHS Act); and provided a right of entry to a workplace only where the authority holder’s union had a representational connection to employees at that workplace (Pt 7A Div 4 QLD WHS Act; s 53 NT WHS Act). South Australia and Tasmania introduced substantially identical regimes following the assent of the FW Act: Pt 7 Work Health and Safety Act 2012 (SA); Pt 3A Workplace Health and Safety Act 1995 (Tas).

84    No different intent to that which I have described in relation to the post-Work Choices WR Act is manifested by the FW Act. The fact that the rights the subject of Part 3-4 are those only exercised by union officials “for purposes related to their representative role … under State or Territory OHS laws” is expressly stated in s 6(5) of the FW Act. The very same observation of what Part 3-4 “is about” is made by s 478. The right of entry regime or “framework” referred to by s 480 is a regime which seeks to balance “the rights of organisations to represent their members” (including by investigating suspected contraventions of State or Territory OHS laws) against other objects. The “permit qualification matters” set out in s 513 and the terms of s 514 contemplate the existence of regimes under State or Territory OHS laws which confer rights of entry that may be conditioned, suspended or revoked. Again, the rights there referred to could only have been an intended reference to rights of entry given by State or Territory OHS laws to permit or authority holders who, in each case, had to be representatives of a trade union.

85    I turn then to consider whether an identifiable mischief provides an indication of what was intended by s 494. I need first to identify a further contextual consideration. First, at the time the FW Act was enacted, some of the State or Territory OHS laws provided for a permit or right of entry authority to be issued to an official of a federally registered organisation: s 75 ACT OHS Act; s 76 NSW OHS Act incorporating Ch 5 Pt 7 NSW IR Act; s 49J WA IR Act; Pt 8 Div 2 OH&S Act; Pt 7A Div 3 QLD WHS Act; ss 50–52 NT WHS Act. Second, the nature of union organisation in Australia is such that where State or Territory registered unions exist, those unions will usually have a counterpart State/Territory branch of a federally registered organisation. As a result, the same person will often be an official of both the State or Territory registered union and its federally registered counterpart. My point is that, ordinarily, an official of a federally registered organisation (“federal official”) will have the capacity to obtain a permit or right of entry authority under one or other of the State or Territory OHS laws.

86    The capacity available to federal officials to obtain a standing authority under both the federal right of entry regime provided by Part 3-4 and a State or Territory right of entry regime provided for by a State or Territory OHS law, was a recipe for abuse. That capacity allowed for ‘permit shopping’ as a means of escaping the regulatory consequence of the loss of a permit under one or other of the regimes in question. It also enabled misbehaviour under one regime to not be counted under the other. The potential for mischief of that kind was obvious and a clear candidate for a remedial intent. Requiring a federal official to not exercise State or Territory OHS rights unless the official held a federal permit provided an obvious solution to the mischief in question. To address that mischief it was sufficient for Parliament to have confined itself to industrial rights of entry conferred by State or Territory OHS laws.

87    It might be thought, however, that Parliament had a wider mischief in mind. That is, an intent to regulate entry onto premises by federal officials obtained through all available means. But that postulate faces the difficulty that Part 3-4 does not evince an intent to regulate all of the ways that entry onto premises by a federal official can occur. As I cited earlier, the Explanatory Memorandum to the FW Act said as much at [1919]:

This Division gives officials of organisations a statutory right to enter premises and exercise powers provided they satisfy various conditions. It is not intended to codify all of the ways in which entry can occur or provide an exhaustive list of the powers exercisable on the premises. The Division does not affect the ability of an occupier of premises to invite any person onto that premises, e.g., to meet with the employer about a particular matter.

88    Entry by officials which is not made (or not sought to be made) in the exercise of a Part 3-4 right of entry is not regulated by Part 3-4: Bradgon [61]–[64]. Nor does Part 3-4 regulate a right of entry conferred by an enterprise agreement made under the FW Act where the right is not given for a purpose referred to in s 194(f): Australian Industry Group v Fair Work Australia (2012) 205 FCR 339 at [83]–[84] (North, McKerracher and Reeves JJ). The extract from the Explanatory Memorandum set out by the Full Court at [82] said this (emphasis omitted):

It is intended that agreements can include terms allowing for union officials to enter [the employer's] premises for purposes other than those set out in paragraphs 194(f) and (g). An agreement might, for example, provide an entitlement to enter [the employer's] premises for a range of reasons connected to the terms of the agreement, such as:

•    to assist with representing an employee under a term dealing with the resolution of disputes or consultation over workplace change; or

•    to attend induction meetings of new employees; or

•    to meet with [the employer] when bargaining for a replacement to the current agreement.

89    The Director contended for a more confined intent than the establishment of an exhaustive code. He said that Parliament’s intent was to regulate federal officials who may exercise a statutory authority to enter premises. That, so the Director contended, was to ensure that only those federal officials who are fit and proper persons be given that right. But the rationale for an intended focus upon rights of entry conferred only by statutory authority was not given. Nor is it evident. Why, for instance, was it intended that all statutory authorities be captured but not rights of entry provided under enterprise agreements? Furthermore, such an intent is not borne out by what was actually done. The proposition for which the Director contended assumes that it is only Part 3-4 of the FW Act and State or Territory OHS laws that provided statutory authority for a right of entry to a federal official. I do not know that to have been so at the time of the enactment of the FW Act and no attempt was made to establish it. I note in passing that the note to s 27(1) of the FW Act (set out at [58] above), in addressing non-excluded rights or remedies provided by State or Territory laws, contemplates that statutory authority to enter premises is provided by State or Territory laws for purposes connected with workers’ compensation and outworkers.

90    It must be recalled as well, that fundamental to the Director’s case, is the proposition that the rights picked up by s 494 are not confined to those conferred upon federal officials in their capacity as such, but include a right conferred upon a person who happens to be a federal official. For that proposition the Director relied upon New South Wales v Commonwealth (2006) 229 CLR 1 (“Work Choices Case”) and the holding made at [283] to which I will shortly return. But if that is so (as I accept it to be) there is a further basis for thinking that Parliament was not motivated to capture the exercise of all statutory authority given to a federal official to enter premises because, clearly, that is not what Parliament did.

91    The term “official of an organisation” as utilised by s 494(1), includes a person who holds an “office” in an organisation. That is a consequence of the definitions in s 12 of “official” “office” and “industrial association”. The definition of “office” is broad and, for example, would include a member of a collective body within an organisation such as a committee of management of a branch or a delegate to a body such as the State or Federal Conference of the organisation. The point is that many and probably most “officials” of an organisation are not paid office-holders or employees of that organisation. They are rank and file members employed in all manner of occupations.

92    There must be, and it must have been understood that there would be, many “officials” working in various employments who would, from time to time, exercise a statutory power to enter premises. Customs officers, police, local government employees and a range of employees of regulatory bodies who happen to be union “officials” would fall within the ground that the Director’s contention presumes Parliament intended to cover, but as must be obvious, Parliament could not have had such an intent.

93    That discourse leads to a further difficulty with the construction for which the Director contends. State or Territory OHS laws confer upon employees, some of whom may happen to be “officials”, a statutory authority to inspect workplaces. Section 58(1)(a) of the OH&S Act is an example of such a provision. It provides that an HSR may “inspect any part of a workplace at which a member of the designated work group works”. A “designated workgroup” is not confined to a single workplace and may extend to workplaces at which the HSR does not work and does not therefore have a right to enter as an employee (see ss 43 and 44). Nor is the HSR’s authority to inspect limited to workplaces within the HSR’s designated workgroup (s 59). Provisions to the same effect are found in ss 68(2)(a), 55, 56 and 69 of the Work Health and Safety Act 2011 (NSW) (‘NSW WHS Act’). That Act is derived from national model OHS legislation which, to date, has also been adopted by Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory.

94    The literal reading of s 494 for which the Director contends, would require an HSR who happens to be an “official” to obtain a permit under the FW Act in order to exercise the inspection powers to which I have just referred. That would also mean that the additional conditions imposed on the exercise of a power to inspect (such as the 24 hours written notice required by s 495(1)) would apply. The requirement for 24 hours written notice is to be contrasted with the “reasonable notice” required to be given by an HSR pursuant to s 58(1)(a) of the OH&S Act, or to take an example from the model OHS legislation, s 68(2)(a) of the NSW WHS Act. A 24 hour notice requirement would likely defeat the capacity for an HSR to address an immediate threat to health or safety by making a direction that work cease (s 74 OH&S Act; s 85 NSW WHS Act) or by the issue of a provisional improvement notice (s 60 OH&S Act; s 90 NSW WHS Act). Such a result could not have been intended. Nor is there any discernible basis for thinking that it was intended that unlike other HSRs, an HSR who happened to be an “official” should have the benefit of the additional requirements placed upon the employer and others by ss 501 and 502 of the FW Act.

95    I should note as well that insofar as the Director’s contention relied upon a policy imperative that the conduct of an assistant be taken account of in any later application of the fit and proper person test in s 512, there are two responses. First, the “permit qualification matters” that the Commission must take into account in issuing a permit pursuant to s 512 and also in imposing conditions or revoking or suspending a permit pursuant to s 507(2) are not confined to conduct occurring in the exercise of a statutory right of entry. The relevant considerations are far ranging. Indeed, those considerations are not confined to contraventions, offences or penalties imposed in respect of entering premises: Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15 at [19]–[21] (North, Flick and Bromberg JJ). Second, there is no basis for thinking that the construction for which the Director contends is necessary in order that conduct engaged in by a federal official, when exercising a right of entry (assuming it to be a right) under a provision like s 70 of the OH&S Act, cannot be brought into account in the application of the fit and proper person criterion. As the Full Court in Maritime Union of Australia observed at [22]:

Indeed, s 513(1)(g) expressly provides that “any other matters that the FWC considers relevant” themselves “must” be taken into account.

96    In Ramsay, Reeves J undertook a comprehensive analysis of Part 3-4 of the FW Act in the process of determining whether the exercise of a right of entry under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (“the NT Act”) was an exercise of a right of entry under Part 3-4 and thereby to be afforded the protection of ss 501 and 502 of the FW Act. In the course of that analysis, Reeves J needed to consider the interaction between Part 3-4 and the NT Act, so as to address a submission about inconsistency or repugnancy as between the federal and territory provisions in question. In doing so, and consistently with the conclusion I have arrived at, Reeves J characterised the nature of the rights dealt with by Part 3-4 (including, in particular, those conferred by OHS laws) as industrial rights. At [76], Reeves J said this:

… 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 (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.

…

97    Finally, I need to return to [283] of the Work Choices Case where, as the Director correctly contended, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ observed, in relation to the predecessor to s 494 (s 756 of the WR Act), that the State or Territory OHS right conferred under the State or Territory OHS law does not have to attach to the person in that person’s capacity as a federal official. I accept that the operation of s 494 does not depend upon the State or Territory OHS law conferring a right of entry upon a person who is a federal official in his or her capacity as such. If that was not so, the mischief of permit shopping would not be avoided. But what was said in the Work Choice Case about the operation of s 756 was not directed to the nature or character of the rights with which s 756 dealt. It is therefore not inconsistent with their Honours’ conclusion to say that s 494 is concerned only with industrial rights of entry.

98    To adopt the language and approach of Gageler and Keane JJ at [66] of Taylor, the context does here reveal statutory text capable of a range of potential meanings. One meaning which is not “wholly ungrammatical or unnatural” is that the word ‘right’, when used in s 494, means an industrial right – a right conferred for representational purposes to be exercised by an official of an industrial organisation. I have evaluated the relative coherence of that meaning (for which Mr Powell contends) as against the literal meaning (for which the Director contends) that “right” means any right conferred by a State or Territory OHS law upon any person for any purpose. I have done that by reference to identified statutory objects or policies. For the reasons given, the conclusion I have arrived at is that the meaning for which Mr Powell contends is relatively more coherent with the identified objects and discernible policy of the FW Act.

99    I turn then to consider the character of the right (assuming it to be a right) conferred upon an assistant by s 70 of the OH&S Act. That provision is not found in Part 8 of the OH&S Act which does, as I have held, deal with industrial rights of entry.

100    Part 8 was enacted following recommendations made to the Victorian Government by the March 2004 “Occupational Health and Safety Act Review” by Chris Maxwell (now President Maxwell) (“Maxwell Report”). As Creighton and Rozen (Creighton B and Rozen P, Occupational Health and Safety Law in Victoria (3rd ed, Federation Press, 2007)), say at [1405]–[1406], by reference to [991], [995] and [1018] of the Maxwell Report, the recommendation that a right of entry be conferred upon authorised representatives of unions was made to address (in part) the conclusion reached by the Maxwell Report that a major failure of the Victorian scheme was the widespread lack of representation of workers’ health and safety interests.

101    The capacity for an HSR to invite an assistant onto premises predated the enactment of the OH&S Act. Corresponding provisions to those made by ss 58(1)(f) and 70 of that Act were found in s 32 of the Occupational Health and Safety Act 1985 (Vic).

102    Neither the history or legislative context of s 70 suggest the provision to have any connection to the representation by trade unions of the interests of their members. Nor do the terms of s 70 themselves support the characterisation of any right conferred upon an assistant as an industrial right. Any right of entry conferred is not conferred for the purpose of providing representation by a trade union to its members or persons eligible to be members.

103    The fact that the exercise of a right of entry by an assistant may advance the interests of the employees represented by the HSR is not sufficient to enable the right to be sensibly characterised as industrial or even as representational. Entry is facilitated by s 70(1) for the purpose of the assistant providing occupational health and safety expertise to the HSR and not representational services to the employees. For characterisation purposes, it matters not whether the provision of that expertise is given by a trade union official or, for example, an occupational hygienist.

104    For those reasons, I would also hold that if s 70(1) of the OH&S Act confers a right upon the assistant, it is not a right of the kind with which s 494(1) of the FW Act is concerned.

Conclusion

105    It follows from the reasons given that the Director has failed to establish that when Mr Powell entered the premises occupied by Kane at the invitation of the HSR, he exercised a “State or Territory OHS right” within the meaning of s 494(1) of the FW Act. As Mr Powell was not exercising such a right it was not necessary for Mr Powell to be a permit holder and consequently, there was no contravention of s 494(1). The Director’s application must therefore be dismissed and an order to that effect be made. As no application for costs has been made no order for costs should be made.

Associate:    

Dated:    3 November 2016