Federal Court of Australia

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CPB Contractors Pty Ltd [2020] FCA 1598

ORDERS

UPON THE FIRST APPLICANT, BY ITS COUNSEL, GIVING THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:

1.    The Respondent be restrained, whether by itself or by its servants or agents, until the hearing and determination of this proceeding or further earlier order of the Court, from refusing, delaying, hindering or obstructing officials of the First Applicant, who hold permits issued under s 512 of the Fair Work Act 2009 (Cth) and s 134 of the Work Health and Safety Act 2011 (Qld) (WHS Act), access to its site for the Cross-River Rail Project at the corner of Albert and Mary Streets in Brisbane under s 117 of the WHS Act by reason only, or for reasons which include, that the Respondent contends that insufficient details of an alleged contravention have been provided in a notice purportedly given under s 119 of the WHS Act.

2.    The Respondent be restrained, whether by itself or by its servants or agents, until the hearing and determination of this proceeding or further earlier order of the Court, from refusing, delaying, hindering or obstructing officials of the First Applicant, who hold permits issued under s 512 of the Fair Work Act 2009 (Cth) and s 134 of the Work Health and Safety Act 2011 (Qld) (WHS Act), access to its site for the Cross-River Rail Project at 30 Joe Baker Street, Dutton Park in Brisbane under s 117 of the WHS Act by reason only, or for reasons which include, that the Respondent contends that insufficient details of an alleged contravention have been provided in a notice purportedly given under s 119 of the WHS Act.

TO:

    CPB CONTRACTORS PTY LTD

TAKE NOTICE THAT, PURSUANT TO ORDER 41.06 OF THE FEDERAL COURT RULES:

You are liable to imprisonment or to sequestration of property if:

(a)    you refuse or neglect to do the things that this order requires you to do; or

(b)    you do the things that this order requires you to abstain from doing, or otherwise disobey this order.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Presently underway in Brisbane is a major transport infrastructure project known as the Cross River Rail Project (the project). The project is being delivered for the State of Queensland by a joint venture between the respondent, CPB Contractors Pty Ltd (CPB), BAM, Ghella and UGL. CPB is the principal contractor on the project. In that capacity, it occupies the various construction sites that have been established for the purpose of the project. Of these, two are of present interest: one at Albert Street and Mary Street, the other at Boggo Road. Overall, the project entails the construction of some 10 kms of new rail line from Dutton Park to Bowen Hills.

2    It includes some 5.9 kms of twin tunnels under the Brisbane River and the Brisbane Central Business District, as well as the construction of railway stations and the upgrading of existing rail lines and stations so as to interface with the project. It involves an investment of some $5 billion. On any view, it is an important project for the State.

3    The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is a registered organisation of employees under the Fair Work (Registered Organisations) Act 2009 (Cth). The CEPU is the first applicant in the present proceedings, CPB being the respondent. The other applicants are organisers of the CEPU.

4    At present, about 30 persons eligible to be members of the CEPU are employed on the project. On the evidence, the number of such eligible persons is likely greatly to increase over the life of the project.

5    The present proceeding has its origins in a telephone call received by Mr Wendel Moloney, an organiser, early in the morning on 12 August 2020. As related by him in his affidavit, the telephone call was, at least purportedly, from a person who identified himself as a worker at the project. More particularly, the effect of the conversation, as related by Mr Moloney, was:

15.    I received a telephone call at approximately 6:45 am from a male person who identified themselves to me as an employee at the Project. That person said to me words to the effect of:

“I am a sparkie working at the Cross-River Rail project at the Albert Street Station. You should come and have a look because we have concerns that it isn’t a safe place to work.”

16.    I understood the reference to the “Albert Street Station” as being the Albert Street Site. I am aware from previous visits that there are workers performing work at the Albert Street Site who are eligible to be members of the ETU.

17.    I then said to the worker words to the effect of:

“Why do you have concerns about safety?”

18.    The worker then said words the effect of:

“There is shit in every walkway. There are trip hazards everywhere and the access is non-existent. They are doing excavations at the moment, and there are also issues with generators. There is also stuff all lighting and we can hardly see what we are doing.”

19.    I thanked the worker for letting me know about his concerns and the call ended.

6    Based on that conversation, Mr Moloney formed a view, so he deposes, that there were or may be contraventions of reg 40(a) and reg 40(d) of the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation), and therefore s 19 of the Work Health and Safety Act 2011 (Qld) (WHS Act), occurring at the Albert Street site.

7    Having formed that view, he determined that he should go to the Albert Street site of the project for the purpose of conducting an inspection in accordance with s 117 of the WHS Act. He undertook some internal consultations with other union officials and, having so done, walked from the union’s office at Peel Street in South Brisbane to the Albert Street project site in company with another organiser, Mr Bravo. They there met, as indeed they were expecting at some stage that morning to meet, with yet another CEPU organiser, Mr Jimmy Little. They then sought entry to the Albert Street site of the project.

8    The experience thereafter related by Mr Moloney is one of successive referrals up, apparently, a corporate hierarchy within CPB entailing aggressive questioning as to exactly why entry was sought and, in the end result, a refusal of entry, apparently on the basis of instructions from yet further up the hierarchy of CPB.

9    The affidavit evidence shows experience similar in broad, general character, although differing in detail, in relation to a subsequent endeavour to obtain entry to the Boggo Road site of the project. It is not necessary for present purposes to detail the experience in relation to that particular entry.

10    The CEPU and the other applicants have instituted proceedings in this Court’s Fair Work Division in which they claim:

1.    Declarations that on 12 and 13 August 2020 the Respondent contravened sections 501 and/or 502 of the Fair Work Act 2009 (Cth) (FW Act) by refusing or delaying entry to the Cross-River Rail Project by the Second to Sixth Applicants and/or otherwise hindering or obstructing them in the exercise of their rights as permit holders under s.117 of the Work Health and Safety Act 2011 (Qld) (WHS Act) and the FW Act.

2.    The imposition of pecuniary penalties on the Respondent pursuant to s.546(1) of the FW Act in respect of the contraventions set out above.

3.    An order pursuant to s.546(3) of the FW Act that any pecuniary penalty imposed upon the Respondent be paid to the First Applicant.

 4.     Such further or other orders as the Court thinks appropriate.

[sic]

11    By way of interlocutory relief, CEPU claims the following:

1.    The Respondent be restrained, 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 First Applicant who hold permits issued under s 512 of the Fair Work Act 2009 (Cth) and s 134 of the Work Health and Safety Act 2011 (Qld) (WHS Act), access to its site for the Cross-River Rail Project at the corner of Albert and Mary Streets in Brisbane under s 117 of the WHS Act by reason that the Respondent contends that the permit holders do not suspect a contravention of the WHS Act.

2.    The Respondent be restrained, 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 First Applicant, who hold permits issued under s 512 of the Fair Work Act 2009 (Cth) and s 134 of the Work Health and Safety Act 2011 (Qld) (WHS Act), access to its site for the Cross-River Rail Project at the corner of Albert and Mary Streets in Brisbane under s 117 of the WHS Act by reason that the respondent contends that insufficient details of the contravention have been provided prior to entry.

3.    The Respondent be restrained, 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 First Applicant who hold permits issued under s 512 of the Fair Work Act 2009 (Cth) and s 134 of the Work Health and Safety Act 2011 (Qld) (WHS Act), access to its site for the Cross-River Rail Project at 30 Joe Baker Street, Dutton Park in Brisbane under s 117 of the WHS Act by reason that the Respondent contends that the permit holders do not suspect a contravention of the WHS Act.

4.    The Respondent be restrained, 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 First Applicant, who hold permits issued under s 512 of the Fair Work Act 2009 (Cth) and s 134 of the Work Health and Safety Act 2011 (Qld) (WHS Act), access to its site for the Cross-River Rail Project at 30 Joe Baker Street, Dutton Park in Brisbane under s 117 of the WHS Act by reason that the respondent contends that insufficient details of the contravention have been provided prior to entry.

[sic]

The CEPU, by its counsel, has offered the usual undertaking as to damages in respect of its claim for interlocutory injunctive relief.

12    Recently, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) [2020] FCA 1147 (Inner City South State Secondary College Case), I summarised principles which attend whether or not to grant interlocutory injunctive relief, at [13] – [15]:

13    As to the granting of such relief, the applicable principles are not in doubt. These were explained by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 and earlier in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. In short, it is for the Commissioner to demonstrate that he enjoys a sufficient likelihood of success in the principal proceeding to warrant in the prevailing circumstances, as shown on the evidence before the Court, preservation of a particular status quo, either pending trial or to some earlier date.

14    That entails demonstration of whether or not the Commissioner has a prima facie case. In turn, that entails an examination of the strength of that case in terms of its probability of success. That is not to say that the Commissioner in seeking an interlocutory injunction must show that it is more likely than not that he will succeed. Rather, what the Commissioner must show is a sufficient likelihood to the extent that there is a serious question to be tried.

15    Another factor which, whilst it can be identified separately, interplays in terms of an exercise of discretion as to whether to grant interlocutory injunctive relief is the balance of convenience. It may well be, and I rather consider it is in the circumstances of the present case given the nature of the building project, that if not a separate factor another consideration which intrudes on the balance of convenience which is the public interest, represented by the due completion in time for the start of a new school year, if possible, of what must obviously, from the number of students concerned, be regarded as an important addition to the State’s educational resources.

13    As with that case, the present strikes me even more glaringly as a case where a public interest looms large. Indeed, it is readily possible to see more than one public interest. Overarchingly, there is a public interest in the due completion of this important State infrastructure project. More particularly, there is a public interest that that completion occur in conditions which are conducive to the health and safety of workers engaged in the project, be they managerial, trade or labouring.

14    Also in the Inner City South State Secondary College Case, at [5] – [7], I highlighted the historic and continuing role of trade unions in relation to workplace health and safety. I also highlighted how, in modern times, the direct action by withdrawal of labour had come to be regulated and the importance of observance of regulation in relation to workplace health and safety. The present case nicely raises the operation of that regulation.

15    Regulation of workplace health and safety is both the province of State provision, as found in the WHS Act and WHS Regulation, as well so far as rights of entry are concerned as Federal provision in Pt 3-4 of the Fair Work Act 2009 (Cth) (Fair Work Act).

16    The object of Pt 3-4 of the Fair Work Act, as found in s 480, is to strike a balance which takes into account the historic and continuing interest in workplace health and safety on the part of unions, state regulation, and rights of occupiers to go about their business without undue inconvenience. On the facts of this case, quite where that balance lies on the facts is a matter which will be determined at trial. For the present, it is enough to refer to a contention on the part of the CEPU and other applicants that the right of access for which s 117 of the WHS Act provides is not conditional upon the giving of a notice of the kind for which s 119 of that Act provides.

17    Those sections provide:

117    Entry to inquire into suspected contraventions

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

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

119    Notice of entry

(1)     A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this division, give notice of the entry and the suspected contravention, as prescribed by regulation, to -

(a)    the relevant person conducting a business or undertaking; and

(b)    the person with management or control of the workplace.

(2)    Subsection (1) does not apply if to give the notice would -

(a)    defeat the purpose of the entry to the workplace; or

(b)    unreasonably delay the WHS entry permit holder in an urgent case.

(3)    Subsection (1) does not apply to an entry to a workplace under this division to inspect or make copies of documents mentioned in section 120.

18    One must also read, in conjunction with s 117, reg 27 and reg 28 of the WHS Regulation, which provide:

27    Notice of entry — general

A notice of entry under Part 7 of the Act must:

(a)    be written; and

(b)    include the following:

(i)    the full name of the WHS entry permit holder;

(ii)    the name of the union that the WHS entry permit holder represents;

(iii)    the section of the Act under which the WHS entry permit holder is entering or proposing to enter the workplace;

(iv)    the name and address of the workplace entered or proposed to be entered;

(v)    the date of entry or proposed entry;

(vi)    the additional information and other matters required under section 28, 29 or 30 (as applicable).

28    Additional requirements — entry under section 117

A notice of entry under section 119 of the Act in relation to an entry under section 117 of the Act must also include the following -

(a)    so far as is practicable, the particulars of the suspected contravention to which the notice relates;

(b)    a declaration stating -

(i)    that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union; and

(ii)    the provision in the union’s rules that entitles the union to represent the industrial interests of that worker; and

(iii)    that the suspected contravention relates to, or affects, that worker.

Note -

Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.

19    It seems to me that, on the evidence to hand, the CEPU has raised a serious question to be tried as to whether or not the taxing of its organisers at the Albert Street site, and later at the Boggo Road site, by or on behalf of CPB for particulars, and yet further particulars, of the alleged contraventions in any way permitted CPB to refuse those organisers entry. Those who sought entry held the requisite permits both under the Fair Work Act and the WHS Act.

20    It has been put on behalf of the applicants that the effect of the Fair Work Act is to qualify the exercise of rights of entry under the WHS Act but not in a way which would permit a refusal of access on the basis of allegedly inadequate particulars in a notice. For present purposes, that does strike me as raising a serious question to be tried. Further, it strikes me that the applicants have established that there is a serious question to be tried in relation to the more basal question as to whether or not there existed a reasonable suspicion for the engaging of a right of entry.

21    At trial it will undoubtedly be necessary to delve in some detail into the particular role of the giving of a notice and what is or is not adequate furnishing of particulars. That is no new subject, the Full Court having paused on it in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470, at [15], and also in Ramsay v Menso (2018) 260 FCR 506.

22    Another issue which will arise at trial is the utility and, therefore, adequacy of what one might describe as a “tick and flick” pro forma template notice which was employed for the purpose of purported compliance with s 119 of the WHS Act. I can well see the benefit in endeavouring to construct, in advance, in relation to technical requirements, a document which admits of ready use at the worksite. Care, though, does need to be taken with such documents to ensure that they are not employed uncritically to the detriment of engaging with the particular basis upon which the reasonable suspicion has been formed and the related suspected contraventions.

23    There is a question which is ever one which arises in isolation in relation to interlocutory injunctive relief, which is where does the balance of convenience lie? It is not hard to see how CPB might feel that the notices given were general. Further, CPB has made quite an issue in terms of convenience of its obligation to comply with the Code for the Tendering and Performance of Building Work 2016 (Cth) (the Code), the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), as well as the Fair Work Act and other applicable Commonwealth and State legislation. The riposte, though, as to the embracing of the Code by CPB, by the CEPU and other applicants was that part of that compliance entailed the permitting of lawful entry. Thus, if CPB were found to have failed to comply with entry obligations and thereby contravened the Fair Work Act, no amount of reference to the economic importance of the project would remove a question as to whether it had failed to comply with the Code. Ultimately, it seems to me, in terms of the balance of convenience, that the Code point can rise no higher than its source, and part of its source involves consideration of the very issues which the CEPU and other applicants have sought to raise in the present proceedings.

24    I am by no means insensitive, however, to the prospect that rights of entry can be misused. The balance which the Fair Work Act seeks to strike in Pt 3-4 seems to me very much directed to a balance between use and misuse of rights of entry. As I raised in the course of submissions, it seems to me that the interlocutory relief which is sought overreaches what lawfully the Court can order. By that I mean that if, truly, there were no reasonable suspicion, it seems to me at least arguable that CPB could refuse entry because the existence of a reasonable suspicion does seem to be the foundation for the ability to exercise entry, apart, of course, from the formal permit requirements.

25    Equally, however, and this is the question which the CEPU does truly seek to vindicate, and in respect of which it has, in my view, raised a serious question to be tried, it does seem to me at least arguable that it is no part of the notice to intrude upon whether or not entry may occur. At least prima facie, it seems to me that the purpose of the notice is to indicate to the person in control of the premises the basis upon which entry is sought. That may well allow that person to form a view as to whether or not there exists a reasonable suspicion, but the reasonable suspicion itself must necessarily have been formed prior to entry. In turn, it seems to be arguable that no amount of inadequacy in the notice can destroy the existence, if it be that, of a reasonable suspicion.

26    That being so, there is, pending trial, a balance to be struck between the ability of those holding the requisite permits, and a reasonable suspicion, to engage in that historically important, and now regulated, entry for workplace health and safety purposes and the right of an occupier to quiet possession of premises for the purpose of completing a project. Pending trial, the balance seems to me to be struck by providing for a modified form of order of the kind based on paragraphs 2 and 4 of the claims for interlocutory relief.

27    It does not strike me as apt to make orders in terms of paragraphs 1 and 3. I say that because, as I have already indicated, if, truly, there were no reasonable suspicion, then there would be no basis for the exercise of an entry right.

28    Lest it be thought that it has passed unnoticed, I should add that the institution of proceedings by the CEPU and the other applicants seeking to vindicate, by an exercise of Commonwealth judicial power in this Court’s Fair Work Division, claimed rights of entry stands in marked contrast to the direct action revealed in the Inner City South State Secondary College Case, in which another union and its officers engaged. The institution of these proceedings is a responsible act on the part of the CEPU and its officers.

29    That this is so does not, of course, mean that the CEPU is entitled either to the interlocutory relief granted or in any way, for that matter, to the final relief it claims, only that our system of industrial law envisages that this type of proceeding is the path which an industrial organisation and its officers, in relation to a controversy of the present kind, ought responsibly to follow, as opposed to endeavouring to stand outside by direct action, the industrial rules of this country.

30    It is, given the pervasive importance of the WHS Act and WHS Regulation, highly desirable, in my view, that the State be given notice of the present proceedings so that it may make an informed decision as to whether or not it seeks to be heard in the substantive proceeding at trial.

Associate:    

Dated:    3 November 2020

SCHEDULE OF PARTIES