Federal Court of Australia

Australian Workers’ Union v John Holland Pty Ltd [2023] FCA 892

ORDERS

THE COURT ORDERS THAT:

1.    These proceedings be stayed until matter number RE2023/365 in the Fair Work Commission is heard and determined, or until further order of the Court.

2.    The respondent is to notify the Court within three business days of matter number RE2023/365 being determined by the Fair Work Commission.

3.    The respondent be excused, until further order, from compliance with r 16.32 of the Federal Court Rules 2011 (Cth).

4.    The parties have liberty to apply on three days’ notice.

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

REASONS FOR JUDGMENT

JACKMAN J

1    This is an application for a temporary stay of these proceedings pending the hearing and determination by the Fair Work Commission (FWC) of the matter identified as RE2023/365 (the FWC Proceedings), commenced by John Holland Pty Ltd (John Holland) against the Australian Workers’ Union (AWU).

2    John Holland and CPB Contractors Pty Ltd (CPB) are parties to a joint venture for the design and construction of the WestConnex Rozelle Interchange and Western Harbour Tunnel Enabling Works project in Sydney (Project). The project is a $4.6 billion road project consisting of 23 km of tunnel, 4 cut and cover tunnel portal structures, 12 bridges and 2 ventilation facilities connected to an underground ventilation system. The Project is a new underground motorway interchange which provides connectivity to the M4-M5 Link Tunnels and the City West Link, and underground bypass of Victoria Road between Iron Cove Bridge and Anzac Bridge. The Project also provides a connection to the future Western Harbour Tunnel. John Holland employs construction workers on the Project. For workers involved in tunnelling works, these employees are presently employed by John Holland under the “John Holland CPB Contractors Joint Venture – Rozelle Interchange and Western Harbour Tunnel Enabling Works/AWU Tunnelling Works Greenfield Agreement 2019-2023” (Enterprise Agreement). John Holland is an entity subject to the Work Health and Safety Act 2011 (Cth) (WHS Act). John Holland and CPB also engage subcontractors to perform various work in respect of the Project. The evidence for John Holland is that the Project has in place various control processes and measures to mitigate the risk of exposure to airborne dusts and particulate, in particular respirable crystalline silica (RCS), although the AWU does not agree that the measures listed in that evidence are in place across the entire Project, or that those measures necessarily have the result of mitigating the risk of exposure to airborne dust and particulate including RCS.

3    Officials of the AWU have sought entry to and entered the Project on the following dates pursuant to right of entry notices issued under s 117 of the WHS Act: 1 February 2022, 2 March 2022, 27 July 2022, 11 October 2022 and 8 February 2023. Those entries were said to be to investigate suspected contraventions of s 19 of the WHS Act, including reference to “air quality”. During those entries, AWU officials sought to bring dust monitoring equipment onto the Project. Apart from the 1 February 2022 and 2 March 2022 entries, permission has not been granted by Project management for any AWU permit holder to bring the dust monitoring equipment onto the Project site during their entries. Documents have also been provided to the AWU permit holders pursuant to s 120 of the WHS Act.

4    From April 2023, officials of the AWU have sought to enter the Project on the following dates pursuant to right of entry notices issued under s 481 of the Fair Work Act 2009 (Cth) (FW Act): 14 April 2023, 26 April 2023 and 1 May 2023. Those entries were purportedly to investigate suspected contraventions of particular clauses of the Enterprise Agreement and the FW Act. During those entries, AWU officials sought to bring dust monitoring equipment onto the Project. Permission has not been granted by Project management for any AWU permit holder to bring the dust monitoring equipment onto the Project during their entries. The evidence given for John Holland is that John Holland and CBP are concerned about, among other things, the intrusion into their premises and operations that would be caused by use of external and unauthorised equipment on premises over which they have control, and the associated disruption caused by this to major public works that are presently on foot. The AWU officials have otherwise been permitted entry to the Project on those dates.

5    On 21 April 2023, two officials of the AWU gave notice that they intended to enter the Project on 26 April 2023, claiming an entitlement to do so under s 481 of the FW Act. On the same day, the NSW Branch Secretary of the AWU wrote a letter to the Project outlining the position of the AWU in relation to the bringing of dust monitors onto the Project by the officials. The evidence for John Holland is that John Holland and CPB were of the view that future entries to the Project needed to be conditioned on a properly established basis for a suspected contravention (that is, on a basis which went beyond that asserted in support of previous entries), and John Holland and CPB wanted to resolve the issue by applying to the FWC to challenge whether officials could bring dust monitors on site in the future and, if so, the conditions upon which they could do so.

6    On 24 April 2023, John Holland and CPB filed an application in the FWC to deal with a right of entry dispute (FWC Application) pursuant to s 505 of the FW Act, naming the AWU as respondent, thereby commencing the FWC Proceedings. The FWC Application was served on the AWU on the same day, 24 April 2023. The FWC Application is in the form of Form F12. Under the heading “Matters in Dispute”, the FWC Application states as follows:

1.    There are a number of matters in dispute between the parties. These include:

a.    Whether permit holders for the Australian Workers’ Union (AWU) have at any time held or have established that they have held, a reasonable suspicion of a suspected contravention or a breach of the [Enterprise Agreement], Fair Work Act 2009 (Cth) (FW Act) or Work Health and Safety Act 2011 (Cth) (WHS Act) to permit a right of entry to the Rozelle Interchange WestConnex / Western Harbour Tunnel project (Rozelle Interchange) pursuant to either s.481 of the FW Act or s.117 of the WHS Act.    

b.    If so, whether and, if so, to what extent, the rights granted pursuant to s.482(1)(a) of the FW Act and s.118(1)(a) of the WHS Act allow a permit holder to bring equipment owned by them onto the premises to which entry has been obtained to conduct their own purported dust monitoring while on site.

2.    During the course of resolution of these disputes, other ancillary matters may emerge as disputed matters which require resolution. For example if a permit holder’s rights do allow     any form of monitoring, issues which require resolution may include the circumstances in which the right is enlivened, how the monitoring can take place, the uses to which information gained through monitoring may be put, issues relating to ownership and access to information gained via monitoring and issues relating to the accreditation of monitoring equipment and the qualifications of people operating the equipment.

7    The orders sought in the FWC Application are, in effect, declarations as follows:

1.    That the purported exercise of rights of entry by permit holders employed by the Australian Workers’ Union have not been exercised validly under s.481 of the FW Act or s.117 of the WHS Act because at no time have the permit holders established a basis for a reasonable suspicion of breach of a relevant obligation.

2.    That the right to ‘inspect’ given to a permit holder pursuant to s.482(1)(a) of the FW Act does not extend to a permit holder bringing dust monitoring equipment onto site or conducting their own dust monitoring while on site pursuant to an entry under s. 481 of the FW Act.

3.    That the right to ‘inspect’ given to a permit holder pursuant to s.118(1)(a) of the WHS Act does not extend to a permit holder bringing dust monitoring equipment onto site or conducting their own dust monitoring while on site pursuant to an entry under s.117 of the WHS Act.

8    On 19 May 2023, the AWU commenced these proceedings in the Federal Court (the Federal Court Proceedings). On 22 May 2023, John Holland was served with the Originating Application and Statement of Claim filed by the AWU in these proceedings.

9    The Originating Application seeks a declaration as follows:

Declarations that the respondent hindered or obstructed Stephen Ackerman exercising rights in accordance with Part 3-4 contrary to s 502 of the Fair Work Act 2009 (Cth) (FW Act) by refusing him to use the Dust Trak II Aerosol Monitor to test levels of respirable dust at site C/Stage 1 of the John Holland/CPB Rozelle Interchange WestConnex – Western Harbour Tunnel at 68-72 Lilyfield Rd Rozelle NSW 2039 on three occasions on 1 May 2023.

The AWU also seeks an order under s 546(1) of the FW Act that the respondent pay pecuniary penalties in respect of the alleged contraventions, and an order under s 546(3) of that Act that the pecuniary penalties be paid to the AWU.

10    The Statement of Claim alleges that Mr Stephen Ackerman, as a “permit holder” within the meaning of s 12 of the FW Act, gave John Holland and CPB an entry notice on 28 April 2023, claiming a right of entry pursuant to s 481 of the FW Act, and specifying the suspected contraventions relating to whether John Holland was taking all reasonably practicable steps to ensure workers were not exposed to respirable and inhalable dust including dust containing RCS. It was alleged that Mr Ackerman’s suspicion that contraventions had occurred or were occurring was reasonable within the meaning of s 481(3) of the FW Act. It is alleged that on 1 May 2023, Mr Ackerman arrived at the premises of the Project to exercise his right of entry under s 481 of the FW Act, bringing with him a Dust Trak II Aerosol Monitor (Monitor) to measure the level of respirable dust that could not be seen with the naked eye, and that an employee of John Holland refused to allow him to use that Monitor on the premises. The same refusal was made on two additional occasions that day. It is alleged that the conduct of the employee of John Holland constituted intentionally hindering or obstructing Mr Ackerman exercising rights pursuant to s 502(1) of the FW Act.

11    The solicitor for John Holland, Mr Toby Walthall, gives evidence that based on his experience of over 14 years in conducting litigation in the FWC, he considers that the following process for the resolution of the matter before the FWC is likely:

(a)    a further conciliation conference will be listed within 1-3 weeks of the FWC being notified of the Court’s decision in respect of this interlocutory application;

(b)    in addition to discussing resolution of the matter, he anticipates the conciliation conference would include an attempt to narrow the issues, and to identify with clarity the issues for arbitration;

(c)    if the matter does not resolve at conciliation, directions will be given for the filing of written submissions and evidence for arbitration, and the matter will also be listed for hearing;

(d)    the process of preparing submissions will include the parties formulating the questions to be determined at arbitration;

(e)    the preparation and filing of evidence and outlines would ordinarily take 4 to 8 weeks, with the hearing to be listed to commence shortly thereafter;

(f)    the hearing would likely take in the order of 2 to 3 days; and

(g)    he would anticipate a decision within 8 to 12 weeks of the hearing.

12    Mr Walthall also gives evidence that, subject to the ultimate factual matters in dispute in both proceedings and whether the FWC Application were to proceed to arbitration, the witnesses to be called by the parties are likely to be the same across the two proceedings. He estimates that there are likely to be at least 3 witnesses for John Holland and CPB in both matters. Mr Walthall gives evidence that, on current instructions, John Holland and CPB will seek the assistance of the FWC to resolve the dispute about the future conduct of AWU officials seeking to bring dust monitors on site when entering in accordance with s 481 of the FW Act, regardless of the outcome of the Federal Court Proceeding.

13    The solicitor for the AWU, Ms Szumer, has also filed an affidavit. In relation to subpara (b) above in the evidence of Mr Walthall, Ms Szumer says that she is instructed that in so far as the FWC Application process includes discussion of a voluntary resolution, the AWU will not agree to any resolution which does not permit AWU officials to use the Monitor to test levels of respirable dust on the Project. That evidence, however, is qualified by the statement by counsel for the AWU at the hearing before me that the AWU undertakes as follows:

The AWU undertakes through its counsel that it will instruct its permit holders not to seek to use, without John Holland’s consent, a Dust Trak II Aerosol Monitor or other devices to test levels of respirable dust at the John Holland/CPB Rozelle Interchange Westconnex – Western Harbour Tunnel at 68-72 Lilyfield Rd Rozelle NSW 2039 while exercising a right of entry under the Fair Work Act 2009 (Cth) or the Work Health and Safety Act 2011 (Cth) until the determination of liability in this proceeding or further order.

14    As to the matters referred to in subparas (b)-(g) above in the evidence of Mr Walthall, Ms Szumer says that she is instructed that if this Court dismisses John Holland’s Interlocutory Application, the AWU intends to apply to stay the FWC Application until after the Federal Court Proceeding has been determined. Ms Szumer is also instructed that if the FWC Application is not stayed, the AWU intends to press a jurisdictional objection in the FWC. Ms Szumer considers that those threshold matters will affect the time it takes for the FWC to finalise the FWC Application. Ms Szumer is also instructed that the AWU will pursue the relief sought in these proceedings regardless of the outcome of the FWC Application. She is instructed further that AWU officials intend to enter the Project site and use the Monitor to test levels of respirable dust on the earliest possible occasion they are permitted to do so, and where the requirements of Part 3-4 of the FW Act regarding right of entry are met.

Salient Legislative Provisions

15    Section 481(1) of the FW Act provides as follows:

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

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

(b)    who performs work on the premises.

16    Section 481(3) provides as follows:

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

17    Section 482(1) specifies the rights that may be exercised while the permit holder is on the premises and includes:

18    Section 502(1) provides as follows:

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

I note that ss 481 and 482 are provisions within the Part referred to in s 502(1), namely Part 3-4.

19    Section 505(1) confers power on the FWC as to how to deal with a dispute about the operation of Part 3-4. Section 505(2) provides as follows:

The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a)    an order imposing conditions on an entry permit;

(b)    an order suspending an entry permit;

(c)    an order revoking an entry permit;

(d)    an order about the future issue of entry permits to one or more persons;

(e)    any other order it considers appropriate.

20    Section 595(2) confers on the FWC a broad power to deal with a dispute (other than by arbitration) as it considers appropriate, including relevantly by mediation or conciliation. Section 595(3) provides that the FWC may deal with a dispute by arbitration only if the FWC is expressly authorised to do so under or in accordance with another provision of the Act. As I have indicated, s 505(2) is such a provision, and applies to disputes about the operation of Part 3-4.

21    Section 577(1) provides as follows:

The FWC must perform its functions and exercise its powers in a manner that:

(a)    is fair and just; and

(b)    is quick, informal and avoids unnecessary technicalities; and

(c)    is open and transparent; and

(d)    promotes harmonious and cooperative workplace relations.

22    Section 599 provides as follows:

Except as provided by this Act, the FWC is not required to make a decision in relation to an application in the terms applied for.

23    Section 117 of the WHS Act provides as follows:

(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.

24    Section 118(1) sets out the rights that may be exercised by the WHS entry permit holder while at the workplace, and includes:

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

25    Section 142 deals with the manner in which the “authorising authority” (defined as the FWC) may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under the WHS Act. Section 142(2) provides that the FWC may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. Section 142(3) provides that if the FWC deals with the dispute by arbitration, it may make one or more of various kinds of orders, namely:

(a)        an order imposing conditions on a WHS entry permit;

(b)        an order suspending a WHS entry permit;

(c)        an order revoking a WHS entry permit;

(d)        an order about the future issue of WHS entry permits to 1 or more persons;

(e)        any other order it considers appropriate.

Section 142(6) provides that s 142 applies despite s 595 of the FW Act.

Applicable Legal Principles

26    The power of the Court to grant a temporary stay of the kind sought is an aspect of its general power to control its own proceedings, and it is exercisable where proceedings are pending in another court or tribunal and it is desirable that those proceedings should proceed to their conclusion first, recognising the general principle that it is undesirable that two courts or tribunals should determine the same dispute: Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497 at [105] (Brereton JA, with whom Leeming JA and Emmett AJA agreed). Brereton JA referred to this kind of temporary stay as a “case management stay” at [103] and [106], and I respectfully regard that as an apt description of the nature of such a temporary stay, involving as it does, no more than the postponement of pre-trial preparation steps and any hearing, while the Court retains control over the proceedings. As Brereton JA stated at [103], such a stay does not involve any conclusion as to jurisdiction, or as to appropriate forum, but is a technique for the management of proceedings in the context of proceedings pending elsewhere. As his Honour said at [105], practical considerations based on common sense and fairness guide which action should proceed first. That proposition was also stated by Finkelstein J in this Court in Bella Products Pty Ltd v Creative Designs International Ltd [2009] FCA 868; (2009) 258 ALR 538 at [23].

27    In a much-cited judgment, which was approved in Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 at 590 (Dawson, Gaudron, McHugh and Gummow JJ), Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 71; (1992) 34 FCR 287 at 291, set out the following non-exhaustive list of considerations relevant to the grant of a temporary stay:

•    Which proceeding was commenced first.

•    Whether the termination of one proceeding is likely to have a material effect on the other.

•    The public interest.

•    The undesirability of two courts competing to see which of them determines common facts first.

•    Consideration of circumstances relating to witnesses.

•    Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.

•    The undesirability of a substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

•    How far advanced the proceedings are in each court.

•    The law should strive against permitting multiplicity of proceedings in relation to similar issues.

•    Generally balancing the advantages and disadvantages to each party.

28    There was no dispute concerning the correctness in principle of that list of relevant factors. However, counsel for the AWU, Mr Tran, submitted that the formulation of the factors, and the weight to be assigned to them, may be affected by the fact that in the present case the competing proceedings are not proceedings in a court, referring to ResMed Limited v Australian Manufacturing Workers’ Union (No 2) [2015] FCA 537; (2015) 243 FCR 366 at [37] (Perry J).

Submissions and Consideration

29    At the forefront of the argument by counsel for John Holland, Mr Shariff SC with whom Mr Smith appeared, is the proposition that the FWC Proceedings will resolve a pressing and practical controversy between the parties as to whether, on future occasions, officials of the AWU will be entitled to bring air monitoring equipment onto the Project site and, if so, on what conditions (if any). Mr Shariff described that as being the real dispute and the heart of the dispute. Mr Shariff accepted that the dispute as to whether John Holland acted lawfully on 1 May 2023 would go some way to resolving that dispute, but only the FWC (and not the Federal Court) can lay down a prescriptive regime for the future conduct of exercises of the right of entry. Mr Shariff submitted that the FWC would have to give consideration to the legal questions of construction which are also raised in the Federal Court Proceedings, but would do so as steps on the way to the practical exercise of broader powers, balancing the competing interests, which are available only to it. Mr Shariff submitted, and I accept, that it is permissible and orthodox for such a tribunal to determine matters of legal right as steps along the way to the exercise of its discretionary powers: QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; (2020) 276 FCR 97 at [92]-[102] (Moshinsky, Bromwich and Derrington JJ). Mr Shariff submitted that the reference to these issues as “ancillary matters” which “may emerge as disputed matters” in the FWC Application, should not be read in the sense that these issues are or will be subsidiary. Rather, they were not the issues which were actually in play at the time the FWC Application was filed, but are likely to become the real issues in contest as the dispute evolves through the various stages of conciliation and arbitration in the FWC. To the extent that the FWC Application raises questions of past conduct, Mr Shariff submits that the FWC Application raises questions arising on all the previous occasions when AWU officials sought entry to the Project (expressed in the FWC Application to involve all the occasions before 24 April 2023 when the FWC Application was filed), not just the three occasions which occurred on 1 May 2023.

30    In terms of the orders sought in the FWC Application, Mr Shariff candidly accepted that there were elements of the declarations sought which would be beyond the jurisdiction of the FWC, but submitted that the FWC had not exceeded its jurisdiction or threatened to do so, and the relief ultimately to be awarded by the FWC would be moulded according to the dispute as it evolves. He drew attention to s 599 of the FW Act to the effect that the FWC is not required to make a decision in the terms applied for in the FWC Application. Mr Shariff submitted that the matters that John Holland advances in the FWC Proceedings extend beyond questions of legal right, and they are forward-looking in that they are directed to the future conduct of AWU officials seeking to enter the Project and the conditions (if any) on which they may be entitled to use dust monitoring equipment. Mr Shariff also draws attention to the requirement in s 577(1)(b) of the FW Act that the FWC must exercise its powers in a manner which is quick, informal and avoids unnecessary technicality, and submits that it is not uncommon for a conciliation conference in the FWC to refine the issues for arbitration. Mr Shariff submits that if the Federal Court Proceedings are ultimately pursued, the evidence prepared for the FWC Proceedings will not be wasted, because that evidence can then be deployed in substance to the extent relevant in the Federal Court Proceedings.

31    Counsel for the AWU, Mr Tran, accepts that the issues raised in the Federal Court Proceedings concern only the legality of what has occurred in the past, and submits that what may happen in the future is in no way in issue in these proceedings. Mr Tran’s submissions draw attention to the description of the “ancillary issues” referred to in the FWC Application, being described as “ancillary”, and not being said in that document definitely to arise. Mr Tran also criticises the declarations which are sought in the FWC Application as being beyond the jurisdiction of the FWC. Those points are well made, but the significance of the precise drafting of the FWC Application should not be overstated. I accept the submission made by Mr Shariff that the issues before the FWC are likely to evolve as the matter progresses and the relief sought in the FWC will likewise be reformulated. The “ancillary issues” referred to in the FWC Application began their litigious life in that muted form, but they have already assumed a greater prominence in the way that John Holland intends to conduct the FWC Proceedings.

32    Mr Tran submits that the FWC Proceedings will not narrow the issues in the Federal Court, or lead to any other efficiencies in the Federal Court. On the contrary, Mr Tran submits that the decision of the Federal Court will narrow the issues for the FWC Proceedings, especially the legal question of construction as to whether a right of inspection pursuant to s 482(1)(a) of the FW Act includes the right to use dust monitoring equipment. Mr Tran submits that if the FWC Proceedings are heard first, there is likely to be wasted effort. Mr Tran submits that the risk of inconsistent findings is not a matter of real significance where one set of proceedings is brought in a court, and the other in a non-judicial tribunal, in circumstances where the non-judicial tribunal is bound by the findings of the court on questions of construction. Mr Tran draws attention to Aerocare Flight Support Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2018] FCA 128 at [31], in which Jagot J took into account that a decision of this Court which provides a determinative construction of an award would assist the FWC in discharging its functions.

33    While there is force in these submissions, they must be assessed in a context where the FWC has broad powers to lay down the parameters for future conduct, in a way the Federal Court cannot. Further, in my view, it would be undesirable for both sets of proceedings to be prepared and conducted concurrently. That would be an unnecessary and time-consuming distraction for the legal representatives of the parties and for the witnesses involved, and would appear to me to pose a substantial risk of delay in the preparation of whichever set of proceedings is to be heard first.

34    Mr Tran acknowledges that the Federal Court does not have the legal ability to prescribe the terms on which the AWU officials will be able to enter the Project for the purpose of monitoring dust levels. The undertaking which he proffered (that the AWU will instruct its permit holders not to seek to use any devices to test levels of respirable dust at the Project while exercising a right of entry until the determination of liability in the Federal Court Proceedings) was apparently given in order to remove the risk of industrial disputation in relation to that matter until the final determination of liability in these proceedings. However, Mr Tran acknowledged that such an undertaking would not compel the parties to engage in discussions as to the appropriate regime to be put in place for future exercises of rights of entry.

35    In my view, the preferable course is to stay these proceedings until the final resolution of the FWC Proceedings, essentially for the reasons advanced by Mr Shariff in his submissions, to which I would add the following observations. There is an important question as to the parameters for the future exercise of rights of entry by permit holders associated with the AWU. The AWU has expressed concern that John Holland may not be taking all reasonably practicable steps to ensure that workers are not exposed to respirable and inhalable dust, including dust containing RCS, and alleges that John Holland is putting productivity above safety. If those concerns are justified, then the dispute involves an important and urgent matter concerning the health and safety of workers. Mr Shariff submits that that is a matter in which John Holland, as a responsible employer, also has a particular interest in resolving, together with the need to undertake major public works in a timely and efficient manner. That strikes me as a matter which is deserving of great weight in deciding the present application, and is a matter of substantially more significance in the present case than the broad reference to “public interest” in the list of factors referred to in Sterling Pharmaceuticals would ordinarily suggest. I regard it as being a matter of great importance that the broader issues as to the future parameters for the AWU seeking to exercise rights of entry in the interests of the health and safety of workers should be addressed as quickly and efficiently as possible, and the FWC provides the appropriate venue for those broader issues to be ventilated and resolved.

36    I am unable to identify any tangible prejudice to the AWU if the Federal Court Proceedings are heard and decided a few months later than they otherwise would be, by reason of a temporary stay pending the outcome of the FWC Proceedings. If the AWU is correct in the allegations which it makes in this Court, then the declaration which it seeks (no doubt to be amended to include the word “intentionally”) will still be able to be made, and the AWU’s application for pecuniary penalties to be paid to it will still be available. By contrast, there may be real prejudice to the health and safety of workers on the Project and the efficient conduct of the Project if the implementation of an appropriate regime for future inspections of the Project site, together with whatever monitoring of dust levels, if any, the FWC considers appropriate, is delayed by a matter of some months.

37    While I note that the FWC Proceedings were commenced first, I do not place substantial weight on that factor.

38    Accordingly, the appropriate exercise of discretion in my view is to stay these proceedings until the FWC Proceedings are heard and determined, or until further order of this Court. I will also make the further orders sought by John Holland as to John Holland notifying the Court within three business days of the FWC Proceedings being determined, and excusing John Holland, until further order, from compliance with r 16.32 of the Federal Court Rules 2011 (Cth), which ordinarily requires a respondent to file a defence within 28 days after service of the statement of claim.

39    The interlocutory application filed by John Holland does not seek an order for costs, and no submissions have been put to me on the question of costs. That is a matter which can be addressed in due course, if necessary, pursuant to the liberty to apply which I grant to the parties.

Associate:

Dated:    2 August 2023