Federal Court of Australia

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ECA Training Pty Limited [2025] FCA 1260

ORDERS

THE COURT DECLARES THAT:

1.    ECA Training Pty Limited (ECA Training) contravened s 501 of the Fair Work Act 2009 (Cth) (the FW Act) by refusing Messrs Zac Hicks and Jacob Kennedy entry to part of the premises at 122 Hume Highway, Chullora, in the State of New South Wales to which they sought entry (the premises), in circumstances where they had a right to enter that part of the premises under s 484 of the FW Act, on:

(a)    2 May 2024; and

(b)    9 May 2024.

2.    ECA Training contravened s 502 of the FW Act by intentionally hindering or obstructing Messrs Hicks and Kennedy, who were permit holders exercising their rights in accordance with Part 3-4 of the FW Act, on:

(a)    2 May 2024; and

(b)    9 May 2024.

3.    NECA Training Ltd (NECA Training) contravened s 501 of the FW Act by refusing Messrs Hicks and Kennedy entry to part of the premises, in circumstances where they had a right to enter that part of the premises under s 484 of the FW Act, on:

(a)    2 May 2024; and

(b)    9 May 2024.

4.    NECA Training contravened s 502 of the FW Act by intentionally hindering or obstructing Messrs Hicks and Kennedy, who were permit holders exercising their rights in accordance with Part 3-4 of the FW Act, on:

(a)    2 May 2024; and

(b)    9 May 2024.

THE COURT ORDERS THAT:

1.    ECA Training pay a pecuniary penalty of $7,500 in respect of its contraventions of ss 501 and 502 of the FW Act on 2 May 2024.

2.    ECA Training pay a pecuniary penalty of $7,500 in respect of its contraventions of ss 501 and 502 of the FW Act on 9 May 2024.

3.    NECA Training pay a pecuniary penalty of $7,500 in respect of its contraventions of ss 501 and 502 of the FW Act on 2 May 2024.

4.    NECA Training pay a pecuniary penalty of $7,500 in respect of its contraventions of ss 501 and 502 of the FW Act on 9 May 2024.

5.    The pecuniary penalties in orders 1-4 be paid to the applicant.

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

REASONS FOR JUDGMENT

KENNETT J:

1    The issue for determination in this case is whether two officials of the applicant (the Union), who were refused entry to premises occupied by the respondents (ECA Training and NECA Training), were entitled to enter those premises pursuant to s 484 of the Fair Work Act 2009 (Cth) (the FW Act). The Union contends that they were so entitled and that the respondents contravened ss 501 and 502 of the FW Act in refusing them entry. It seeks declarations of contravention and the imposition of pecuniary penalties. The respondents contend that the officials had no right of entry under s 484. The dispute as to whether a right of entry existed focuses on whether the persons to whom the officials wished to speak were employees who performed “work”, within the meaning of s 484, at the premises.

Outline of the facts

2    Zac Hicks is an Organiser in the Electrical and Electronic Division of the Union. He has worked in this position since October 2023 and is responsible for recruiting and organising apprentices. He was an electrical apprentice from 2016 to 2020 and worked as a licenced electrician in Sydney from December 2020 to October 2023.

3    Jacob Kennedy is also an Organiser in the Electrical and Electronic Division of the Union. He has worked in this position since April 2024. He was an electrical apprentice from 2015 to 2019 and was in full time employment as an electrician from January 2019 until commencing work at the Union.

4    The Electrical and Electronic Division of the Union is the present embodiment of the former Electrical Trades Union, which became part of the present Union as a result of a series of amalgamations. It is still referred to in some contexts, including some of the evidence in this proceeding, as “the ETU”.

5    It is not in dispute that at all relevant times Mr Hicks and Mr Kennedy were the holders of entry permits issued under s 512 of the FW Act.

6    Tom Emeleus is employed as the General Manager of ECA Training, and in that role also serves as general manager of NECA Training (the two entities being related). He is the Company Secretary of both entities.

Events in May 2024

7    On the morning of 1 May 2024 Mr Hicks and Mr Kennedy each sent an entry notice in identical terms, intended to comply with s 487 of the FW Act, to Mr Emeleus (the first entry notices). These notices were addressed to the attention of “The Appropriate Officer” of both ECA Training and “NECA Electrical apprenticeships” and gave notice that the signatory proposed to enter a site described as “NECA 122 Hume HWY, Chullora NSW 2190” on 2 May 2024. The notice included a declaration, citing a provision of the Union’s rules, to the effect that it was entitled to represent the industrial interests of “an employee or TCF outworker who performs work on the premises mentioned above”. Mr Hicks deposed that he intended to attend the premises (described as the NECA Centre) “to enter it and speak with employees who worked on the premises, who the ETU could represent under its Rules and who wanted to speak to me”.

8    Mr Emeleus attempted to contact Mr Hicks by telephone on 1 May 2024 at 3.41 pm. He left a voicemail message which Mr Hicks summarised as stating that “if I intended to speak to the apprentices, the entry notice would not enable me to do that”. Mr Emeleus’ recollection of his message was slightly more precise: “If your intent is to meet with apprentices attending the college, this [notice] will not allow that as the college is leased by a different entity”.

9    Around 11.34 am the next day, 2 May 2024, Messrs Hicks and Kennedy walked up to the reception area of the NECA Centre intending to exercise their right of entry. Mr Hicks deposed that his purpose was “to hold discussions with union members and potential union members who were present at the NECA Centre”. Mr Kennedy expressed a similar understanding of the purpose of the visit. I accept their evidence as to their subjective purposes.

10    They were met a few minutes after their arrival by Mr Emeleus and two other employees of the respondents (Daniel Mittiga, Business Innovation Manager of ECA Training, and David Gilbert, Operations Manager of NECA Training). Mr Emeleus refused them entry.

11    Messrs Hicks, Kennedy and Emeleus do not differ significantly in their accounts of the exchanges that occurred. Mr Emeleus told Messrs Hicks and Kennedy that the first entry notice was not addressed properly: the part of the premises to which they sought access were leased to NECA Training, which was not specified as an addressee on the notice. He said that they could meet with field officers in another part of the building. Messrs Hicks and Kennedy left the premises without having gone past the foyer.

12    On the morning of 8 May 2024 Mr Hicks and Mr Kennedy each emailed two further entry notices (again, in the same terms) to Mr Emeleus.

(a)    One set of notices (the second entry notices) was addressed to “The Appropriate Officer” at each of “NECA Training Ltd” and “ECA Training Pty Ltd T/A NECA Electrical Apprenticeships”. These gave notice that the signatory proposed to enter “122 Hume Hwy Chullora” on 9 May 2024. They contained a similar declaration to the first entry notices concerning the Union’s entitlement to represent the industrial interests of employees who performed work on the premises.

(b)    The other set of notices (the third entry notices) comprised a notice from Mr Hicks addressed to “The Appropriate Officer” at each of “NECA Electrical Apprenticeships” and “ECA Training Pty Ltd T/A NECA Electrical Apprenticeships” and a notice from Mr Kennedy addressed to the appropriate officer at “NECA Electrical Apprenticeships” and “ECA Training Pty Ltd”. Aside from an immaterial difference as to how the address of the NECA Centre was referred to, these gave notice in the same terms, and contained the same declaration, as the second entry notices.

13    Their intention in each giving two notices framed in this way was to avoid argument about the proper addressee and to gain entry to both of what Mr Hicks described as the GTO (Group Training Organisation) and the RTO (Registered Training Organisation) parts of the NECA Centre. The RTO part of the Centre was where apprentices were normally located during ordinary hours.

14    Mr Emeleus sent an email to Messrs Hicks and Kennedy at 10.09 am on 9 May 2024 which said, in part:

As per our phone conversation, NECA Training has legal advice that when at college/tech, apprentices do not perform work on the premises within the meaning of s.484(a) of the FW Act. Accordingly, we will not permit entry to hold discussions with the apprentices attending college.

15    Messrs Hicks and Kennedy attended the NECA Centre around 11.00 am on 9 May 2024. Each of them deposed that his purpose, as with the visit on 2 May 2024, was to have discussions with employees who performed work on the premises, who were ETU members or potential members, and who wished to have those discussions. I accept that this was their purpose. They were met by Mr Emeleus and Neil Roberts (who gives his job title as Director, Policy, Technical and Safety at NECA Training, but who is described by Mr Kennedy as “an industrial officer for the NECA group).

16    According to Mr Hicks, Mr Emeleus said that he had obtained legal advice and Messrs Hicks and Kennedy would not be allowed to enter the RTO part of the NECA Centre. Messrs Hicks and Kennedy gave similar accounts of what happened next. They were escorted to a meeting room in the GTO part of the premises, where they were able to speak to one apprentice on “light duties” who Mr Emeleus brought to see them. (“Light duties” in this context refers to apprentices who are injured and who spend their working hours at the NECA Centre instead of working on job sites with host employers. The arrangement between the respondents and apprentices is discussed in more detail later in these reasons.) They were not permitted to go to the RTO part of the NECA Centre or to the canteen where, they were told by Mr Emeleus, apprentices spent their meal breaks. They left the premises around noon. Mr Emeleus gave an account of these events which differed on some points of detail but was the same in its essence: he did not permit Messrs Hicks and Kennedy to enter parts of the premises where apprentices who were present for training purposes would be found, or to speak to those apprentices, but brought one apprentice on light duties to meet them.

The respondents and the employment of apprentices

17    ECA Training is registered as a charity under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) and as a GTO under the Apprenticeship and Traineeship Act 2001 (NSW). In broad terms, a GTO employs apprentices under formal contracts and places them with businesses (“host employers”). The host employer of an apprentice who is employed by ECA has the benefit of the apprentice’s labour, for which (I was informed) it pays an amount to ECA Training, and provides the apprentice with work experience and on-the-job training. ECA Training pays the apprentice a wage (and provides other entitlements such as leave). It receives some government funding in addition to the income it receives from host employers. The apprentices employed by ECA Training are referred to in what follows as “ECA Training apprentices”.

18    ECA Training does not itself undertake electrical work, in the sense of installing or maintaining electrical equipment for reward; nor does it supervise apprentices when they are doing such work.

19    Successful completion of an electrical apprenticeship requires the completion of a program of training in addition to the on-the-job training provided by host employers. Apprentices’ terms of employment commonly include defined periods each week when they are not required to work in their employers’ businesses but are required to attend training. This training is delivered by RTOs, which are entities registered by the Australian Skills Quality Association to deliver vocational education and training and confer qualifications following assessment. NECA Training is a registered RTO. It provides a course of study leading to the conferral of a Certificate III in Electrotechnology Electrician.

20    An apprentice who is engaged by ECA Training receives a letter of offer (the letter of offer) which they sign to indicate acceptance. The letter of offer is headed “Contract of employment” and specifies matters such as:

(a)    commencement date and the duration of the apprenticeship;

(b)    name and address of host employer;

(c)    hours of work;

(d)    hourly rate of pay.

21    The letter of offer provides:

Terms of employment

This employment contract should be read in conjunction with:

1.     The NECA Electrical Apprenticeships Employee Enterprise Agreement 2022

2.     NECA Electrical Apprenticeships policies and procedures

3.     The Training Contract

22    The NECA Electrical Apprenticeships Employee Enterprise Agreement 2022 (the NECA EA) was approved by the Fair Work Commission (FWC) on 15 November 2022. The NECA EA is expressed to apply to and bind ECA Training and “The Employees”, with the latter defined to mean any persons “employed by the Company”, working in NSW, the ACT or Queensland and performing work in accordance with classifications set out in the agreement. It is also expressed to apply to the Union. Under cl 4.3, employees are to be “engaged as Apprentices for temporary fixed terms (ie, the length of the employee’s training contract)”. The NECA EA provides for the matters usually dealt with in such agreements such as working hours, rates of pay and allowances, leave entitlements, dispute resolution, consultation and union delegates’ rights.

23    The NECA EA includes the following provisions in relation to training. These are obviously important provisions in the context of an Enterprise Agreement applicable to employees who are “engaged as apprentices”.

10.1     The Company will pay the costs for an Employee to undertake mandatory training subject to the following conditions:

10.1.1     Employees may be directed by the Company to attend training during working hours;

10.1.2     The Company will pay all the costs of mandatory training and pay employees at ordinary time rates for their time spent in attendance. Notwithstanding anything else in this Agreement, under no circumstances will an employee receive overtime payments for attendance at any training or further education at any time unless the employee has been directed to attend such training outside of ordinary hours by the Company;

10.1.3     Where the Company does not direct an Employee to attend training or further education, the decision as to whether the Employee shall be paid for Employee’s attendance at such training or further education, is at the sole discretion of the Company;

…

10.1.5     Where an Employee fails a compulsory unit of training, this unit must be completed by the employee outside work hours and at the Employee’s expense;

…

10.1.8     Employees shall make every endeavour to successfully pass all training modules/units. Employees that fail more than 2 modules/units may be subject to disciplinary action.

24    The NECA EA also includes the following provisions under the heading “Apprentices”.

11.1 Employees engaged on apprenticeships are engaged as fixed term employees for the duration of those apprenticeships. During that time, they are entitled to all the benefits of full time employment, provided that this clause overrides any contradictory clause in this Agreement.

11.2 Notwithstanding any provisions of this Agreement, should the Apprenticeship Training Agreement and/or Training Contract be cancelled, either by expiry or for other reasons, the employee will also be terminated.

11.3 Training for the Apprentice shall be in accordance with the employee’s applicable apprentice training schedule.

11.4 Where an Apprentice absents himself or herself from work on unauthorised leave, the period of the Apprenticeship shall be extended by such period of unauthorised leave.

11.5 Where an Employee is not able to attend their normal training duties as a result of workers compensation the employee may have their apprenticeship extended for such a period.

25    A person commencing an apprenticeship in NSW is also required to complete a “training plan proposal” which becomes a “training contract” when accepted by the relevant State training authority. In the case of ECA Training apprentices, ECA Training and its chosen RTO (ie, NECA Training) are also parties to this contract.

Relevant provisions of the FW Act

26    Rights of entry are dealt with by Part 3-4 of the FW Act. The object of Part 3-4 is set out in s 480, as follows.

480 Object of this Part

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.

27    Division 2 of Part 3-4 creates what are termed “entry rights”. Subdivision A deals with entry to premises, inspection and conduct of interviews for the purpose of investigating suspected contraventions of the FW Act or a fair work instrument. Subdivision AA contains specific provisions dealing with suspected contraventions relating to “TCF” award workers, which does not apply in this case. Subdivision B contains only one section, s 484, which is a critical provision here and provides as follows.

484  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.

Note 1:     A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2:     A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision, or otherwise act in an improper manner (see sections 501 and 502).

Note 3:     Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.

28    A “permit holder” is a person to whom a permit has been issued under s 512 (in Division 6), which empowers the FWC to issue an “entry permit” to an official of an organisation if it is satisfied that the official “is a fit and proper person to hold the entry permit”. Section 513 sets out matters which the FWC must take into account in deciding whether an official is a fit and proper person (defined as “permit qualification matters”), including whether they have received appropriate training about the rights and responsibilities of a permit holder. Conditions may be imposed on an entry permit under s 515. An entry permit is generally in force for three years, unless it is revoked (s 516).

29    Subdivision C of Division 2 is headed “Requirements for permit holders”. The first section in Subdivision C is s 486, which provides as follows.

486  Permit holder must not contravene this Subdivision

Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.

30    Relevant provisions of Subdivision C in the present case are ss 487, 490, 492 and 492A. These are as follows (omitting provisions relevant only to Subdivision AA).

487 Giving entry notice or exemption certificate

Entry under Subdivision A or B

(1)     Unless the FWC has issued an exemption certificate for the entry, the permit holder must:

(a)     before entering premises under Subdivision A—give the occupier of the premises and any affected employer an entry notice for the entry; and

(b)     before entering premises under Subdivision B—give the occupier of the premises an entry notice for the entry.

(2)     An entry notice for an entry is a notice that complies with section 518.

(3)     An entry notice for an entry under Subdivision A or B must be given during working hours at least 24 hours, but not more than 14 days, before the entry.

(4)     If the FWC has issued an exemption certificate for the entry, the permit holder must, either before or as soon as practicable after entering the premises, give a copy of the certificate to:

(a)     the occupier of the premises or another person who apparently represents the occupier; and

(b)     any affected employer or another person who apparently represents the employer;

if the occupier, employer or other person is present at the premises.

...

490  When right may be exercised

(1)     The permit holder may exercise a right under Subdivision A, AA or B only during working hours.

(2)     The permit holder may hold discussions under section 484 only during mealtimes or other breaks.

(3)     The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry.

492 Location of interviews and discussions

(1)     The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2)     Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3)     The permit holder may conduct the interview or hold the discussions in any room or area:

(a)     in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b)     that is provided by the occupier for the purpose of taking meal or other breaks.

Note 1:     The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.

Note 2:     A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).

492A Route to location of interview and discussions

 (1)     The permit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach a room or area of the premises determined under section 492.

Note:     The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

 (2)     A request under subsection (1) is not unreasonable only because the route is not that which the permit holder would have chosen.

 (3)     The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.

31    Other provisions of Subdivision C that should be noted are:

(a)    section 488, which provides that a permit holder must not contravene a condition imposed on their entry permit;

(b)    section 491, which requires the permit holder to comply with any reasonable request by the occupier in relation to occupational health and safety requirements for the premises; and

(c)    section 493, which provides that the permit holder must not enter any part of a premises that is used mainly for residential purposes.

32    All of these requirements are, by virtue of s 486, conditions on the right of entry that is conferred by s 484. Thus, for example, a permit holder cannot rely on s 484 to gain entry to premises if proper notice has not been given, and cannot rely on s 484 to provide a right to remain on premises if they attempt to hold discussions in a part of the premises that is not agreed or falls outside s 492(3).

33    Division 4 of Part 3-4 is headed “Prohibitions”. It contains the following provisions that are of present relevance.

500  Permit holder must not hinder or obstruct

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

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

Note 2:     A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3:     A person must not intentionally hinder or obstruct a permit holder exercising rights under this Part (see section 502).

501 Person must not refuse or delay entry

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

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

502 Person must not hinder or obstruct permit holder etc.

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

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

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

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

34    The provisions for the issue of entry permits by the FWC have been mentioned above. Various powers and duties in relation to permit holders are invested in the FWC by Division 5 of Part 3-4.

(a)    The FWC may suspend, revoke or impose conditions on an entry permit under s 507. In deciding whether to do so, it must take into account the permit qualification matters.

(b)    Under s 508 the FWC may restrict the rights exercisable by an organisation, or officials of an organisation, if satisfied that the organisation or an official has misused those rights.

(c)    Section 510 provides for specific circumstances in which the FWC must impose conditions on, revoke or suspend an entry permit.

35    Finally, the requirements for entry notices in s 518 should be mentioned. Relevantly here, they are as follows.

518  Entry notice requirements

Requirements for all entry notices

(1)     An entry notice must specify the following:

(a)     the premises that are proposed to be entered;

(b)     the day of the entry;

(c)     the organisation of which the permit holder for the entry is an official.

…

Requirements for entry notice for entry to hold discussions

 (3)     An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must:

(a)     specify that section as the provision that authorises the entry; and

(b)     contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of an employee or TCF award worker who performs work on the premises; and

(c)     specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF award worker.

Note:     See section 503 (which deals with misrepresentations about things authorised by this Part).

The area of dispute

36    The parties were initially at issue about the point raised by Mr Emeleus’s response to the first entry notices mentioned above: that is, whether that notice was sufficient for the purposes of s 487 in circumstances where, it was said, the occupier of relevant parts of the NECA Centre (NECA Training) was not identified as an addressee of the notice. However, discussions between the parties led to this issue falling away.

37    By consent, leave was granted at the commencement of the hearing for the Union’s originating application to be amended so as to join NECA Training as the second respondent and for corresponding amendments to be made to the statement of claim. Counsel who had appeared up to that point for ECA Training conducted the case thereafter on behalf of both respondents. A further amended defence was subsequently filed in the name of both respondents.

38    Argument then proceeded on the basis that, to the extent that NECA Training rather than ECA Training was an occupier of part of the NECA Centre, it had been given proper notice of the proposed entry on 2 May 2024 by the giving of notice to Mr Emeleus. I would have come to this conclusion in any event, on the basis that s 487 does not make any detailed provision as to how a notice is to be addressed. A notice is required to be “given” to the “occupier” of the relevant premises, and this was done by providing the first notices to Mr Emeleus (who clearly dealt with them and responded to them on behalf of both of the respondents).

39    The parties directed their submissions to what appeared to be a more important issue of principle: whether the right of entry under s 484 of the FW Act could be relied on by a permit holder to gain access to premises where the persons whose industrial interests the permit holder sought to represent were engaged in training of the kind that was being provided at the NECA Centre to the ECA Training apprentices. In this regard, Australasian Meat Industry Employees’ Union v Australian Food Corporation Pty Limited [2001] FCA 1709; 116 FCR 19 at 29 (Wilcox J) (AMIEU v Australian Food) provides some support for the view that the particular part of the NECA Centre where NECA Training provided training to apprentices is properly understood as the “premises” that Messrs Hicks and Kennedy wished to enter (and were not permitted to enter) (see also Molina v Zaknich [2001] WASCA 337; 24 WAR 562 at [9]-[10] (Malcolm CJ), [49]-[50] (McKechnie J)). Alternatively, it might be said that they sought access to the NECA Centre as a whole in order to hold discussions with employees who performed work there including those apprentices. This does not affect the framing or resolution of the main issue in the case, and it is therefore not necessary to go into the precise relationship as a matter of property law between ECA Training and NECA Training (and any other entities that conducted business in the NECA Centre).

40    The submissions focused on whether the apprentices undertaking training at the NECA Centre were employees who “perform work on the premises” within the meaning of s 484(a), and thus on the meaning of “work” in this context. However, a question as to the construction of s 484 must be addressed in order for the relevance of that issue to be understood.

The construction of s 484 and the correct framing of the issue

41    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Elecnor Australia Pty Ltd [2025] FCA 156 (Elecnor), permit holders sought to enter premises (referred to as “the Buronga camp”) in order to have discussions with workers engaged on the construction of an electrical transmission line. Their entry was prevented by the respondent and the Union alleged a contravention of s 501 of the FW Act. There were two issues of present relevance: one was as to whether the workers to whom the permit holders were attempting to speak were persons whose industrial interests the Union was entitled to represent; the other was as to whether the premises that the permit holders sought to enter was a place where those workers were “performing work”.

42    The first of these issues effectively became redundant because of the construction of s 484 that was proposed during argument by Wigney J, embraced by the Union and ultimately accepted by his Honour. Proceeding from the prominence given in the chapeau of the section to the “purpose” of the permit holder, his Honour reasoned that it is the existence of that purpose in the mind of the permit holder—ie, to have discussions with employees who come within paras (a), (b) and (c)—rather than the actual presence of such employees at the premises, that is critical (at [105]). As a result, the actual presence at the premises of employees who meet these criteria (in particular, in Elecnor, employees whom the Union could represent in accordance with its rules) does not need to be established before s 484 can be relied upon to enter the premises.

43    His Honour’s reasoning was as follows (at [106]-[109]).

In my view, the text of s 484 of the Fair Work Act is clear and unequivocal in respect of the circumstance which must exist for a permit holder to have a right to enter premises pursuant to s 484. That circumstance is that the permit holder has the specified or prescribed purpose, that purpose being to hold discussions with one or more employees (or TCF award workers) who have the characteristics identified in paragraphs (a) to (c). It is not necessary for a permit holder to demonstrate to the occupier of the premises, or anyone else, before entering the premises, that there are in fact employees on the premises who have those characteristics. Nor is it necessary for the permit holder, or his or her organisation, to prove that fact in order to prove that an occupier of premises breached s 501 of the Fair Work Act because they refused to allow the permit holder to enter the premises pursuant to s 484. All that need be proved is that the permit holder in fact had the prescribed purpose when he or she sought to enter the premises.

The statutory context of s 484 of the Fair Work Act supports that construction of the provision. As noted earlier, s 484 of the Fair Work Act is in Pt 3-4 of the Fair Work Act. Section 478 of the Fair Work Act, which provides a guide to Pt 3-4, states that Pt 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 and Territory OHS laws” (emphasis added). In other words, Pt 3-4 contains provisions which provide union officials with rights of entry for proper purposes, those proper purposes being the purposes identified in, inter alia, s 481(1) (“the purpose of investigating a suspected contravention of this Act”) and s 484 (“the purpose of holding discussions”) of employees who the union is entitled to represent.

Construing s 484 in a way which required a permit holder, before entering premises, to demonstrate to the occupier of the premises that there are, in fact, employees on the premises who have the characteristics in paragraphs (a) to (c) of s 484, would also be impractical and would deprive the provision of much of its beneficial effect. For example, how would a permit holder be able to demonstrate to the occupier of the premises, before entering the premises, that there are in fact employees on the premises who wish to participate in discussions. That could realistically only be demonstrated once the permit holder is on the premises and invites employees to participate in discussions. As the Full Court observed in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470; [2017] FCAFC 89 at [15]:

… notwithstanding the closely regulated environment of industrial and employment legislation, provisions as to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament practically and with an eye to commonsense so that they can be implemented in a clear way on a day-to-day basis at work sites. The legislation needs to work in a practical way at the work site, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site.

It may perhaps be accepted that, before exercising a right of entry under s 484, a permit holder must have a genuine belief that there might be employees on the premises that have the characteristics in paragraphs (a) to (c). That is because the permit holder could scarcely be said to have the specified purpose if they did not believe that employees who have those characteristics might be on the premises. A more difficult question is whether the permit holder must have reasonable grounds for having such a belief. My inclination would be that it is not necessary for the permit holder to prove that they had reasonable grounds. It is, however, unnecessary and perhaps undesirable to express any concluded view in respect of that issue. It was not put to Mr Murphy, or submitted by Elecnor, that he did not have the specified purpose, or that he did not have reasonable grounds for believing that there were employees on the relevant premises who had the characteristics in paragraphs (a) to (c) of s 484. I would also, in any event, have readily concluded from the evidence that Mr Murphy not only believed, but had reasonable grounds to believe, that there were employees on the premises who had the characteristics in paragraphs (a) to (c) of s 484 of the Fair Work Act.

44    Wigney J referred (at [110]-[112]) to statements in two earlier single judge decisions which supported this understanding of the section (Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [156]-[157] (White J) and Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 at [110] (Charlesworth J)), and (at [114]-[116]) to authorities on the construction of the predecessor provision (s 760 of the Workplace Relations Act 1996 (Cth) (the WR Act)).

45    His Honour held, on the evidence, that the permit holder’s purpose in seeking to enter the premises was to hold discussions with workers who performed work on the premises, whose interests the Union was entitled to represent, and who wished to participate in those discussions (at [118]).

46    As to the second of the issues mentioned above, Wigney J expressed a “slight hesitation” in reaching his finding concerning the permit holder’s purpose, because the permit holder appeared to have been aware that the workers “did not engage in any ‘active work’ in or on the Buronga camp” (at [119]). His Honour resolved this “hesitation” in the following way (at [120]-[122]:

In my view it is necessary and appropriate to take a sensible, practical and not overly technical approach to the operation of s 484 of the Fair Work Act: cf Powell at [15]. While the active work that the Catalpa Workers were performing at the time – the assembly and erection of towers and poles and associate work – was being performed on the easement or worksite where the towers and poles were being erected, it was, it may be inferred, neither safe nor practical for Mr Murphy and the other Union officials to seek to exercise their right of entry under s 484 in respect of those premises, or to seek to hold the discussions with the workers at those premises, at least without the prior permission, assistance and cooperation of Elecnor. It was essentially for that reason that Mr Murphy sought to exercise his right of entry at the Buronga Camp.

In my view, where it is not safe or practical for a permit holder to enter the premises on which workers perform their active work, or to hold discussions with the workers on those premises, it is open to a permit holder, pursuant to s 484 of the Fair Work Act, to enter other premises that the relevant workers attend for the purposes of their work, such as crib rooms, or lunch rooms, or break rooms. That is so even though, strictly speaking, the workers may not perform any active work in those premises and even when, strictly speaking, those premises may be separate to, or not part of, the premises where the workers perform their active work. Were it otherwise, s 484 would essentially be unworkable or impractical in cases where workers perform work in remote or dangerous premises...

Putting that practical consideration to one side, in my view the evidence in any event established, or at least supported the inference, that Mr Murphy believed, and had a reasonable basis for believing, that the Catalpa Workers performed some relevant work at the Buronga Camp, even if it was not “active work”. He appears, for example, to have been aware that the workers had work related meetings, such as pre-start meetings, at the Buronga Camp. I am, in those circumstances, satisfied that his purpose in seeking to enter the Buronga Camp was to hold discussions with one or more workers who performed work at those premises, whose industrial interests the Union was eligible to represent and who wished to participate in those discussions.

47    While I was urged by the respondents not to follow the reasoning in Elecnor (to the extent that it is applicable), I would not take that course unless persuaded that that reasoning was plainly wrong. This is the approach commonly and properly taken by single judges of the Court to decisions of their colleagues as well as by Full Courts in respect of earlier Full Court decisions: see eg, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [2]-[3] (Allsop CJ) and Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]-[76] (French J).

48    In so far as Elecnor holds that the foundation for a right of entry under s 484 is the permit holder having the purpose referred to in the section, and that purpose can be present even if it turns out that there are no employees present on the premises who come within paras (a) to (c), I consider that the reasoning in that case is correct. However, framing the ratio in that way conceals a difference which might be regarded as significant. Arguably, there is a material difference between:

(a)    a case where the permit holder understands a certain group of workers (who come within paras (a) to (c)) to be present on the premises, and purposes to have discussions with those workers if they are there, but in fact they are not present; and

(b)    a case where the permit holder understands a certain group of workers who are present at the premises to be employees who come within paras (a) to (c), but on the correct construction of the paragraphs they do not.

49    In the second of these situations, it might be argued that the task of determining whether particular employees come within s 484(a) to (c) is one for the Court; and, if the permit holder is proceeding on a wrong view of whether an employee comes within those provisions as a matter of law, they do not have a “purpose” that engages the section. However, the decision in Elecnor stands in the way of such an argument. The question that Wigney J considered it unnecessary to decide on the proper construction of the section in that case was whether the Union was entitled to represent the relevant workers (at [124]). Although his Honour used the words “in fact” when identifying this question, consideration of his detailed alternative reasoning on the question (at [124]-[192]) makes it clear that it turned on issues as to the construction of the Union’s rules.

50    Accordingly, Elecnor is to be understood as holding that there is no distinction between a debate about the facts and a debate about the law in determining whether a permit holder had the requisite intention for the purposes of s 484. Even if the permit holder has misread the organisation’s rules for the purposes of para (b)—or, by parity of reasoning, misunderstood the meaning of “work” for the purposes of para (a)—their bona fide belief that employees who come within these provisions might be present is a sufficient basis for the purpose referred to in the section.

51    While this aspect of the reasoning is perhaps debatable, I am not persuaded that it is plainly wrong. Rather, I consider that it is probably correct. It is at least arguable that the legislature intended a genuine purpose of holding discussions with employees of the relevant kind to be sufficient to give rise to a right of entry, even if that purpose is founded on a misunderstanding of fact or law. The following considerations support this view.

(a)    As Wigney J pointed out in Elecnor at [108], requiring a permit holder to demonstrate the presence of employees in the relevant category before entering the premises in reliance on s 484 would be impractical and would deprive the provision of much of its intended effect. That is equally true in cases of legal debate as of factual uncertainty.

(b)    The right conferred by s 484, and the corresponding qualification on the rights of occupiers, are limited. In contrast to entry under s 481 or s 483A, where specific and potentially invasive rights are conferred (including inspection of works, processes and documents: ss 482(1), 483B(1)), no particular acts are authorised by s 484 other than to enter premises (and, implicitly, to have discussions with employees). The permit holder is prohibited by s 500 (which is a civil penalty provision) from intentionally hindering or obstructing any person, must comply with reasonable requests related to health and safety (s 491), can only hold discussions in the places referred to in s 492, and must comply with reasonable requests concerning the routes taken to those places (s 492A). Entry under s 484 is not a licence to disrupt work at the premises to which entry is authorised or to pry into the occupier’s affairs. Implicitly, also, the permit holder ceases to be able to rely on s 484 (and must leave if asked to do so) if it becomes apparent that no employees who come within s 484(a) to (c) are present, because in that circumstance they would no longer have the requisite purpose. In the light of these limitations, it would be somewhat surprising if the legislature had intended to impose objective criteria for the right of entry that might be the subject of complex legal argument.

52    I have referred above to the evidence of Messrs Hicks and Kennedy concerning their purposes in seeking to enter the NECA Centre. As noted above, I accept that evidence. Both were cross-examined to some extent (over objections) concerning their beliefs in relation to whether the ECA Training apprentices were performing work and the basis for those beliefs. I am satisfied that Messrs Hicks and Kennedy believed they were entitled to exercise a right of entry at the NECA Centre under s 484 (including in order to speak to any ECA Training apprentices who wanted to speak to them) and, as a necessary element of that, believed that the ECA Training apprentices were performing “work”. As there is no longer any issue concerning the sufficiency of the notices of entry, it follows that when Messrs Hicks and Kennedy sought to enter the NECA Centre on 2 and 9 May 2024 they did so in the exercise of rights of entry under s 484.

Did the ECA Training apprentices “perform work” while engaged in training?

53    In the light of my conclusion above it is strictly unnecessary to consider whether, on the proper construction of s 484(a), the ECA Training employees who were at the NECA Centre to receive training were performing “work”. Indeed, on the understanding of the provision that emerges from Elecnor, it is pointless to seek the “correct” construction of s 484(a), because the right of entry depends on the state of mind of the permit holder rather than a judicial determination of whether particular employees come within the paragraph. However, like Wigney J in Elecnor (at [125]), I consider it prudent to address the issue in circumstances where an appellate court might take a different view on the question decided in that case (noting that, on 15 August 2025, Elecnor Australia Pty Ltd applied for an extension of time to appeal from the judgment of Wigney J).

54    In approaching this issue, I proceed on the basis that “perform work on the premises” is a statutory expression, with a fixed meaning, and whether activities of an employee come within that expression depends on the nature of the activities performed and the legal relationship within which they are performed. What documents or witnesses in the instant case label as or consider to be “work” is of limited, if any, relevance to ascertaining the meaning of the statutory expression and whether particular activities come within it. Accordingly, in what follows I focus on the FW Act and on the documents that defined the relationships between ECA Training and the apprentices it employed at the relevant time.

55    “Work” is not defined for the purposes of s 484. In some contexts, “work” describes any activity that is not rest or recreation. However, in the context of a statute regulating employment relationships, it has a more specific meaning. The “exchange of work for pay” has been described as representing “the fundamental consideration provided by parties to a contract of employment” (Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83; 185 FCR 383 at [66] (Buchanan J)). Hence, in this context, “work” usually connotes activity that is remunerated or that is required to be undertaken as a condition of ongoing remuneration. Thus, in Merrimans Local Aboriginal Land Council v Dwight [2025] FCA 991 at [40], I understood references to an employer offering “work” (as part of the definition of a casual employee in s 15A of the FW Act) to be referring to an offer of paid work. Absent some particular reason to apply a narrower meaning, the term “work” in the FW Act should be understood to take its meaning from the exchange of the employer’s money for the employee’s time and effort that is fundamental to contracts of employment.

56    The reasoning in Elecnor at [120]-[122], referred to above, has some relevance here. At the very least, it follows from the finding at [122] that the concept of “performing work” extends to ancillary activities, such as “pre-work meetings”, as well as “active work”. This, with respect, is obviously correct. Further, the observations at [120]-[121], although they may be strictly obiter, support a “sensible, practical and not overly technical approach” to s 484 and suggest that s 484 can provide a right of entry to “premises that the relevant workers attend for the purposes of their work” as well as premises where “active work” is done.

57    The particular context of s 484 does not suggest any reason why a restricted meaning should be given to the concept of performing “work”. The main reason why the respondents submitted that the concept ought to be understood to exclude training undertaken outside the “workplace” was, as I understood it, the perceived adverse effects of union organisers visiting places of learning (including, it was suggested, schools, universities and TAFEs) and trying to speak to students. Leaving aside the merits of this line of argument as a matter of public policy, as to which minds may differ, its acceptance would involve the error identified in Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; 248 CLR 1 at [28] (French CJ, Hayne, Kiefel and Bell JJ): constructing one’s own idea of a desirable policy, imputing it to the legislature and then characterising it as a statutory purpose (see also Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [26] (French CJ and Hayne J).

58    Similarly, to observe (as the respondents do, citing Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85; 203 FCR 389 at [56]-[59] (Flick J) (AMIEU v FWA)) that the conferral of a statutory right to enter premises is a significant encroachment on “liberty” (or more accurately property rights) does not assist significantly in the construction of provisions that have as their express intention the overriding of the ordinary rights of an occupier to deny entry to premises (cf, eg, Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; 199 CLR 321 at [43] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ)). The observations of Flick J in AMIEU v FWA (and in the earlier case of Darlaston v Parker [2010] FCA 771; 189 FCR 1 at [36]-[37], [44]) really go no further than confirming that the provisions conferring rights of entry must be construed with an eye to the balancing of interests referred to in s 480. Jessup J, in Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140 at [109], having referred to AMIEU v FWA, reflected the other side of the same coin when he observed that these provisions “are beneficial ones, and should be construed with an eye on the important role of organisations in protecting their members against contraventions of statutory and award provisions”.

59    Drawing specific boundaries around the concept of performing “work” in s 484, so as to include some aspects of employment and exclude others, involves effecting policy choices that the legislature has not expressed in the text or the context of the provision. It also involves making fine and potentially debatable distinctions, adding complexity to the operation of a provision which was clearly intended to allow quick and simple but limited access to workplaces. Such an approach was expressly discouraged in Australian Building and Construction Commission v Powell [2017] FCAFC 89; 251 FCR 470 at [15] (Allsop CJ, White and O’Callaghan JJ) (cited in Elecnor at [108]). The facts of Elecnor itself provide an example: how, one might ask, was Wigney J to delineate the performing of “work” if it did not include things necessarily undertaken for the purpose of accomplishing the employer’s goals, such as meetings and preparation?

60    The present context is different, therefore, from the award provisions governing specific allowances that were in issue in cases such as Construction Forestry Mining & Energy Union (Construction & General Division) v Master Builders Group Training Scheme Inc [2007] FCAFC 165; 168 IR 164 (Branson, Finn and Gyles JJ) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 (Katzmann J). Those provisions were contained in instruments made for particular parties and were concerned with when specific travel allowances were or were not payable.

61    In the present case, pursuant to the NECA EA, all employees of ECA Training were subject to direction by ECA Training to attend training “during working hours” (cl 10.1.1). They were entitled to be paid at ordinary time rates for the time spent attending “mandatory training” (and to receive overtime payments if they were directed to attend training outside ordinary hours) (cl 10.1.2). Failure to pass compulsory units of training had adverse consequences under the EA: the unit would have to be completed outside work hours and at the employee’s expense (cl 10.1.5); and disciplinary action might be taken against an employee who failed more than two units or modules (cl 10.1.8). These provisions in relation to “mandatory” or “compulsory” training were clearly applicable to apprentices who, it will be recalled, were subject to “training contracts” as a fundamental aspect of their apprenticeships. Additionally, as to apprentices, the NECA EA provided that:

(a)    apprentices were entitled to “all the benefits of full time employment”, even though they necessarily spent a significant proportion of their working hours in training rather than in revenue-generating activities (cl 11.1);

(b)    an apprentice’s employment would be terminated if their Apprenticeship Training Agreement or Training Contract were cancelled (cl 11.2); and

(c)    it was envisaged that each apprentice was to have an “apprentice training schedule” (cl 11.3).

62    Attending and successfully completing the training that was necessary for the purposes of an apprentice’s training contract was, therefore, a central aspect of what the apprentice was required to do (and what they were paid to do) as part of the terms of their employment with ECA Training. It is not in doubt that this is the type of training the ECA Training apprentices (other than those doing “light duties”) were engaged upon when attending the NECA Centre.

63    That attendance had some of the other features commonly associated with being at work, which reinforces the conclusion that the apprentices who were at the NECA Centre were engaged upon the performance of their duties as employees (although some of these features might also be present in a school or college). They were required to “sign in” using an electronic facility when they arrived and “sign out” when they left, with any late arrival affecting their rights to rostered days off. They were required to attend the NECA Centre for a full eight hour day, even if formal instruction did not last that long. They were subject to disciplinary processes in respect of their behaviour while attending training at the NECA Centre, and control was sought to be exercised over what they wore during classes. Additionally, apprentices’ attendance at the NECA Centre appears not to have been solely devoted to training: there is evidence of apprentices being pulled out of classes to be reprimanded about incidents at host employers’ work sites and of ECA Training’s Operations Manager and field officers attending classrooms to discuss work-related matters.

64    ECA Training apprentices who attended the NECA Centre for training were, therefore, performing their obligations as employees; subject to control and supervision consistent with being at work; and available for discussions with representatives of their employer about their work with host employers. They were, in the sense relevant to s 484 of the FW Act, persons who performed “work” at the premises.

65    It is not necessary to say anything concerning whether the same reasoning applies to apprentices employed by entities other than ECA Training who received training at the NECA Centre (the terms of whose employment was not the subject of evidence). The presence of ECA Training apprentices in the parts of the NECA Centre that Messrs Hicks and Kennedy sought to enter was sufficient for them to have a right of entry pursuant to s 484. Nor is it necessary for the purpose of this case to express any broader conclusion concerning employees attending training or educational institutions for work-related learning at the direction, or with the blessing, of their employers.

Relief

66    Messrs Hicks and Kennedy were authorised by s 484 to enter the part of the NECA Centre where ECA Training apprentices undertook training, for the purpose of having discussions with any of those apprentices who wished to speak with them. They were refused entry to that part of the premises by Mr Emeleus on 2 May 2024 and again on 9 May 2024. Those refusals amounted to a breach of s 501 of the FW Act. They also amounted to intentional acts by which the exercise of rights in accordance with Part 3-4 by Messrs Hicks and Kennedy was obstructed, in breach of s 502.

67    The Union does not seek any relief against Mr Emeleus personally. By its amended originating application, it seeks declaratory relief and pecuniary penalties against each of the respondents on the footing that Mr Emeleus was the “employee or agent” of ECA Training and the “agent” of NECA Training.

68    In this connection, reference was made by senior counsel for the respondents to the passage in AMIEU v Australian Food referred to at [39] above, where it was held (in relation to predecessor provisions in the WR Act) that it was erroneous to refer simply to an address in circumstances where only part of the buildings at that address was occupied by the business to whose premises access was actually sought. If applicable here, that reasoning might indicate that relief should go only against NECA Training (as the “occupier” of the relevant section of the NECA Centre). However, whereas the relevant provision in issue in AMIEU v Australian Food (s 285E(2) of the WR Act) imposed a prohibition on “the occupier of premises”, s 501 refers simply to “a person”. “Person”, according to its ordinary meaning (and pursuant to s 2C of the Acts Interpretation Act 1901 (Cth)), includes a corporation. I am satisfied that, in refusing entry, Mr Emeleus was acting on behalf of both ECA Training (the employer of the relevant employees) and NECA Training (the RTO and, it would appear, the occupier of the relevant part of the NECA Centre) and relief should go against both.

69    Declarations will therefore be made substantially in the terms sought in the amended originating application.

70    The Union also sought the imposition of pecuniary penalties on both respondents. The principles applicable to the assessment of the appropriate penalty are not in dispute and were conveniently set out by Wigney J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Elecnor Australia Pty Ltd (No 2) [2025] FCA 841 at [12]-[16] (his Honour’s judgment on relief following the decision in Elecnor).

In short summary, the purpose of imposing a civil penalty is to promote the public interest in compliance with the relevant Act by the deterrence of further contraventions of a like kind. The Court must, in effect, attempt to put a price on the contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene. The penalty must not be one which would be regarded by the contravener or others as an acceptable cost of doing business. The penalty must not, however, be greater than is necessary to achieve the objective of deterrence. An appropriate penalty is said to be one that strikes a balance between oppressive severity and the need for deterrence in the particular case.

In determining the size of the penalty which would serve the objective of deterrence, the Court must have regard to both the circumstances of the contravener and the circumstances of the contravention. Without intending to be exhaustive, where the contravener is a corporation, the factors concerning the circumstances of the contravener which are generally relevant when determining the size of the penalty which would serve the objective of deterrence include: the size and financial position of the corporation; whether the corporation has a corporate culture conducive to compliance with the relevant Act; whether the contravener has engaged in similar conduct in the past; and whether the contravener has demonstrated contrition and cooperated with the relevant authorities.

Likewise, without intending to be exhaustive, the factors concerning the circumstances of the contravention which are generally relevant to determining the size of the penalty which would serve the objective of deterrence include: whether the contravening conduct was systematic, deliberate or covert; the period over which the contravening conduct occurred; whether the contravention arose out of the conduct of senior management; whether the contravener profited from the contravention, and, if so, the extent of that profit; and whether the contravention caused any loss or injury.

It should be emphasised that both the factors relating to the circumstances of the contravener and those relating to the circumstances of the contravention are only relevant to the extent that they bear on the question of the size of the penalty that is necessary to achieve the objective of deterrence. The purpose of imposing a penalty does not include retribution or punishment. The pecuniary penalty also need not be proportionate to the nature and circumstances of the contravention, at least in the sense that the principle of proportionality is understood in the criminal law.

The maximum penalty is also relevant when it comes to determining the size of the penalty, though it does not constrain the exercise of the discretion, beyond requiring some reasonable relationship between the theoretical maximum to the final penalty imposed. The maximum penalty would generally only be appropriate in the case of a contravention which warranted the strongest deterrence.

71    Counsel for the Union accepted that the appropriate penalty would be towards the lower end of the range and that, by reason of s 556 of the FW Act, separate penalties would not be imposed for the contraventions of ss 501 and 502. He observed that his client was more interested in obtaining a judgment on the issue of principle than exacting a significant penalty against the present respondents.

72    In relation to the circumstances of the contraveners, ECA Training is a registered charity. However, that does not insulate it from paying an appropriate penalty for contraventions of the law. It appears to be a substantial undertaking, having generated (according to Mr Emeleus’s evidence) around $65 million in revenue in the last financial year. NECA Training’s revenue was around $8 million. An indication of the scale of NECA Training’s business can be seen in the numbers of apprentices who were receiving training at the NECA Centre on 2 May 2024 (77, of whom 48 were employees of ECA Training) and 9 May 2024 (75, of whom 47 were employees of ECA Training). However, counsel for the Union expressly accepted that there was nothing to indicate any previous contraventions of the FW Act by the respondents: they may therefore be taken to have corporate cultures that pay appropriate regard to compliance with its provisions.

73    As to the circumstances of the contraventions, the actions that comprised the contraventions were obviously deliberate and considered rather than inadvertent. They involved the general manager, Mr Emeleus, and other senior staff, thereby reflecting decisions taken at the top of each organisation. The lawful activities of the Union were hindered to an appreciable degree. The time of two officials was wasted on two occasions, and discussions with a reasonably significant number of members and potential members were prevented (although there may have been other opportunities to have those discussions). In the respondents’ favour, however, Mr Emeleus was not challenged on his evidence that he believed the course he was taking was lawful and the attempt by Messrs Hicks and Kennedy to enter the NECA Centre and approach apprentices receiving training was unlawful and improper. This evidence must therefore be accepted. It suggests that a significant pecuniary penalty may not be necessary to achieve specific deterrence. However, the role of general deterrence should not be forgotten.

74    The maximum penalty prescribed in s 539(2) of the FW Act for a contravention of s 501 or 502 is 60 penalty units; however, a penalty of up to five times that amount may be imposed on a body corporate under s 546(2). A “penalty unit”, by operation of s 12 of the FW Act and s 4AA of the Crimes Act 1914 (Cth), was $313 at the relevant time. Taking into account s 556, this leads to a maximum penalty of $93,900 for each respondent in relation to each set of contraventions.

75    I accept that the penalty imposed for each set of contraventions should be towards the lower end of the range. I also accept that proportionality between the total penalty and the conduct needs to be maintained, and the total should not be doubled as a result of the late joinder of NECA Training as another party responsible for the same conduct. However, deliberate conduct by substantial corporate entities in frustration of important rights should not be regarded as trivial and it is necessary to impose penalties at a level that prevents such conduct from being regarded by the respondents or others as an acceptable cost of doing business. I will therefore impose a penalty of $7,500 on each of the respondents in respect of each set of contraventions.

76    The Union sought an order that any pecuniary penalty be payable it, which was not opposed.

Associate:

Dated:    17 October 2025