[2008] AIRCFB 898 Note: Judicial review of this decision pending [HCA S547/2008] remittal [NSD 202/2009] - Judicial review discontinued 25 June 2009. [2008] AIRCFB 898 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION REASONS FOR DECISION Workplace Relations Act 1996 s.120—Appeal to Full Bench Office of Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (C2008/2721) SENIOR DEPUTY PRESIDENT KAUFMAN SENIOR DEPUTY PRESIDENT RICHARDS COMMISSIONER THATCHER MELBOURNE, 19 NOVEMBER 2008 Appeal against decision [AIRC 1140 [2008]] of Senior Deputy President Watson at Melbourne on 22 July 2008 in matter number RE2007/3071 – revocation of right of entry permit – abuse of rights under Part 15 – purpose of entry – what constitutes exercise of Part 15 rights? [1] This is an appeal, for which leave is required, by Chris Grant (the appellant) against the decision [2008] AIRC 1140 , of Senior Deputy Watson of 22 July 2008. The Senior Deputy President had refused to make an order to revoke the permit of Michael Lane (Lane), an elected organiser of the Construction, Forestry, Mining and Energy Union (CFMEU). The application for revocation under s.770 of the Workplace Relations Act 1996 (the Act) had been made by Nigel Hadgkiss, an inspector with the Australian Building and Construction Commission (ABCC). The appeal was filed on behalf of Mr Hadgkiss, but leave was granted to substitute the appellant, also an inspector with the ABCC, as Mr Hadgkiss has left the ABCC. [2] Lane is, and at all material times was, an official of the Construction Forestry Mining and Energy Union, an organisation registered under the Registration and Accountability of Organisations Schedule of the Act. In that capacity he was issued a right of entry permit pursuant to s.740 of the Act. The holding of such a permit entitles the permit holder to enter premises for certain specified purposes and subject to certain specified conditions. Divisions 4, 5 and 6 of Part 15 of the Act prescribe the purposes and conditions. [3] Section 770 of the Act relevantly provides that if the Commission is satisfied that any official of an organisation has abused the rights conferred by Part 15 – Right of Entry – of the Act, then the Commission may make whatever order it considers appropriate to restrict the rights of the official under the Part. [4] Lane had entered a building and construction site operated by Kell & Rigby Limited (the company) at Conrod Straight, Mount Panorama, Bathurst NSW (the premises) on 19 April and 16 May 2007. The appellant alleged that by his conduct on each of those occasions Lane had abused the rights conferred by Part 15 of the Act, and sought the revocation of his permit. [5] The primary submission of Lane, which was accepted by his Honour, was that his conduct at the time of the visits that was said to constitute the alleged abuse of rights conferred under Part 15 did not occur whilst he was exercising any rights under the Part. Accordingly, as there had not been an exercise of rights under Part 15, there could not have been an abuse of rights conferred under the Part. [6] Prior to each visit to the premises Lane had sent to the company, by fax, notification, in a standard form, of his intention to enter the premises pursuant to s.760 of the Act. That notice stated that he was a permit holder. Section 760, which is in Division 6 of Part 15, allows a permit holder to enter premises for the purposes of holding discussions with certain employees who wish to participate in the discussions. [7] Lane had previously visited the premises. The 19 April 2007 Entry [8] On this occasion Mr Lane went to the site office and introduced himself to Mr Ned Mozell, the company’s site manager, who did not ask Lane to produce his entry permit. [9] His Honour found, on Lane’s evidence, that the entry of 19 April had several elements or purposes. Lane wanted to access documents for the purpose of looking at suspected breaches relating to “underpayments, workers’ compensation, superannuation, State Department of Fair Trading regulation, with compliance being a major reason for the visit”. “A specific purpose of the visit was to identify, through induction records, particular classes of employees for a contact in the Immigration Department”. One of Lane’s intentions “was to hold discussions with employees, but he concluded that there was no point in holding such discussions due to a language issue … in the event, Lane did not hold discussions of any substance with workers other than a discussion with a labour hire employee about queries as to his entitlements.” One of the reasons for the lack of discussions was that Lane did not speak Korean, which is the language of most of the workers. [10] Although the evidence as to what occurred varies somewhat between Ned Mozell and Lane, what is common is that Mr Mozell facilitated Lane’s visit and cooperated with him by providing him with documents to assist his investigations into the matters mentioned in the paragraph above. Although there was an issue concerning a discussion between Lane and a truck driver as Lane was leaving the premises, that is of no consequence and we need not deal further with it. The 16 May 2007 Entry [11] On this occasion Lane was accompanied by a Korean speaking permit holder (Lee). His Honour found “that a purpose of the visit was to hold discussions with employees, the Korean workers in particular. Lane also intended to seek further documentation to update himself as to the number and identity of workers on site for superannuation and workers’ compensation purposes.” [12] On this occasion Mr Ned Mozell was not as cooperative as he had been on the first. However, he did let Lane enter without asking to see his permit. None of Lane’s requests for documents was acceded to. When he was told that the workers did not wish to speak with him he accepted this and told Ned Mozell that he and Lee were going to do a safety walk. Mr Mozell told him that he did not have a problem with the safety walk, and arranged for his brother Les, the Site Safety Officer, to accompany the two permit holders. [13] It was alleged by the appellant that during the safety walk attempts to speak with workers were made by the permit holders, and that this constituted an abuse of the rights conferred by Part 15 of the Act, because the conversations occurred during working time contrary to s.761, which provides that discussions may only be held during the employees’ meal, or other, breaks. An issue also arose in relation to a demand made by Ned Mozell at some time during the course of the safety walk that Lane produce his permit. His Honour found that Lane said that it was in the car and that he offered to get it, but did not do so because Ned Mozell lost his temper, stating it was too late by that time. Entry by Consent? [14] In relation to the entry of 19 April, his Honour found that Lane entered the premises “with the consent of Ned Mozell and not in reliance or purported reliance on his s.760 notice.” The finding was largely based on the fact that Ned Mozell did not ask Lane to produce his entry permit as well as the amicable discussion, accompanied by production of the documents that Lane had sought. [15] In relation to the 16 May entry, his Honour also found that Lane’s activities at the premises were not in “reliance, actual or purported, on his s.760 entry notice.” This finding was made on the basis that, having entered the premises, again without having been asked to produce his permit, Lane accepted Ned Mozell’s refusal to provide him with documents, accepted that no worker wished to speak with him and then decided to conduct a safety walk. His Honour found that once it was clear that Lane was not able to exercise rights associated with the s.760 notice he did not purport to do so. [16] We agree with his Honour that entry to premises under an occupational health and safety (OH&S) law of a State or territory is now only authorised by Division 5 of Part 15 of the Act. In Australian Building and Construction Commission v McLoughlin 1 his Honour said: “[55] Accordingly, whilst Part 15 of the Act, as amended, preserves the right of entry under State OHS law, it requires that an official of an organisation who seeks to exercise such rights to hold a right of entry permit under the amended right of entry provisions within Division 5 of Part 15. 2 The right of entry under OHS legislation is thus subject to the holding of a federal permit and the conditions, limitations and obligations attached to right of entry for OHS purposes under Part 15 of the Act. 3 In the current statutory context, entry by officials of organisations under OHS law, such as s.58 of the Victorian OHS Act, does entail the exercise of rights conferred by Part XI (renumbered at Part 15). [56] Accordingly, jurisdiction exists to make a s.770 order in relation to the site visits made by Mr McLoughlin in reliance on s.58 of the Victorian OHS Act, if abuses of rights conferred by Part 15 of the Act are established to the Commission’s satisfaction.” [17] Having so found, his Honour nevertheless found that Lane did not rely, or purport to rely, on “rights conferred by Part 15 of the Act, whether s.760 or Division 5 through reliance on the NSW OH&S Act …” His Honour’s reasons are at paragraph 101: “Lane sought and readily obtained the agreement to undertake a safety walk, and the co-operation of Ned Mozell in relation to it through organising Les Mozell to accompany Lane and Lee on the walk. The safety walk was undertaken with the agreement of the occupier and not in reliance or purported reliance upon a power conferred by Part 15 of the Act.” [18] It is clear that his Honour also considered the 16 May entry to have been by consent of the occupier of the premises. [19] In reaching this conclusion that on neither occasion was Lane exercising rights conferred by Part 15 of the Act his Honour referred to and distinguished Pine v Doyle 4 . In so doing his Honour erred. [20] In Pine v Doyle a right of entry was sought under s.285C, the predecessor provision to s.760. The occupier had indicated that it required strict compliance with the Act and Mr Doyle was required to, and did, show his entry permit. However, although the right of entry was for the purposes of holding discussions with employees, he did not do so. His visit was conducted as a safety inspection. Merkel J found Doyle was exercising powers under s.285C; the CFMEU had notified the builder that Doyle proposed to exercise his statutory right of entry the following day; upon being required to Doyle showed his permit; he also believed that it was necessary to assert a right of entry under s.285C in order to enter the site. 5 [21] Merkel J then found that as no award binding the CFMEU was applicable to work being carried out on the site, the pre-condition set out in s.285C(1)(a) for a valid exercise of power was not satisfied. Accordingly, the power was not lawfully exercised. Further as Doyle had entered for the sole or dominant purpose of conducting a safety inspection, which was not a purpose authorised by s.285C, the power of entry was exercised for a purpose for which the power was not conferred and was, for that reason also, not a lawful exercise of the power. 6 [22] Nevertheless, Merkel J found that for the purposes of s.285E(1), which provided that a person exercising powers under s.285C must not intentionally hinder or obstruct any employer or employee, the power of entry was exercised as a matter of fact: Doyle had relied on s.285C to gain entry. 7 [23] In our view, the situation here is relevantly the same. Lane was a permit holder. He had visited the premises on previous occasions. The inescapable inference is that Ned Mozell and other company representatives were aware that Lane was a permit holder. Prior to each visit Lane had caused to be sent to the company the notice, required by s.763, of his intention to enter the premises under s.760 as a permit holder. The sending of the s.763 notices is in itself an exercise of the rights conferred by Part 15. The mere fact that once Lane presented himself to the site he was admitted without being required to produce his permit did nor render him an invitee. By the giving of the s.763 notices, and then presenting himself at the premises in accordance with them, it is clear that Lane was exercising his rights as a permit holder. [24] Just as Doyle had unlawfully exercised his s.285C powers to gain entry for a safety inspection, so had Lane exercised his s.760 powers to gain entry for purposes that were not authorised by that section. It is clear that on the first occasion Ned Mozell cooperated with Lane and provided him with the information and documents that he sought because Mozell was unaware that Lane was not entitled to them. By the time of the second visit Ned Mozell had obtained advice and refused to provide the information sought by Lane, and told him that no employee wished to speak with him. With respect, we do not agree with Senior Deputy President Watson’s conclusion at paragraph 99 “that, from that point, there was no reliance on rights conferred by s.760 of the Act in relation to the 16 May entry onto site.” Lane was on the premises pursuant to his exercise of those rights. In any event, the safety walk that Lane then commenced involved an exercise of his rights as a permit holder under the provisions of Division 5 of Part 15. As a permit holder Lane had the right to conduct an OHS walk without having provided notice of his intention to do so. Just as Ned Mozell’s waiver of the requirement that Lane present his permit before gaining entrance to the site did not render him an invitee, so too Mozell’s ready acquiescence and cooperation did not render him an invitee for the purposes of the safety walk. By way of illustration only we pose the rhetorical questions: Would Ned Mozell have agreed to Lane conducting a safety walk absent Lane’s statutory right to do so? Would Lane have told Mozell, when asked by him to leave the site during the course of the safety walk, that he would not leave until he had finished the safety inspection, were he not exercising, or of the view that he was exercising, Part 15 powers? [25] Having found that his Honour erred we grant leave to appeal. An appeal to a full bench is by way of rehearing. At first instance it was agreed that the matter would be dealt with in two parts; a hearing as to whether Lane had abused the rights conferred by Part 15 of the Act, and, if it was found that he had, a further hearing to determine what, if any, orders should be made. His Honour, having found that Lane had not been exercising any rights conferred by Part 15 of the Act and therefore could not have been abusing those rights, nevertheless briefly addressed the alleged abuses and concluded that there had been no abuses. There is force in the appellant’s submission that his Honour’s reasons for so finding were circular. Having concluded that Lane was not exercising s.760 rights on the occasion of the first visit his Honour did not consider that Lane’s inquiries into the immigration and other matters constituted an abuse of Part 15 rights. Similarly in relation to the second visit and Lane’s conduct during the safety inspection. [26] As his Honour indicated, he only briefly addressed the issue of the alleged abuses, and then in the context of his findings that there had been no Part 15 powers relied upon. Albeit his Honour did find that even had there been a reliance on Part 15 powers during the safety walk, Lane had not abused those powers by talking to tilers during working hours or by failing to produce his permit when requested and thereupon failing to leave the site when told to do so. [27] In our view, on each of 19 April and 16 May 2007, Lane had abused the rights conferred by Part 15 of the Act when he entered the site under authority of a notice issued under s.760 with the intention to do other than speak to employees during their meal, or other, breaks. The right of entry under s.760 is for a specific and limited purpose and is subject to the limitations set out in Division 6 of Part 15. When Lane, a permit holder, entered with the intention to, and then sought to, go beyond the scope of the rights conferred by that section he abused those rights. Although Lane, who is a person authorised to enter premises pursuant to the Occupational Health and Safety Act 2000 (NSW) could have entered the premises to conduct a safety inspection at any time during working hours pursuant to Division 5 of Part 15 of the Act and s.78 of the NSW Act, the fact is that he entered the premises under authority of his s.760 notice. When he commenced his safety walk he did not indicate that he was a holder of a permit under the NSW legislation and that he intended to exercise rights under that Act. To conduct a safety walk in such circumstances was an abuse of the rights conferred by Part 15. Further, although the evidence is equivocal, it appears that whatever discussions Lane had with the employees of Classic Tiling were not concerned with OH&S matters. His Honour found that after Ned Mozell had refused to show Lane anything unless it concerned a CFMEU member, “Lee then furnished notices, pursuant to s.127 of the Industrial Relations Act 1996 (NSW).” That section makes principal contractors liable for the wages obligations of their sub-contractors. The so-called s.127 notices were notices to two of the contractors on site (Classic Tiling Pty Ltd being one of them) advising them of their obligations pursuant to s.127. The provision of those notices does not appear to us to be founded on any OH&S power. Any conversations with employees about these matters would have had to have been pursuant to s.760. If attempts were then made to speak with employees of the contractors on the safety walk there would have been an abuse of Part 15 rights. We note that his Honour found that any conversations were of minimal duration, but this goes to remedy rather than to breach. [28] Having regard to our conclusion that at all relevant times Lane had been exercising rights conferred by Part 15 of the Act and that he had abused those rights, we have decided to refer the matter back to his Honour to deal with the question of remedy in accordance with these reasons. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances : P M Kite SC with P Coleman of counsel for the appellant. J H Pearce of counsel for the respondent. Hearing details: 2008 Sydney 16 October 1 (2007) 165 IR 369 at [55] & [56] 2 Workplace Relations Amendment (Work Choices) Bill 2005 : Explanatory Memorandum , at para 2483. 3 ibid., at pp. 25-26. 4 (2005) 143 IR 98 5 Ibid at [13] 6 Ibid at [14] 7 Ibid at [15] Printed by authority of the Commonwealth Government Printer <Price code C, PR984588>