AustLII Home | Databases | WorldLII | Search | Feedback

Federal Circuit Court of Australia
You are here:  AustLII >> Databases >> Federal Circuit Court of Australia >> 2016 >> [2016] FCCA 1227

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Context | No Context | Help

CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227 (24 May 2016)

Last Updated: 27 May 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICE UNION OF AUSTRALIA (WESTERN AUSTRALIA DIVISION) v FORTESCUE METALS GROUP LTD


Catchwords:
INDUSTRIAL LAW – Right of union official to enter workplace – whether union official unduly delayed when seeking to exercise right of entry.

PRACTICE AND PROCEDURE – Summary dismissal application – whether no reasonable prospect of success.


Legislation:
Acts Interpretation Act 1901 (Cth), ss.15AA, 15AB
Conciliation and Arbitration Act 1904 (Cth)
Fair Work Act 2009 (Cth), pt.3-4, Divisions 2 and 3, ss.27, 478, 480, 494, 495, 497, 498, 499, 501, 512, 546, 570(2)
Fair Work Bill 2008 (Cth), Explanatory Memorandum
Fair Work Regulations 2009 (Cth), reg.3.25
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules (Cth), r.13.10(a)
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Court Rules 2011 (Cth), r.26.01
Industrial Relations Act 1979 (WA), Part II, Division 2G, ss.49G, 49I, 49K, 49L, 49M, 49O, 83E
Mines Safety and Inspection Act 1994 (WA)
Occupational Health and Safety Act 2004 (Vic)
Occupational Safety and Health Act 1984 (WA), s.19
Workplace Health and Safety (National Uniform Legislation) Act 2011 (NT)
Workplace Relations Act 1996 (Cth), pt.15, div.5, ss.747, 756, 760, 767


Cases cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)  [2009] HCA 41 ; (2009) 239 CLR 27
Algama v Minister for Immigration & Multicultural Affairs [2001] FCAFC 1884; (2001) 115 FCR 253; (2001) 194 ALR 37
Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90; (2010) 186 FCR 88; (2010) IR 309
Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Ltd & Anor [2013] FMCA 154; (2013) 274 FLR 470
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Darlaston v Parker [2010] FCA 771; (2010) 189 FCR 1; (2010) 196 IR 307; (2010) 62 AILR 101-228
George v Fletcher (Trustee) [2010] FCAFC 53
Hogan v Riley [2010] FCAFC 30; (2010) 182 FCR 583; 194 IR 126
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) & Ors [2009] FCA 645; (2009) 178 FCR 461; (2009) 186 IR 17
Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753
Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337
Manday Investments Pty Ltd v Commonwealth Bank of Australia (No. 3) [2012] FCA 751
Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51; (1987) 22 IR 149; (1987) 79 ALR 57
New South Wales v Commonwealth of Australia [2006] HCA 52; (2006) 229 CLR 1; (2006) 81 ALJR 34; (2006) 231 ALR 1; (2006) 156 IR 1
Pine v Doyle [2005] FCA 977; (2005) 222 FCR 291; (2005) 143 IR 98
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490
Ramsay v Sunbuild Pty Ltd [2014] FCA 54; (2014) 221 FCR 315
Re Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No. 2) [1991] FCA 77; (1991) 36 IR 219
Setka v Gregor (No. 2) [2011] FCAFC 90; (2011) 195 FCR 203
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470
White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298

Macquarie on-line Dictionary, http://www.macquariedictionary.com.au
O Jones, “When is the Federal Magistrates Court bound by the Federal Court?” [2012] 86 ALJ 478
WJ Ford “Being There: Changing Union Rights Of Entry Under Federal Industrial Law” (2000) 13 AJLL 1

Applicant:
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICE UNION OF AUSTRALIA (WESTERN AUSTRALIA DIVISION)

Respondent:
FORTESCUE METALS GROUP LTD

File Number:
PEG 253 of 2013

Judgment of:
Judge Antoni Lucev

Hearing date:
5 February 2014

Date of Last Submission:
4 March 2014

Delivered at:
Perth

Delivered on:
24 May 2016


REPRESENTATION

Counsel for the Applicant:
Mr S Millman

Solicitors for the Applicant:
Slater + Gordon

Counsel for the Respondent:
Mr T H F Caspersz

Solicitors for the Respondent:
Corrs Chambers Westgarth


ORDERS

(1) That paragraph 1(i) of the respondent’s application in a case be dismissed.
(2) The matter be adjourned to a directions hearing on a date to be fixed.
(3) Costs, if any, be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 253 of 2013

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICE UNION OF AUSTRALIA (WESTERN AUSTRALIA DIVISION)

Applicant

And

FORTESCUE METALS GROUP LTD

Respondent


REASONS FOR JUDGMENT

Introduction – the substantive application and the summary dismissal application

  1. The right to enter workplaces has been at the core of the function of trades unions in Australia since at least the time of the passing of the Conciliation and Arbitration Act 1904 (Cth) (“C&A Act”). Over the decades the right to enter has been exercised, initially under award provisions, and from 1973 extended to include legislated rights under the C&A Act, and its legislative successors, in relation to many matters, but principally to ensure proper payment of wages and allowances, to both create and prevent industrial disputes, and to ensure workplace safety: see Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51; (1987) 22 IR 149; (1987) 79 ALR 57; FCR at 56-62 per Keeley, Gray and Ryan JJ; Re Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No. 2) [1991] FCA 77; (1991) 36 IR 219 at 220 per Gray J; WJ Ford “Being There: Changing Union Rights Of Entry Under Federal Industrial Law” (2000) 13 AJLL at 1-4. The right of a union official to enter workplaces has often been qualified, and the qualifications imposed under s.501 of the Fair Work Act 2009 (Cth) (“FW Act”) upon the capacity of certain persons to enter workplaces lies at the heart of the applicant’s application (“Application”) and the respondent’s application in a case (“Application in a Case”) filed in these proceedings.
  2. The Application is made in the Court’s jurisdiction under the FW Act by the applicant, the Communications, Electrical, Electronic, Information, Postal, Plumbing & Allied Service Union of Australia (Western Australia Division) (“CEPU”) and seeks a declaration that the respondent, Fortescue Metals Group Ltd (“FMG”), unduly delayed the entry of an official of the CEPU onto premises that he was entitled to enter, and that in so doing there was a contravention of s.501 of the FW Act, and in relation to that alleged contravention the CEPU seeks the imposition of penalties upon FMG under s.546 of the FW Act.
  3. FMG has countered by filing the Application in a Case which seeks, under r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) that the application be summarily dismissed on the basis that it has no reasonable prospect of success.

Factual matrix and grounds of the Application

  1. The relevant factual matrix is short. Essentially, the CEPU alleges that on 16, 19 and 20 August 2013 a union official, Leslie McLaughlan (“Mr McLaughlan”) was unduly delayed when he sought to exercise a right of entry to premises occupied by FMG, that right being conferred by s.49I of the Industrial Relations Act 1979 (WA) (“IR Act”), to investigate a suspected contravention of s.19 of the Occupational Safety and Health Act 1984 (WA) (“OSH Act”) following a fatality in the workplace at those premises, that right being alleged to be exercisable under s.494 of the FW Act.
  2. The relevant grounds of the Application are as follows:

The Application in a Case

  1. The Application in a Case seeks orders in the following terms:
  2. At hearing it was agreed that the standing argument in paragraph 1(ii) of the Application in a Case be stood over pending determination of the jurisdiction issue.

Legislation

  1. It is convenient at this juncture to set out some of the relevant legislative provisions in order to aid with an understanding of what follows in these Reasons for Judgment.

FW Act

  1. Sections 501 and 494 of the FW Act are as follows:

IR Act

  1. Certain provisions of the IR Act are relevant to the resolution of this matter, including ss.49I, 49M (which by reason of s.49O of the IR Act is a civil penalty provision) and s.83E of the IR Act, which provide as follows:

Occupational Safety and Health Act 1984 (WA) (“OSH Act”)

  1. Section 19 of the OSH Act provides as follows:

Submissions

FMG’s submissions

  1. In relation to the purpose and object of Part 3-4 of the FW Act FMG submits that:
    1. section 480 of the FW Act states that the object of Part 3-4 of the FW Act is to establish a framework for officials of organisations to enter premises that balances:
      1. the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
        1. the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
        2. State or Territory OHS laws; and
      2. the rights of occupiers of premises and employers to go about their business without undue inconvenience.
    2. the balance sought by s.480 of the FW Act is achieved by officials of organisations who are permit holders who comply with the Division 3 requirements for the exercise of a State or Territory OHS right being able to enter premises to investigate suspected contraventions of the OSH Act, whilst reserving the remedy for a contravention of a State or Territory OHS right to the State or Territory OHS law.
  2. In relation to the exercise of a State or Territory OSH right by a permit holder FMG submits that:
    1. Division 3 of Part 3-4 of the FW Act deals with the exercise of a State or Territory OSH right by a permit holder;
    2. a State or Territory OSH right is a right to enter premises conferred by a State or Territory OSH law including where the premises are controlled by a constitutional corporation: s.494(2)(a)(i) of the FW Act;
    1. a State or Territory OSH law is a law of a State or Territory prescribed by the regulations: s.494(3) of the FW Act;
    1. regulation 3.25 of the Fair Work Regulations 2009 (Cth) prescribes sections 49G, 49I and 49O of the IR Act as such, to the extent that those provisions provide for, or relate to, a right of entry to, relevantly, investigate a suspected contravention of the OSH Act (or the Mines Safety and Inspection Act 1994 (WA));
    2. section 494(1) of the FW Act provides that an official of an organisation must not exercise a State or Territory OSH right unless the official is a permit holder; and
    3. the other provisions of Division 3 of the FW Act, in ss.495 to 499, impose further requirements on a permit holder who seeks to exercise a State or Territory OSH right (Division 3 requirements for the exercise of a State or Territory OSH right): see section 15AB of the Interpretation Act, and see [1975]-[1976] of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth).
  3. In relation to the construction of s.501 of the FW Act and the expression “entitled to enter the premises” FMG submits that:
    1. section 501 of the FW Act is premised on the fact that the person seeking to enter premises is properly a permit holder;
    2. if the expression “who is entitled to enter the premises in accordance with this Part” as it appears in s.501 of the FW Act includes a permit holder who seeks to exercise a right of entry under Division 2 of Part 3-4 of the FW Act as well as one who seeks to exercise a State or Territory OSH right, s.501 of the FW Act would be an additional and alternative remedy to the remedies available under a State or Territory OSH law for when a person refuses or unduly delays entry onto premises by a permit holder (in this case, qua authorised representative): IR Act, ss.49M(1) and 83E;
    1. in that event, s.501 of the FW Act would in effect permit a federal court to interpret and enforce the intent of a State or Territory legislature concerning the nature and extent of a State or Territory OSH right;
    1. this raises the question whether, as a matter of construction, Parliament intended that s.501 of the FW Act be engaged when a permit holder seeks to exercise a State or Territory OSH right;
    2. in this respect, as was said in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 (“Project Blue Sky”) at [69] per Brennan CJ:
      • The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.” Thus, the process of construction must always begin by examining the context of the provision that is being construed;
    3. sense is to be made upon the whole, such as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent: Project Blue Sky at [71] per Brennan CJ;
    4. on an ordinary reading, the expression “in accordance with this Part”, as it appears in s.501 of the FW Act, means “in conformity with Part 3-4” of the FW Act: Macquarie on-line Dictionary at http://www.macquariedictionary.com.au/features/word/search/? word=in+accordance+with&search_word_type=Dictionary, and applies to the preceding expression “entitled to enter the premises”; and
    5. the issue then is what Parliament envisaged by the notion of “entitled ... in accordance with” Part 3-4 of the FW Act, and more particularly, did the legislature intend that to be entitled in conformity with Part 3-4 of the FW Act:
      1. the permit holder must have a right as specified in Part 3-4 of the FW Act, in which case s.501 of the FW Act is only engaged when a permit holder seeks to exercise rights of entry under Division 2 of Part 3-4 of the FW Act; or
      1. the permit holder could be so entitled even if the right to enter is not specified in Part 3-4 of the FW Act (as with a State or Territory OSH right, which are specified in a State or Territory OSH law rather than in Part 3-4 of the FW Act), as long as the permit holder conformed with the requirements for the exercise of a right of entry under Division 2 of Part 3-4 of the FW Act or the requirements for the exercise of a State or Territory OSH right under Division 3 of Part 3-4 of the FW Act, as the case may be (in which case s.501 of the FW Act is engaged when a permit holder seeks to exercise either a right of entry under Division 2 of Part 3-4 of the FW Act or a State or Territory OSH right).
  4. In relation to the proper meaning and construction of s.501 of the FW Act as a whole FMG submits that:
    1. if the expression “entitled to enter premises” has the meaning described above, the expression is effectively rendered superfluous as s.501 of the FW Act could then have simply read:
      • A person must not refuse or unduly delay entry onto premises by a permit holder ... in accordance with this Part.
    2. such a reading would capture the exercise of a right of entry to premises even if the right to enter is not specified in Part 3-4 of the FW Act, as long as the permit holder’s exercise of the right of entry was in conformity with the requirements under Division 2 of Part 3-4 of the FW Act for the exercise of a right of entry, or the requirements under Division 3 of Part 3-4 of the FW Act for the exercise of a State or Territory OSH right;
    1. to construe s.501 of the FW Act as such results in surplusage of language, which is inconsistent with the orthodox principles of statutory construction referred to in Project Blue Sky, and such a construction should not be preferred for this reason;
    1. instead, regard should be had for the ordinary meaning of the word “entitled”, which is to give a person a right to something: Macquarie on-line Dictionary at http://www.macquariedictionary.com.au/features/word/search/? word=entitled&search word type= Dictionary;
    2. Division 2 of Part 3-4 of the FW Act gives a permit holder a right of entry, whereas Division 3 of Part 3-4 of the FW Act does not;
    3. rather, all that Division 3 of Part 3-4 of the FW Act does is to impose on a permit holder the additional requirements thereunder for the exercise of a State or Territory OSH right if the permit holder is otherwise given a right to enter premises by a State or Territory OSH law: FW Act, s.494(1);
    4. in s.501 of the FW Act, the expression “entitled to enter the premises” should be construed to mean an entitlement to enter the premises arising from a right that is specified in Part 3-4 of the FW Act, namely, a right of entry under Division 2 of Part 3-4 of the FW Act;
    5. construed in this way, the expression is not superfluous, and has work to do;
    6. the expression “in accordance with this Part” as it appears in s.501 of the FW Act then works separately to pick up the requirement of conformity with requirements under Division 2 of Part 3-4 of the FW Act for the exercise of rights of entry;
    7. thus, on this construction, s.501 of the FW Act reads:
      • 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 [Division 2 of] this Part.
    8. although this means that s.501 of the FW Act will not be engaged when a permit holder seeks to exercise a State or Territory OSH right, FMG submits that this construction is to be preferred nonetheless, as it gives full meaning to all of the words of s.501 of the FW Act and, therefore, accords with the orthodox principles of statutory construction, and if this construction of s.501 of the FW Act is adopted, the remedies for a contravention of a State or Territory OSH right are only those available under a State or Territory OSH law;
    1. as concerns a permit holder’s exercise of the State OSH right under s.49I of the IR Act, the remedy is that which is available by the operation of ss.49M(l) and 83E of the IR Act; and
    1. this outcome is wholly consistent with Parliament’s express intention in s.27(1)(d) of the FW Act that the remedies in respect of rights incidental to the matter of occupational health and safety continue to be dealt with by State and Territory courts, given that enforcement of a State or Territory OSH right constitutes the enforcement of the intention of a State or territory legislature as to the nature and intent of such a right.
  5. In relation to Ramsay v Sunbuild Pty Ltd [2014] FCA 54; (2014) 221 FCR 315 (“Sunbuild”) FMG submitted that:
    1. it is evident that the interlinking between the FW Act and the Workplace Health and Safety (National Uniform Legislation) Act 2011 (NT) (“WHS Act”) was significant for the Federal Court’s reasoning on the ‘first level’, namely, that a person has to be a permit holder, granted under Part 3-4 of the FW Act, in order to be a WHS entry permit holder and, thereby, exercise a right of entry under the WHS Act: Sunbuild at [67] and [86] per Reeves J;
    2. the interlinking created a very close and significant relationship between a person seeking to exercise an OHS right of entry under the WHS Act and Part 3-4 of the FW Act: Sunbuild at [86] per Reeves J. This interlinking was all as a result of the harmonised model safety laws applying in the Northern Territory, which laws have not been implemented in WA, and which came into operation well after the commencement of operation of the FW Act, and which led the Federal Court to conclude that once an official of a federal union becomes a permit holder under Part 3-4 of the FW Act, subject to them having a valid purpose and meeting the other requirements of that Part, they become “a permit holder who is entitled to enter the premises in accordance with this Part”, within the meaning of that expression in s.501 of the FW Act: Sunbuild at [94] per Reeves J; and, therefore, by reason of being the holder of a permit granted under the FW Act, the Federal Court considered a person is relevantly ‘entitled to enter premises’ to exercise an OHS right under the WHS Act, in accordance with Part 3-4 of the FW Act (that is, by complying with the requirements set out in Part 3-4);
    1. the above reasoning underpins the observations in Sunbuild at [93] per Reeves J of an “undue” focus and concentration on the entitlement in s.501 of the FW Act; the critical focus for the Federal Court being the requirement that the person intending to enter the premises, or exercise any rights there, must have become a permit holder complying with Part 3-4 of the FW Act;
    1. the interlinking between the FW Act and the WHS Act was the ratio for the first level of the Federal Court’s decision concerning the proper construction of s.501 of the FW Act.
  6. FMG then deals with the “alternative argument” in Sunbuild submitting that:
    1. in Sunbuild at [84] per Reeves J the Federal Court states that, notwithstanding the fact that the rights of entry for OHS purposes are conferred solely by State or Territory OHS legislation and Division 3 of Part 3–4 of the FW Act merely regulates those rights, the applicant was able to rely upon ss.501 and 502 of the FW Act to enforce those rights, and that the decisions in Setka v Gregor (No. 2) [2011] FCAFC 90; (2011) 195 FCR 203 (“Setka”) and Hogan v Riley [2010] FCAFC 30; (2010) 182 FCR 583; 194 IR 126 (“Hogan”) supported this conclusion; and
    2. the conclusion reached in Sunbuild was in relation to the applicant’s “alternative argument” that, even if the putative entrant did not have an independent right of entry under the FW Act, ss.501 and 502(1) of the FW Act nevertheless applied in the circumstances because Division 3 of Part 3-4 of the FW Act regulated the right of entry under the WHS Act by providing in s.494(1) of the FW Act that the right could not be exercised unless the putative entrant had an entry permit under the FW Act; the applicant’s submission being that this requirement and the related requirements in ss.495 to 499 of the FW Act were sufficient to satisfy the words “in accordance with this Part” in ss.501 and 502(1) of the FW Act: Sunbuild at [15] per Reeves J;
  7. In arriving at the conclusion on the alternative argument, the Federal Court relied upon earlier judgments of the Full Court of the Federal Court in Setka and Hogan.
  8. In relation to Setka FMG submitted that:
    1. the issue in Setka was whether the appellant was exercising or seeking to exercise rights under the Occupational Health and Safety Act 2004 (Vic) (“OHS Act”) and, thereby, whether s.767(1) of the WR Act was engaged: Setka at [22] and [26] per Lander, Tracey and Yates JJ;
    2. section 767(1) of the WR Act, which was central to the consideration in Setka, relevantly provided that:
      • (1) A permit holder exercising, or seeking to exercise, rights:
      • (a) ...under section...760; or
      • (b) under an OHS law in accordance with section 756 ...;
      • must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
    1. the context of the observation of the Full Court of the Federal Court in Setka at [21] per Lander, Tracey and Yates JJ, relied upon in Sunbuild at [19] per Reeves J, was a comment on the appellant’s reliance on the reasons of the majority justices in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90; (2010) 186 FCR 88; (2010) IR 309, which concerned the inter-relationship between ss.760 and 767(1) of the WR Act;
    1. section 760 of the WR Act provided that a permit holder “may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions”, and by contrast, s.756(1) of the WR Act did not specify a purpose as such, but simply provided that a union official who has a right under an occupational health and safety law to enter premises must not exercise that right unless he or she holds a permit and exercises the right during working hours: Setka at [11] and [20] per Lander, Tracey and Yates JJ;
    2. in Setka, the appellant’s submission was therefore that, in the absence of evidence that he had attended the site for the purpose of pursuing matters relating to occupational health and safety, s.767(1) of the WR Act could have no operation: Setka at [19]-[20] per Lander, Tracey and Yates JJ, but the Full Court of the Federal Court rejected this submission when it held that there was ample evidence on which the court below could have concluded that Mr Setka was exercising, or seeking to exercise, rights under the OHS Act: Setka at [25] per Lander, Tracey and Yates JJ;
    3. this was the context in Sunbuild at [19] per Reeves J as follows:
      • [19] It may be noted, immediately, that s 756(1) differed from s 760 in that it contained no prescribed purpose. Moreover, section 756(1) did not create or confer a right but rather, as the Federal Magistrate rightly noted, assumed the existence of a right and regulated its exercise. The relevant right was conferred by the OHS Act. The right considered in John Holland was conferred by s 760. This distinction was reflected in the phrasing of sub-paragraphs (a) and (b) in s 767(1).
    4. the relevant passage in Setka appears in the context of the reasoning of the Court that the absence of a prescribed purpose in s.756(1) of the WR Act did not preclude a finding, on the evidence, that the appellant had, in fact, exercised, or sought to exercise, rights under the OHS Act, for the purposes of that provision, and that s.767(1) of the WR Act had, thereby, been engaged;
    5. section 767(1) of the WR Act was in materially different terms to s.501 of the FW Act; and in particular, there is no express reference to “under an OHS law” in s.501 of the FW Act, as there was in s.767(1)(b) of the WR Act;
    6. section 767(1) of the WR Act therefore had none of the ambiguity that FMG contends is apparent in s.501 of the FW Act, and the issue of ambiguity as contended for by FMG in this matter was not an issue in Setka;
    7. nor does the issue of ambiguity as contended for by FMG appear to have been argued in Sunbuild, which might explain why the Federal Court looked to Setka for support for the conclusion: Sunbuild at [84] per Reeves J;
    8. the question in Sunbuild was not the construction of s.494 of the FW Act, but the proper construction of s.501 of the FW Act and, therefore, whether Setka (or Hogan) assisted with the construction of s.494 of the FW Act: Sunbuild at [85] per Reeves J, was not to the point; and
    1. taking into account the matters referred to above, given the ambiguity contended for by FMG in s.501 of the FW Act, and the material differences between the language of s.767(1) of the WR Act and s.501 of the FW Act, the Federal Court’s reliance on Setka, particularly at [22] per Lander, Tracey and Yates JJ, does not assist in a proper construction of s.501 of the FW Act.
  9. In relation to Hogan FMG submits that:
    1. in Hogan, the issue concerned s.767(1) and (3) of the WR Act. Section 767(1) of the WR Act is relevantly set out at [19(b)] above, while s.767(3) of the WR Act provided as follows:
      • (3) A person must not refuse or unduly delay entry to premises by a permit holder who is entitled to enter the premises:
    2. the issue in Hogan was whether the appellant had been denied natural justice by the way in which the court below construed s.767 of the WR Act, to find that a contravention of s.767(1) of the WR Act by a permit holder seeking to exercise rights of entry under an OHS law would destroy that permit holder’s entitlement to enter for the purposes of s.767(3) of the WR Act;
    1. the Full Court of the Federal Court in Hogan construed s.767(1) and (3) of the WR Act as establishing free-standing norms of conduct, the operation of neither being dependent upon compliance (by the person who would presumptively benefit) with the other: Hogan at [17] per Finn, Lander and Jessup JJ;
    1. for the reasons set out above in relation to Setka, this part of Hogan was also not to the point, as the question in Sunbuild was not the construction of s.494, but of s.501, of the FW Act;
    2. also, as in Setka, in Hogan, the language of s.767(1) and (3) of the WR Act was materially different from the language of s.501 of the FW Act, and did not suffer from the ambiguity that FMG contends is apparent in s.501 of the FW Act;
    3. therefore, the Federal Court could, and should, not have held, as it did in Sunbuild at [85] per Reeves J, that s.767(1) of the WR Act was the broad equivalent of s.500 of the FW Act, and that s.767(3) of the WR Act was the broad equivalent of s.501 of the FW Act;
    4. the balance of Hogan at [17] per Finn, Lander and Jessup JJ is directed to the interaction between s.767(1) and 767(3) of the WR Act and not, as was suggested during oral submissions, to the corresponding rights of entry that may exist under Commonwealth or State and Territory laws: Sunbuild at [85] per Reeves J; and
    5. Hogan is restricted to an analysis of s.767(1) and (3) of the WR Act as they stood at that time, and is distinguishable from the present matter for this reason, and is not of assistance in determining the proper construction of s.501 of the FW Act.
  10. In relation to what FMG characterise as the ‘second level’ of the Reasons for Judgment in Sunbuild, namely, the interlinking between the FW Act and the WHS Act said to permeate the approach to the question of the proper construction of s.501 of the FW Act, namely, the Federal Court’s interpretation of the general purpose of Part 3-4 of the FW Act, FMG submits that:
    1. in Sunbuild at [97] per Reeves J, the Federal Court approached this issue on the basis that ss.501 and 502(1) of the FW Act are available to protect a permit holder from hindrance or obstruction if the permit holder has complied with the requirements of Part 3-4 of the FW Act, whether they are exercising rights under Division 2 or Division 3 of Part 3-4 of the FW Act as it applies to the rights conferred by State or Territory OHS laws;
    2. the Federal Court made the abovementioned finding on the basis of the following findings:
      1. insofar as any right to enter premises for OHS purposes is concerned, the Commonwealth Parliament has not created its own right of entry under that framework: Sunbuild at [82] per Reeves J;
      2. there is no independent right of entry for OHS purposes created by the combined effect of ss. 494 and 512, or indeed any other provision in Part 3-4, of the FW Act: Sunbuild at [83] per Reeves J;
      3. in the context of the discussion on the context and purpose of Part 3-4 of the FW Act, the significance of the need for officials to be fit and proper persons to obtain an entry permit, which requirement is interlinked with the proscription in s.124 of the WHS Act that a WHS permit holder must not enter a workplace under the WHS Act unless they hold an entry permit under the FW Act, is reinforced by one of the criteria an official of a union must satisfy under s.133 of the WHS Act to obtain a WHS entry permit: he or she must already hold, or will hold, an entry permit under the FW Act: Sunbuild at [67] per Reeves J; and the control that the Fair Work Commission has over permit holders: Sunbuild at [86] per Reeves J; and
      4. because of the interlinking (referred to in Sunbuild at [86] per Reeves J), it is equally consistent with the object and purpose of as ss.501 and 502(1) of the FW Act that a permit holder be able to seek the protection of such provisions to prevent them being hindered or obstructed in that exercise: Sunbuild at [87] per Reeves J;
    1. in Sunbuild the Federal Court summarises what it held to be the intention of Parliament in Part 3-4 of the FW Act, namely, that it intended to put in place a set of provisions affecting officials of federal unions such that, whenever they wish to enter premises and exercise rights conferred on them under Division 2 of the FW Act, or under State or Territory OHS legislation (in Sunbuild, the WHS Act), provided the latter occurs in any of the circumstances defined in s.494(2) of the FW Act, they must first obtain an entry permit under s.512 of the FW Act: Sunbuild at [88] per Reeves J; and
    1. these observations about the statutory and legislative context to, and general purpose of, Part 3-4 of the FW Act were in the mind of the Federal Court when it considered both the ‘first level’ and the ‘second level’ of the decision in Sunbuild in relation to the proper construction of s.501 of the FW Act: Sunbuild at [89] per Reeves J; and therefore the Federal Court’s finding concerning the ‘second level’ of the judgment, the general purpose of Part 3-4 of the FW Act: Sunbuild at [97] per Reeves J, also firmly rested on the interlinking between the FW Act and the WHS Act, which was the ratio of Sunbuild on the ‘first level’.
  11. Because of the ratio of Sunbuild FMG submits that it is distinguishable for the following reasons:
    1. the Federal Court noted that the harmonised safety laws did not apply to Western Australia: Sunbuild at [59] and [60] per Reeves J, but the judgment does not disclose whether the Federal Court was advised that the interlinking that was significant for the reasoning in Sunbuild simply did not exist between the FW Act and the IR Act, but in any event, Reeves J makes no mention of this fact;
    2. Sunbuild must therefore be regarded as being made without taking this important distinction into account;
    1. the result is that the fundamental premise of the ratio of Sunbuild concerning the proper construction of s.501 of the FW Act is missing in the present matter;
    1. all that is needed for a person to exercise an OHS right of entry under the IR Act is that they be an ‘authorised representative’ and otherwise comply with the requirements of the IR Act: IR Act, s.49I and Division 2G generally;
    2. in particular, in stark contrast to the WHS Act, an authorised representative does not require a permit granted under s.512 of the FW Act in order to be able to exercise the State OHS right under the IR Act;
    3. unlike the situation with the WHS Act, the cancellation of a person’s permit granted under the FW Act has no effect on the ability of an authorised representative to exercise the State OHS right under the IR Act;
    4. given the lack of any interlinking between the IR Act and the FW Act that was the premise of the judgment in Sunbuild on the proper construction of s.501 of the FW Act, Sunbuild is completely distinguishable and not on point in this matter; and
    5. given the significance of the interlinking between the FW Act and the WHS Act for both the ‘first level’ and the ‘second level’ of the judgment in Sunbuild, the respondent contends that it is quite possible that the Federal Court might have reached a different conclusion if such interlinking were not present, such as is the case with the FW Act and the IR Act.
  12. In the circumstances, FMG submits that judicial comity and precedent do not require the Court to follow Sunbuild, and the Court is at liberty not to, and should not, follow Sunbuild.
  13. In relation to the requirement to be a permit holder, FMG submits that:
    1. section 501 of the FW Act presumes that the person in question is a permit holder;
    2. there is, therefore, no need to enquire into whether a person has become a permit holder for the purposes of determining whether s.501 of the FW Act is engaged;
    1. accordingly, the question of whether a person seeking to exercise a State or Territory OHS right as a permit holder is a non-issue;
    1. rather, and contrary to Sunbuild at [93] per Reeves J, the ‘due’ focus and concentration must be on the entitlement referred to in s.501 of the FW Act, when determining its proper construction; and
    2. in light of this, and further and in the alternative to the contention that Sunbuild is distinguishable, Sunbuild was plainly wrong in its approach to the construction of s.501 of the FW Act and the Court should not follow Sunbuild for this reason as well.

CEPU Submissions

  1. In relation to the purpose and object of Part 3-4 of the FW Act the CEPU submits that:
    1. the Guide to Part 3-4 of the FW Act, s.478, relevantly states (emphasis added):
      • This Part is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws.
      • ...
      • Division 3 sets out requirements for exercising State or Territory OHS laws.
      • Division 4 prohibits certain action in relation to the operation of this Part.
    2. section 480 of the FW Act provides for the object of Part 3-4, relevantly stating (emphasis added):
      • The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
        • (b) 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...
    1. taking these sections together, the applicant submits that the interpretation of s.501 of the FW Act must reflect the intention that an OSH Right of Entry be conferred by both State or Territory legislation and the FW Act by first creating the entitlement under a State or Territory law, or in this case, Division 2G of Part II of the IR Act, and then requiring that the entitlement also be “in accordance with” the further regulatory requirements of Part 3-4 of the FW Act.
  2. In relation to the exercise of a State or Territory OSH right by a permit holder the CEPU submits that:
    1. the Application alleges that FMG breached s.501 of the FW Act by refusing or unduly delaying the entry of Mr McLaughlan onto certain premises despite him being entitled to enter the premises in accordance with Part 3-4 of the FW Act;
    2. the Application further alleges that Mr McLaughlan’s right to enter the premises to investigate a suspected contravention of s.19 of the OSH Act (“OSH Right of Entry”) is jointly conferred by both Division 2G of Part II of the IR Act and Part 3-4 of the FW Act: see paragraphs 2(a)(i), 2(b), 3, 4 and 7 of the Application and paragraphs 5, 10, 12 and Attachments D, E, F and G of the supporting affidavit of Mr McLaughlan made on 13 September 2013;
    1. the OSH Right of Entry is conferred by reading the relevant legislative provisions together;
    1. section 49I of the IR Act provides the basis of the OSH Right of Entry;
    2. other sections within Division 2G of Part II of the IR Act, such as ss.49K and 49L of the IR Act, provide certain conditions that must be met in order for the OSH Right of Entry to lawfully exist. For example, s.49K(l) of the IR Act states that:
      • If-
      • (a) a person proposes to enter, or is on, premises in accordance with section 49H or 49I; and
      • (b) the occupier requests the person to show his or her authority,
      • the person is not entitled under that section to enter or remain on the premises unless he or she shows the occupier the authority in force under this Division.

That is, the permit holder must be entitled to enter the premises in accordance with Division 2G of Part II of the IR Act;

  1. Division 3 of Part 3-4 of the FW Act then provides further conditions that must be met in order for a State or Territory OSH Right of Entry to lawfully exist;
  2. section 494(2) of the FW Act defines a State or Territory OSH right as, amongst other criteria, being a right conferred by a State or Territory OSH law;
  3. section 494(3) of the FW Act defines a State or Territory OSH law as being a law of a State or a Territory prescribed by the regulations;
  4. regulation 3.25 of the FW Regulations prescribes s.49I of the IR Act as a State or Territory OSH law;
  5. reading these sections together in the present case requires that the sections in Division 3 of Part 3-4 of the FW Act be complied with before the right of entry under s.49I of the IR Act can lawfully exist. For example, s.497 of the FW Act effectively means that a permit holder is not entitled to enter premises under s.49I of the IR Act unless he or she produces his or her entry permit for inspection when requested. That is, the entitlement under s.49I of the IR Act must be in conformity with Part 3-4 of the FW Act;
  6. therefore, in addition to complying with the requirements of Division 2G of Part II of the IR Act, the permit holder must also be entitled to enter the premises in accordance with the further regulatory requirements of Part 3-4 of the FW Act; and
  1. the OSH Right of Entry is a right arising out of s.49I of the IR Act, but it exists only when the entitlement is in accordance with the additional regulatory conditions provided by both the IR Act and the FW Act.
  1. In relation to the construction of s.501 of the FW Act and the expression “entitled to enter the premises” the CEPU submits that:
    1. FMG’s submissions are correct in that, on an ordinary reading, the expression “in accordance with this Part”, as it appears in s.501 of the FW Act, means “in conformity with Part 3-4” of the FW Act, such that s.501 of the FW Act would read:
      • A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in conformity with Part 3-4.
    2. FMG’s submissions are correct in that the expression “in accordance with this Part” applies to the expression “entitled to enter the premises”;
    1. there is only one available interpretation of this ordinary reading of s.501 of the FW Act: that the permit holder’s entitlement to enter the premises must be in conformity with Part 3-4 of the FW Act;
    1. that the conclusion that there is only one available interpretation of s.501 of the FW Act is highlighted by the two options for interpretation suggested by FMG in its submissions, namely:
      1. FMG’s preferred construction, under which s.501 of the FW Act is restricted to rights “specified in Part 3-4” of the FW Act; and
      2. the CEPU’s preferred construction, under which s.501 of the FW Act operates to protect an OSH Right of Entry when the permit holder has “conformed with the Division 2 requirements ... or the Division 3 requirements” of Part 3-4 of the FW Act;
    2. FMG’s preferred interpretation fails to make use of the phrase “in accordance with” or its ordinary meaning “in conformity with” because FMG’s interpretation of s.501 of the FW Act actually requires that the phrase “in accordance with” be read causatively, such that Part 3-4 of the FW Act must be the sole provision to grant the right. Upon FMG’s submission, s.501 of the FW Act must read:
      • A person must not refuse or unduly delay entry onto premises by a permit holder whose entitlement to enter the premises is granted solely by Part 3-4.
    3. it is clear that FMG’s preferred interpretation is not available on an ordinary meaning test of the relevant phrases in s.501 of the FW Act. Moreover, it is unclear why, if Parliament intended s.501 of the FW Act to be read in this manner, Parliament would not have chosen phrasing such as the example provided above; and
    4. it is not that FMG, as it submits, has identified ambiguity in the meaning of s.501 of the FW Act, but rather that FMG has sought to create ambiguity around the meaning of s.501 of the FW Act.
  2. In relation to the proper meaning and construction of s.501 of the FW Act as a whole the CEPU submits that:
    1. FMG’s submissions are correct as to the principles guiding statutory interpretation;
    2. FMG has failed to establish that CEPU’s interpretation of s.501 of the FW Act “results in a surplusage of language”;
    1. FMG claims that interpreting s.501 in the manner contemplated by CEPU (such that “in accordance with” means that the OSH Right of Entry must be “in conformity with” the further regulatory requirements of Part 3-4 of the FW Act), means that the phrase “who is entitled to enter the premises” is doing no work are plainly incorrect. If s.501 of the FW Act had been drafted in such a manner, there would be significant ambiguity as to whether it meant that a person must:
      1. act in accordance with Part 3-4 of the FW Act in not refusing or unduly delaying entry onto premises by a permit holder; or
      2. not refuse or unduly delay entry onto premises by a permit holder where the entitlement to enter the premises has been exercised in accordance with Part 3-4 of the FW Act;
    1. the phrase “who is entitled to enter the premises” is doing work under the CEPU’s interpretation because it makes clear that the phrase “in accordance with Part 3-4” of the FW Act attaches to the permit holder’s entitlement to enter the premises. The phrase is necessary to clarify that a permit holder’s entitlement to enter the premises must be “in conformity with Part 3-4” of the FW Act before it can trigger a breach of s.501 of the FW Act;
    2. if s.501 of the FW Act was not drafted to make clear that a permit holder’s entitlement must be in accordance with the other conditions of Part 3-4 of the FW Act, it would expose occupiers and employers to prosecution for refusing or delaying entry to permit holders even if those permit holders refused to produce a right of entry when requested (s.497 of the FW Act) or if they attempted to enter the premises during working hours (s.498 of the FW Act);
    3. on FMG’s interpretation, occupiers and employers would effectively be liable under s.501 of the FW Act for refusing or delaying the entry of permit holders even where those permit holders are in breach of (or not acting in accordance with) Part 3-4 of the FW Act;
    4. the phrases “who is entitled to enter the premises” and “in accordance with this Part” work separately;
    5. on its own, the phrase “who is entitled to enter the premises” refers to the basic OSH Right of Entry granted by a State or Territory law or by Division 2 of Part 3-4 of the FW Act;
    6. the phrase “in accordance with this Part” then works separately to pick up the requirement that the entitlement to enter the premises must also be “in conformity with” all of the provisions of Part 3-4 of the FW Act, including the Division 2 and Division 3 requirements of Part 3-4 of the FW Act, whichever are applicable;
    7. if, as FMG submits, Parliament intended to limit the operation of s.501 of the FW Act only to an OSH Right of Entry arising under Division 2 of Part 3-4 of the FW Act, it is unclear why Parliament employed the phrase “this Part” in s.501 of the FW Act rather than “Division 2 of this Part”;
    8. FMG is advancing an unnecessarily narrow interpretation of s.501 of the FW Act that requires the phrase “this Part” to be read down to mean “Division 2 of this Part”. A plain reading of the phrase “this Part” requires that s.501 of the FW Act be taken to cover all of the conditions of Part 3-4 of the FW Act;
    1. giving a full and ordinary meaning to s.501 of the FW Act requires that it be interpreted to mean that a permit holder must have a right to enter the premises under either a State or Territory OSH law or the FW Act, and that it must be in accordance with (effectively, “in conformity with”) the further regulatory requirements created by Part 3-4 of the FW Act; and
    1. this construction of the source of the OSH Right of Entry is consistent with precedent:
      1. in Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Ltd & Anor [2013] FMCA 154; (2013) 274 FLR 470 at [4]- [10] per Cameron FM, the Federal Magistrates Court outlined the relevant legislative provisions and their relationship in effectively the same manner; and
      2. considering the relevantly similar sections of the now-repealed Workplace Relations Act 1996 (Cth) (“WR Act”) in Darlaston v Parker [2010] FCA 771; (2010) 189 FCR 1; (2010) 196 IR 307; (2010) 62 AILR 101-228 at [39] per Flick J (“Darlaston”) the Federal Court stated that:

Pt 15 impose conditions upon the exercise of the right.
(emphasis added).
29. In relation to Sunbuild the CEPU submitted that:
  1. this Court should follow Sunbuild as a matter of precedent because Sunbuild is:
    1. indistinguishable from the present case in all relevant respects; and
    2. properly reflective of the meaning of s.501 of the FW Act;
  2. at several points in Sunbuild the Federal Court observes that Commonwealth laws and State or Territory OHS laws 'overlap' or 'interact', and “are intended to operate interactively”: Sunbuild at [43] and [73] per Reeves J, and at [75] per Reeves J relevantly states:
  1. it is this understanding of the relationship between Part 3-4 of the FW Act and State or Territory OHS laws that forms the basis of the ratio in Sunbuild: Sunbuild at [87] per Reeves J;
  1. to claim, as FMG does, that Sunbuild is distinguishable because it considered legislation that is part of the harmonised OHS laws, studiously ignores the fact, acknowledged in Sunbuild at [87] per Reeves J, that the FW Act intends to operate interactively with all prescribed State or Territory OHS laws regardless of whether they belong to the harmonised regime: s.494 FW Act; reg.3.25 Fair Work Regulations 2009 (Cth);
  2. FMG has failed to grasp the relationship between the FW Act and State or Territory OHS laws, and incorrectly submits that an authorised representative does not require a permit granted under s.512 of the FW Act in order to exercise a State or Territory OHS right under the IR Act: compare New South Wales v Commonwealth of Australia [2006] HCA 52; (2006) 229 CLR 1; (2006) 81 ALJR 34; (2006) 231 ALR 1; (2006) 156 IR 1; CLR at [279]-[287] per Callinan J, in which the High Court of Australia upheld the operation of the predecessor provision to s.494 of the FW Act, and therefore the requirement that representatives of employee organisations must hold a permit under the Commonwealth legislation in order to enter the premises of constitutional corporations to exercise a State or Territory OHS right. This understanding of the law was acknowledged in Sunbuild: Sunbuild at [58] per Reeves J;
  3. it is clear that there is significant 'interlinking' between the FW Act and the IR Act such that a representative of an employee organisation cannot exercise rights under the IR Act without complying with the further regulatory requirements of Part 3-4 of the FW Act;
  4. it is clear that it is this interaction between the FW Act and State or Territory OHS laws that underpinned the ratio of Reeves J in Sunbuild;
  5. Sunbuild is therefore applicable to the interaction between the FW Act and all State or Territory OHS laws, and therefore cannot, on that basis, be distinguished from the circumstances of this case; and
  6. given that the question answered in Sunbuild with regard to the operation of s.501 of the FW Act is identical to the question before this Court in the present case and is indistinguishable, Sunbuild is an authority that should, in accordance with the principles of precedent, be followed.
30. In relation to the construction of s.501 of the FW Act in Sunbuild the CEPU submits that:
  1. Sunbuild at [92] per Reeves J summarised the submissions of the respondent, Sunbuild Pty Ltd, as the contention that, “[the applicant] had no entitlement under Part 3-4 of the FW Act to enter its worksite for OHS purposes, nor any rights to exercise under that Part” because the applicant “was not a person who was entitled to enter its premises, or to exercise rights, ‘in accordance with this Part’”;
  2. the above submission is effectively identical to the position put by FMG in the present case as to the proper construction of s.501 of the FW Act;
  1. in Sunbuild the Federal Court criticised this approach on two levels: firstly, that the respondent’s interpretation was not supported by the language or text of ss.501 and 502(1) of the FW Act; and, secondly, that the respondent’s interpretation ran counter to the context and general purpose of the provisions of Part 3-4 of the FW Act;
  1. in Sunbuild at [95] per Reeves J the Federal Court found that the phrase 'in accordance with' must mean 'in conformity with', and that the phrase 'in accordance with' referred to the requirement for a representative of an employee organisation to comply with the further regulatory requirements of Part 3-4 of the FW Act (outlined in Sunbuild at [52] per Reeves J) in a manner similar to that advanced by the CEPU in this case: Sunbuild at [96] per Reeves J;
  2. Sunbuild supports the CEPU’s substantive submissions that the phrase 'in accordance with' in s.501 of the FW Act operates to acknowledge that a representative of an employee organisation has a right to enter the premises of a constitutional corporation to investigate a suspected breach of a State or Territory OHS law only when the representative has also complied with the additional regulatory conditions of Part 3-4 of the FW Act;
  3. FMG’s submissions proceed on a mistaken basis because the interpretation of s.501 of the FW Act in Sunbuild does not focus merely on whether a representative of an employee organisation is a permit holder, but also on the representative's compliance with the other sections of Part 3-4 of the FW Act: Sunbuild at [94] per Reeves J.
  4. the Federal Court in Sunbuild, in accordance with relevant authority on statutory construction, applied a sensible, ordinary language approach to the interpretation of s.501 of the FW Act, which supports the CEPU’s substantive submissions;
  5. in Sunbuild at [97] per Reeves J the Federal Court said that:
  1. on the basis of the Federal Court’s ordinary language approach to interpretation in Sunbuild, and with regard to the context and purpose of Part 3-4 of the FW Act, the CEPU submits that Sunbuild is properly reflective of the meaning of s.501 of the FW Act.
31. As Sunbuild is indistinguishable from the present case, and having regard to its cogent analysis of the meaning of s.501 of the FW Act, the CEPU submits that the Court should follow Sunbuild as a matter of precedent.

Consideration

  1. The Application in a Case is brought under r.13.10(a) of the FCC Rules which provides as follows:
  2. Rule 13.10(a) of the FCC Rules replicates part of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s.17A of the FCCA Act are useful in considering r.13.10(a) of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) (“FC Rules”) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No. 3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively. Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]- [60] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”) can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules.
  3. In Spencer it was observed that:
    1. no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
    2. the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
    1. the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
    1. where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
    2. the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
    3. the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
    4. full weight must be given to the expression as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
  4. In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act the Federal Court has observed in relation to the phrase “no reasonable prospect of success”, that:
    1. a court must be satisfied that the applicant has no reasonable prospect of success;
    2. evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
    1. it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
    1. if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
    2. in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
    3. a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
    4. the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
    5. what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298 at [50]- [54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J.
  1. The Court’s power to summarily dismiss an application is discretionary, and FMG in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeves J (“Cassimatis”). FMG had a task to meet in this regard, because it was FMG which, at a minimum, sought to have this Court distinguish the Federal Court judgment in Sunbuild, and at a maximum, to declare it to be plainly wrong. The necessity of the task of addressing this issue for FMG is reinforced by the fact that the Federal Court’s Reasons for Judgment in Sunbuild rely heavily upon the earlier Full Court of the Federal Court judgments in Setka and Hogan. In those circumstances, FMG bore a significant onus in endeavouring to persuade the Court to exercise a discretionary power of a kind not to be lightly exercised.
  2. In interpreting a statute to determine its true meaning a court begins with a consideration of the text, which must be read in context and having regard to the statutory purpose or object: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [ 2009] HCA 41 ; (2009) 239 CLR 27 at  [46] -  [47]  per Hayne, Heydon, Crennan and Kiefel JJ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. The central task is to discern the meaning of the legislative text, and give effect to the identified purpose, if it is one which is reasonably open on the text. The interpretation best open on the text which achieves the purpose or object of the statute is to be preferred to each other interpretation (even if the purpose or object is not expressly stated in the text): Acts Interpretation Act 1901 (Cth), s.15AA (“Acts Interpretation Act”).
  3. Before considering the proper construction of s.501 of the FW Act, it is necessary to consider the proper context and purpose of Part 3-4 of the FW Act. In that regard, assistance can be derived from various Federal Court judgments, and in particular Sunbuild.
  4. In Sunbuild the Federal Court observed that:
Sunbuild at [82] per Reeves J.
  1. In Sunbuild, the Federal Court further observed that:
Sunbuild at [87]-[88] per Reeves J.
  1. In Sunbuild the Federal Court also concluded that:
    1. nothing in Part 3-4 of the FW Act created an independent right of entry for occupational health and safety purposes, which the Federal Court observed was confirmed by the terms of the Explanatory Memorandum stating that Division 3 of Part 3-4 of the FW Act “does not confer additional rights of entry”: Sunbuild at [83] per Reeves J; and
    2. notwithstanding that rights of entry for occupational health and safety purposes are conferred solely by State or Territory occupational health and safety legislation, and that Division 3 of Part 3-4 of the FW Act merely regulates those rights, reliance can be placed upon s.501 of the FW Act to enforce those rights: Sunbuild at [84] per Reeves J.
  2. In Darlaston the Federal Court was considering the provisions of s.747 of the former Workplace Relations Act 1996 (Cth) (“WR Act”) within Part 15, Division 5 of the WR Act, and which was broadly equivalent to Division 3 of Part 3-4 of the FW Act: Darlaston at [34] per Flick J. In that case, the Federal Court found that the right of entry was to be found in s.77 of the relevant New South Wales occupational health and safety legislation, not within Part 15, Division 5 of the WR Act: Darlaston at [34] per Flick J.
  3. Subsequently a Full Court of the Federal Court in Setka v Gregor (No. 2) [2011] FCAFC 90; (2011) 195 FCR 203 at [21] per Lander, Tracey and Yates JJ held that s.756(1) of the WR Act:
  4. Section 756 of the WR Act was the statutory equivalent of s.494 of the FW Act.
  5. In this Court’s view it is therefore apparent that it is at least arguable the purpose of Part 3-4 of the FW Act is to condition, pursuant to Commonwealth law (the FW Act), the access of, amongst others, officials of a registered organisation (such as the CEPU), seeking to exercise right of entry to premises under State OHS legislation (including for these purposes, the OSH Act).
  6. The central issue in this matter is the proper construction of s.501 of the FW Act.
  7. The proper construction of s.501 of the FW Act was dealt with directly by the Federal Court in Sunbuild. In Sunbuild the Federal Court observed that:
    1. the “critical focus” of s.501 of the FW Act “is on the requirement that the person intending to enter the premises, or exercise any rights there, must have become a permit holder complying with ...” Part 3-4 of the FW Act: Sunbuild at [93] per Reeves J; and
    2. the proper focus is on compliance with Part 3-4 of the FW Act, and “not on the underlying entitlement ... under that Part to enter premises, or any rights associated therewith”: Sunbuild at [94] per Reeves J.
  8. In Sunbuild the Federal Court dealt with the ordinary meaning of the expression “in accordance with” in s.501 of the FW Act. In that regard, the Federal Court observed as follows:
Sunbuild at [95]-[97] per Reeves J.
  1. In Sunbuild, the Federal Court concluded as follows:
Sunbuild at [101] per Reeves J.
  1. In the Court’s view the construction placed upon s.501 of the FW Act in Sunbuild is the correct one. At the very least it is a construction which is arguable.
  2. Judgments of the Federal Court which are on point, not distinguishable and not plainly wrong are binding on this Court. In Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ (“SZANS”) a Full Court of the Federal Court observed that:
  3. In Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ (“Suh”) another Full Court of the Federal Court observed that a Federal Magistrate was correct to regard herself as bound by an earlier Federal Court judgment, and went on to observe that:
  4. Following an erudite examination of relevant authority (including Suh and SZANS cited above) one learned author has observed as follows:
O Jones, “When is the Federal Magistrates Court bound by the Federal Court?” [2012] 86 ALJ 478 at 483 (“Jones”).
  1. This Court is also bound by authoritative obiter of the Federal Court, irrespective of the capacity in which it is pronounced by the Federal Court: Jones at 484.
  2. The circumstances in which this Court may depart from a judgment of the Federal Court include the following:
    1. where this Court considers the judgment of the Federal Court to be “plainly wrong”: Suh and SZANS;
    2. where the Federal Court decision is distinguishable, “so long as the point of distinction is ‘relevant to the subject matter upon which the Court has given its decision’”: Jones at 484, citing Algama v Minister for Immigration & Multicultural Affairs [2001] FCAFC 1884; (2001) 115 FCR 253; (2001) 194 ALR 37 at [50] per Whitlam and Katz JJ (with whom French J agreed);
    1. where the decision has been reversed or affirmed in an appeal to a higher court, but on different grounds from those adopted below: Jones at 484-485;
    1. where the decision is impliedly overruled by the decision of a higher court in a subsequent case: Jones at 484 and 485-486; and
    2. where the decision is inconsistent with an earlier decision of equal or higher status: Jones at 484 and 486-488.
  3. In the Court’s view s.501 of the FW Act, read in conjunction with s.494 of the FW Act, creates a separate and enforceable (albeit limited) obligation, consistent with the objects of Part 3-4 of the FW Act, which under the FW Act distinguishes, and imposes additional conditions upon, the requirements for right of entry, under State or Territory OHS laws: see FW Act, ss.478 and 480(b); Darlaston at [34] per Flick J. In this regard, FMG’s suggested construction of s.501 of the FW Act is too narrow, and renders otiose the terms of Division 3 of Part 3-4 of the FW Act, contrary to what the Court considers to be the plain (or at least plainly arguable) meaning of s.501 of the FW Act.
  4. The distinguishing point asserted by FMG, that the WHS Act is part of the harmonised Commonwealth – State OHS laws, and that the IR Act is not part of that harmonised scheme, is not a point of distinguishment at all. The WHS Act is still a “Territory OHS law” within the meaning of “State or Territory OHS laws”, just as the IR Act is a “State OHS law” within the meaning of that phrase. The Federal Court did not overlook that fact in Sunbuild: Sunbuild at [87] per Reeves J.
  5. Even if the specific provisions of the WR Act dealt with in Setka and Hogan do not have identical counterparts in the FW Act, and in particular in s.501 of the FW Act, there is sufficient commonality in the wording of the various provisions to sustain the parallels drawn between the WR Act and the FW Act provisions in Sunbuild, and therefore to sustain the construction of s.501 of the FW Act adopted in Sunbuild, and to render that construction, at the very least, arguable.
  6. FMG referred to Pine v Doyle [2005] FCA 977; (2005) 222 FCR 291; (2005) 143 IR 98 (“Pine”), particularly in oral argument, and suggested that although it was a case which preceded Setka and Hogan, and in which the provisions of the WR Act were an earlier version of the WR Act provisions under consideration in Setka and Hogan, that Pine was a case which was ‘on all fours’ with the current circumstances. In the Court’s view that is not so. As the Federal Court observed in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) & Ors [2009] FCA 645; (2009) 178 FCR 461; (2009) 186 IR 17 at [50] per Moore J (“John Holland”) there were material differences in the provisions considered by the Federal Court in Pine, and the later provisions of the WR Act considered by the Federal Court in John Holland, and therefore in Setka and Hogan. It is also clear from John Holland at [50] per Moore J that the Federal Court in John Holland did not necessarily consider Pine to be correctly decided. It is ultimately unnecessary to deal with that controversy, because all that it does is point to the fact that, at the very least, there is considerable scope for argument as to the proper interpretation of the relevant provisions of both the former WR Act provisions and the present FW Act provisions. The scope of that controversy does not lend itself to the summary dismissal of the Application.
  7. In the above circumstances it is unnecessary for the Court to deal with the issue of the effect of possible multiple prosecutions. In any event, the Court considers that is more likely to be a matter of practice and procedure, if it ever arises, which it may not.
  8. Having regard to all of the foregoing matters the Court is not satisfied that Sunbuild is “plainly wrong”, or that it is distinguishable. Indeed, in the Court’s view Sunbuild is directly on point and correctly decided, and binding upon this Court. For present purposes, however, there is, at the very least, an arguable case that the construction of s.501, and more broadly s.494 and Part 3-4, of the FW Act, in Sunbuild is correct. The Court is therefore not satisfied that the Application has no reasonable prospect of success, for if the construction of s.501 adopted in Sunbuild were to be adopted at trial, the Court would have jurisdiction and power to determine the Application, contrary to what is asserted by paragraph 1(i) of the Application in a Case. That is sufficient to preclude the Court from summarily dismissing the Application.

Conclusions and orders

  1. Having regard to the reasons set out above, the Court will therefore dismiss that part of the Application in a Case in paragraph 1(i) of the Application in a Case.
  2. As to costs, the Court notes the difficulties in obtaining costs which arise by reason of s.570(2) of the FW Act, and it will therefore, at this stage, reserve costs (if any), noting also that that part of the Application in a Case in paragraph 1(ii) was stood over and not determined at the request of the parties. Otherwise, the matter will be adjourned to a future directions hearing on a date to be fixed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 24 May 2016

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/1227.html