Federal Court Grants Injunction for Right of Entry Permits

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[NAME] v [COMPANY] [2015] FCA 1070 Citation: [NAME] v [COMPANY] [2015] FCA 1070

Parties: [NAME], [NAME], [NAME], ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v [COMPANY], [NAME] and [NAME] number: NTD 57 of 2015

Judge: [NAME] J

Date of judgment: 18 September 2015

Catchwords: INDUSTRIAL LAW – right of [NAME] permits under Pt 3-4 of the Fair Work Act 2009 (Cth) – right of [NAME] permits under Pt 7 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) – interlocutory application for injunction restraining workplace from refusing [NAME] to [NAME] – whether notices of [NAME] pursuant to s 487 of the Fair Work Act must specify particular premises or parts of premises – whether [NAME] pursuant to s 117 of the Work Health and Safety (National Uniform Legislation) Act includes power to photograph or film premises

Legislation: Fair Work Act 2009 (Cth) ss 12, 484, 487, 490, 491, 492, 499, 501, 502, 505, 505A, 512, 518 Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ss 117, 118, 144, 145

Cases cited: Australian Licensed Aircraft Engineers Association v [NAME] [2012] FWA 3939; (2012) 221 IR 268 Molina v Zaknich [2001] WASCA 337; (2001) 125 A Crim R 401 [COMPANY] v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238

Date of hearing: 18 September 2015

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 52

Counsel for the Applicants: [redacted]

Solicitor for the Applicants: [redacted]

Counsel for the Respondents: [redacted]

Solicitor for the Respondents: [redacted]

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 57 of 2015

BETWEEN: [NAME]

First Applicant

[NAME] Applicant

[NAME] Applicant

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

[NAME] Applicant

AND: [COMPANY]

First Respondent

[RESPONDENT] [NAME] Respondent

[NAME] Respondent

JUDGE: [NAME] J DATE OF ORDER: 18 SEPTEMBER 2015 WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The Respondents be restrained, and an injunction is hereby issued restraining them, whether by themselves or by their servants or agents, until the hearing and determination of this matter or until further order, from refusing officials of the [NAME] Applicant, who hold permits issued under s 512 of the Fair Work Act 2009 (Cth), [NAME] to the premises of the [NAME] [NAME] at Blaydin Point in the Northern Territory by reason only that the premises are described in a notice of [NAME] given pursuant to s 487 of the Fair Work Act as "the [NAME] [NAME] at Blaydin Point" or that the time of the proposed [NAME] on the day nominated in the notice has not been specified.

2. The remaining aspects of the application for interlocutory injunctions are refused.

3. The Applicants are by 2 October 2015 to file and serve a statement of claim.

4. The Respondents are by 23 October 2015 to file and serve their defences.

5. Any replies by the Applicants are to be filed and served by 6 November 2015.

6. The evidence in chief of all witnesses in the trial is to be given by way of affidavit, and without the leave of the trial judge, no party is to lead evidence from a witness from whom an affidavit has not been filed in accordance with the following orders.

7. The Applicants are by 6 November 2015 to file and serve the affidavits containing the evidence in chief of their witnesses.

8. Subject to the privilege against self-exposure to penalties, the Respondents are by 4 December 2015 to file and serve the affidavits from themselves and their proposed witnesses.

9. Any affidavits in reply by the Applicants are to be filed and served by 18 December 2015.

10. Each party is by 21 March 2016 to file and serve an outline of their respective opening submissions at the trial.

11. The trial commence in Brisbane on Tuesday 29 March 2016 at 10.00am, noting the parties' estimate that a trial of 3 to 4 days is required.

12. There be liberty to the parties to apply.

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

BETWEEN: [NAME]

First Applicant

[NAME] Applicant

[NAME] Applicant

[NAME] Applicant

AND: [COMPANY]

First Respondent

[RESPONDENT] [NAME] Respondent

[NAME] Respondent

JUDGE: [NAME] J DATE: 18 SEPTEMBER 2015 PLACE: ADELAIDE

EX TEMPORE

REASONS FOR

JUDGMENT 1 This is a judgment on an application for interlocutory injunctions. 2 Issues have arisen between the applicants and the respondents concerning the exercise by the former of rights of [NAME] under the Fair Work Act 2009 (Cth) (the FW Act) and the Work Health and Safety (National Uniform Legislation) Act 2011 of the Northern Territory (the [NAME]). 3 The [NAME] applicant is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ([NAME]). Each of the first three applicants, Mr [NAME], Mr [NAME] and Mr [NAME], is an organiser employed by the [NAME]. 4 The first respondent is [RESPONDENT] ([RESPONDENT]). It is the principal engineering, procurement and construction contractor for the [NAME] [NAME] at Blaydin Point located approximately 50 km from Darwin in the Northern Territory (the [NAME]). This is a substantial [NAME] which has been underway since April 2012. The overall site area is said to be approximately 340 ha. The [NAME] involves the erection of substantial infrastructure over a number of areas on the site; the work of numerous contractors and subcontractors; and the involvement of many thousands of employees, some of whom are members of the [NAME]. 5 The second respondent, Mr [RESPONDENT], is the Senior Employee Relations Advisor employed by [RESPONDENT]. 6 The third respondent is Mr [RESPONDENT]. He is the Principal Employee Relations Consultant for the [NAME] but is employed by [COMPANY] ([NAME]), an [NAME] apparently owned by the Chamber of Commerce and Industry of Western Australia. [NAME] has been contracted by [RESPONDENT] to manage the exercise of rights of [NAME] by those holding [NAME] permits under the FW Act and the [NAME]. 7 In the substantive proceedings, the applicants seek declarations that one or more of the respondents contravened ss 501 and 502 of the FW Act on eight separate occasions by refusing or delaying their [NAME] onto the [NAME] site or by hindering or obstructing the exercise of their rights of [NAME]. The applicants also seek declarations that on two occasions the respondents contravened a provision in the [NAME] by similar conduct. They seek the imposition of civil penalties in respect of each of those alleged contraventions. 8 The proceedings have only just been commenced and it may be some time before they come to trial. 9 The applicants seek interlocutory injunctions restraining the respondents from: (a) refusing them [NAME] to the premises of the [NAME] if they have given a notice specifying those premises and a day of [NAME] in accordance with the provisions of the FW Act; (b) prohibiting them from using a camera to document health and safety concerns at the premises while they are exercising a right of [NAME] under s 117 of the [NAME]; (c) hindering or delaying them from exercising a right of [NAME] to the site under s 484 of the FW Act or s 117 of the [NAME]. 10 The principles relating to the Court's grant of interlocutory injunctions are settled and it is not necessary to refer to the authorities in detail. They were summarised by the [ADDRESS] in [COMPANY] v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74]. An applicant for an interlocutory injunction must identify the legal or equitable rights which it seeks to have determined at the trial and in respect of which final relief is sought. When such rights have been identified, the Court has regard to two principal matters: first, whether the applicant has made out a prima facie case, in the sense that if the evidence remains as it is, at trial, there is a probability that it will be held entitled to relief; and secondly, whether the balance of convenience favours the granting of the injunction. That includes consideration of whether damages or other remedies will be an adequate remedy. 11 On the hearing of an application for an interlocutory injunction, the Court does not undertake a preliminary trial, nor does it make a prediction as to the ultimate success or otherwise of the applicants' claim. It is sufficient if the applicants show a sufficient likelihood of success to justify in the circumstances of the case the preservation of the status quo pending the trial of the action. 12 The two matters just identified are not independent of one another. The more the balance of convenience favours the respondent, and the more serious the consequences for the respondent if an injunction is granted, then the greater the strength of the prima facie case to be established by the applicant. Conversely, if the balance of convenience favours the applicant strongly, then the strength of the prima facie case required to support the interlocutory injunction will usually be less. 13 The rights which the applicants assert presently are rights which are vested in them as [NAME] under Pt 3-4 of the FW Act and [NAME]. In particular, they assert rights arising under s 484 of the FW Act and s 117 of the [NAME]. Section 484 provides: 484 [NAME] to hold discussions A [NAME] may enter premises for the purposes of holding discussions with one or more employees or [NAME] workers: (a) who perform work on the premises; and (b) whose industrial interests the [NAME]'s [NAME] is entitled to represent; and (c) who wish to participate in those discussions. ... 14 There is no dispute that each of the [NAME] is a [NAME] to whom s 484 refers. 15 Section 487 of the FW Act requires, relevantly, that a [NAME] must, before entering premises pursuant to s 484, give the [NAME] an [NAME] notice for that [NAME]. Again, it does not seem to be contentious that [RESPONDENT] is the [NAME] of the [NAME] site for this purpose. The [NAME] notice under s 484 must comply with s 518 of the FW Act and must be given during working hours at least 24 hours, but not more than 14 days, before the [NAME]. It was not suggested that any of the exemptions in s 487 is pertinent presently. 16 The requirements for [NAME] notices applicable to entries pursuant to s 484 are those contained in s 518(1) and (3): 518 [NAME] notice requirements Requirements for all [NAME] notices (1) An [NAME] notice must specify the following: (a) the premises that are proposed to be entered; (b) the day of the [NAME]; (c) the [NAME] of which the [NAME] for the [NAME] is an official. ... Requirements for [NAME] notice for [NAME] to hold discussions (3) An [NAME] notice given for an [NAME] under section 484 (which deals with [NAME] to hold discussions) must: (a) specify that section as the provision that authorises the [NAME]; and (b) contain a declaration by the [NAME] for the [NAME] that the [NAME]'s [NAME] is entitled to represent the industrial interests of an employee or [NAME] who performs work on the premises; and (c) specify the provision of the [NAME]'s rules that entitles the [NAME] to represent the employee or [NAME]. 17 The Fair Work Regulations contain a prescribed form of [NAME] notice. The prescribed form commences as follows: I, [Full Name], of [Name of [NAME]], and having been issued an [NAME] [NAME] under section 512 of the Fair Work Act 2009, give notice that I propose to enter [Name and Address of Premises] on [Date of proposed [NAME]]. 18 The applicants seek the first interlocutory injunction because of a disagreement as to the description of the premises to be given in an [NAME] notice in order to satisfy the requirement in s 518(1) that "the premises" be specified. That issue arises because on Friday, 11 September 2015, Mr [NAME] gave to [NAME], a contractor on the [NAME] to employing numerous employees, some of whom are members of the [NAME], a notice of [NAME] using the prescribed form which, in the space for "name and address of premises", gave the following detail: [NAME], Blaydin Point; Areas where employees of [NAME] are working 19 Mr [NAME] told Mr [NAME] that a notice giving this description of the premises did not meet the requirements of the FW Act. He said: The site consists of many different workplaces (or premises) as defined by the Act and the different [NAME] companies are working at multiple locations across a number of work packages across the Blaydin Point site. You need to tell us which work area you want to go to. 20 Mr [NAME] and the [NAME] maintained that their notice was sufficient and contended, in effect, that Mr [NAME] was seeking to impose an obligation which s 518 itself did not require. There is some background to this dispute to which it is unnecessary to refer presently, beyond noting that [RESPONDENT] and [NAME] have taken the view that, once a [NAME] has specified a part of the site to be visited, the [NAME] cannot later, even on notice, change that specification. 21 So the dispute, it seems, is whether it is sufficient for an [NAME] notice to specify simply the overall premises to be entered or whether it must specify the particular part of those premises which the [NAME] proposes to visit. This issue seems essentially to be one of statutory construction. In resolving that issue, the Court will have regard at trial to the definition of "premises" contained in s 12 of the FW Act: Premises includes: (a) any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place; and (b) a part of premises (including premises referred to in paragraph (a)). 22 This definition, expressed in inclusionary terms, is expansive. The breadth of the definition is emphasised by the reasons of the [ADDRESS] of the Supreme Court of Western Australia in Molina v Zaknich [2001] WASCA 337; (2001) 125 A Crim R 401, to which counsel for the applicants referred. 23 The case for the applicants is relatively straightforward. Their submission is that s 518 requires only specification of the premises and does not require specification of a particular part or parts of the premises, which the [NAME] proposes to visit. The applicants emphasise that s 518(1) requires that the notice specify "the premises that are proposed to be entered", without any further particularity, and "the day of the [NAME]", again, without any further particularity. 24 The respondents, on the other hand, draw attention to the size of the [NAME] site in this case, the multiple number of contractors on the site, the very large number of employees on the site, and the multiple number of places on the site at which work is being carried out. They submit that, giving s 518 a practical operation in those circumstances, it should be construed as requiring specificity of the part or parts of the overall site to be visited. 25 The respondents relied on the reasons of the Fair Work Commission in Australian Licensed Aircraft Engineers Association v [NAME] [2012] FWA 3939; (2012) 221 IR 268, in which [NAME] considered a notice of [NAME] under s 484 which did no more than specify the premises to be visited as "[COMPANY], premises in Mascot, Sydney". [NAME] did not consider that that notice satisfied the requirements of s 518 saying: [21] ... In my view, where the premises comprise many different "parts", as is the case here, for the purposes of giving notice under s 518 of the Act, the part or parts of premises to which [NAME] is sought ought be described with sufficient particularity so that it is, or they are, identifiable, or at least, capable of being ascertained by the recipient of the notice. The words "the [COMPANY] premises in Mascot, Sydney" do not meet this requirement. Although it refers to a suburb, it does not disclose to what part or parts of the vast array of buildings and structures [NAME] is being sought. ... [24] I accept [NAME]' submissions in relation to the lack of specificity of the premises; an [NAME] notice needs to identify with sufficient particularity the places that are sought to be entered so that the [NAME] or employer can make appropriate arrangements in relation to the proposed [NAME]. It must be limited to premises, or parts of premises, where members of the union perform work. The "[COMPANY] premises in Mascot" is not so limited. In my view, the premises sought to be entered should bear some connection with the breach that is alleged to be suspected, either because it is the physical area at which the [NAME] work is performed, or because documentation relating to the alleged breach are reasonably likely to be located there. 26 The respondents emphasised, in particular, the statement that an [NAME] notice should specify with sufficient particularity the places that are sought to be entered so that the [NAME] can make appropriate arrangements in relation to the proposed [NAME]. 27 As I have said, it appears that the issue at trial will be essentially one of statutory construction. It is neither necessary nor desirable for the Court to express any concluded view on the issue presently. On my present understanding, however, it does appear that the applicants' position is at least reasonably arguable. 28 The first matter is that, while the provisions in Pt 3-4 of the FW Act concerning rights of [NAME] are highly prescriptive, s 518 requires only that an [NAME] notice specify "the premises" at which [NAME] is proposed, and not the particular part of the premises proposed to be entered. That, to my mind, seems significant presently because it is reasonable to suppose that when s 518 was drafted, those involved must have contemplated that it may have to be applied in relation to very large premises, such as those of the present kind, as well as more confined premises. It also seems to be significant that s 518 uses the word "premises", which the Act itself has defined in the expansive way to which I referred earlier. 29 At the trial, it will be necessary to give close consideration to the judgment of [NAME] in the [NAME] case but, at present, I am not inclined to think that it will be conclusive of the issue to be decided. First, it may well be that [NAME]'s reasons are obiter. Secondly, and although this is not entirely clear, it seems that the case before [NAME] proceeded on the basis that [NAME] had more than one set of premises in Mascot, including more than one set of premises at Sydney Airport. 30 If that be right, it is readily understandable that [NAME] considered that a notice of [NAME] should specify the particular premises of [NAME] which the [NAME] wished to enter. On my understanding, in the present case it is uncontentious that there is but a single site, albeit a very large site. Perhaps that is confirmed by the evidence to the effect that there is a single point of [NAME] for visitors to the whole site. 31 It is also unclear presently as to the extent to which the decision in [NAME] had regard to the expansive definition of the word "premises" in s 12 and its interaction with s 518. 32 Counsel for the respondents referred to ss 490, 491 and 492 of the FW Act, submitting that practical working of those provisions suggested that s 518 should be construed as referring to parts of premises. There may be merit in that submission, but it is a matter which can be assessed appropriately only at trial. 33 Counsel also contended that the word "premises" has an ambulatory meaning in s 518, so that on some occasions it refers to the whole of a premises and on others to parts of premises. Again, one would not rule that out as a possible construction, but it would be unusual. 34 The matters I have just mentioned are sufficient, in my opinion, to indicate that the applicant has established a prima facie case in the sense discussed earlier, in relation to the first of the interlocutory injunctions it seeks. 35 Similar considerations arise in relation to the specification in an [NAME] notice of the day of the proposed [NAME] and not the proposed day and time of [NAME]. 36 As to the balance of convenience, the respondents emphasised the inconvenience to them if the applicants do not specify the particular places on the [NAME] site which they wish to visit. That arises from the very size of the [NAME], the multiple places at which work is carried out, the large number of employees who are there, and also the high number of exercises of rights of [NAME] by [NAME] from the various unions which have coverage of employees engaged on the [NAME]. 37 These seem to me to be important considerations bearing on the balance of convenience, but there are matters to be balanced against them. One of them seems to be this: if the construction of s 518 for which the applicants contend is correct, then inconvenience of the kind on which the respondents rely must be taken to have been contemplated by the legislature as an incident of the scheme which it has provided for rights of [NAME]. 38 It also seems that there may be alternatives available to the respondents. Quite apart from entering into some arrangement with the applicants to resolve their concerns, there is the potential for the respondents to ask the Fair Work Commission to deal with disputes about the exercise of rights of [NAME]: see ss 505 and 505A of the FW Act. So the respondents are not without a means of addressing the practical considerations to which they refer presently arising from an application of the FW Act in accordance with its own terms. 39 I also consider that, when addressing the balance of convenience, regard must be had to the purpose for which union officials are granted rights of [NAME]. The FW Act recognises that they have a significant role. They have entitlements of [NAME], despite the exercise of those entitlements amounting otherwise to a trespass on the property of [RESPONDENT]. The construction of s 518 on which the respondents rely does have the effect of introducing a degree of inflexibility into the exercise of rights of [NAME], as the contents of the affidavit of Mr [NAME] in relation to the events concerning his right of [NAME] on 1 September 2015 indicate. 40 This does not seem to be a case in which damages would be an adequate remedy. 41 Accordingly, I am inclined to think that the balance of convenience in relation to the first proposed injunction favours the applicants. 42 The applicants have proffered the usual undertaking as to damages. [ADDRESS] accepts that undertaking.

Accordingly, subject to settling its precise terms, I will issue that injunction. 43 The second proposed interlocutory injunction stands differently. What is sought is an injunction to restrain the respondents from prohibiting the applicants from using a camera to document health and safety concerns at the [NAME] site when they are exercising a right of [NAME] under s 117 of the [NAME]. Section 117 provides: [NAME] to inquire into suspected contraventions (1) A [NAME] may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a [NAME]. (2) The [NAME] must reasonably suspect before entering the workplace that the contravention has occurred or is occurring. 44 The effect of s 117 is to [NAME] a "[NAME]" to enter a workplace for the purpose of inquiring into a suspected contravention of the [NAME] which relates to or affects a "[NAME]". The rights which a [NAME] may exercise, having entered a workplace, are those specified in s 118. Broadly speaking, they are rights of inspection, consultation, requiring the production for inspection and copying of [NAME] documents, and a right to warn persons of risks perceived by the [NAME]. Section 118 does not include expressly any right to use a camera. 45 The [NAME] have exercised rights under s 117 and have sought to take photographs at various times of what they have observed during their inspections. The respondents have prohibited them from doing so and, accordingly, an issue has arisen between the parties. Again it seems that the resolution of this issue at the trial may be principally one of statutory construction. 46 The applicants' contention is that it is implicit in the power to inspect that they have a power to make a record of what it is that they have inspected and that this includes doing so by photography or filming. It may well be accepted that a power to inspect includes a power to record that which has been inspected by making notes or sketches or drawings. And there is a sense, I suppose, in which it can be said that the taking of a photograph or making a film is not markedly conceptually different from doing any one of those things. 47 However, to my mind, it is significant that in a provision which is highly prescriptive as to what might be done by a [NAME], there is no express grant of authority to take photographs or to make a film. 48 The applicants also submitted that s 499 of the FW Act has the effect of stating exhaustively the kinds of requirements or requests which may be made by an [NAME] of premises to someone entering under s 117 and that these do not include a prohibition on the use of a camera. Again there may be merit in that submission but it is difficult to assess presently.

Accordingly, I express no view about it, beyond saying that the prospect of that construction of s 499 being upheld does not, to my mind, establish a prima facie case for the purposes of the application for the interlocutory injunction. 49 In my view, the applicants have not made out a prima facie case for the grant of the second injunction. It may well be that the balance of convenience may favour the applicants, bearing in mind that there may not be much difference between making a sketch on the one hand and taking a photograph on the other, but I am not satisfied that it is sufficient to warrant the grant of the interlocutory injunction. I refuse that aspect of the application. 50 By the third of the proposed interlocutory injunctions, the applicants seek to have the respondents restrained from hindering, obstructing or delaying officials of the [NAME] who are [NAME] from exercising a right of [NAME] to the [NAME] site under s 484 of the FW Act or s 117 of the [NAME]. An injunction in those terms would replicate obligations already imposed on the respondents by ss 501 and 502 of the FW Act and by ss 144 and 145 of the [NAME]. That by itself counts against the issue of the injunction. 51 Further, it is desirable that any injunction issued by a Court inform the persons enjoined of what it is exactly that they must do or refrain from doing. The terms of the proposed third injunction do not achieve that standard. For those reasons I refuse the grant of the third injunction which has been sought. 52 I will hear from the parties as to the terms of the interlocutory injunction which I have indicated I will issue. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 1 October 2015