Jessup J
1 I have had the advantage of reading in draft the reasons for judgment prepared by Flick J in this proceeding. His Honour's reasons absolve me of the need to deal with the factual and procedural circumstances of the proceeding. With respect to the amendment sought by the plaintiff, and with respect to the question of costs, I agree with his Honour's reasons. I also agree with his Honour that the application for certiorari and mandamus should be dismissed, but my reasons for arriving at that conclusion are as stated hereunder.
2 Chapter 3 of the Fair Work Act 2009 (Cth) ("the Act") deals with the subject of "rights and responsibilities of employees, employers, organisations etc". Within that chapter, Pt 3-4 is concerned with "right of entry", namely, the right of persons identified by the provisions in that Part to enter premises occupied by others. The rights themselves are the subject of Div 2 of Pt 3-4. That division deals with the rights by reference to the purpose for which the person concerned seeks to enter the premises. Subdivision A is concerned with "entry to investigate suspected contravention", and gives to someone who holds a permit under the Act a right to enter premises and to "exercise a right under section 482 or 483" for the purpose of investigating a suspected contravention of the Act, or of an instrument of the kind referred to in the section. Under s 482, a person who has entered under s 481 may do certain things, including inspect any work, process or object, and -
(b) interview any person about the suspected contravention:
(i) who agrees to be interviewed; and
(ii) whose industrial interests the permit holder's organisation is entitled to represent; ….
Under s 483, a person who has entered under s 481 has a right to require production of, or to be given access to, certain records or documents. Corresponding rights in relation to what the Act describes as "TCF outworkers" are given under Subdiv AA of Div 2.
3 By contrast to Subdivs A and AA, Subdiv B of Div 2 of Pt 3-4 consists only of s 484, as follows:
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF outworkers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder's organisation is entitled to represent; and
(c) who wish to participate in those discussions.
Subdivision B provides, for a person who has entered premises under s 484, no additional rights or entitlements as to what he or she may do, or may require, whilst on the premises.
4 Subdivision C of Div 2 of Pt 3-4 deals with the subject of "requirements for permit holders". Section 486 provides as follows:
Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.
Under s 490(2), discussions under s 484 may be held "only during mealtimes or other breaks". Section 491 requires the permit holder to comply with any "reasonable request" by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises.
5 Section 492, which is relevant in the present case, provides as follows:
(1) The permit holder must comply with any reasonable request by the occupier of the premises to:
(a) conduct interviews or hold discussions in a particular room or area of the premises; or
(b) take a particular route to reach a particular room or area of the premises.
(2) Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:
(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or
(b) the request is made with the intention of:
(i) intimidating persons who might participate in the interviews or discussions; or
(ii) discouraging persons from participating in the interviews or discussions; or
(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.
(3) However, a request under subsection (1) is not unreasonable only because the room, area or route is not that which the permit holder would have chosen.
(4) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.
6 Division 5 of Pt 3-4 is also relevant in the present case. Subdivision A thereof is headed "Dealing with disputes", and contains ss 505 and 506 as follows -
505(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).
(2) FWA may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
(3) FWA may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder's organisation;
(iii) an employer;
(iv) an occupier of premises.
(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.
(5) In dealing with the dispute, FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.
506 A person must not contravene a term of an order under subsection 505(2).
7 It was s 505(1) that provided the source of the jurisdiction of Fair Work Australia ("FWA") for the decisions which were reached by Commissioner Roe on 1 September 2010 and by the Full Bench on 10 January 2011. A majority of the Full Bench, Watson VP and Sams DP, took the view that the request by the occupier of the premises with which the proceeding was concerned, the second defendant Sommerville Retail Services Pty Ltd ("Somerville"), for Mr Collin Ross, the organiser of the plaintiff, the Australasian Meat Industry Employees' Union ("the Union") to hold his discussions with employees in the training room, rather than in the lunch room, was a reasonable one. The Union contends that, in doing so, the majority failed properly to exercise the jurisdiction which FWA was given under s 505 of the Act. The grounds upon which that contention is based are set out in the reasons of Flick J.
8 Before turning to those grounds as such, I should refer to the published reasons of the majority of the Full Bench. Having referred to the statutory framework, to the facts of the case, to the reasons of Commissioner Roe, to Sommerville's grounds of appeal from the decision of the Commissioner, and to previous industrial decisions which were thought to provide some guidance, the majority gave critical consideration to the approach which had been taken by the Commissioner, and to the correctness of that approach.
9 As to the appropriateness of the training room for discussions of the kind contemplated by s 484, the majority said:
Subject to one qualification, the Commissioner considered the training room at Somerville fit for purpose. The qualification was that because it only holds 20-25 people it was possibly too small for access during meal times. In our view, this conclusion is questionable on two grounds. First, the entire issue concerns a room for discussions with employees pursuant to the rights of entry under the Act and the Act requires that these rights arise only at meal times. Second, discussions with employees as contemplated by the Act primarily involve discussions individually or in small groups. In our view, a room is fit for the purpose of conducting interviews or holding discussions even though it may not accommodate all employees on their meal break at the same time.
As to Sommerville's reasons for not allowing the discussions to be held in the lunch room, the majority said:
Nor do we consider that the grounds advanced by Somerville for refusing access to the lunch room bear upon its intention of requesting access to the union in the training room. As noted above, the interests of employees who may not wish to participate in discussions with unions has been held in various cases to be a legitimate consideration in assessing the reasonableness of an employer request. An employer who takes into account such considerations cannot in our view be criticised for doing so. Nor can such an employer be found to have an impermissible intention by having regard to such considerations. Such a conclusion is also quite inappropriate in circumstances that the union did not argue that such an intention existed.
Having reached this point, (and it should be understood that I have not set out the whole of the majority's reasoning in relevant respects), the majority came to the conclusion that Commissioner Roe had "applied an incorrect principle and had regard to irrelevant considerations" on the matter of unreasonableness under s 492 of the Act.
10 The majority then observed that the Commissioner's conclusion that Sommerville's request was otherwise unreasonable was based on his finding that the effect of the request was to hamper the Union's ability to exercise its rights, and thus to achieve the objects of Pt 3-4 of the Act. In the view of the majority, the Commissioner's reasoning was "flawed in several respects", as to which the majority said:
First, we consider that the necessary balance of the interests of all affected persons requires a consideration of the interests of employees who may not wish to participate in discussions. If discussions are held in the training room, only those who wish to participate will attend. If discussions are held in the lunch room, others who may not wish to participate will have discussions occur in their presence. If the permit holders seek to conduct meetings of members in the lunch room then others who do not wish to participate will be inconvenienced. The evidence establishes that there is no other practical venue for employees to have their lunch, even to exit the plant and have lunch away from the premises. There is therefore a likelihood in this case that employees who do not wish to participate will be inconvenienced. This inconvenience affects Somerville because it has an obligation to provide suitable lunch amenities for all employees.
11 The majority then turned to consider, for themselves, whether Sommerville's request that Mr Ross use the training room rather than the lunch room was a reasonable one. They said:
We have set out the approach to exercising the discretion above and apply that approach. In this case, it is accepted that there is only one room in which employees can practically undertake their lunch break, and that is the canteen or lunch room. There are only two rooms where the union can be granted right of access for the purposes of discussions with employees - the training room or the lunch room. The lunch room is the larger of the two rooms and is used by AMIEU members and non-members, including supervisory employees, during meal breaks.
Somerville has requested for many years that the training room be utilised for right of entry visits. Somerville allows access for a longer period than during meal times. However, the dispute concerns the right of entry for discussions with employees which, under the Act must be during meal times or other breaks. That must be the context in which the matter is considered. The AMIEU contends that Somerville's request is unreasonable. That is the question that falls for determination.
In our view the training room is fit for purpose. It can hold up to 25 people at a time. It is 30 metres from the canteen - accessible through a corridor from near the canteen. Employees do not walk past management when they access the training room from the production area. Blinds can be drawn to ensure privacy. Private discussions can be held with employees in that room, individually or in small groups. We do not consider that the inability to hold a mass meeting of all employees in the training room renders it unfit for the purposes of interviewing employees or holding discussions with employees.
In our view, access during meal times to the training room does not involve any intimidation, discouragement or difficulty for persons to participate in discussions with permit holders. Nor do we believe that the request to use the training room is made with such intention. We note that the AMIEU has not argued that such intention exists.
We note that the AMIEU prefers to utilise the canteen. It appears that its reasons for doing so relate to enhancing its ability to approach employees to request them to participate in discussions and to hold meetings with a greater number of employees than can be accommodated within the training room. We can understand why the AMIEU would have such a preference.
We also note that the reason given by Somerville for not permitting access to the lunch room relates to concerns of inconvenience to employees who do not wish to participate in discussions. In our view, Somerville is entitled to consider such a matter.
The preference of the AMIEU is not sufficient to make Somerville's request unreasonable. Somerville's concerns are not sufficient to make its request unreasonable. The practices regarding access during meal times and the size and location of the room do not make Somerville's request unreasonable. In all of the circumstances, we conclude that the AMIEU has not established that Somerville's request to use the training room is unreasonable.
For those reasons, the majority quashed the decision and order of Commissioner Roe, and dismissed the Union's application under s 505 of the Act.
12 The first ground of the Union's application for certiorari and mandamus invoked the conventional administrative law grounds to challenge the validity of the ostensible exercise of a statutory power or function constituted by a disregard of relevant material, or a failure to take into account relevant considerations. The Union accepted that it must bring itself within the established jurisprudence laid down, for example, by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42. In particular, "the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision" (162 CLR at 39). In a case in which the factors to be taken into account are not expressly stated by the statute conferring the power, "they must be determined by implication from the subject-matter, scope and purpose of the Act" (162 CLR at 39-40).
13 It is at this point that it becomes important, in my view, to keep firmly in mind the nature of the jurisdiction which FWA was required to exercise under s 505 of the Act in the present case. Often, a statutory power to decide will involve, say, the granting of a permit, licence or other benefit, or the imposition of a detriment or penalty, or of conditions, in relation to some entity, activity or subject-matter. Peko-Wallsend itself was such a case. However, the power arising under s 505 was not of that character. The section in effect constituted FWA a dispute-settling tribunal. Undoubtedly it was obliged to exercise the relevant power in a way which involved no antagonism with the scheme of Pt 3-4 of the Act, but, subject to that, what it was obliged to take into account in any particular case was very much dependent on how the parties to the dispute presented their cases to it.
14 The first of the passages from the judgment of Mason J in Peko-Wallsend quoted in para 12 above was based substantially on something said by Deane J in this court in Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363, 375. The whole of what his Honour had to say about the relevant subject should, however, be referred to in the context of the present case. Having referred to subss (1) and (2)(b) of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), Deane J said (38 ALR at 375):
This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane LJJ) in Elliott v Southwark London Borough Council [1976] 2 All ER 781; [1976] 1 WLR 499 at 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case: "It is clear that the matters which the local authority should consider … vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions."
In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.
It is against this understanding of the relevant jurisprudence that I turn to the Union's first ground in the present case.
15 Part (a) of the Union's first ground was based upon a perception of the Act which, although variously expressed by counsel for the Union in presenting their client's case, is most pithily encapsulated in the following passage in their outline of submissions:
The right described in s. 480(a) to represent the members and hold discussions with potential members involves the ability to directly approach employees within the workplace. The employees may wish to be represented or hold discussions, or they may reject the offer. However, the right is diminished if access to employees is screened by an employer preventing a direct approach to employees.
The point was that the Act necessarily contemplated that someone entering premises under s 484 would be able "to directly approach employees within the workplace" with a view at least to inquiring about their preparedness to engage in the discussions referred to. If that were a correct perception of the Act, I doubt whether the reasons of the majority of the Full Bench would rightly be described as infected by an omission to take some relevant circumstance into account. Rather, it might be said that their discretion miscarried in the sense that their decision was antagonistic to the scheme of that part of the legislation under which it was made. Indeed, as the passages above demonstrate, it could not be said that the majority overlooked what was, it seems, a central feature of the Union's case, namely, that the request by Sommerville to use the training room would compromise Mr Ross' opportunity to approach the generality of employees at the workplace, with a view to enquiring whether they desired to engage in discussions.
16 However, I do not consider that a perception of the scheme of the relevant provisions in Pt 3-4 of the Act of the kind referred to in the previous paragraph would be an accurate one. It is notable that the legislature has chosen to give no rights under Subdiv B other than the right to enter premises for certain purposes. The individual paragraphs in s 484 identify the employees with respect to whom those purposes must exist, at the point of entry. One characteristic specified in the section is that the employees must, at the time when the right of entry comes to be exercised, "wish to participate in those discussions". The right of entry is not given for the holding of discussions with employees generally. Dealing with the matter at this high level as it does, s 484 undoubtedly leaves scope for disputation in particular cases, and it may be that this is, in part at least, the justification for giving FWA its dispute-settling function under s 505. It is sufficient for present purposes to say that a decision by FWA to resolve a dispute arising under s 492 in a way which did not leave scope for the person entering to cast about generally amongst the employees at the particular workplace with a view to discovering which, if any, of them desired to enter into discussions could not be said to be jurisdictionally infected by a failure to take into account a circumstance which FWA was bound to take into account in the Peko-Wallsend sense.
17 Turning to part (b) of the Union's first ground, it is here alleged that the majority failed to take into account the rights of Sommerville's employees under s 480 of the Act to receive information from the Union. But s 480 creates no such rights. It is an "objects" provision, and makes it clear that the object of Pt 3-4 itself is to "establish a framework" that balances various things, including "the right of employees … to receive, at work, information and representation from officials or organisations". The way this balance has been achieved is by the enactment of the provisions to which I have referred, amongst others. On the facts of the present case, there could be no suggestion that Sommerville's request under s 492 compromised the ability of those of its employees who attended discussions in the training room to receive information from Mr Ross, and others in a like position. Essentially, the Union's point was that, by not giving Mr Ross the facility to approach employees generally, the "right" of those employees to receive information from him had been compromised. As so identified, this point is different from that advanced under part (a) of the first ground only in its manner of formulation. In substance, and to the extent that might be thought relevant to certiorari and mandamus, the point is the same as that arising under part (a), and should be decided accordingly.
18 Under part (c) of its first ground, the Union contended that the majority failed to take into account the length of the meal and other breaks during which the permit holder was able to hold the discussions referred to in s 484 of the Act. Although the context for this submission was provided by the limitation in s 490(2) to which I have referred above, the submission amounted, in my view, to little more than a challenge to the merits of the conclusion reached by the majority. It is here that the function of FWA under s 505 is significant. That function does not involve the determination of a question articulated directly by the Act. Rather, it involves the treatment of a dispute between parties about the reasonableness of an occupier's request under s 492. In that setting, the range of circumstances which FWA would take into account would depend very much upon the nature of the dispute and, in an adjudicative setting, upon the submissions that had been made to it. If, in a particular case, there were a concern that the holding of a meeting at a place apart from the room or area within which employees wishing to attend the meeting would normally be taking their meal would compromise the utility of the discussions, one would expect that such a proposition would be front and centre of the case put to FWA under s 505. However that may be, the Union's present point must be understood as involving the proposition that, whether or not such an issue was raised in the case under s 505, the power to settle a dispute could not be validly exercised without taking account of it. I do not consider that there is any warrant in the legislation for such a categorical conclusion. In the view I take, whether, in a particular case, it was either necessary or appropriate to consider the extent to which the ability of employees and their union representatives to have discussions was compromised by a lack of coincidence as between the venue for those discussions and the place where meals or other breaks were taken would depend very much upon the facts of the individual case, and the extent to which FWA fell under any obligation to consider problems lying along this axis would depend largely upon the nature of the respective cases put to it.
19 The Union's second ground was centred upon the observation made by the majority of FWA that the "discussions with employees as contemplated by the Act primarily involve discussions individually or in small groups". The Union submitted that this was a clear error of law, as there was nothing either in the terms of the Act or in the relevant statutory context to limit discussions of the kind referred to in s 484 to those which involved only individuals or small groups of employees. Unless introduced by the connotation of the word "discussions", there is no such limitation in the Act. In terms at least, if there is a large number of employees wishing to have discussions with the permit holder, his or her right to enter the premises for the purpose of holding those discussions arises under s 484, no less than if the discussions were sought by a small group of employees.
20 Whether there was any such limitation introduced by the connotation of the word "discussions" is a question upon which we were not addressed by counsel in the present case. For that reason, I would be reluctant to enter upon it. I note, however, that, before the enactment of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), there was no statutory right for a union representative to enter premises for the purposes of having discussions with employees. Such a right was first introduced by the amending act of 1996, but neither the Explanatory Memorandum for, nor the parliamentary record in respect of, the relevant Bill throws any light on the subject. In my view, we must, therefore, decide the present point unassisted by such limitation as may derive from the connotation of the word "discussions" itself.
21 In those circumstances, the conclusion that the majority misdirected themselves in this respect is inescapable. However, that conclusion does not make good the Union's case for certiorari and mandamus.
22 In the relevant passage of the reasons of the majority, set out at para 9 above, the observation as to the contemplation of the Act with respect to the nature of the discussions for which entry is permitted under s 484 was made in the context of Commissioner Roe's conclusion as to the training room's fitness for purpose, as made relevant by s 492(2)(a) of the Act. The Commissioner had held that, because the training room could accommodate only 20-25 people, it was not fit for purpose. But whether a room, because of its size, is unfit for the purpose of discussions would depend entirely upon the number of persons seeking to engage in those discussions. It could not be determined in the abstract. Section 492 operates on a case by case basis, "the discussions" referred to therein being the ones which the permit holder proposes to have on the particular occasion.
23 The Union's case before the Full Bench was not that the training room had proved inadequate on any particular occasion. Rather, it was that, against an assumed set of facts under which more than 25 employees would wish to meet with the permit holder, the training room would then be too small. If those facts ever arose, however, the reasonableness of Somerville's request that the persons proposing to engage in discussions do so in the training room might then be assessed in a practical situation. Absent the existence of those facts, any conclusion about the reasonableness of Somerville's requirements (or at least any such conclusion which would hold them to be unreasonable) would be hypothetical only.
24 In its own consideration of the dispute before it, the majority of the Full Bench concluded that the training room was fit for purpose, observing that it could hold up to 25 people at a time. I would not regard that conclusion as dependent to any extent upon the majority's view as to the contemplation of the Act, expressed earlier in their reasons. Rather, I consider it to be no more than a reflection of the case which was run, and of the evidence which was led. Particularly in the absence of any suggestion that the training room had, because of its size, ever been found wanting for the purpose of these discussions, I consider that the majority's conclusion was, in effect, a pragmatic way of settling the dispute which arose before it.
25 Although I do consider that the majority mistook the effect of the Act, and to that extent erred in law, for reasons given above, I do not accept that this was an error of a jurisdictional kind. That is to say, it was not an error which involved the constructive failure to exercise jurisdiction, or involved the majority in deciding a question other than that which was required to be decided under the statutory provisions in question.
26 The Union's third ground was that the majority had erred in point of jurisdiction because they found, in the absence of evidence, that there were employees of Sommerville who did not wish to participate in discussions with Mr Ross. In my opinion, the majority made no such finding. Their relevant observations were, first, that, if the permit holders sought to conduct meetings of members in the lunch room, then others who did not wish to participate in those meetings would be inconvenienced; and, secondly, that Sommerville had given as a reason for not permitting access to the lunch room a concern as to the inconvenience that might be visited upon those other employees. In neither of these respects did the conclusion of the majority depend upon evidence as to the extent, if any, to which there were employees who did not wish to participate in discussions. Rather, the majority's point of reference was s 484(c) of the Act itself, which confined the right of entry to a situation in which the discussions would be with employees who wished to participate in them. It did not need evidence for the majority to reason, following the Act, that there were presumptively two classes of employees: those who wished to participate, and those who did not. FWA is, of course, a tribunal with specialised knowledge, a circumstance which comes significantly into play when a "no evidence" point of this kind is made. The purpose of the lunch room being given by its name, it was amply within the scope of the majority's jurisdiction under the Act to take into account the interests of those who did not wish to participate. There is, in my view, nothing in the Union's third ground.
27 The same conclusion applies with respect to the Union's fourth ground. What the majority said, as set out in para 10 above, was: "This inconvenience affects Sommerville because it has an obligation to provide suitable lunch amenities for all employees." This was a statement by way of reasoning, not an evidentiary finding that there had been, on some previous occasion, a concrete situation in which Sommerville had in fact been "adversely affected" (to adopt the terms of the Union's submission in the present case). The Union made no suggestion that Sommerville was not obliged to provide suitable lunch amenities for its employees, and, beyond that, it was quite within the competence of the majority to link that circumstance with their earlier conclusion that, for employees not participating, the discussions would constitute, potentially at least, a source of inconvenience.
28 The application should be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.