Contraventions of s 497, 500 and 503 in context
18 Section 546 exists to facilitate the enforcement of provisions such as those contained in Pt 3-4 of the FW Act: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (The Agreed Penalties Case) at [16]. Accordingly, it is appropriate that the penalties imposed pursuant to it in the present case should take account of the place of ss 497, 500 and 503 in the statutory scheme.
19 I outlined the scheme of rights of entry established under the Work Health and Safety Act 2012 (SA) (the WHS Act) in Construction, Forestry, Maritime, Mining and Energy Union v Kyren Pty Ltd [2020] FCA 1356 (CFMMEU v Kyren) and discussed the nature and purpose of the rights given by Pt 3-4 of the FW Act in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 (The Lend Lease Case). It is convenient to repeat in these reasons some of what I said then.
20 Section 19 of the WHS Act imposes duties on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers in the business or undertaking. The WHS Act contains a range of provisions directed to the enforcement of that obligation.
21 By s 117(1) of the WHS Act, a "WHS entry permit holder" may enter a workplace for the purpose of inquiring into a suspected contravention of that Act which relates to, or affects, a "relevant worker". By s 120, a WHS entry permit holder entitled under s 117 to enter a workplace to inquire into a suspected contravention of the Act, may also enter for the purpose of inspecting or making copies of employee records or other documents which are directly relevant to a suspected contravention of that Act.
22 The term "WHS entry permit holder" is defined in s 4 to mean a person who holds a "WHS entry permit", that is, a permit issued under Pt 7 of that Act.
23 The term "relevant worker" is defined in s 116 of the WHS Act:
relevant worker, in relation to a workplace, means a worker:
(a) who is a member, or eligible to be a member, of a relevant union; and
(b) whose industrial interests the relevant union is entitled to represent; and
(c) who works at that workplace.
24 While at the workplace, the WHS entry permit holder may engage in a number of defined activities, including inspecting any work system, plant or structure relevant to the suspected contravention (s 118(1)(a)), consulting with the relevant worker in relation to the suspected contravention (s 118(1)(b)), consulting with the relevant person conducting a business or undertaking about the suspected contravention (s 118(1)(c)), and warning persons whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to their health or safety emanating from an immediate or imminent exposure to that risk (s 118(1)(e)).
25 There are conditions to rights of entry bestowed by s 117. These include a requirement that the permit holder, as soon as reasonably practicable after entering a workplace, give notice of the entry and of the suspected contravention, in accordance with the Regulations, to the relevant person conducting the business or undertaking and to a person with management or control of the workplace (s 119(1)).
26 As already noted, Div 3 in Pt 3-4 of the FW Act also regulates the right of entry granted by provisions such as s 117 of the WHS Act. Relevantly for present purposes, s 494(1) of the FW Act has the effect that, in a wide range of circumstances, an official of an organisation must not exercise a right of the kind bestowed by s 117 of the WHS Act unless the official holds an entry permit issued by the FWC under Div 6 of Pt 3-4. Section 497, set out earlier in these reasons, provides that the permit holder must not exercise such a right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer. Section 499 provides that a permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.
27 Both the WHS Act and the FW Act recognise the important role of unions in achieving the objects of the WHS Act. Thus, the objects of the WHS Act (s 3) include:
(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:
…
(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and
…
28 Section 132 of the WHS Act reflects this intention by providing that an issuing authority must, when considering the issue of a WHS entry permit, take into account "the object of allowing union right of entry to workplaces for work health and safety purposes".
29 Turning to the FW Act, Div 2 of Pt 3-4 of the FW Act grants permit holders rights of entry of two kinds: entry for the purposes of investigating contraventions of the FW Act itself and of a limited class of industrial instruments (ss 483A(1); 483D(1)); and entry to hold discussions with employees performing work on the premises.
30 Section 480 identifies the object of Pt 3-4. It specifies:
480 Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
31 Absent these legislative provisions, union officials would have no right to enter the premises of others without the agreement of the occupier. Any unauthorised entry would therefore be unlawful and may amount to a criminal offence. Thus, in Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 at [14], the Full Court said:
A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry.
32 It is evident that, in granting rights of entry under the FW Act, the legislature has sought to balance the interests of occupiers of premises, employers, unions and employees: Maritime Union at [14]-[15]. Unions and employees have an interest in union officials being able to enter premises in order to ensure compliance with industrial legislation and instruments. The ability of permit holders to enter premises is an important aid to effective communication between employees and union officials and to the representation by unions of the industrial interests of employees. Occupiers and employers, on the other hand, have an interest in being able to conduct their business activities without disruption or inconvenience.
33 A number of provisions in Pt 3-4 of the FW Act are directed to achieving a balance of these interests. First, Pt 3-4 confines the persons who may exercise rights of entry. Those rights are not available to any person or, for that matter, to any union official. They are available only to those union officials who have been issued a permit by the Fair Work Commission (the FWC). Before issuing a permit, the FWC must be satisfied that the official is a "fit and proper person" (s 512). The determination of whether the official is such a person takes account of matters bearing upon the official's character and history of compliance with industrial legislation and whether the official has had appropriate training in the rights and responsibilities of a permit holder (s 513).
34 Secondly, Pt 3-4 regulates the time and manner in which the rights it grants may be exercised. Permit holders cannot enter without written notice given at least 24 hours in advance (ss 487 and 518), thereby giving the occupier or employer, as the case may be, some forewarning of the proposed entry and of its purpose. The time at which permit holders may enter premises and at which they may hold discussions with employees are regulated (ss 490 and 492), as are the places at which they may meet the employees (s 492).
35 The exercise of rights in accordance with Pt 3-4 by permit holders is protected by provisions making it unlawful for a person to refuse or delay unduly their entry onto the premises (s 501) and which make it unlawful for a person to hinder or obstruct intentionally a permit holder exercising such rights (s 502).
36 Section 500 is part of this scheme of balancing of interests because it imposes a corresponding obligation on permit holders exercising, or seeking to exercise, rights in accordance with Pt 3-4 not to hinder or obstruct intentionally any person or otherwise to act in an improper manner.
37 Division 3 in Pt 3-4 is another part of the scheme for the balancing of the rights and interests of employees, unions and occupiers of premises. It does so by stipulating that officials of registered organisations must not exercise a State or Territory OHS right to inspect or otherwise access an employee record of an employee unless they have given 24 hours written notice of their intention to do so (s 495(1)) and, relevantly for present purposes, must not exercise a State or Territory OHS right unless they produce their entry permits for inspection when requested to do so by the occupier (s 497). Division 3 of Pt 3-4 imposes other prohibitions which it is not necessary to mention presently.
38 The requirement for 24 hours written notice applies only when a permit holder wishes to inspect or access employee records. A permit holder wishing to exercise a State or Territory OHS right does not have to give such notice before entering a workplace for the purpose of enquiring into a suspected contravention of the WHS Act relating to or affecting a relevant worker, providing that the permit holder reasonably suspects before entering the workplace that the contravention has occurred or is continuing and that it involves a risk to the health or safety of a relevant worker. There are other requirements to the exercise of an entry permit under the WHS Act but these need not be mentioned presently.
39 An evident purpose of s 497 is to provide a means of assurance for occupiers that a person who has entered, or who wishes to enter, their premises is a person authorised under the legislation to do so. It also provides the occupier with the means of being informed of any conditions attaching to the person's entry permit. This information will usually be of assistance to an occupier because the possession of an entry permit conveys that the entrant is a person who has had training about the rights and responsibilities of permit holders and that the FWC has, amongst other things, satisfied itself that the entrant is a fit and proper person to hold the entry permit (ss 512 and 513).
40 Section 503 is another element in the scheme of the balancing of rights and interests in relation to rights of entry. Its evident purpose is to prevent persons being misled about the conduct which Pt 3-4 authorises: Australian Building and Construction Commissioner v Gava [2018] FCA 1480 at [27]. As also noted in Gava at [27], s 503 reflects a legislative concern that the scheme of rights established by Pt 3-4 and the clothing of persons with the ability to exercise those rights, should not be used as a guise for conduct which the Part does not authorise. The making of misrepresentations as to what is authorised by the Part is proscribed, but the operation of s 503(1) is not limited to misrepresentations in the commonly understood sense of that term. It extends to any action taken with the intention of "giving the impression", or in which the person is reckless as to the giving of the "impression", that a "thing" is authorised by Pt 3-4 when it is not.
41 Section 503 does not require that the action taken with the intention of giving a misleading impression, or with recklessness as to whether that impression be given, succeeds in doing so. The proscription in s 503 does not turn on the effect produced by the action, but on the state of mind with which the action is taken: Gava at [31]. However, evidence that the recipient was influenced to act in accordance with the representation may make the contravention more serious: cf Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at [58].