Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

Date of hearing: 27, 28 and 30 June 2016

National Practice Area: Employment & Industrial Relations

Counsel for the Applicant: Mr D I Star with Ms C Dowsett

20 July 2017 In paragraph 197, the word "ejustem" has been replaced with "ejusdem".

27 March 2018 In paragraph 3, the word "to" has been inserted between the words "amount" and "acting".

27 March 2018 In paragraphs 9, 18, 109 and 121, the word "premises" has been capitalised in the phrase "Laverton North premises".

27 March 2018 In paragraph 17, a comma has been inserted after the phrase "Laverton North Premises".

27 March 2018 In paragraph 31, the word "premises" has been capitalised in the phrase "Cheltenham premises".

27 March 2018 In paragraphs 45, 52, 56, 81, 82, 89, 180, 190 and 191, the word "Director" has been replaced with the word "Commissioner".

27 March 2018 In paragraph 47, Australian Meat Industry Employees' Union has been replaced with Australasian Meat Industry Employees' Union.

27 March 2018 In paragraph 53, the word "an" has been inserted between the words "with" and "occupational".

27 March 2018 In paragraph 61, the words "Pty Ltd" have been inserted after the words "Endeavour Coal".

27 March 2018 In paragraph 124, the word "McDonald" has been replaced with the word "MacDonald".

27 March 2018 In paragraph 135, the word "matter" has been replaced with the word "matters".

BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent

JUDGE: BROMBERG J DATE OF ORDER: 17 July 2017

1. The title of the proceeding be amended to show the Australian Building and Construction Commissioner as the applicant.
2. The applicant's Originating Application dated 29 May 2015 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 The Applicant ("Commissioner") seeks declarations and civil penalties in relation to alleged contraventions of the Fair Work Act 2009 (Cth) ("FW Act") by the second ("MacDonald") and third ("Long") respondents. The Commissioner also seeks corresponding declarations and penalties against the first respondent ("CFMEU") by virtue of the alleged primary contraventions having been committed on its behalf. Unless otherwise apparent, a reference to the CFMEU is intended as a reference to all of the respondents. 2 MacDonald and Long were, at all relevant times, officials of the CFMEU who each held valid entry permits under the FW Act issued by the Fair Work Commission. MacDonald and Long between them entered two premises on which Qanstruct (Aust) Pty Ltd ("Qanstruct") was head contractor five times across four dates in 2014. In total, MacDonald made four entries and Long made three. They were (together "impugned entries"): MacDonald entered premises at 60 William Angliss Drive, Laverton North in Victoria ("Laverton North Premises") on 20 February 2014 ("first entry"); MacDonald entered the Laverton North Premises on 21 February 2014 ("second entry"); Long entered premises at 27-43 Grange Road, Cheltenham in Victoria ("Cheltenham Premises") on 27 February 2014 ("third entry"); MacDonald and Long entered the Cheltenham Premises on 5 March 2014 ("fourth entry"); and MacDonald and Long entered the Laverton North Premises on 5 March 2014 ("fifth entry"). 3 The Commissioner alleges that in relation to each of the impugned entries, there was a failure to give notice of entry in accordance with s 487 of the FW Act, and a failure, on request, to produce entry permits in accordance with s 489. Those failures are said by the Commissioner to amount to acting in an "improper manner" in contravention of s 500 of the FW Act. Section 500 is in the following terms: 500 Permit holder must not hinder or obstruct A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused. Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502). 4 The questions arising for determination in relation to the alleged contraventions of s 500 are: (1) Whether MacDonald and Long, being permit holders, were "exercising, or seeking to exercise, rights in accordance with [Part 3-4 of the FW Act]"; and, (2) Whether the conduct of MacDonald and Long in making the impugned entries amounted to acting in an "improper manner". 5 The Commissioner further alleges that in relation to each of the impugned entries MacDonald and Long, by their words and actions, misrepresented that they were authorised to enter the premises under Part 3-4 the FW Act when they were not so authorised, in contravention of s 503. Section 503 provides as follows: 503 Misrepresentations about things authorised by this Part (1) A person must not take action: (a) with the intention of giving the impression; or (b) reckless as to whether the impression is given; that the doing of a thing is authorised by this Part if it is not so authorised. Note: This subsection is a civil remedy provision (see Part 4-1). (2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised. 6 Moreover certain threatening statements alleged to have been made by Long in the course of the third entry were said by the Commissioner to amount to adverse action for a protected reason under s 340 of the FW Act which is as follows: 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4-1). (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Note: This subsection is a civil remedy provision (see Part 4-1). 7 The evidence presented to me was relatively uncontroversial, and none of the witnesses who appeared had their credibility put in issue. Neither MacDonald nor Long gave evidence. I have largely accepted the accounts of witnesses of the various entries, as given. Unless it is plain from the language used, my description of events below amounts to my findings as to the facts there described.

Qanstruct's Right of Entry policy 8 Prior to about mid-February 2014, Qanstruct had no formal policy to guide the response of site managers to union officials seeking to enter sites. It appears that site managers dealt with entries in their discretion on an ad hoc basis as between individual managers, and as between the particular circumstances of an entry. Andrew Percy ("Percy"), a director of Qanstruct at the time of the impugned entries, gave evidence for the Commissioner. He described there being "ambiguity", "lack of direction" and "confusion" about how right of entry was handled by managers at the company. I accept, as the Commissioner submitted, that there was no evidence of any standing permission for union officials to enter Qanstruct sites, however it was confirmed by Percy that some site managers were in the practice of allowing entry to a site in the absence of notice following "a chat" with the union official and possibly in the company of a Qanstruct escort. 9 Mr Damien Burns, site manager at the Laverton North Premises ("Burns"), also gave evidence for the Commissioner. Under cross-examination, he confirmed that he had allowed MacDonald on site at the Laverton North Premises before Christmas 2013, before the introduction by Qanstruct of any formal right of entry policy, to hold discussions with the site health and safety representative. Burns confirmed that he allowed that entry in the absence of receiving any advanced notice of it. Burns further described allowing MacDonald on site in late January 2014, again without MacDonald having provided notice. 10 Site manager at the Cheltenham Premises, Mr Dominic Sherlock ("Sherlock"), also gave evidence for the Commissioner. Under cross-examination, Sherlock confirmed that he had allowed Long on site at the Cheltenham Premises on two separate occasions in about November 2013 and in early February 2014 for the purposes of holding discussions with workers. On neither occasion did Long provide notice of entry and on neither occasion did Sherlock request to see his entry permit. Long was accompanied on site on both occasions, first by Sherlock himself, and subsequently by another Qanstruct staff member. 11 It appears that in February 2014, Qanstruct senior staff were trained in a new coordinated approach to union entries onto Qanstruct sites. Evidence was given by Percy that the Qanstruct management staff, together with a representative of the Master Builders Association, met at the Qanstruct head office in Hawthorn to discuss and be trained in Qanstruct's new right of entry policy contained in a document headed "Qanstruct: Right of Entry". The policy, as it is contained in the document, summarises some of the key conditions which must be met by a union official in order to enter a Qanstruct site. Those conditions reflected conditions found in Part 3-4 of the FW Act in relation to right of entry, including the requirement to provide 24 hours' notice and the requirement to produce an entry permit on request. The document concluded with the following summary: Entry - YES or NO YES if the Union official: • Has a valid reason to enter, and • Meets all the requirements for entry ie entry permits, federal permits and has provided 24 hours written notice • You must allow entry NO if the Union official: • Does not have a valid reason to enter, or • Does not meet the associated requirements for entry • You may refuse entry 12 Each of the impugned entries occurred shortly after Qanstruct implemented its new right of entry policy.

First entry 13 MacDonald made the first entry at the Laverton North Premises on 20 February 2014. He attended the site with a representative of the "Electrical Trades Union" ("ETU") and while on site spoke with Burns. MacDonald did not give 24 hours' written notice of his entry or produce his entry permit on request. 14 Fenced off from the construction site at the Laverton North Premises was a compound which contained offices for site managers and occupational health and safety representatives, as well as facilities for workers, including toilets, lunch sheds and meeting rooms ("site compound"). 15 Burns gave evidence for the Commissioner in relation to the first entry. He described MacDonald attending the Laverton North Premises wearing CFMEU-branded attire. MacDonald initially arrived to the site compound. Burns inquired into the nature and purpose of MacDonald's visit, to which MacDonald replied that he wanted to talk to his workers. Burns asked MacDonald if he had given 24 hours' notice and if he had his permit. In response, MacDonald said, "We don't do that. I don't need one of those. Have you got … something to hide?" Burns replied to the effect that if MacDonald were to provide notice and come back tomorrow, there would be no issue taken to MacDonald entering the site. When MacDonald nevertheless proceeded to enter the construction site, Burns said, "Drew, you can't walk on site. If you walk on it it's trespassing and if you do so I will have to call the police or call Andrew Percy then that police". 16 Following that conversation, MacDonald entered the construction site. Burns followed behind MacDonald as he entered the construction site. As he walked, Burns first called Percy and then the police. MacDonald proceeded towards a group of about five or six concreters, with whom he held a brief, five minute discussion. Burns was able to overhear that the discussion was in relation to whether they had been informed of their entitlement to an allowance payable to workers in Laverton ("Laverton allowance"). On his way back to the site compound, MacDonald held an additional conversation with a civil earth worker, however Burns was unable to hear the content of that conversation. 17 Back at the site compound, outside Burns' office, Burns confirmed to MacDonald that he had notified the police and that they would be on their way. MacDonald said, "Then, well … I'm not going to stick around and … wait for the police". MacDonald then exited the site and returned to his vehicle with the ETU representative. MacDonald was at his car, in the close vicinity of the Laverton North Premises, when the police arrived. MacDonald spoke to the police for approximately fifteen minutes. The subject of MacDonald's conversation with the police was not in evidence. MacDonald left the vicinity of the site after talking to the police.

Second entry 18 MacDonald attended the Laverton North Premises with a representative of the "Plumbers' Union" on 21 February 2014. MacDonald did not provide 24 hours' notice of his entry, and did not produce his permit on request. 19 During the second entry, MacDonald spoke with Burns. Burns described 21 February 2014 as being a "big day", on which a significant and costly concrete pour was scheduled to take place. Burns deposed of being informed by a colleague at around 6.30am that a union representative was on site. He returned to the site compound to find MacDonald present, wearing CFMEU-branded attire. Burns asked MacDonald his purpose on site, to which MacDonald replied that he wanted to talk to the concreters about the Laverton allowance. Burns asked to see his permit and indicated to MacDonald that he would allow entry if MacDonald complied with requirements to provide 24 hours' notice and to produce his permit. MacDonald, in response, said, "You know we don't do that... If I want to ... talk to the guys I will". 20 After some further discussions not presently relevant, Burns went to speak to the concreters' manager who at the time was overseeing the concrete pour. Initially the concreting manager indicated to Burns that he was too busy to speak to MacDonald, and that if MacDonald had any concerns he should call the director of the concreting company. Burns returned to the site compound and passed on the message. MacDonald challenged Burns over whether that conversation had actually taken place with the concreter as Burns had described. 21 Following those discussions with Burns, MacDonald moved as though he intended to enter the construction site. Burns said to MacDonald, "Drew, you know, if you walk on site ... then I will have to call the police. You know the ... procedures with right of entry. You know, don't walk on site". MacDonald paused, and when he moved again to enter the construction site, Burns said, "you walk on site I'm calling the police". Upon receiving the warning, MacDonald returned to Burns' office. It seems that at no stage did MacDonald leave the site compound and enter the construction site at the Laverton North Premises. 22 At his office, Burns offered to find the phone number of the director of the concreting company. While waiting outside, MacDonald shouted to the concreting manager on site to come over. He did, and held a discussion with MacDonald outside Burns' office for a couple of minutes. Before leaving the site, MacDonald said to Burns, "we could have shut the [pour] down if we wanted today".

Third entry 23 Long entered the Cheltenham Premises around midday on 27 February 2014 and remained on site for about one hour. Long did not provide 24 hours' notice of his entry or produce his permit for inspection, on request, at any stage. 24 Upon arrival at the site, Long attended the office of Sherlock. Also present in Sherlock's office at the time of Long's arrival were Mr David Curro and Mr Ronald Phease ("Phease"). Phease also gave evidence for the Commissioner in relation to the third entry which, subject to some minor inconsistencies with the evidence of Sherlock, I largely accept. 25 Inside Sherlock's office, Long handed to Curro a CFMEU flyer, about EBA wage rates. Long said that he was going out on site "to see the guys". In response, Sherlock pressed him for his permit. Long said, "We're not going down that path, are we? … Even if I've got a permit, that's our policy that we don't show it". In response, Sherlock said, "if you don't comply and go out onto site, I will have to call the police". A confrontation ensued between Long and Sherlock, Phease and Curro in relation to whether Sherlock would or should call the police, and included Long saying to Sherlock, "You … don't want to be the dog who calls the cops on a union official … [W]e won't forget this low act. We won't forget that you did this". Long then said, "I'm going out on site … to service my men". From Sherlock's office, Long walked into the construction site and spoke to a group of eight to ten concreters and form workers for about five minutes. 26 After speaking to the workers, Long returned to the site compound and asked Sherlock if he had called police. Sherlock confirmed that he had. In response, Long said in a raised voice, "We will have 500 blokes on site here tomorrow, we won't sign an EBA with you, next year you guys will be on nothing. Your wages will drop". Under cross examination, Sherlock was challenged about the nature of this statement of Long but did not resile from his evidence in chief. The statement is consistent with Sherlock's contemporaneous notes of the interaction, which are in evidence and which included the phrase "500 blokes here on site tomorrow", shortly followed by "something like", "we won't sign an EBA with you and the next year, your wages will drop and you blokes will be on nothing". I accept Sherlock's evidence. 27 Following that conversation, Long walked back to the middle of the construction site. At around 1pm the police attended the Cheltenham Premises. The police spoke to Long for approximately half an hour. At the conclusion of the conversation Long exited the boundary of the Cheltenham Premises, remaining in the vicinity outside. 28 Following Long's exit from the site, a group of the concreters and form workers to whom Long had earlier spoken packed up and left work early for the day. Sherlock described seeing Long gesturing to those men and talking loudly or yelling to them, though he could not hear the content of what was said to the workers. The Commissioner submitted that I should infer that Long directed the workers to leave the site. I do not, however, consider there to be sufficient material before me to draw that conclusion. Without knowing what Long was yelling to the men I consider it to be equally probable that the men determined on their own to leave the site and Long's gestures and words were something other than a direction.

Fourth entry 29 The fourth entry took place at about 8.30am on 5 March 2014 at the Cheltenham Premises. MacDonald and Long entered the site without having given 24 hours' notice of their entry and each failed to produce his entry permit on request. 30 MacDonald and Long both spoke to Sherlock in the presence of Phease. When asked his purpose for visiting, Long said that he was there "to go and see… his men". Sherlock said in response that he would not allow Long and MacDonald on site without his "federal permit and 24 hours' notice" and confirmed that if he had to he would call the police again. Sherlock made clear that if MacDonald and Long were to give 24 hours' notice and produce their permits he would not have an issue with them going on site. The sentiment was repeated by Phease. In response to that, Long said to Sherlock, "You're on the top of our hit list". Long repeated that he was "going out on site to service [his] men" and then went with MacDonald out onto the site. 31 MacDonald and Long climbed stairs to an upper level of the construction site. After some time they came back down, accompanied by a worker with whom they were engaged in a conversation. The three men continued talking as Long and MacDonald returned to their vehicles around the centre of the construction site. When police arrived, they spoke to MacDonald and Long and asked them to leave the Cheltenham Premises. MacDonald and Long then departed.

Fifth entry 32 The fifth entry was made by MacDonald and Long at about 10am on 5 March 2014 at the Laverton North Premises. Neither MacDonald nor Long provided 24 hours' notice of the entry, and neither produced their entry permit on request. 33 In the course of the fifth entry, MacDonald and Long each spoke to Burns. Long also spoke with Percy. Despite some discrepancies with the evidence of Percy, I generally accept Burns' evidence in relation to the fifth entry. 34 At the time of being alerted to union presence on site, Burns and Percy were showing clients around the Laverton North Premises. Burns returned to the site compound to find MacDonald and Long talking to contractors and handing out flyers. Each man was wearing CFMEU-branded attire, and the flyers were marked with the logo of the CFMEU. When Long informed Burns that he wanted to enter the site to talk to the crane driver, Burns said to him, "You need to show us your … Federal permit and … give us 24 hours written notice and if you can't do that then … I'm going to have to ask you to leave". Long made no response and continued to enter the site to approach the crane driver. 35 Burns shadowed Long as he entered the site. Long entered an exclusion zone in the vicinity of the crane and, as he approached the crane driver, signalled to him to stop operating the crane. Whether the exclusion zone was marked with safety flagging was the subject of conflicting evidence. Burns said that it was, but Percy could not remember. I prefer the evidence of Burns in this regard. Burns was the site manager and would have had more direct knowledge of the way that the site was set up, whereas Percy as company director would have been only an intermittent visitor. 36 Burns described Long approaching the cabin of the crane, introducing himself to the driver and providing a CFMEU flyer. After speaking with the crane driver, Long had separate and similar interactions, first with a group of about ten concreters and then with an excavator. 37 At around this time, Percy returned to find Burns and Long. As he approached the men, Percy from afar observed MacDonald holding a conversation with a group of concreters. Percy confronted Long about the inadequacy of his notice and failure to present his permit. Burns' and Percy's evidence about this interaction was slightly different. In any event I accept that the interaction took place and Percy said to Long words to the effect that Long had not given notice of entry or presented his permit, that in the result Percy or Burns would call the police if Long did not leave, and that Long's response expressed his intention to remain on the site or his defiance of the warning. The precise words used are not otherwise relevant. Following that interaction, Burns called the police. 38 Despite the warning that the police would be called, Long continued to walk around the site and held a conversation with another group of concreters and carpenters and handed out more flyers before a light rain began to fall on the site. On account of the rain, Burns directed that the site be cleared. As Burns and Long returned towards the site compound, they were met by MacDonald, who had also traversed the exclusion zone. As the three men approached the lunch sheds, Long called out to workers to gather for a meeting. Burns described entering the sheds to observe the meeting but being asked to leave by Long. After an exchange between the two men in relation to Burns being present for the meeting, Burns, in front of the shed full of workers, confirmed that he had contacted the police and expected their imminent arrival, and explained to the workers that the police had been called because MacDonald and Long had failed to show their entry permits but entered anyway. Burns said to the workers that MacDonald and Long entering the site in those circumstances was "basically no … difference to trespassing at … your house". Burns also explained that Qanstruct would have no difficulty allowing MacDonald and Long entry if they complied with the terms of the request to provide 24 hours' notice and show their permits. 39 In response to this exchange, a worker, identified by Burns as the crane driver, said to MacDonald and Long, "why don't you give your 24 hours' notice and come back tomorrow?" To which MacDonald replied "we're not intimidated by builders". After a further exchange not presently relevant, the men in the shed dispersed with no meeting having taken place. The rain stopped and workers began to return to work. As MacDonald and Long were leaving the site, Long said, "We're not sticking around for the police. We're going to go. We will see you back here tomorrow". The police arrived at the site approximately five minutes after MacDonald and Long had left.

the alleged contraventions of section 500 40 Part 3-4 of the FW Act deals with certain rights of entry. As the guide to the Part given by s 478 states, the 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". 41 In Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287, I traced the history of right of entry provisions in federal industrial law. As I said at [38], in the federal sphere and prior to 1973, industrial rights of entry were conferred by awards made under the Conciliation and Arbitration Act 1904 (Cth) ("C&A Act"). In 1973, s 42A of the C&A Act was enacted. That was the first time that a federal statute provided directly for industrial rights of entry. In March 1989 the Industrial Relations Act 1988 (Cth) ("IR Act") replaced the C&A Act. The substance of what had been provided for by s 42A was thereafter addressed, without significant change, by ss 286 and 306 of the IR Act. Amendments were made in 1996 which repealed s 286 of the IR Act and amended s 306 and renamed that Act the Workplace Relations Act 1996 (Cth) ("WR Act"). As I described at [45] of Powell, those amendments introduced a number of new features to the right of entry regime provided by federal industrial law. The prior capacity of unions to authorise their own officers or employees to enter premises was replaced by a permit system through which a permit could be issued to an employee or officer of an organisation by the predecessor of the Fair Work Commission on application by that organisation. Only permit holders were authorised to exercise right of entry powers (ss 285B(1) and 285C(1)) provided by the WR Act. 42 When s 42A of the C&A Act was enacted, a provision was included for protecting the exercise of the right of entry power given by that Act from being hindered or obstructed. Thus s 42A(3) provided: (3) A person shall not hinder or obstruct an officer of an organisation in the exercise of a power conferred by this section. Penalty: One hundred dollars. 43 Similarly, the exercise of the rights of entry conferred by s 286 of the IR Act was protected from being hindered or obstructed. Section 306(a) of the IR Act relevantly provided: SECTION 306 OBSTRUCTING INSPECTION 306 A person shall not: (a) hinder or obstruct a person in the exercise of a power under subsection 134(1) or 286(1); … Penalty: (a) in the case of a natural person - $500 or imprisonment for 6 months, or both; and (b) in the case of a body corporate - $1,000. 44 Those provisions are the predecessors of s 502 of the FW Act which provides: 502 Person must not hinder or obstruct permit holder (1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part. Note: This subsection is a civil remedy provision (see Part 4-1). (2) To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder. (3) Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises. 45 What I consider may fairly be characterised as the counterpart of s 502 is s 500 of the FW Act. That provision, which the Commissioner alleges MacDonald and Long here contravened, is directed at conduct by the permit holder. Section 500 is earlier set out. 46 A prohibition of that kind was first introduced into federal industrial law by the WR Act in 1996. Section 285E(1) of the WR Act relevantly provided this: 285E Conduct in relation to sections 285B and 285C attracting civil penalties (1) A person exercising powers under section 285B or 285C must not intentionally hinder or obstruct any employer or employee. 47 It is apparent from the objects of Part 3-4 contained in s 480 that, in providing a regime for the exercise of rights of entry, the FW Act seeks to balance both the rights of organisations and those of the occupier: Australasian Meat Industry Employees' Union v Fair Work Australia (2012) 203 FCR 389 at [59] (Flick J, with whom Tracey J agreed); and Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15 at [15] (North, Flick and Bromberg JJ). That balance is in part reflected in the imposition of various conditions upon the exercise of a right of entry as I will shortly demonstrate. It is also reflected in the reciprocity apparent in ss 500 and 502 which collectively provide protection to a permit holder from being hindered and obstructed but also prohibit the permit holder from hindering or obstructing another person. In each case, the prohibition is only applicable where the permit holder is "exercising … rights in accordance with [Part 3-4]" and additionally, but only in relation to s 500, "seeking to exercise … rights in accordance with [Part 3-4]". 48 On the plain meaning of the provisions, it is only where the right conferred by Part 3-4 is exercised, that the exercise of that right receives the protection of s 502 and only where the right conferred by Part 3-4 is, or is sought to be, exercised that that exercise is regulated by and exposed to the sanction of s 500. 49 That conclusion is consistent with the Full Court's holding in Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46 (Buchanan, Reeves and Bromberg JJ). In that case, the Full Court at [61]-[64] held that (despite entry onto premises having been proved) a contravention of s 500 was not established in the absence of a finding that the alleged contraveners were exercising or seeking to exercise rights under Part 3-4. 50 The holding in Bragdon is consistent with longstanding authority relating to the predecessor provisions of s 502 of the FW Act. In Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd [1990] FCA 398; 34 IR 12 (Gray J), various defendants were charged with contravening s 306 of the IR Act for hindering or obstructing a person in the exercise of a right of entry and inspection conferred by s 286 of that Act. Section 286 conferred that right upon an officer of an organisation "authorised in writing by the secretary of the organisation". Gray J dismissed the charges on the basis that it had not been established that the officers in question had been properly authorised and thus that there had been an exercise of a power under s 286(1) (at 17, IR). The absence of a written authorisation was also fatal to the prosecution dismissal of alleged contraventions of s 306 in Media Entertainment and Arts Alliance v Advertiser Newspapers Limited [1994] IRCA 194; 59 IR 23 at 25 (IR) (Moore J). 51 Section 286 of the IR Act specified that the right conferred by that provision be exercised "for the purpose of ensuring the observance of an award". Gray J held in Australian Federation of Air Pilots v Australian Airlines Limited (1991) 28 FCR 360 (at 372) that in the absence of the requisite purpose there was no valid exercise of the right conferred by s 286 and that there could be no hindering or obstructing of that right in contravention of s 306 of the IR Act. That approach was followed by Moore J in Media Entertainment and Arts Alliance v Advertiser Newspapers Limited [1996] IRCA 524, who at 21 said this: Unless the power is being used for the purpose for which it is conferred, there can be no breach of s 306 … 52 It was not in contest that, in order to succeed, the Commissioner must establish that, in relation to each of their impugned entries, MacDonald and Long were, in the words of s 500, either "exercising, or seeking to exercise", rights in accordance with Part 3-4. The particular Part 3-4 right relied upon by the Commissioner is that conferred by s 484 found in Subdivision B of Division 2 of Part 3-4. Section 484 provides: 484 Entry to hold discussions A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers: (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. Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused. Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502). Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section. 53 In Subdivision C of Division 2 of Part 3-4 various requirements upon permit holders are specified. The right addressed by s 484 is referred to as entry under "Subdivision B". Subdivision C includes the following requirements or conditions upon the exercise of that right. Section 487 relevantly provides that before entering premises the permit holder must give the occupier of the premises and any affected employer an entry notice for the entry. The requirements of an entry notice for a s 484 entry are specified by ss 518(1) and (3). It is not necessary to here outline all of the requirements but those requirements include that the entry notice specify the premises that are proposed to be entered and the day of the proposed entry. Section 487(3) provides that an entry notice must be given during working hours at least 24 hours, but not more than 14 days, before the proposed entry. Section 489(2) relevantly provides that if the permit holder has entered premises under s 484, the permit holder must produce his or her entry permit for inspection by the occupier of the premises on request. Section 490 relevantly provides that the permit holder may exercise a right under s 484 only during working hours and may hold discussions only during meal times or other breaks and, further, that the permit holder may only enter the premises on a day specified in the entry notice. The location for the conduct of interviews for discussions is regulated by s 492 and s 492A provides that the permit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach the location for interviews and discussions. Section 491 requires the permit holder to comply with any reasonable request of the occupier to comply with an occupational health and safety requirement that applies to the premises and s 493 prohibits the permit holder from entering any part of premises that is used mainly for residential purposes. Section 521 empowers the making of regulations including in relation to the form of entry notices and the manner in which such notices are to be given. 54 It is necessary then to refer to the provisions of s 486 which deals with the consequence of a permit holder's failure to comply with the requirements of Subdivision C: 486 Permit holder must not contravene this Subdivision 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. 55 In relation to each of the impugned entries made by MacDonald and Long, it is not in contest that none of the Subdivision C requirements were satisfied. Nor is it in contest that each of Long and MacDonald were permit holders and that only a permit holder can exercise a s 484 right of entry. What is in contest is whether Long and MacDonald were exercising or seeking to exercise any s 484 rights because, unless they were, s 500 is not engaged and there can be no contravention of it. In relation to each entry made by MacDonald, for the Commissioner to succeed, I need to be satisfied that MacDonald was either exercising or, alternatively, seeking to exercise a s 484 right of entry. The same satisfaction is required in relation to the entries made by Long. Whilst there is some overlap, I will commence with the question of whether a s 484 right of entry was exercised before turning to consider whether MacDonald or Long were seeking to do so.

Were MacDonald and Long exercising a s 484 right of entry? 56 Despite it being common ground that the FW Act's requirements for an authorised entry were not met, the Commissioner contended that the Court should hold, in relation to each entry in question, that MacDonald or Long was "exercising … rights in accordance with [Part 3-4]". It was contended that the existence of the right in s 484 is provided for by the terms of that provision and that the right is conferred once the permit holder holds the purpose set out in s 484(a) to (c) ("prescribed purpose"). The Commissioner contended, that the exercise of a s 484 right of entry is not dependent upon compliance with ss 487 (giving entry notice) or 489 (producing authority documents). The Commissioner submitted that non-compliance can have consequences (eg, s 486 or perhaps trespass), however non-compliance does not mean that s 484 has not been engaged such that the restrictions on rights (such as those provided by s 500) do not apply to permit holders like MacDonald and Long. In summary, the Commissioner's contention is that a permit holder entering premises with the prescribed purpose is, for the purpose of s 500, a person "exercising … rights in accordance with [Part 3-4]". 57 To consider that contention, I need to commence with some general observations. First, s 500 is only engaged if a permit holder is exercising, or seeking to exercise, rights in accordance with Part 3-4. That is plain on the words of the provision and is supported by Full Court authority dealing with both s 500 and its immediate predecessor (s 767(1) of the WR Act). In Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 (Spender, Dowsett and Logan JJ), one issue considered was whether s 767(1) of the WR Act was contravened in relation to entries made under the predecessor of s 484 of the FW Act (s 760 of the WR Act). A central question was whether the permit holders concerned held the purpose prescribed by s 760 of holding discussions with any eligible employees. Dowsett J said this at [41] about the circumstances in which the predecessor to s 500 was engaged (emphasis added): In the present case, s 767(1) will be engaged only if a permit holder is exercising, or seeking to exercise rights under s 760. If s 760 is not engaged (because the permit holder lacks the prescribed purpose) then there are no relevant rights for the purposes of s 767(1). In other words, s 767(1) regulates the way in which a person exercises his or her right of entry pursuant to s 760 … 58 Spender J agreed with Dowsett J but at [7] added: In my view, if s 760 is not engaged because the relevant permit holder lacks the prescribed purpose, then s 767(1) has no operation, because it applies, relevantly, only to a permit holder "exercising, or seeking to exercise a right under s 760" of the WR Act. 59 In relation to s 500 of the FW Act, the Full Court in Bragdon observed at [45] that "[e]ngagement of the right of entry provisions … was required to be clearly established …". 60 Second, if s 500 is sought to be engaged on the basis that the permit holder is "exercising … rights" what is required to be established is the exercise of a right in law and in fact. In other words what must be established is the exercise of a right conferred by the FW Act and validly held rather than a purported exercise of a right which is thought to exist but does not. So much is apparent from the Full Court's consideration of the construction of s 500 in Bragdon and the holding that the approach of Moore J in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) (2009) 178 FCR 461 is to be preferred to that of Merkel J in Pine v Doyle (2005) 222 FCR 291: see Bragdon at [46]-[51] and [62]-[64]. As the Full Court observed in Bragdon at [50], a similar approach to that taken by Moore J in John Holland v CFMEU (NSW) may be seen in the analysis of Spender J at [12] and Dowsett J at [41] in CFMEU v John Holland. 61 Finally, and consistently with the observation just made, inherent to the idea that a person is exercising a right is that the person first holds the right and, second puts that right into effect. As I said in a not dissimilar context in Construction, Forestry, Mining, and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [178], to exercise a right is to give practical effect to the right or to put it into action, practice or use. Absent those characteristics, as a matter of ordinary language, it is not appropriate to describe a permit holder as "exercising … rights". 62 That brings me to consider at what point can it be said that the right of entry contemplated by s 484 is both held and put into action, practice or use. 63 Clearly, holding a permit is not of itself sufficient. The right of entry the subject of s 484 is a right to enter particular premises on a particular day as the phrase "the premises" in s 484(a) suggests as well as the accompanying notice requirements spelt out by ss 487 and 518 (see in particular s 518(1)(a) and (b)). Whilst holding a permit is a necessary pre-condition to the conferral of a right of entry to particular premises on a particular day, the mere holding of a permit does not confer a right of entry to those premises. 64 Another pre-condition to the conferral of the right contemplated by s 484, is that the permit holder hold the prescribed purpose. That requirement is confirmed by the holding by Spencer and Dowsett JJ in CFMEU v John Holland, where it was determined that the requisite purpose had to be subjectively held (Dowsett J at [39]-[40]; Spender J at [3], [7]-[9]). 65 On the Commissioner's case, with the satisfaction of those two pre-conditions, the right of entry contemplated by s 484 is being exercised. But as Greenwood J held on remittal from the orders made in CFMEU v John Holland (John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2011) 195 FCR 280) at [137] (emphasis added): Section 760 authorises entry to premises by a permit holder if the permit holder has the prescribed purpose (supported by evidence of that purpose) and each of the integers ((a), (b) and (c)) of s 763 are satisfied. The satisfaction of those integers coupled with the holding of the prescribed purpose engages a power to enter the relevant premises within the limits of the grant, namely, entry … 66 His Honour was there addressing the immediate predecessors of ss 484 and 487 of the FW Act (ss 760 and 763 WR Act). The three integers of s 763 that Greenwood J said had to be satisfied before "the power to enter is engaged", are each now reflected in the requirements of s 487. Pursuant to s 487(3) an entry notice must be given at least 24 hours, but not more than 14 days, before entry. Pursuant to s 487(2) an entry notice must comply with s 518 which, in turn, contains requirements equivalent to those made by (b) and (c) of the former s 763. 67 Section 763 of the WR Act also provided that the Division in which it was found did not authorise the entry to premises or subsequent conduct on the premises, unless each of the three integers there specified were satisfied. Although an omnibus provision, s 486 of the FW Act (set out at [54] above) is to the same effect. 68 Consistently with the holding made by Greenwood J, the CFMEU contended that compliance with s 487 (giving notice of entry) was a precondition to the availability of a s 484 right of entry. Whilst there are some differences in the notice requirements for the exercise of a right of entry for the purpose of holding discussions with employees to those that were required under the WR Act, those differences do not suggest any relevant point of distinction. It seems to me, that where the lawful exercise of a right of entry to enter particular premises on a particular day is predicated on the giving of prior notice of the particular entry, the giving of that notice may sensibly be regarded as a precondition to the conferral of the right of entry. That appears to me to be the basis upon which Greenwood J reached the conclusion that his Honour did. It is, I think, a basis which is well-founded. 69 This approach has been recently applied to the present right of entry regime under Part 3-4 of the FW Act by Charlesworth J in Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147. At [18]-[19], her Honour there said: [18] The combined effect of ss 484, 486 and 487 of the FW Act is that a permit holder who has not complied with the requirements of s 487 is not authorised to enter or remain on premises under s 484 of the FW Act, even if the permit holder enters the premises with the subjective purpose of holding discussions with workers specified in s 484. [19] It was submitted on behalf of the Director that s 487 of the FW Act conditions the manner of exercise of the right of entry conferred under s 484 of the FW Act. I do not agree. The express words of s 486 are to the effect that compliance with s 487 of the FW Act is a mandatory precondition to the statutory right to enter or remain on premises. A permit holder who does not comply with the requirements of s 487 of the FW Act is not authorised under s 484 of the FW Act to enter or remain on the premises at all. I respectfully agree with her Honour's construction of the Part as it relates to the interaction of ss 484, 486 and 487. 70 In any event, even if a s 484 right is conferred upon a permit holder prior to the giving of the entry notice required by s 487, I do not consider that the right may be said to be being exercised, that is being put into action, practice or use, without the giving of notice where the FW Act requires that prior notice be given. 71 Whether a failure to give a notice of entry means that a permit holder is not exercising the right of entry conferred by s 484 was a question that Flick J (with whom North and Besanko JJ agreed) in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77 at [33] found unnecessary to decide. However, at [31] Flick J rejected the contention made by the appellant in that case that Bragdon supported the conclusion that a permit holder who failed to give notice is not "exercising, or seeking to exercise" the s 484 right of entry. I respectfully accept that no direct support for that conclusion is found in Bragdon. However, it should be noted that in relation to what may fairly be regarded as another condition upon the exercise of the s 484 right, the requirement that the permit holder produce a permit, the Full Court in Bragdon characterised the failure to do so as operating "as a bar to the exercise of … [the] right" (at [40]). 72 To this point I have not addressed the phrase "in accordance with this Part" which follows "exercising, or seeking to exercise". I will do that shortly. As will be apparent, that phrase tends to support the conclusion that on the proper construction of s 500 a person may only be said to be "exercising" rights under Part 3-4 when doing so in compliance with the requirements made by that Part. 73 It is common ground that, in the case of each impugned entry, no notice of the entry was given by MacDonald or Long. Given that circumstance, and for the reasons just given, the Commissioner has failed to establish that MacDonald or Long were exercising a right of entry. Accordingly, the operation of s 500 was not engaged on that basis. It remains necessary to consider the alternative basis upon which s 500 may have been engaged.

Were MacDonald or Long seeking to exercise a right of entry? 74 The most relevant authority on this question is Bragdon. The facts of that case may be shortly stated. The appellant union organisers arrived at a worksite where, after consultation with a worker at the site, they directed workers engaged in a concrete pour to stop work because they considered that it was unsafe. Neither organiser held an entry permit permitting their entry under any NSW occupational health and safety ("OHS") law and both ignored repeated requests to produce permits which they did not have. At no point did the union organisers assert that they were exercising any rights under the FW Act or any NSW OHS law. The respondent (a predecessor of the applicant in this case) alleged contraventions of ss 497, 500 and 503 of the FW Act. The primary judge found that by their conduct, the appellants had purported to exercise a right of entry under the NSW OHS law and on that basis found contraventions of ss 497, 500 and 503 of the FW Act. On appeal, the Full Court held that s 500 is not infringed if a person purports to exercise, but does not in fact exercise or seek to exercise, a right under the FW Act. As the organisers were not permit-holders, and therefore had no right of entry to be exercised, and were not mistaken about their rights, there could be no infringement. 75 At [62] to [64], the Full Court said this: [62] It is at this point that the issues discussed above (commencing with Pine v Doyle) become particularly relevant. Pine v Doyle can be of no real assistance in understanding the operation of s 500 (although John Holland is) because the legislation did not then refer to "seeking to exercise" powers. [63] In the present case it was not necessary for the primary judge to be concerned with whether Messrs Bragdon and Kong were "purporting" to exercise a State or Territory OHS power (at least not so far as s 500 is concerned) because s 500 states its own criteria for engagement (ie exercise or seeking to exercise). In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293, White J explained the second element of s 500 (in a way ultimately consistent with the underlying approach in Pine v Doyle) as follows: "76 It is appropriate to keep in mind that the second element of a s 500 contravention requires proof that the permit holder was exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the FW Act. This means that the second element will be established if the permit holder was, as a matter of fact, exercising (relevantly) the s 484 right or seeking to exercise that right. Permit holders may seek to exercise the s 484 right even though they are mistaken in their belief that there are employees on the site at the time of the entry, or that there are on the site employees whose industrial interests the permit holder's organisation is entitled to represent, or that persons answering that description do wish to participate in discussions with them. Proof that each of the elements listed in s 484 pertained at the time of the official's entry is not required, at least in respect of an allegation that the permit holder was seeking to exercise rights under Pt 3-4." (Emphasis in original.) [64] Nevertheless, such a case must be proved. In our view, neither Mr Bragdon nor Mr Kong was exercising any State or Territory OHS right and nor were they "seeking to exercise" any such right. They did not have such a right and they did not proceed under any mistaken belief about their rights. 76 The first observation to be made about the construction of s 500 by the Full Court in Bragdon is that a distinction was there drawn between a person purporting to exercise rights and a person seeking to exercise rights. Only the latter is the concern of s 500. As the Full Court said, the primary judge should not have been concerned with whether the respondents were "purporting" to exercise rights "because s 500 states its own criteria of engagement (i.e. exercise or seeking to exercise)". 77 Whilst the purported exercise of a right may be objectively discerned from conduct which does not depend upon the actor's subjective intent, the word "seeking" connotes a subjectively held intent on the part of the actor to achieve a particular result. That is, as I perceive it, the nature of the distinction between "purporting to exercise" and "seeking to exercise" which the Full Court sought to draw. The Full Court's focus upon the subjectively held intent of the actor is reinforced in the quoted observation of White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 ("DFWBII v CFMEU 1") (at [76]) that "[p]ermit holders may seek to exercise the s 484 right even though they are mistaken in their belief that there are employees on the site at the time of the entry …", as well as the Full Court's ultimate conclusion that the respondents in that case "did not proceed under any mistaken belief about their rights". 78 I note that in McDermott (at [120]) Charlesworth J held that the word "seeking" was broad enough to encompass a circumstance where a permit holder subjectively intends to exercise a right that he or she objectively does not have. Her Honour seems, however, not to have drawn a distinction between a purported exercise and seeking to exercise of the kind that the Full Court in Bragdon emphasised. 79 Beyond that which the word "seeking" implies, there is force in the proposition that s 500 contemplates an intended but legally flawed exercise of a right. Section 500 is a civil penalty provision contravention of which requires an intentional act to hinder or obstruct. The apparent object of the provision is to discourage the abuse of a right conferred by Part 3-4 and thereby preserve the integrity of those rights. It is unlikely that s 500 was crafted so as to enable the imposition of a civil penalty upon a person who did not have the right, or who did not intend to exercise any right. Clear language may have been expected if the Parliament had intended s 500 to have that result. Additionally, the construction I prefer would not leave room for abuse by conduct that deliberately or recklessly gives the impression that a Part 3-4 right is being exercised where no subjective intent to exercise such a right existed. Conduct of that kind will likely be caught by s 503, a provision I will discuss in more detail below. 80 The construction I prefer also provides work for the phrase "seeking to exercise" consistent with the object of preserving the integrity of the rights made available under Part 3-4. If "seeking to exercise" rights in accordance with Part 3-4 had not been included as a basis for the engagement of s 500, a person who had intended to exercise a right and take the benefit of that right but who had failed to do so validly, could escape liability for any misbehaviour. The inclusion of "seeking to exercise" avoids the undesirable result that unintended or inadvertent non-compliance with the requirements for the exercise of a right would excuse a person who has gained the benefit of the right from the concomitant responsibilities which attach to it. That, seems to me, to be the field that "seeking to exercise" was intended to capture. 81 In the main, the Commissioner's submissions focused upon the subjective intentions of Long and MacDonald. So, for instance, the Commissioner relied on the failure of Long and MacDonald to give evidence of their purpose to contend that the Court should draw an inference adversely to them that they held the necessary purpose. I shall consider that submission in more detail below. However, the Commissioner's position was somewhat equivocal. When directly confronted with the question of whether "seeking to exercise" a right gave rise to a subjective test, Senior Counsel for the Commissioner said this: We would argue against that it's purely what they wanted or thought subjectively. It is [a] notion which is broader than exercising, which would include purported or attempted exercise. 82 Read in its context, it may be that all that Counsel there intended to say was that the subjective purpose of the relevant actor is to be objectively assessed. That is, that all of the circumstances and not simply the evidence of intent given by the actor, are to be taken into account in assessing that person's purpose. With that proposition I have no difficulty. But, insofar as the Commissioner submitted that "seeking to exercise" includes the "purported or attempted exercise" of a right conferred by Part 3-4, it seems to me, that that submission invites the error made by the primary judge and corrected on appeal by the Full Court in Bragdon. 83 The CFMEU contended the right of entry under Part 3-4 must exist before it may be said that a person is exercising or seeking to exercise the right. Thus, given that a right had not been conferred upon Long or MacDonald by Part 3-4 and in the absence of the required notice having been given by them it had not, neither Long or MacDonald were "seeking to exercise" a right of entry in accordance with Part 3-4. 84 I reject that construction. It gives no work for the words "seeking to exercise". Those words, not found in s 502 and not found in the legislative predecessors of s 500 before s 767 of the WR Act, were introduced for a purpose. That purpose, as I have explained, is to capture the intended but legally flawed exercise of a Part 3-4 right which "exercising" a Part 3-4 right does not capture. 85 However, the CFMEU's alternative submission is consistent with the construction I prefer. The CFMEU contended that a permit holder seeking to enter premises in flagrant disregard of ss 487, 489, 490 or any other provision of Part 3-4 could not be said to be "seeking to exercise, rights in accordance with this Part". The CFMEU contended that the facts demonstrated that to be so in this case. 86 To that evidentiary question I will return, but before leaving issues of construction and turning back to the evidence, I need to address three matters not adequately addressed so far. First, the CFMEU contended the phrase "in accordance with this Part" cannot be divorced from the phrase "exercising or seeking to exercise" and that when those words are read together what is required for s 500 to be engaged, is that the permit holder must be exercising or seeking to exercise a right in compliance with the requirements of Part 3-4. A contrary view was contended for by the Commissioner who submitted that the phrase "in accordance with this Part" did not mean in compliance with but had a broader meaning similar to "in relation to". Alternatively, it may be thought that the phrase "in accordance with" is merely pointing to the location in which the right is to be found, ie. Part 3-4. 87 In Ramsay v Sunbuild Pty Ltd (2014) 221 FCR 315, Reeves J considered the meaning of the phrase "in accordance with" as found in s 500. His Honour determined that it meant in conformity with. At [95] Reeves J said this: This construction is supported by the meaning that has ordinarily been given to the expression "in accordance with". In various, albeit context-specific situations, that expression has been held to mean: "in conformity with", or "consistently with": see Re La (1993) 41 FCR 151 at 158; Walker v Wilson (1991) 172 CLR 195 at 208; Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 at [251]; HJ Heinz Company Australia Ltd v Kotzman (2009) 31 VAR 206 at [44]; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322 at [52]. This is to be contrasted with an expression such as "under this Part", which has been held to mean (in the context of administrative law): "in pursuance of", or "under the authority of": see Evans v Friemann (1981) 53 FLR 229 at 238; 35 ALR 428 at 436; Australian National University v Burns (1982) 64 FLR 166 at 173; 43 ALR 25 at 31; Sellars v Woods (1982) 69 FLR 105 at 112; 45 ALR 113 at 121; and Chittick v Ackland (1984) 1 FCR 254 at 263. 88 That "in accordance with" means in conformity with, supports the conclusions I have reached as to when s 500 is engaged. However, I would have reached the same conclusions had I been persuaded that the intent of the phrase "in accordance with this Part" was merely locational. 89 Second, the Commissioner urged that a broad approach be taken to the constructional issues raised by the question of when s 500 is engaged. The Commissioner contended that "[t]o construe the legislative scheme otherwise is to allow permit holders to simply step outside the framework established by Part 3-4 by failing to comply with a requirement (such as in ss 487 or 489) and, thereby, deliberately avoid the operation of the FW Act". 90 That submission seems predicated on an erroneous assumption that the "framework established by Part 3-4" is an all-encompassing code for regulating all of the ways in which a union official may enter onto premises. As I said in Powell at [87]-[88], by reference to the Explanatory Memorandum to the FW Act and also s 194(f) of the FW Act as construed by North, McKerracher and Reeves JJ in Australian Industry Group v Fair Work Australia (2012) 205 FCR 339 at [83]-[84], that is not so. That observation was endorsed by the Full Court in CFMEU v ABCC at [38]. And, as Bragdon makes clear (including at [44]), the entries onto premises regulated by Part 3-4 are those that fall within the arrangements created by Part 3-4 and not those entries which are "outside those legal arrangements". If union officials, including permit holders, step outside those arrangements and behave unlawfully other means of regulating unlawfulness are available (Bragdon at [44]) and "regardless of the inappropriate nature of [the] conduct", where the right of entry provisions in Part 3-4 are not engaged, pursuance of that conduct under the FW Act will result in pursuance "under an inappropriate statutory regime" (Bragdon at [45]). 91 It needs to be appreciated that the primary purpose of Part 3-4 is to provide for non-consensual entry and inspection by union officials that would otherwise be unlawful: MUA v FWC at [15]. If union officials choose to disavow their capacity to take the benefit of entering lawfully under Part 3-4, it is unsurprising that Parliament should intend that their conduct falls to be determined by those laws of general application (including the criminal law) that regulate unlawful entry. Consistently with Bragdon that, in my view, is precisely what was intended. 92 Before I turn back to consider the evidence, the Commissioner also made a submission about the standard of proof to be applied. By reference to Setka v Gregor (No 2) (2011) 195 FCR 203, the Commissioner contended that proof of whether a permit holder was exercising or seeking to exercise a Part 3-4 right was not a grave matter which required a Briginshaw approach to the issue of the Court's reasonable satisfaction. 93 In Setka, Lander, Tracey and Yates JJ, in relation to the standard of proof to be applied to an alleged contravention of s 767 of the WR Act, said (at [26]): Whilst the case against the appellant was for a contravention of s 767 of the Act, the issue for determination was whether the appellant had been exercising or seeking to exercise rights under the OHS Act at the time that he said what he was found to have said. That issue, like the respondent's case which had to be proved on the balance of probability (s 140) could hardly be said to be grave. 94 In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J (at 362) observed: But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 95 Section 140 of the Evidence Act 1995 (Cth) provides: Civil proceedings - standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 96 It has often been said that the standard of proof referred to in s 140(2) is a re-statement of the standard of proof referred to by Dixon J in Briginshaw: Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited (2010) 188 FCR 221 at 225 (Logan J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63] (Logan, Bromberg and Katzmann JJ); Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [19] (Flick J). Indeed, in Setka, upon which the Commissioner relied, Lander, Tracey and Yates JJ at [24] described s 140(2) as "codifying some of the cautionary observations made by Dixon J in Briginshaw". 97 It is clear therefore that when making findings of fact, due regard must be had, as s 140(2)(c) requires, to "the gravity of the matters alleged". As Flick J in Hall said at [18] by reference to the authorities there cited, allegations of contraventions of civil remedy provisions of the Fair Work Act are properly to be regarded as "quasi-criminal". As Flick J went on to say at [20], after referring to the observations of Dixon J in Briginshaw, "[f]indings as to a contravention of the Fair Work Act are not findings lightly to be made". In Bragdon at [45] the Full Court said this (emphasis added): Engagement of the right of entry provisions in the FW Act or the NSW WHS Act, as they are civil remedy provisions, was required to be clearly established against Messrs Bragdon and Kong, regardless of the inappropriate nature of their conduct … 98 Whilst I appreciate that some support for the Commissioner's contention may be found in the final sentence of [26] of Setka, I do not consider that, read in context, the observations of the Full Court in Setka should be seen as in conflict with those just cited from Bragdon. Indeed, [25] of Setka reveals that it was a case in which the engagement of the right of entry provisions under the WR Act was clearly established. In my view and taking account of "the gravity of the consequences flowing from a particular finding", reasonable satisfaction of a contravention of s 500 should not be based on "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw. In particular, that MacDonald and Long were seeking to exercise a Part 3-4 right of entry is required to be clearly established. 99 The Commissioner also relied on the principle in Jones v Dunkel (1959) 101 CLR 298. In Jones v Dunkel, Kitto J said (at 308): … any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. 100 The application of the rule in Jones v Dunkel to civil penalty provisions under the FW Act was recently considered by the Full Court in CFMEU v ABCC. By reference to Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 at [459]-[463] (Austin J) and Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1589 at [100]-[102] (Gilmour J), Flick J (with whom North J and Besanko J agreed) appeared to accept (at [54]) that Jones v Dunkel could be invoked in proceedings of a quasi-criminal nature and where civil penalties may be imposed. 101 The respondents did not lead any evidence, and neither MacDonald nor Long appeared as witnesses. On that basis, I have been asked by the Commissioner to make Jones v Dunkel inferences favourable to its case, including that the evidence of MacDonald and Long would not have assisted their own cases. 102 Most significantly, in relation to the allegation that MacDonald and Long were "seeking to exercise" rights of entry, the Commissioner contended that if it were established that MacDonald and Long made the impugned entries while holding a prescribed purpose, then the Court could infer, on the basis of Jones v Dunkel, that MacDonald and Long were seeking to exercise rights in accordance with the FW Act. I address the submission squarely below, but it is helpful to set out here, generally, my understanding that the rule does not of itself permit the drawing of inferences where there is no other basis in the evidence to do so. Rather, it holds that where there are grounds in the evidence for drawing an inference, it may be more confidently drawn in the circumstances contemplated by the rule.

Application of principles to the evidence 103 I turn then to consider the evidence to determine whether, in relation to any of the impugned entries, MacDonald or Long were seeking to exercise a right of entry in accordance with Part 3-4 of the FW Act. As I have explained, the test is subjective and requires a consideration of all of the circumstances relevant to the entries made. In the absence of direct evidence from MacDonald or Long as to what they were seeking to do, it is only the surrounding circumstances and the inferences available from them that may be assessed. Whilst each impugned entry needs to be considered, the relevant circumstances are not confined to each particular entry. The relevant context begins with the manner with which entries onto Qanstruct's sites had been dealt prior to the impugned entries. The circumstances of each impugned entry will also provide relevant background to each subsequent impugned entry. The impugned entries are closely related in time as well as the sites and the individuals involved. So far as any particular theme or pattern emerges, it must also be taken into account. 104 I shall begin with some circumstances common to all of the impugned entries. First, both MacDonald and Long were each at all relevant times a holder of an entry permit issued under s 512 of the FW Act. Evidence of their applications for an entry permit included declarations made by them that they had received training in the rights and responsibilities of a permit holder. For other purposes, I was encouraged by the Commissioner to accept, and I do accept for all purposes, that MacDonald and Long were aware of the statutory requirements under Part 3-4 of FW Act, at least insofar as the Part required that notice of entry be given and that entry permits be shown on request. 105 Second, both MacDonald and Long were at all relevant times employed organisers of the CFMEU, acting in that capacity. Nothing in the evidence suggests that they were on a frolic of their own. The CFMEU has admitted that their conduct was its conduct. The manner in which each entered, the attitudes they conveyed by their conduct and what they said was largely consistent. It is probable that their approach to entry was reflective of instructions provided by their employer. Confirmation of an underlying CFMEU policy in the approach to be taken to entries by CFMEU organisers (either generally or at least in relation to Qanstruct over the relevant period) is supported by the following evidence in relation to which I have emphasised the most pertinent remarks. 106 On the first entry, I have found that MacDonald, when challenged in relation to notice and his permit, said, "We don't do that. I don't need one of those. Have you got … something to hide?" In relation to the second entry, I have found that MacDonald, when told by Burns that he would be allowed on site if he satisfied the Part 3-4 requirements, said, "You know we don't do that ... If I want to ... talk to the guys I will". In relation to the third entry, I have found that when pressed to produce his permit Long said, "We're not going down that path, are we? … Even if I've got a permit, that's our policy that we don't show it". On the fifth entry, I have accepted that, in front of a meeting room full of workers, in response to the crane driver's query why he didn't just comply with the requirements of the FW Act, Long said, "we're not intimidated by builders". I consider these comments to be expressions of defiance, made in contemplation of or in furtherance of an underlying policy. I will return to that issue later. 107 Third, I am satisfied that the conduct of Long and MacDonald on each of the impugned entries was deliberate, in the sense that it was both knowing and intentional. The evidence does not suggest inadvertent conduct. To the contrary, the evidence suggests an intentional defiance of and a flagrant disregard for Qanstruct's demands that entry only be effected if notice is given and an entry permit is produced on request. I note in particular in that respect that both MacDonald and Long were told separately and together on more than one occasion that there would be no issue taken with them entering Qanstruct sites if they provided the requisite notice and showed their permits. There was no evidence to suggest that there was any urgency associated with their desire to enter. Indeed the evidence suggested that the Laverton allowance, the subject of a number of discussions with workers held by MacDonald, related to a payment of a couple of dollars per hour. On this basis, urgency may be excluded as the motivation for the conduct. Even inconvenience may be negated as a factor which actuated the conduct, there being no suggestion that there were practical impediments to compliance with the requirement to give notice and to show an entry permit on request. The requirement of a person who holds a permit to produce that permit is hardly onerous. 108 Lastly, in the months prior to the impugned entries and at least on two occasions each, MacDonald and Long had been allowed to enter Qanstruct sites for the purpose of holding discussion with workers without providing notice or otherwise complying with the requirements under Part 3-4. I would infer that on each of those occasions, MacDonald and Long entered Qanstruct sites under licence. 109 Based on that prior experience, I would infer when MacDonald arrived at the Laverton North Premises on 20 February 2014 (the first entry) he did so with the expectation that he would be permitted to enter under licence as had been his previous experience. MacDonald did not arrive with any intent to exercise a right of entry under Part 3-4. MacDonald's purpose for entry was that he wanted to speak to the workers. When asked if he had given 24 hours' notice and if he had his permit, MacDonald responded, "We don't do that. I don't need one of those". Despite being told that there would be no issue taken to MacDonald entering the site if he followed proper procedure under the FW Act, and that if he entered it would be trespassing and the police would be called, MacDonald nevertheless proceeded to enter the site. At no time did MacDonald say or suggest that he had a right to enter under the FW Act or that he was seeking to exercise any such right. Given his training and knowledge of the relevant requirements, I would infer that MacDonald knew that having given no prior notice, and having failed to produce his entry permit on request, he had no right of entry under the FW Act. It follows that MacDonald must have understood that his entry was unlawful. He was told that he was entering as a trespasser and did not dispute that allegation. When told that the police were on their way, MacDonald said that in those circumstances he would not stick around. 110 Nothing MacDonald said or did is characteristic of a person who believed he held a right to enter conferred by the FW Act. It follows from my non-satisfaction that MacDonald believed that he had a right of entry conferred by the FW Act, that MacDonald could not have been seeking to exercise such a right. That MacDonald held an entry permit is of no assistance to the Commissioner as the evidence does not permit an inference that MacDonald was proceeding on the understanding that merely having a permit gave him a right to enter conferred by the FW Act. 111 In coming to that view I accept that MacDonald's purpose in entering the site was to hold discussions with employees. Such a purpose might be held by a union official in a variety of circumstances. For instance, a union official could hold such a purpose when entering under licence, as a trespasser, under a right of entry conferred by Part 3-4 of the FW Act or alternatively a right of entry conferred by the relevant State or Territory OHS Act. That such a person proposes to hold discussions with workers does not of itself indicate which of the alternative means of entry are intended to be exercised. In this case, there is nothing to support the inference that the purpose of holding discussions with employees was intended to be effectuated by MacDonald seeking to exercise rights of entry under Part 3-4 of the FW Act. The Commissioner has not established that MacDonald was "seeking to exercise rights in accordance with [Part3-4 of the FW Act]" when he made the first entry. 112 The second entry occurred a day later at the same premises. Just as on the first occasion, no prior notice of entry was given nor was any entry permit produced on request. Again MacDonald was told that he would be allowed on site if he complied with the requirements to provide 24 hours' notice and to produce his permit. In response, MacDonald said, "You know we don't do that … If I want to … talk to the guys I will". Again, prior to entering the site, MacDonald was warned that if he walked on the construction site the police would be called. On receiving a second warning to that effect, MacDonald returned to the site office. Whilst waiting outside the site office, MacDonald called over a worker and held a discussion outside the site office for a couple of minutes. 113 As I have said, the site office was located in a fenced off compound separate from the area where building work was being performed. It was the place through which visitors needed to arrive and it may be inferred visitors did so under an implied licence given by Qanstruct. However, it may be that the discussions that MacDonald held inside the site office compound went beyond the conditions attached to any such licence. 114 In any event, whether MacDonald entered the site office compound under licence or not, nothing he did suggested an intention to seek to exercise a right of entry in accordance with Part 3-4 of the Act. Despite his training and knowledge of his obligations, no notice was provided and no permit was produced. MacDonald's comment that "we don't do that" is more indicative of MacDonald's rejection of the appropriateness of the right of entry process than any indication that he was seeking to observe that process. MacDonald did not contest the warning given to him that his entry would be unlawful. He did not assert any lawful basis for entering. As for the first entry, the evidence does not sustain an inference that MacDonald held any believe that he had a right of entry conferred upon him by the FW Act. Nothing MacDonald did was indicative of an intent to exercise any right conferred by that Act. Whilst I would accept that MacDonald held the purpose of wanting to speak to workers, I am not satisfied that that purpose was intended to be effectuated by the exercise of a right of entry under Part 3-4. That MacDonald held an entry permit is not, in the circumstances, a telling consideration. The Commissioner has not established that MacDonald was "seeking to exercise rights in accordance with [Part 3-4 of the FW Act]" when he made the second entry. 115 The third entry was the first alleged against Long. That entry occurred at the Cheltenham Premises six days after the second impugned entry. When pressed to show his permit, Long said "We're not going down that path, are we? … Even if I've got a permit, that's our policy that we don't show it". Despite being warned that if he went on site the police would be called, Long walked onto the construction site and spoke to a group of workers. Long did not contest the warning with any assertion that he held a right to enter. When Long returned to the site compound he was told that the police had been called. He responded angrily and made a threat that the CFMEU would "have 500 blokes on site here tomorrow". A short time later the police attended the site and spoke to Long. At the conclusion of some half an hour talking with the police, Long exited the premises. 116 Long did not give any notice of his entry. He may have come to the site expecting that he would be permitted to enter under licence as he had been on prior occasions but I could not confidently make that finding in circumstances where Long may have been aware of MacDonald's recent experiences with Qanstruct, and that Qanstruct were taking a different approach to union right of entry than they had experienced in the past. His reaction was quite confrontational: he made threats and it appears that he was prepared to wait for the police to arrive in what I would infer to be a deliberate display of defiance made in an attempt to demonstrate to Qanstruct that he was not intimidated by the police being called. Long never asserted that he had a lawful right to enter and his conduct was indicative of a person who knew he had no such right. I could not be satisfied that Long held a belief that he was entitled to enter the site because of a right to do so conferred upon him by the FW Act. 117 Nothing that Long did was suggestive of Long seeking to exercise a right of entry in accordance with Part 3-4 of the FW Act. To the contrary, he, in effect, said that he was not seeking to do so in line with the CFMEU's "policy" to not show an entry permit even when the official has one. Whilst I accept that Long entered for the purpose of speaking with workers, for the same reason as explained in relation to MacDonald, the holding of that purpose does not, in the circumstances, necessarily suggest that Long was seeking to effectuate his objective by exercising a right of entry under Part 3-4. The fact that he held an entry permit is not, in the circumstances, of significant weight. The Commissioner has failed to establish that Long was "seeking to exercise rights in accordance with [Part 3-4 of the FW Act]" when the third entry was made. 118 The fourth entry occurred about one week later at the Cheltenham Premises. Both MacDonald and Long entered. Neither gave any notice of their entry or produced their entry permit on request. They were told that they would not be allowed on site without a "federal permit" and giving 24 hours' notice but if those matters were addressed there would be no issue with them going on site. To that Long responded with the threat, "You're on the top of our hit list". Long and MacDonald then went onto the site. They spoke to workers and then returned to their vehicle parked at the centre of the construction site. They were spoken to by police when the police arrived and then departed. 119 I would infer that at least by this time (and probably earlier), part of MacDonald and Long's purpose in entering Qanstruct sites was to challenge, defy and break Qanstruct's new right of entry policy. As I have earlier said, the evidence showed that in February 2014, Qanstruct developed a right of entry policy which required its site managers to insist upon union officials' compliance with ss 487 and 489 of the FW Act in order to enter the site. The effect of the change in policy was to require site managers to cease the ad hoc practice of inviting union officials onto sites under licence in the absence of notice and sighting officials' entry permits. Whilst I do not rely upon it, I note that the inference I draw is shared by Percy who said under cross examination, "We felt there was a bit of testing of our policy, because after this date [5 March 2014] there was never another issue". 120 That MacDonald and Long were involved in an orchestrated attempt to break the new policy is entirely inconsistent with any idea that they were seeking to exercise a right of entry under Part 3-4. In any event, consistently with each of the prior entries, nothing that MacDonald or Long did was indicative of either official holding a belief that he was entitled to enter under a right conferred by the FW Act and was seeking to exercise such a right. At no time did they assert that they held any right. Indeed, everything they did seemed intended to make it clear to Qanstruct that they would enter irrespective of whether they were lawfully entitled to or not. Whilst I accept that they entered in order to speak to workers, for the reasons already given, the holding of that objective is not, in the circumstances, a factor that materially assists the Commissioner's case. Nor, in the circumstances, does the fact that each held a permit. These entries were knowingly made by each man in the absence of any right to do so and in flagrant defiance of Qanstruct's demands. The Commissioner has failed to establish that Long or MacDonald were "seeking to exercise rights in accordance with [Part 3-4 of the FW Act]" when they made the fourth entry. 121 The fifth entry occurred on the same day as the fourth but at the Laverton North Premises. Both MacDonald and Long entered without giving any notice of entry and did not produce their entry permits on request. That both were visiting Qanstruct sites together on the one day supports the inference I have drawn that they were involved in an orchestrated attempt to break Qanstruct's new right of entry policy. Long and MacDonald entered the construction site and began speaking to employees and handing out flyers. When confronted and asked to show his permit and to give 24 hours' notice, Long was unresponsive and continued his activities. When confronted a second time and warned that the police would be called, Long expressed his intention to remain on the site. He made no assertion that he was entitled to do so. Long stayed on the site and with MacDonald called for a meeting with workers. Burns told the gathering of workers (including Long and MacDonald) that the police had been called and that their arrival was imminent. Burns said to the workers that in entering the site in the circumstances that they had, Long and MacDonald were no different to persons trespassing at their homes. Again, Burns explained that Qanstruct would have no difficulty allowing MacDonald and Long entry if they complied with the terms of the FW Act. In response to one of the workers asking MacDonald and Long why they don't give notice and come back the next day, MacDonald said, "we're not intimated by builders". No assertion was made of any legal entitlement to enter nor was it suggested that notice was unnecessary for any entitlement under the FW Act to accrue. Nor did either MacDonald or Long deny the allegation made by Burns to the workers that they were trespassers. On departing the site, Long said, "We're not sticking around for the police. We're going to go. We will see you back here tomorrow". 122 At no time during the fifth entry did Long or MacDonald assert that they were exercising any right to enter. When confronted about their lack of any such right, neither man sought to challenge that conclusion and, in fact, by their behaviour, conceded it to be correct. Both their behaviour and their responses are indicative of their knowledge that they had no right to enter Qanstruct premises and consistent with my conclusion that the impugned entries were made in a deliberate attempt to defy Qanstruct and enter without regard to any of Qanstructs requirements or those of the FW Act. Again, whilst I accept that Long and MacDonald entered with the objective of holding discussions with employees and that each held a permit, in the circumstances, that is of little assistance to the Commissioner's case. The Commissioner has not established that Long or MacDonald were "seeking to exercise rights in accordance with [Part 3-4 of the FW Act]" when they made the fifth entry. 123 The Commissioner asked me to rule out the possibility that MacDonald or Long intended to commit trespass. It was said that I could not sensibly draw an inference that the men intended to commit trespass, and that that was particularly so having regard to Jones v Dunkel principles. In support of the contention, the Commissioner relied upon the observations of White J, who said in DFWBII v CFMEU 1 (at [84]) in relation to whether permit-holders held the prescribed purpose: The alternatives, namely, that [the permit-holders] were entering simply out of curiosity, or in the manner of persons committing a criminal trespass, are so improbable as to be able to be disregarded. 124 If the position had been far more ambiguous and the evidence far less supportive of the conclusion that MacDonald and Long were knowingly behaving unlawfully, the presumption which underpins the observations made by White J may have had application. But the evidence does not present a difficult choice between knowingly unlawful conduct on the one hand and intended lawful conduct on the other. In those circumstances, neither a presumption that people ordinarily seek to be law abiding nor the rule in Jones v Dunkel is of any assistance. 125 The Commissioner also contended that MacDonald and Long intended to exercise rights of entry under Part 3-4 not in compliance with the terms of the Part, but in the manner in which they wanted to exercise them. That is, that they were asserting an entitlement to enter for the s 484 purpose without giving notice or producing their permits in accordance with ss 487 and 489. I do not accept the submission. The submission suffers from its inherent contradiction that a person can be seeking to exercise a right in accordance with Part 3-4 by knowingly doing so not in accordance with Part 3-4. To put that another way, it is paradoxical to contend that a person can be knowingly seeking to exercise a conditional right - that is, a right whose existence is contingent on the satisfaction of conditions - in defiance of those same conditions. A person seeking to exercise a conditional right in such a way could not be said to be seeking to exercise that right at all. In any event, the evidence does not establish the Commissioner's contention but indicates that MacDonald and Long were aware that to exercise a Part 3-4 right of entry they needed to give notice and produce a permit when requested and had no intent to exercise a Part 3-4 right at all. The relevant evidence is further addressed in my consideration of the alleged contraventions of s 503. 126 For those reasons, s 500 was not engaged and the Commissioner's claims that MacDonald and Long contravened s 500 of the FW Act must be dismissed.

Did MacDonald and Long "act in an improper manner" 127 If I am wrong, and MacDonald and Long were "seeking to exercise rights" in accordance with Part 3-4 of the FW Act, for the Commissioner to succeed on the allegations that MacDonald and Long contravened s 500, the Commissioner must establish that their behaviour amounted to acting "in an improper manner". 128 The Commissioner contended that a failure to give adequate notice and a refusal to produce a permit for inspection, of itself, amounted to acting "in an improper manner". The key point of the submission was that impropriety may consist in the doing of an act which a person knows or ought to know he or she has no authority to do. 129 It is convenient that I set out the terms of s 500 again here: 500 Permit holder must not hinder or obstruct A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner. 130 For the purposes of s 500, whether conduct is improper or not is to be assessed objectively: McDermott at [112]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 ("DFWBII v CFMEU 2") at [106] (Mansfield J); DFWBII v CFMEU 1 at [28]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 ("DFWBII v CFMEU 3") at [24] (White J) . Moreover the qualification in the section that conduct be intentional applies only to "hinder or obstruct" and not to "otherwise act in an improper manner": Setka at [35]-[36]; Darlaston v Parker (2010) 189 FCR 1 at [54] (Flick J); DFWBII v CFMEU 1 at [28]; DFWBII v CFMEU 2 at [106]; DFWBII v CFMEU 3 at [24]. 131 The prohibition in s 500 upon a permit holder hindering, or obstructing or otherwise acting in an improper manner seems to me to be directed at giving effect to the concern identified by the object of Part 3-4 contained in s 480(c) of protecting "the right of occupiers of premises and employers to go about their business without undue inconvenience". The concern there expressed is with the practical impact of union entry upon the capacity of occupiers and others on the premises to go about their usual business. A concern with work being disrupted is also evinced by the terms of ss 490-492A which impose certain restrictions on holding discussions with employees, including that discussions only be held during meal times or other breaks (s 490(2)), that the discussions be held in an agreed room or area (s 492) and that the permit holder comply with reasonable requests to take a particular route to such a room or area (s 492A). 132 The facts established by the Commissioner support the conclusion that MacDonald and Long did cause practical disruption or inconvenience to Qanstruct in making each of the impugned entries. I am prepared to accept that the following behaviour, while on site, had the effect of causing a practical detriment to the work on site: In relation to the first entry, MacDonald interrupted the work of the workers with whom he held discussions on site, including a group of concreters and a civil earth worker. In relation to the second entry, MacDonald interrupted the work of the concreting manager briefly to hold a discussion. Moreover, his comment to Burns that he could have shut down the concrete pour is open to being interpreted as threatening behaviour and for that reason caused a practical detriment. In relation to the third entry, Long interrupted the work of a large group of concreters for the purposes of holding discussions. Further, his comment to Sherlock that the CFMEU would have "500 blokes on site" was threatening and interfered with the quiet enjoyment of the premises and for that reason caused a practical detriment or disruption. I consider the nature of the threat below in more detail in relation to the Commissioner's allegation under s 340 of the FW Act. In relation to the fourth entry, MacDonald and Long interrupted the work of a worker on site to hold a discussion and Long made a threatening comment directed at Sherlock that he or Qanstruct was at the top of the CFMEU's "hit list", each of which caused practical disruption and detriment. In relation to the fifth entry, Long and MacDonald each held discussions with different workers with the result of interrupting them and causing a practical disruption to their work. That disruption was especially stark in circumstances where Long approached the crane through the exclusion zone, forcing the crane driver to stop operating. 133 The difficulty for the Commissioner in respect of those matters upon which he sought to rely is that none were pleaded as instances of intentional hindrance or obstruction or of MacDonald or Long acting "in an improper manner". 134 The precision with which causes of action must be pleaded in matters attracting civil penalties was addressed by a Full Court of this Court (Logan, Bromberg and Katzmann JJ) in CFMEU v BHP Coal. At [63]-[65] the Full Court said as follows (emphasis added): [63] Even so, a civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less. Furthermore, although the civil standard of proof applies, where (as here) the resolution of an issue exposes a respondent to a penalty, satisfaction on the balance of probabilities is not achieved by "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The Evidence Act 1995 (Cth) now requires that the court take into account the nature of the cause of action in deciding whether it is satisfied that a party's case has been proved on the balance of probabilities: Evidence Act 1995 (Cth), s 140(2)(a) ("Evidence Act"). [64] Litigation is not a free for all. The overarching purpose of the civil practice and procedure provisions that apply in this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth) ("FCA Act"), s 37M). It would not be just to decide a case on a different basis than the way it was conducted. Nor would it be just to permit an applicant to change the nature of its case after the evidence has closed and its weaknesses pointed out, at least not without a formal application and the grant of leave, on terms if necessary. [65] The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met. Nevertheless, where an applicant's pleading is ambiguous but a respondent has nonetheless meaningfully engaged with it in its defence, that engagement and the manner in which an applicant's case is consequentially opened and the trial conducted and defended can and ought to be considered in deciding whether a respondent has suffered any procedural unfairness. That is so even if there has been no formal application to amend the pleading. The obligations imposed on the Court and the parties by Pt VB of the FCA Act do not lead to any different conclusion. 135 The Commissioner's pleading of "improper conduct" was the subject of some discussion in the course of closing submissions. The Commissioner contended that the cascading effect of the cross-referencing found at [53]-[73] of the ASOC had the effect of incorporating all matters pleaded in the earlier paragraphs there referred to into the pleading of "improper conduct" including the particulars there given. Whilst I offered both parties an opportunity to address me further on the pleading by way of written submissions following the conclusion of the trial, in lieu thereof the Commissioner made further submissions orally, later in the trial. The gravamen of that submission was that the case was run on the basis that the improper conduct included interruption to workers - that it was "all in the ring". I reject the Commissioner's contention. A number of matters referred to above were not pleaded at all. Insofar as some of those matters were referred to in the ASOC, they were relied on for other purposes and the way in which they were pleaded or addressed in the course of the trial would not have given the respondents a reasonable opportunity to appreciate that the case made against them included allegations that those matters were being relied upon to establish "improper conduct" for the purpose of establishing a contravention of s 500. 136 The Commissioner did allege with sufficient clarity that the failures of MacDonald and Long to provide notice of each entry and to show their entry permits on request as required by Part 3-4 was relied upon as constituting "improper conduct" for the alleged contraventions of s 500. The Commissioner contended that to not provide the requisite notice and to fail to produce an entry permit when requested was acting in an "improper manner" within the meaning of s 500. The Commissioner did not plead any practical inconvenience or prejudice caused to Qanstruct by the lack of notice or failure to show the permits. His pleaded case was that the mere failure to comply with the requirements of s 487 (relating to notice) and s 489 (relating to the production of a permit) was to act in an "improper manner" within the meaning of s 500. 137 It may be accepted that to contravene a legislative requirement is to act improperly. However, the phrase in question must be construed by reference to its text, the context in which it appears and in the context of the FW Act as a whole: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). The phrase appears immediately after the prohibition in s 500 on "hinder[ing] or obstruct[ing] any person" and is joined to that phrase by the conjunction "or otherwise". 138 I respectfully agree with the observations of Lander, Tracey and Yates JJ at [30] of Setka who said of the predecessor to s 500 that the inclusion of "otherwise act in an improper manner" was intended to broaden the scope of the provision beyond acts of hindering or obstructing. As their Honours identified by reference to the Shorter Oxford English Dictionary, the word "otherwise" means "in another way, or in other ways; by other means; differently". 139 Whilst "improper" acts beyond hindrance or obstruction are contemplated by s 500, it cannot have been intended that any or all conduct that may be improper within the ordinary meaning of that word should be caught by the provision. A union official improperly abusing his wife on the telephone whilst exercising a right of entry would be acting improperly but not within the meaning of s 500. Nor, without more, would be one such official abusing another. A limitation must have been intended, founded in the purpose of the provision and the mischief it is seeking to address. The concern expressed by the object in s 480(c) identifies, at least in broad terms, the interests which are sought to be protected and the mischief that s 500 seeks to address. It is the right of occupiers of the premises to go about their business without undue inconvenience. 140 To my mind, for an act to be "improper" within the meaning of s 500 the act in question must have a sufficient nexus to the interests that s 500 seeks to protect. In other words, the act must diminish or prejudicially affect those interests. The failure to give requisite notice and to produce an entry permit may or may not be prejudicial. It may cause undue inconvenience or it may cause some other prejudice to the ability of the occupier or others on the premises to go about their usual business. Whether that is so or not will depend on the circumstances of the case. The Commissioner did not plead any such prejudice. 141 In the absence of contrary authority, I would not have accepted that a failure to abide by the requirements of either ss 487 or 489 which had no prejudicial impact or effect upon the occupier or other persons on the premises, is an act done "in an improper manner" within the meaning of s 500. My view is supported by the observation that Part 3-4 addresses conduct of that kind by other means. Non-compliance will result in the loss of the right to enter: s 486. 142 However, Charlesworth J observed in McDermott at [119] that White J in DFWBII v CFMEU 3 at [173]-[174] held that the failure to provide notice in accordance with s 487 of the FW Act "constituted acting in an improper manner". At [120] her Honour followed the holding she regarded White J to have made. 143 It is not crystal clear, however, that such a finding was made by White J. In DFWBII v CFMEU 3 at [174], White J rejected a submission that, because s 487 is not itself a civil remedy provision, a failure to abide by the notice requirement made by that provision could not amount to "improper" conduct. However, his Honour's acceptance of the contrary submission - that a contravention of s 487 would be improper - was qualified. At [174], his Honour said (emphasis added): I am not able to identify any reason why an entry on to premises without there having been antecedent compliance with s 487 may not, in conjunction with other circumstances, amount to improper conduct for the purposes of s 500. 144 White J proceeded to consider the effect of that unauthorised entry together with the surrounding conduct, ultimately finding the unauthorised entry, in all the circumstances, to amount to improper conduct. 145 Nevertheless, I accept that White J may be regarded as having held that a mere failure to abide by the notice requirements of s 487 is sufficient to amount to improper conduct. His Honour may have also come to that view in DFWBII v CFMEU 1 at [85] although, again, various circumstances, including the distraction of workers, were relied upon in combination. Clearly, Charlesworth J concluded that a failure to give notice was sufficient, of itself, to constitute "improper conduct". Whilst I respectfully disagree, and whilst the mischief to which I consider s 500 is directed was not the subject of consideration by Charlesworth or White JJ, I am not able to reach a view that Charlesworth J (or White J) was plainly wrong. Comity requires that I should follow their approach to the construction of "act in an improper manner". I can discern no distinction of relevance between a failure to meet the requirements of s 487 and a failure to meet those of s 489. 146 For those reasons, if I had found that s 500 had been engaged, I would have found that by failing to give notice and produce their entry permits contrary to the requirements of ss 487 and 489 of the FW Act, MacDonald and Long acted in an "improper manner" in relation to each entry they made.

THE ALLEGED CONTRAVENTIONS OF SECTION 503 147 Section 503 is earlier set out. The Commissioner's submission that MacDonald and Long had contravened s 503 of the FW Act was predicated upon the Court being satisfied "that s 500 has been contravened as alleged in the ASOC". As I have found no contravention of s 500, that concession must result in the dismissal of that part of the Commissioner's case which relies upon a contravention of s 503. 148 Whilst, in the face of the concession I consider no other course open, I have grave reservations about the correctness of the concession. The concession seems to be based upon the proposition that if MacDonald or Long were not exercising or seeking to exercise a Part 3-4 right, it would follow that s 503 could not have been contravened. To my mind, it does not so follow. A person may not be seeking to exercise a Part 3-4 right but may nevertheless deliberately or recklessly give the impression that the conduct in question is conduct authorised by Part 3-4 when it is not. In that respect, s 503 is not dependent upon s 500 but can supplement s 500 by prohibiting conduct not captured by that provision. The two provisions have different fields of operation and, in many circumstances, may be fairly regarded as alternatives. 149 The concession of the Commissioner was made on the basis of what was said by Dowsett J in CFMEU v John Holland (at [47]) about the interaction between s 767 of the WR Act (a predecessor of s 500) and s 768 of the WR Act (a predecessor of s 503). To my mind, and without going into the detail, what was said by Dowsett J was case specific. It was based on the particular facts of that case and the manner in which the appeal was conducted, as can be seen from the reasons of Logan J at [108]-[109].

Did MacDonald and Long intend to give the impression that they had a right of entry? 150 In case I am wrong about the nature, character or effect of what I have described as the Commissioner's concession, I should add that, absent the concession, I would not have been satisfied that the alleged contraventions of s 503 were established. In relation to each of the impugned entries, the ASOC alleged that MacDonald or Long took action with the intention of giving the impression, or reckless as to whether the impression was given, that he was authorised to enter the premises in question without providing 24 hours' written notice of entry and producing his authority documents upon request, and thereby contravened s 503. The Commissioner relied on the same evidence as that relied upon in relation to the alleged contraventions of s 500. 151 My holding that neither MacDonald nor Long were seeking to exercise a Part 3-4 right of entry does not foreclose a finding that they intended to give the impression that they were authorised to enter under Part 3-4 without providing 24 hours written notice and producing authority documents. Before evaluating that evidence, it is necessary to recall the observation made in Bragdon about proof of intention at [68]: Where intention is an element of an offence, it must be proved. It is not sufficient to rely on "foreseeability, likelihood and probability". It must be affirmatively established that the offender "meant to produce the particular result" (see Zaburoni v The Queen (2016) 256 CLR 482 at [13] and [15]). 152 As to s 503(1)(b), I accept the Commissioner's contention that the test for recklessness involves an objective assessment. In support of that contention, the Commissioner relied upon Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 in which White J (at [181]-[199]) considered s 357(2) of the FW Act in relation to misrepresentation of an employment relationship as a contract for services, a provision framed similarly to s 503(1). I respectfully agree with his Honour that recklessness in this context involves a state of mind which is less than actual knowledge or intention: Ecosway at [186]. His Honour concluded (at [199], emphasis added): Accordingly, I consider that employers seeking to discharge the s 357(2) onus must prove that they did not know that the contract was a contract of employment rather than a contract for services and further that, in the circumstances known to them at the time they made the misrepresentation, they could not reasonably be expected to have known that the contract may be a contract of employment. That is the approach which I will apply in this case. 153 I consider that for the purposes of s 503(1)(b) a person will be reckless as to whether an impression is given that something is authorised if, in the circumstances known to them at the time they took the action, they could reasonably be expected to have foreseen that their actions would give the impression that their doing of a thing was authorised by Part 3-4 of the FW Act.

Application of principles to the evidence 154 Dealing with the provision in reverse order, s 503(2) provides a defence to a contravention of s 503(1) where a person reasonably believes that the doing of the thing is authorised. As I have found above, both MacDonald and Long were trained as to their rights of entry under the FW Act. They knew that they had no right or other authority to make the impugned entries in the manner in which they did. For that reason I find that neither man may take any comfort from s 503(2). 155 The absence of an express assertion that the doing of a thing is authorised is not determinative of whether a person intends to give the impression, or is reckless as to whether the impression is given, that he or she is authorised to do that thing. So much may be gleaned from the terms of s 503(1) which directs attention to the actions, and not just the words, of alleged wrongdoers. However, the absence of an express assertion is significant as it may be presumed that a person seeking to persuade others to accept the representations will do so in clear and unequivocal terms. Furthermore, where a false impression about the existence of a right under a law is sought to be conveyed to a person with some sophistication on the subject, it would be expected that the person seeking to convey that impression will understand that some persuasion would be required in order for the representation to be accepted. 156 Each of Burns and Sherlock, the Qanstruct site managers with whom MacDonald and Long principally dealt in relation to the impugned entries, had been trained in the requirements to be satisfied under the FW Act for a right of entry to be exercised. More significantly, they conveyed to MacDonald and Long on several occasions when requiring notice of entry and the production of a permit, that they had an understanding of those requirements. I would infer that on the subject of whether the impugned entries were authorised by Part 3-4 of the FW Act, Burns and Sherlock were not unsophisticated individuals easily misled and that MacDonald and Long must have understood that they were aware of the relevant requirements and would not be readily deceived. 157 The other impression manifest from the conduct of MacDonald and Long is that the devices employed by them to gain entry were not persuasion and deceit but defiance, aggression and a flagrant disregard for the representations made by Burns and Sherlock to the effect that they would be or were entering unlawfully. 158 There is no evidence that either MacDonald or Long made any assertion that their entry onto Qanstruct's sites was authorised by Part 3-4 of the FW Act or any other law. Nor could anything they said or did be reasonably viewed, in the context of their knowledge that Burns and Sherlock had some sophistication about rights of entry under the FW Act, as an attempt to persuade Burns or Sherlock that they had authority to enter under the FW Act despite not having given notice and despite having refused to produce their entry permits. 159 By way of recap, I have accepted that the following statements were made by MacDonald and Long: In the course of the first entry, MacDonald, in response to a request from Burns to produce his permit, said, "We don't do that. I don't need one of those". In the course of the second entry, MacDonald, also in response to a request from Burns to produce his permit, "You know we don't do that... If I want to ... talk to the guys I will". In the course of the third entry, Long, in response to being pressed by Sherlock to produce his permit, "We're not going down that path, are we? … Even if I've got a permit, that's our policy that we don't show it". In relation to the fourth and fifth entries, there was no direct response of the type outlined above when either MacDonald or Long were pressed to produce their entry permits. 160 I note that each of the statements set out above is directed to what "we" (MacDonald, Long, the CFMEU) do not do rather than what may be required to be done. Although MacDonald's statement on the first entry "I don't need one of those" is an arguable exception, it was immediately preceded with "We don't do that" and read in that context is consistent with the other statements. 161 On their own and given that intention must be affirmatively established, those statements would not suffice to demonstrate an intention held by either MacDonald or Long to give the impression that their entries were authorised by the FW Act. When viewed in the context in which they were made the statements are of far less assistance to the Commissioner. 162 Nor would those statements suffice to demonstrate a recklessness as to whether the requisite impression was given. Given the circumstances known to MacDonald and Long at the time they made the impugned entries, I do not accept that they could be reasonably expected to have foreseen that their conduct would give the impression to Qanstruct managers that those entries were authorised by the FW Act. In that respect I take into account what was said, the context in which it was said and that MacDonald and Long must have understood that Qanstruct's managers had an awareness of the rights and obligations of permit holders under the FW Act and had shown a firm resolve to insist upon them. 163 For those reasons, the alleged contraventions of s 503 of the FW Act must be dismissed.

alleged contravention of section 340(1) 164 The Commissioner alleged that Long took adverse action against Qanstruct on 27 February 2014 at the Cheltenham Premises because Qanstruct had or had exercised a workplace right. On that basis, the Commissioner alleged a contravention of s 340(1) of the FW Act. 165 Section 340(1) of the FW Act is earlier set out. 166 Section 341(1) of the FW Act relevantly provides: 341 Meaning of a Workplace Right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law [or] workplace instrument …; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument … 167 The FW Act is a workplace law as s 12 of the FW Act specifies. 168 Item 7 of the table in s 342(1) of the FW Act provides that an officer of an industrial association takes adverse action against an independent contractor if the officer: (c) … takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for service 169 Section 342(2)(a) of the FW Act provides that adverse action includes "threatening to take action covered by the table in subsection (1)". 170 Section 360 of the FW Act provides: 360 Multiple Reasons for Action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 171 Section 361 of the FW Act relevantly provides: 361 Reasons for Action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 172 I have already referred to the evidence of Sherlock and the conversations he had with Long at the Cheltenham Premises on 27 February 2014. As earlier recounted, after Long entered the site, a second conversation occurred between Long and Sherlock in which Long asked Sherlock if he had called the police. Sherlock said that he had, to which Long responded as follows: "We will have 500 blokes on site here tomorrow, we won't sign an EBA with you, next year you guys will be on nothing, your wages will drop". 173 Sherlock's evidence was that those words were said fairly aggressively in a raised firm voice with Long looking directly at Sherlock. I accept that evidence. The Commissioner contended that what Long said and, in particular, that he would have 500 blokes on site the following day constituted a threat to take action to disrupt work at the Cheltenham Premises ("Long's threat"). I accept that Long's threat constituted "threatening to take action" within the meaning of s 342(2)(a) and was thereby capable of constituting adverse action. As to what "threatening to take action" means, I refer to the observations I made at [53]-[54] of Fair Work Ombudsman v Australian Workers' Union [2017] FCA 528. 174 For Long's threat to be adverse action it needs to be covered by the table in s 342(1) and, in that respect, the Commissioner relied on Item 7(c), set out above. It was not disputed that Long was an officer of an industrial association. Nor was it disputed that Qanstruct was an independent contractor. The meaning of independent contractor was discussed by me in Construction, Forestry, Mining and Energy Union v Victoria [2013] FCA 445 at [115]-[165] and endorsed on appeal by Buchanan and Griffiths JJ in Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 at [120]. I am also satisfied that the threatened action was action which would prejudice Qanstruct in relation to a contract for services, namely, that it would disrupt Qanstruct's capacity to carry out the services it was contracted to provide at the Cheltenham Premises. I am therefore satisfied that Long's threat constitutes adverse action within the meaning of s 342 of the FW Act. 175 The Commissioner's case is that the adverse action was taken including because Sherlock had made a request of Long to produce authority documents, relevantly Long's entry permit, as required by s 489(2) of the FW Act. Section 489(2) provides: (2) If the permit holder has entered premises under Subdivision B, the permit holder must produce his or her authority documents for inspection by the occupier of the premises on request. 176 Sherlock's evidence was that shortly after arriving on the site, Long came to his office and, after a brief introductory chat, said that he was going out on site "to see the guys". To that Sherlock responded "not without [seeing your] federal permit, Steve". It is that remark which the Commissioner relies upon as constituting the request made on behalf of Qanstruct for Long to produce the authority documents referred to in s 489(2) ("entry permit"). When the remark is understood in the context of the relevant conversation, including Long's reply: "Even if I've got a permit, that's our policy that we don't show it", and Sherlock's reply to that: "it's what we're obligated to do, Steve … and if you don't comply and go out onto site, I will have to call the police", I am satisfied that the remark was and would have been understood by Long as a request for Long to produce his entry permit. 177 The Commissioner contended that the adverse action was taken by Long against Qanstruct for reasons including the reason that Sherlock, on behalf of Qanstruct, requested to see Long's entry permit. The making of that request was characterised by the Commissioner as an exercise of a workplace right for the purposes of s 340(1), as defined in s 341(1) of the FW Act. In particular, the Commissioner contended that the making of the request constituted the exercise of a workplace right being a capacity to "initiate, or participate in, a process or proceedings under a workplace law" within the meaning of s 341(1)(b). Alternatively, the Commissioner contended that the making of the request was an exercise of a workplace right being an entitlement "to the benefit of, or a role or responsibility under, a workplace law" within the meaning of s 341(1)(a). 178 In the analysis I now make, I will address the Commissioner's reliance (by reference to s 340(1)(a)(ii)) on the exercise of the workplace right asserted rather than the holding of that right (by reference to s 340(1)(a)(i)). The latter was only faintly pressed and relevantly adds nothing to the Commissioner's case. If it were necessary to reach a conclusion about it I would reach the same conclusion as I do in relation to the question of whether Qanstruct was exercising a workplace right in making the request to see Long's permit. 179 The Commissioner accepted that in order to establish that adverse action was taken against Qanstruct "because" Qanstruct had a workplace right (s 340(1)(a)), the workplace right needed to be a substantial and operative reason for the action: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 619 (Mason J); Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [62] (French CJ and Crennan J), [104] (Gummow and Hayne JJ), [140] (Heydon J). 180 The Commissioner also accepted that, as the party making the allegation that adverse action was taken for reasons of the exercise by Qanstruct of a workplace right, it was incumbent on the Commissioner to establish that Qanstruct had exercised that workplace right. The Commissioner's concession is consistent with Tattsbet Limited v Morrow (2015) 233 FCR 46 at [119] (Jessup J, with whom Allsop CJ and White J agreed). See also FWO v AWU at [69]-[72]. Unless the Commissioner can establish that foundational fact, the Commissioner does not take the benefit of the presumption provided for by s 361(1). It may well be that there are larger consequences than that but none were pressed by the CFMEU. 181 I turn then to the question of whether the Commissioner has established that the making of the request by Sherlock on behalf of Qanstruct to see Long's entry permit constituted the exercise of a workplace right. 182 The entirety of the Commissioner's contention on the question of whether Qanstruct was exercising a workplace right was made in the following submission: [174] Division 2 of Part 3-4 establishes a process pursuant to which rights of entry under the FW Act may be exercised. Division 4 imposes prohibitions upon permit holders and other persons in relation to the exercise of rights of entry under Part 3-4. [175] The obligation in s 489(2) upon a permit holder to produce authority documents for inspection by an occupier of premises upon request necessarily entails a corresponding right in the occupier to make the request. By virtue of its right to make a request under s 489(2), the occupier of premises is able to participate in the process for the exercise of rights of entry under the FWAct. The occupier has a right to deny entry to premises to a permit holder who does not comply with Division 4 of Part 3-4. [176] Consistent with the object stated in s 480, the right of entry provisions must be understood as having been established for the benefit of occupiers of premises (in addition to employees, TCF award workers, organisations and employers). The benefit is the establishment of a legislative regime for the exercise of rights of entry under the FW Act, ensuring that occupiers are able to "go about their business without undue inconvenience". Further, by virtue of the capacity to request provision of authority documents, occupiers are entitled to the benefit of, or have a role or responsibility in relation to the right of entry process, and therefore a benefit of, or role or responsibility under, a workplace law. [177] The Applicant contends that if an occupier makes a request to a permit holder to produce authority documents under s 489, that request constitutes a workplace right on one or both of the following grounds: 177.1. a request for authority documents is initiation of or participation in a process or proceeding under a workplace law (s 341(1)(b)); and/or 177.2. the ability to request authority documents constitutes an entitlement to the benefit of, or a role or responsibility under, a workplace law (s 341(1)(a)). 183 There is a short and a longer answer to the case made by the Commissioner as to the exercise by Qanstruct of a workplace right. 184 For the short answer I will presume that the circumstances which the Commissioner relies upon are otherwise capable of meeting the definition of workplace right found in each of paragraphs (a) and (b) of s 341(1). 185 Long contended that there can be no exercise of a workplace right constituted by the making of a s 489(2) request, unless that provision has been engaged. Relying upon the opening words of s 489(2), Long contended that the provision is only engaged "[i]f the permit holder has entered premises under Subdivision B …". Here, for reasons already given, Long did not enter the Cheltenham Premises under Subdivision B. I take the phrase "under Subdivision B" to mean "in pursuance of" or "under the authority of" Subdivision B: Ramsay at [95]. When Long entered the premises in question, for the reasons earlier given, including the failure to provide notice of entry, Long did not enter in pursuance of or under the authority of Subdivision B of Part 3-4. Long was not exercising nor (if it matters) seeking to exercise, the right of entry addressed by s 484, being the only provision in Subdivision B. If s 489(2) is not engaged, nothing at all is conferred upon an occupier by that provision. Relevantly, no entitlement, role or responsibility (s 341(a)) nor any ability (s 341(b)) was conferred upon Qanstruct by s 489(2) and thus no workplace right was conferred capable of being exercised by Qanstruct. For those reasons, the Commissioner fails to establish that Qanstruct was exercising a workplace right. 186 If I am wrong, and s 489(2) was engaged, resort needs to be had to the longer answer which is not premised on the engagement of s 489(2). The longer answer challenges the predicate upon which the Commissioner's submission was made, namely, that s 489(2) confers a right or benefit upon an occupier. 187 For Qanstruct to have been exercising a workplace right in making the request of Long, it needed to have such a right. For the right to have been a workplace right, relevantly, either s 341(a) or (b) needed to be satisfied. Each of those paragraphs requires that the entitlement, role, responsibility or ability, as the case may be, be under a workplace law, relevantly here, the FW Act. I take "under" in this context to mean "conferred by". Thus, to take an example, for an entitlement to a benefit, to which paragraph (a) refers, to be a workplace right, it must be an entitlement to a benefit given or conferred by a workplace law or workplace instrument. 188 As I have said, the Commissioner's submission is predicated upon s 489(1) conferring upon an occupier of premises a right or benefit to request the permit holder to produce his or her right of entry permit. However, on its face, what s 489(1)(a) does is identify the circumstance in which the permit holder must produce his or her entry permit, that is, on a request made by the occupier. It does not confer any right, ability or capacity of the occupier to make the request. 189 It might have been implied that s 489(2) is the source of any such right, ability or capacity if to do so was necessary for the effective operation of the provision. That, however, is not the case. In the circumstances contemplated by s 489(2), an occupier does not need a right, ability or capacity conferred by any Act of Parliament to inquire as to the legal validity of an entry which is sought to be made onto its premises. An occupier has common law rights of occupation including the right to refuse an entry not lawfully made. By virtue of that right an occupier is entitled to make a reasonable inquiry as to the lawfulness of an entry and in relation to the kind of entry contemplated by s 489(1), to request to see the permit holder's entry permit. In the absence of any express conferral of a right or ability to make a request and in the absence of a basis for thinking that such a right or ability is implied, I do not construe s 489(1) as itself conferring upon an occupier a right or benefit to make a request to see a permit holder's entry permit. 190 Dealing more directly with the basis for the Commissioner's submission that a right is conferred upon an occupier by s 489(2), the Commissioner relied generally upon s 480 to contend that Part 3-4 confers rights upon occupiers. However, that submission fundamentally misunderstands the object or purpose of the right of entry provisions. Section 480 which sets out the object of Part 3-4 and to which the Commissioner's submission referred, is in the following terms: 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. 191 In a passage from MUA v FWC at [15], upon which the Commissioner also relied, together with North and Flick JJ, I said this about s 480 (emphasis in original): Section 480, extracted at 8 above, sets out that the object of Pt 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Pt 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not "untrammelled" and are subject to both express and implied constraints: Australasian Meat Industry Employees' Union v Fair Work Australia (2012) 203 FCR 389 at [56] per Flick J (Tracey J agreeing). The exercise of rights conferred upon a "permit holder" renders lawful that which would otherwise be unlawful: cf Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 540 per Mason J. 192 The observation there made that Part 3-4 seeks to take into account and balance the rights referred to in paragraphs (a) to (c) of s 480, does not seek to suggest that Part 3-4 confers rights upon occupiers. Part 3-4, as the last sentence quoted states, confers rights upon permit holders to do what would otherwise be unlawful. The conduct that is made lawful would otherwise be unlawful because of the common law rights of an occupier to refuse entry and inspection. Rather than confer rights upon occupiers, what Part 3-4 fundamentally does is override the rights of occupiers elsewhere conferred. But in taking from rather than giving rights to occupiers, Part 3-4 intends that the rights it confers upon permit holders are not untrammelled and should not cause occupiers and employers "undue inconvenience". For that reason, constraints upon the rights conferred upon permit holders are imposed, including the prohibition against intentionally hindering or obstructing which is the subject of s 500. Whilst s 480 supports the proposition that Part 3-4 intends that the rights held by occupiers are taken into account, it does not support the proposition that Part 3-4 itself or s 489(2) in particular, confers rights or benefits upon occupiers. 193 Further and in support of its submission that a right is conferred upon an occupier, the Commissioner construed s 489(2) as imposing an "obligation" on a permit holder to produce an entry permit upon an occupier's request. From the existence of that obligation, the Commissioner contended for a corresponding or correlative right which flowed to the occupier. But again, the starting point is flawed. The requirement made by s 489(1) that a permit holder produce an entry permit when requested, imposes a condition upon the right of entry conferred upon a permit holder by Part 3-4. If that condition is not satisfied, the right of entry is lost and the permit holder must not enter or remain on the premises, as s 486 provides. There is not an obligation enforceable by law imposed upon the permit holder to produce his or her permit. Section 489(2) is not "infringed by a failure or refusal to produce an entry permit", as the Full Court in Bragdon (at [40]) said in a similar context of s 497 of the FW Act. There is no penalty imposed for any such failure or refusal. A permit holder is perfectly entitled to refuse the occupier's request and simply leave the premises. All that the refusal does is give rise to an obligation upon the permit holder under the common law to leave where the entry was dependent upon a right of entry conferred by Part 3-4. There is no "obligation" to produce the entry permit and the occupier's request that the documents be produced is not a right, at least not in any strict sense based upon the Hohfeldian conception of a claim-right correlative of a duty or obligation: see the discussion in Powell at [11]-[15]. 194 Absent the conferral by s 489(2) of a right on the occupier to request documents, the Commissioner cannot make good his contention (which was based upon the existence of a right) that the occupier "is entitled to the benefit of, or has a role or responsibility under [s 489(2)]" and thus cannot, for that reason as well, make good that part of his case reliant upon s 341(1)(a). 195 In relation to the Commissioner's reliance upon s 341(1)(b), I would add a further reservation. I harbour doubt as to whether the arrangements made by Part 3-4 for permit holders to enter premises for the purpose of holding discussions constitutes a "process … under a workplace law". 196 Section 341(2) provides: Meaning of process or proceedings under a workplace law or workplace instrument (2) Each of the following is a process or proceedings under a workplace law or workplace instrument: (a) a conference conducted or hearing held by the FWC; (b) court proceedings under a workplace law or workplace instrument; (c) protected industrial action; (d) a protected action ballot; (e) making, varying or terminating an enterprise agreement; (f) appointing, or terminating the appointment of, a bargaining representative; (g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement; (h) agreeing to cash out paid annual leave or paid personal/carer's leave; (i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements); (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument; (k) any other process or proceedings under a workplace law or workplace instrument. 197 Each of the circumstances described in s 341(2)(a)-(j) are concerned with an ability of a person to initiate or participate in a process of a kind which may give rise to retributory conduct. That is reflective of the protective purposes of s 340. In so far as that establishes a genus, I would not apply to s 341(2)(k) the ejusdem generis rule (which enables a general matter to be constrained by reference to specific matters) because the arrangements here in question may also give rise to retributory conduct. What is odd, however, is that if those arrangements were intended to be a "process", the initiation of and participation in which was intended to be protected from retributory conduct of the kind which s 340 seeks to protect against, it may have been expected that the initiator and the central (if not the sole) participant in the process would be within the protective umbrella. That person, the permit holder, is not. That is because there seems to be nothing in s 342(1) (which specifies what adverse action means, including by reference to the categories of persons against whom it may be taken), that would include a permit holder who by definition (s 512), must be "an official of an organisation". It is difficult to accept that if the arrangements in question were intended to be a "process", it was intended that an occupier of premise should be a protected participant but the permit holder not. 198 As I am not satisfied that the Commissioner has established that a workplace right was exercised by Qanstruct, the s 361(1) presumption is not enlivened. That has the effect of placing the onus upon the Commissioner of establishing that a reason for the threat made by Long was that Qanstruct had made the request to see his entry permit. 199 On the evidence, no threat or any suggestion of retributive action was made in response to Sherlock's request to see Long's permit. Long was dismissive of the request and explained why he would not comply with it, saying that it was the CFMEU's "policy that we don't show it". The evidence does not establish any real concern held by Long in relation to the making of the request. The evidence does establish that in that conversation, Long held a concern about Sherlock's statement that if Long did not comply and go onto the site he would have to call the police. To that statement Long responded, "You … don't want to be the dog who calls the cops on a union official … [W]e won't forget this low act. We won't forget that you did this". Whilst those comments suggest a retributive intent they are directed at the prospect that the police will be called and not the request to show the entry permit. 200 After that first conversation ended Long entered the construction site and spoke to a group of employees before returning to the site compound. 201 More than 15 minutes after the initial conversation in which the request to see the permit was made, a second conversation between Long and Sherlock occurred. It was in that conversation that the threat was made. There was no reference made in that conversation to any request to see Long's entry permit. The conversation began with Long asking Sherlock whether he had called the police. The threat was made in response to Sherlock's confirmation that he had. 202 It is highly likely that Long's reason for making the threat was that Sherlock had called the police. The lack of any concern evinced by Long in relation to the making of the request, the disjunction between the making of the request and the making of the threat and the strong relationship between the making of the threat and Long's concern about the police having been called, suggest that the making of the request was not a reason for the making of the threat. The evidence does not exclude the possibility that the making of the request was a reason for the making of the threat, but the Commissioner has failed to persuade me that it is likely that the making of the request was an operative and substantial reason for the making of the threat. It follows that the Commissioner has failed to establish a contravention of s 340(1) of the FW Act. 203 I should add for completeness, that my conclusion would have been different had the s 361(1) presumption applied. In CFMEU v BHP the Full Court (Logan, Bromberg and Katzmann JJ) at [189] referred to the judgment of Mason J in Bowling at 617 in relation to a predecessor of s 361 and to the observation that an applicant is "entitled to succeed if the evidence was consistent with the hypothesis" that the respondent was actuated by a proscribed reason (see further Hall at [25] and the cases there cited). The Full Court in CFMEU v BHP then relevantly said this at [192]: It is possible that the alleged reason may be negated by a respondent on the applicant's own evidence. Where the connection between the reason alleged and the impugned conduct is so remote as to be fanciful, the onus may well be discharged in the absence of any evidence from the decision-maker. But as French CJ and Crennan J observed at [45] of Barclay, "[g]enerally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker". 204 As indicated above, I am not satisfied that the evidence negates the real possibility that a substantial and operative reason for the making of the threat was the making of the request for a permit to be produced by Sherlock. In those circumstances I would not have come to the view that the connection between the reason alleged and the impugned conduct was so remote as to be fanciful and, accordingly, I would not have held that Long had discharged the onus that the s 361(1) presumption imposes.

conclusion 205 I have found no contravention by either MacDonald or Long of ss 500, 503 or 340. Although the CFMEU admitted that the conduct of MacDonald and Long was conduct taken on its behalf, as the alleged primary contraventions have not been proved, no liability is established against the CFMEU. The application of the Commissioner must therefore be dismissed. 206 I received no submission as to costs and given the high hurdle imposed by s 570 of the FW Act to the award of costs, I presume that no costs are sought. If contrary to that presumption, an application for costs is made within 7 days, short submissions should be filed and exchanged by the parties. If that is done, I will determine the issue on the papers. To that extent I reserve the question of costs. I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.