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.