"Exercising … rights"
51 Ground 3(a) of the Commissioner's further amended notice of appeal asserted that the primary judge erred at [68] and [69] of his reasons, where his Honour held that the giving of notice of entry in compliance with s 487 of the FW Act is "a precondition to the conferral of the right of entry" under s 484 of the FW Act for the purposes of s 500 of the FW Act. Ground 3(b) asserted that the primary judge made a further error, at [70], by holding that, even if a right under s 484 is conferred prior to the giving of an entry notice, that right is not "exercised" without the giving of notice required by s 487.
52 The first issue is whether a permit holder can be said to be "exercising … rights", for the purposes of s 500, if one of the requirements, prescribed by Subdivision C, has not been complied with. In turn, and more specifically, the question to be determined on this appeal is whether s 484 of the FW Act confers "rights" on permit holders of its own force whether or not the permit holder has complied with provisions of Subdivision C, including ss 487 and 489.
53 The Commissioner contended that the two preconditions to the conferral of a right under s 484 were the grant of a permit and the holding of the requisite purpose for entry.
54 Part 3-4 confers a series of rights of entry on permit holders if those entries are for prescribed purposes. Division 2 of Part 3-4 provides for entry for particular purposes including, relevantly, entry for the purpose of holding discussions with certain employees under Subdivision B.
55 Subdivision C of Division 2 then imposes certain requirements which must be observed by permit holders in exercising those rights. Some of the requirements operate before the right of entry is effected (s 487(1) is one of these), others at the point of entry (for example, s 487(4)) and yet others after entry has been effected (for example, s 490).
56 The text of s 484 confers a right on a permit holder to enter premises for the purposes of holding discussions with employees who have the three characteristics set out in paragraphs (a), (b) and (c) of the section. The conferral of the right of entry, provided for in s 484, is not expressly conditioned upon the satisfaction of any or all of the requirements of Subdivision C. The statutory context suggests that no such precondition should be implied.
57 The rights of entry, provided for in Division 2 of Part 3-4, are conferred on permit holders. Those rights of entry continue to exist for as long as the permit remains valid. The right, in each case, must be exercised in accordance with the requirements prescribed by Subdivision C but they continue to exist. The consequence of a failure to comply with a provision of Subdivision C which is applicable is that prescribed by s 486 of the Act. It is not a termination of the right.
58 The requirements imposed on permit holders by Subdivision C assume the existence and exercise of rights conferred by provisions of earlier subdivisions. This includes the right of entry provided for in s 484. The Subdivision C provisions operate as qualifications on the existing right of entry or the manner of exercise of a pre-existing right. As s 486 provides: a contravention of Subdivision C by a permit holder in exercising such rights has the consequence that the permit holder is "not authorise[d] … to enter or remain on premises, or exercise any other right …" (emphasis added).
59 A permit holder who has given notice under s 487, and who enters premises for the purposes prescribed by s 484, enters as a matter of right and is able to remain on the premises to pursue discussions with willing employees. The permit holder may, at any time whilst on site, be asked to produce his or her authority documents (including the entry permit) for inspection pursuant to s 489. If a request is made and complied with, no impediment is placed on the official's pursuit of discussions with workers. If a request is made and not complied with, the consequence, under s 486, is that s 484 no longer authorises the continued presence of the permit holder on the premises. In each instance s 486 proceeds on the basis that the permit holder has a relevant right and has exercised, or sought to exercise, that right.
60 Section 487 requires that, "before entering" the premises, the permit holder must give an entry notice. The permit holder must give the occupier of the premises an entry notice during working hours at least 24 hours before entry is to take place. This requirement is not, as the primary judge found (at [86]), "a precondition to the conferral of the right of entry" provided for under s 484. The proposed entry, when effected, has the potential to cause some disruption to normal operations. Whilst discussions with workers may only take place during meal times or other breaks (s 490(2)) arrangements must be made as to a suitable venue agreed with the occupier (s 492(1)) and these processes will often take managers away from their normal duties. The giving of notice ensures that the permit holder's visit can be planned for and inconvenience to site management minimised.
61 Other provisions of Part 3-4 suggest that the word "exercising", as used in s 500, is intended to be read more broadly than the construction adopted by the primary judge. These include:
Section 478, "the Guide to the Part", distinguishes between the exercise of rights under Division 2 and the need for permit holders to comply with the requirements, imposed on them by the Part, when exercising those rights.
In Division 3, ss 495, 497, 498 and 499, which deal with entry by permit holders to "exercise a State or Territory OHS right", provide that a permit holder must not exercise such a right unless the permit holder does certain things, including the giving of written notice (s 495) and the production of his or her entry permit when requested to do so (s 497). These rights must only be exercised during daylight hours (s 498) and must not be exercised unless the permit holder complies with any reasonable request by the occupier to comply with an occupational health and safety requirement that applies to the premises (s 499). A failure to comply with these provisions, in each case, attracts a civil penalty. These provisions maintain a distinction between the exercise of rights by a permit holder and compliance with requirements attached to that exercise.
62 If notice is not given as required by s 487, the consequence is that prescribed by s 486, namely that s 484 (Subdivision B) does not "authorise" the holder to enter or remain on the premises. This stipulation operates as a qualification on an existing right of entry for a prescribed purpose.
63 If notice is given and a permit holder enters a site for a s 484 purpose and remains on the site for some time but then fails to produce his or her permit on request as required by s 489 the same consequence, prescribed by s 486, follows.
64 The construction which I prefer gives effect to the balancing of competing rights contemplated by s 480 of the FW Act. One of the rights, specifically mentioned in s 480(a), is "the right of organisations to … hold discussions with potential members". Rights of entry are given by provisions such as s 484 to further the rights identified in s 480(a) and their exercise is then regulated in order to avoid undue inconvenience to the social right of occupiers of premises to go about their business in the conduct of their operations (s 480(c)). The balancing regime, with which s 480 is concerned, would be undermined if a relevant right was found not to arise (and so not be regulated by the Act) because a permit holder made a deliberate decision not to satisfy one of the requirements imposed by Subdivision C. Such a construction would have the consequence that a permit holder, who wishes to enter premises for a purpose provided by the Part and for which the permit was given to him or her, would be constrained by the requirements of Part 3-4 only if he or she chose to obey the FW Act. If he or she chooses not to, the occupier would be left to protect itself by the law of civil and criminal trespass.
65 It is further to be observed that none of the requirements, imposed on permit holders by Subdivision C, are expressly identified in the FW Act as preconditions of the exercise of a right.
66 At trial, the respondents sought to support their construction argument by reference to the decision of Greenwood J in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2011) 195 FCR 280 at 308; [2011] FCA 770 at [137]. His Honour was there dealing with the predecessor of the provisions presently under consideration. Section 760 of the Workplace Relations Act 1996 (Cth) ("the WR Act") was the predecessor of s 484 of the FW Act. Section 763 provided for pre-entry notice. It was in these terms:
763 Limitation on rights - entry notice
This Division does not authorise entry to premises, or subsequent conduct on the premises, unless all the following conditions are satisfied:
(a) the permit holder gave an entry notice to the occupier of the premises at least 24 hours, but not more than 14 days, before the entry;
(b) the entry notice specifies section 760 as the section that authorises the entry;
(c) the entry is on a day specified in the entry notice.
67 At 308 [137] his Honour said:
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. Having authority to enter premises, however, does not confer authority or permission, it is said, to engage in conduct beyond the limits of the grant. Although the permit holder may have had the prescribed purpose on entry (a matter denied on the facts by Holland), the permit holder was not authorised by s 760 to then hold discussions with employees of Holland because there were no eligible employees on site. Once the permit holders embarked upon holding discussions with Holland's employees none of whom were eligible employees (as the Full Court upheld), the permit holders necessarily, it is said, exceeded the limitations of the grant.
(Emphasis in the original.)
68 The primary judge noted (at [66]) that the "three integers" of s 763 that Greenwood J had held needed to be satisfied before "the power to enter is engaged" were each "now reflected in the requirements of s 487". He regarded those latter requirements as being "equivalent to those made by (b) and (c) of the former s 763" (at [66]). He also considered that s 763 of the WR Act incorporated the substance of the present s 486 of the FW Act (at [67]).
69 Before turning to consider the primary judge's reasoning on this point, it is convenient to record some additional passages from Greenwood J's reasons.
70 His Honour continued (at 308 [139]-[141]):
139 It [s 760] confers authority (provided the pre-conditions of s 763 are satisfied) upon a permit holder to enter premises provided he or she has the prescribed purpose. That authority extends to all facets of entry. It does not end on crossing the boundary or entering through the gate. The authority to enter authorises the conduct of entry expressed as passage through the gate, progression along the access road to the place where the men and women work or congregate in their breaks, waiting at the place of congregation for the breaks to occur and entry to the areas (crib huts or smoko huts) where discussions might be held with those who wish to do so. It is an authority coupled with a purpose. The purpose is the purpose of holding discussions with eligible employees.
140 Section 760 goes beyond mere entry because it confers authority coupled with a purpose (which must be held so as to authorise entry) which is also the purpose for entry.
141 There would be little point in the legislation conferring a right upon a permit holder to enter premises provided he or she subjectively holds the prescribed statutory purpose of holding discussions with eligible employees and then denying the permit holder the right to hold any discussions on the footing that, as a matter of objective construction of the relevant pre-existing collective agreement, there are no eligible employees on the entered premises.
(Emphasis in the original.)
It is notable that his Honour used the words "authority" and "right" interchangeably in dealing with the former s 760.
71 These passages expose a material difference between s 487 and the former s 763. Section 487 is, in some respects, similar to s 763 but, significantly, does not, in terms, link authority to enter with compliance with "conditions" as did the former s 763. Nor does s 486. Sections 486 and 487 of the FW Act are, therefore, textually different from the former ss 760 and 763 of the WR Act and are not "to the same effect": cf [67].
72 For these reasons, I would uphold Ground 3(a) and Ground 3(b) of the Commissioner's appeal.