Australian Workers' Union v John Holland Pty Ltd

1. These proceedings be stayed until matter number RE2023/365 in the Fair Work Commission is heard and determined, or until further order of the Court.
2. The respondent is to notify the Court within three business days of matter number RE2023/365 being determined by the Fair Work Commission.
3. The respondent be excused, until further order, from compliance with r 16.32 of the Federal Court Rules 2011 (Cth).
4. The parties have liberty to apply on three days' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKMAN J 1 This is an application for a temporary stay of these proceedings pending the hearing and determination by the Fair Work Commission (FWC) of the matter identified as RE2023/365 (the FWC Proceedings), commenced by John Holland Pty Ltd (John Holland) against the Australian Workers' Union (AWU). 2 John Holland and CPB Contractors Pty Ltd (CPB) are parties to a joint venture for the design and construction of the WestConnex Rozelle Interchange and Western Harbour Tunnel Enabling Works project in Sydney (Project). The project is a $4.6 billion road project consisting of 23 km of tunnel, 4 cut and cover tunnel portal structures, 12 bridges and 2 ventilation facilities connected to an underground ventilation system. The Project is a new underground motorway interchange which provides connectivity to the M4-M5 Link Tunnels and the City West Link, and underground bypass of Victoria Road between Iron Cove Bridge and Anzac Bridge. The Project also provides a connection to the future Western Harbour Tunnel. John Holland employs construction workers on the Project. For workers involved in tunnelling works, these employees are presently employed by John Holland under the "John Holland CPB Contractors Joint Venture - Rozelle Interchange and Western Harbour Tunnel Enabling Works/AWU Tunnelling Works Greenfield Agreement 2019-2023" (Enterprise Agreement). John Holland is an entity subject to the Work Health and Safety Act 2011 (Cth) (WHS Act). John Holland and CPB also engage subcontractors to perform various work in respect of the Project. The evidence for John Holland is that the Project has in place various control processes and measures to mitigate the risk of exposure to airborne dusts and particulate, in particular respirable crystalline silica (RCS), although the AWU does not agree that the measures listed in that evidence are in place across the entire Project, or that those measures necessarily have the result of mitigating the risk of exposure to airborne dust and particulate including RCS. 3 Officials of the AWU have sought entry to and entered the Project on the following dates pursuant to right of entry notices issued under s 117 of the WHS Act: 1 February 2022, 2 March 2022, 27 July 2022, 11 October 2022 and 8 February 2023. Those entries were said to be to investigate suspected contraventions of s 19 of the WHS Act, including reference to "air quality". During those entries, AWU officials sought to bring dust monitoring equipment onto the Project. Apart from the 1 February 2022 and 2 March 2022 entries, permission has not been granted by Project management for any AWU permit holder to bring the dust monitoring equipment onto the Project site during their entries. Documents have also been provided to the AWU permit holders pursuant to s 120 of the WHS Act. 4 From April 2023, officials of the AWU have sought to enter the Project on the following dates pursuant to right of entry notices issued under s 481 of the Fair Work Act 2009 (Cth) (FW Act): 14 April 2023, 26 April 2023 and 1 May 2023. Those entries were purportedly to investigate suspected contraventions of particular clauses of the Enterprise Agreement and the FW Act. During those entries, AWU officials sought to bring dust monitoring equipment onto the Project. Permission has not been granted by Project management for any AWU permit holder to bring the dust monitoring equipment onto the Project during their entries. The evidence given for John Holland is that John Holland and CBP are concerned about, among other things, the intrusion into their premises and operations that would be caused by use of external and unauthorised equipment on premises over which they have control, and the associated disruption caused by this to major public works that are presently on foot. The AWU officials have otherwise been permitted entry to the Project on those dates. 5 On 21 April 2023, two officials of the AWU gave notice that they intended to enter the Project on 26 April 2023, claiming an entitlement to do so under s 481 of the FW Act. On the same day, the NSW Branch Secretary of the AWU wrote a letter to the Project outlining the position of the AWU in relation to the bringing of dust monitors onto the Project by the officials. The evidence for John Holland is that John Holland and CPB were of the view that future entries to the Project needed to be conditioned on a properly established basis for a suspected contravention (that is, on a basis which went beyond that asserted in support of previous entries), and John Holland and CPB wanted to resolve the issue by applying to the FWC to challenge whether officials could bring dust monitors on site in the future and, if so, the conditions upon which they could do so. 6 On 24 April 2023, John Holland and CPB filed an application in the FWC to deal with a right of entry dispute (FWC Application) pursuant to s 505 of the FW Act, naming the AWU as respondent, thereby commencing the FWC Proceedings. The FWC Application was served on the AWU on the same day, 24 April 2023. The FWC Application is in the form of Form F12. Under the heading "Matters in Dispute", the FWC Application states as follows: 1. There are a number of matters in dispute between the parties. These include: a. Whether permit holders for the Australian Workers' Union (AWU) have at any time held or have established that they have held, a reasonable suspicion of a suspected contravention or a breach of the [Enterprise Agreement], Fair Work Act 2009 (Cth) (FW Act) or Work Health and Safety Act 2011 (Cth) (WHS Act) to permit a right of entry to the Rozelle Interchange WestConnex / Western Harbour Tunnel project (Rozelle Interchange) pursuant to either s.481 of the FW Act or s.117 of the WHS Act. b. If so, whether and, if so, to what extent, the rights granted pursuant to s.482(1)(a) of the FW Act and s.118(1)(a) of the WHS Act allow a permit holder to bring equipment owned by them onto the premises to which entry has been obtained to conduct their own purported dust monitoring while on site. 2. During the course of resolution of these disputes, other ancillary matters may emerge as disputed matters which require resolution. For example if a permit holder's rights do allow any form of monitoring, issues which require resolution may include the circumstances in which the right is enlivened, how the monitoring can take place, the uses to which information gained through monitoring may be put, issues relating to ownership and access to information gained via monitoring and issues relating to the accreditation of monitoring equipment and the qualifications of people operating the equipment. 7 The orders sought in the FWC Application are, in effect, declarations as follows: 1. That the purported exercise of rights of entry by permit holders employed by the Australian Workers' Union have not been exercised validly under s.481 of the FW Act or s.117 of the WHS Act because at no time have the permit holders established a basis for a reasonable suspicion of breach of a relevant obligation. 2. That the right to 'inspect' given to a permit holder pursuant to s.482(1)(a) of the FW Act does not extend to a permit holder bringing dust monitoring equipment onto site or conducting their own dust monitoring while on site pursuant to an entry under s. 481 of the FW Act. 3. That the right to 'inspect' given to a permit holder pursuant to s.118(1)(a) of the WHS Act does not extend to a permit holder bringing dust monitoring equipment onto site or conducting their own dust monitoring while on site pursuant to an entry under s.117 of the WHS Act. 8 On 19 May 2023, the AWU commenced these proceedings in the Federal Court (the Federal Court Proceedings). On 22 May 2023, John Holland was served with the Originating Application and Statement of Claim filed by the AWU in these proceedings. 9 The Originating Application seeks a declaration as follows: Declarations that the respondent hindered or obstructed Stephen Ackerman exercising rights in accordance with Part 3-4 contrary to s 502 of the Fair Work Act 2009 (Cth) (FW Act) by refusing him to use the Dust Trak II Aerosol Monitor to test levels of respirable dust at site C/Stage 1 of the John Holland/CPB Rozelle Interchange WestConnex - Western Harbour Tunnel at 68-72 Lilyfield Rd Rozelle NSW 2039 on three occasions on 1 May 2023. The AWU also seeks an order under s 546(1) of the FW Act that the respondent pay pecuniary penalties in respect of the alleged contraventions, and an order under s 546(3) of that Act that the pecuniary penalties be paid to the AWU. 10 The Statement of Claim alleges that Mr Stephen Ackerman, as a "permit holder" within the meaning of s 12 of the FW Act, gave John Holland and CPB an entry notice on 28 April 2023, claiming a right of entry pursuant to s 481 of the FW Act, and specifying the suspected contraventions relating to whether John Holland was taking all reasonably practicable steps to ensure workers were not exposed to respirable and inhalable dust including dust containing RCS. It was alleged that Mr Ackerman's suspicion that contraventions had occurred or were occurring was reasonable within the meaning of s 481(3) of the FW Act. It is alleged that on 1 May 2023, Mr Ackerman arrived at the premises of the Project to exercise his right of entry under s 481 of the FW Act, bringing with him a Dust Trak II Aerosol Monitor (Monitor) to measure the level of respirable dust that could not be seen with the naked eye, and that an employee of John Holland refused to allow him to use that Monitor on the premises. The same refusal was made on two additional occasions that day. It is alleged that the conduct of the employee of John Holland constituted intentionally hindering or obstructing Mr Ackerman exercising rights pursuant to s 502(1) of the FW Act. 11 The solicitor for John Holland, Mr Toby Walthall, gives evidence that based on his experience of over 14 years in conducting litigation in the FWC, he considers that the following process for the resolution of the matter before the FWC is likely: (a) a further conciliation conference will be listed within 1-3 weeks of the FWC being notified of the Court's decision in respect of this interlocutory application; (b) in addition to discussing resolution of the matter, he anticipates the conciliation conference would include an attempt to narrow the issues, and to identify with clarity the issues for arbitration; (c) if the matter does not resolve at conciliation, directions will be given for the filing of written submissions and evidence for arbitration, and the matter will also be listed for hearing; (d) the process of preparing submissions will include the parties formulating the questions to be determined at arbitration; (e) the preparation and filing of evidence and outlines would ordinarily take 4 to 8 weeks, with the hearing to be listed to commence shortly thereafter; (f) the hearing would likely take in the order of 2 to 3 days; and (g) he would anticipate a decision within 8 to 12 weeks of the hearing. 12 Mr Walthall also gives evidence that, subject to the ultimate factual matters in dispute in both proceedings and whether the FWC Application were to proceed to arbitration, the witnesses to be called by the parties are likely to be the same across the two proceedings. He estimates that there are likely to be at least 3 witnesses for John Holland and CPB in both matters. Mr Walthall gives evidence that, on current instructions, John Holland and CPB will seek the assistance of the FWC to resolve the dispute about the future conduct of AWU officials seeking to bring dust monitors on site when entering in accordance with s 481 of the FW Act, regardless of the outcome of the Federal Court Proceeding. 13 The solicitor for the AWU, Ms Szumer, has also filed an affidavit. In relation to subpara (b) above in the evidence of Mr Walthall, Ms Szumer says that she is instructed that in so far as the FWC Application process includes discussion of a voluntary resolution, the AWU will not agree to any resolution which does not permit AWU officials to use the Monitor to test levels of respirable dust on the Project. That evidence, however, is qualified by the statement by counsel for the AWU at the hearing before me that the AWU undertakes as follows: The AWU undertakes through its counsel that it will instruct its permit holders not to seek to use, without John Holland's consent, a Dust Trak II Aerosol Monitor or other devices to test levels of respirable dust at the John Holland/CPB Rozelle Interchange Westconnex - Western Harbour Tunnel at 68-72 Lilyfield Rd Rozelle NSW 2039 while exercising a right of entry under the Fair Work Act 2009 (Cth) or the Work Health and Safety Act 2011 (Cth) until the determination of liability in this proceeding or further order. 14 As to the matters referred to in subparas (b)-(g) above in the evidence of Mr Walthall, Ms Szumer says that she is instructed that if this Court dismisses John Holland's Interlocutory Application, the AWU intends to apply to stay the FWC Application until after the Federal Court Proceeding has been determined. Ms Szumer is also instructed that if the FWC Application is not stayed, the AWU intends to press a jurisdictional objection in the FWC. Ms Szumer considers that those threshold matters will affect the time it takes for the FWC to finalise the FWC Application. Ms Szumer is also instructed that the AWU will pursue the relief sought in these proceedings regardless of the outcome of the FWC Application. She is instructed further that AWU officials intend to enter the Project site and use the Monitor to test levels of respirable dust on the earliest possible occasion they are permitted to do so, and where the requirements of Part 3-4 of the FW Act regarding right of entry are met.