Automotive, Food, Metals, Engineering, Printing and Kindred Industries... [2023] NSWIRComm 1076 | Case summary

Industrial Relations Commission (NSW)|2022-11-03|Before: Commission J

estry, Maritime, Mining and Energy Union [2022] QCA 94 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] ICQ 15 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 Hogan v Hinch (2011) 243 CLR 506 Lyne v Commissioner of Police [2021] NSWIRComm 1001 R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431; 320 IR 198 Texts Cited: Macquarie Dictionary, online edition Category: Principal judgment Parties: Proceedings 2022/119584 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (Applicant) Primo Foods Pty Ltd (Respondent) Proceedings 2022/153402 Primo Food Pty Ltd (Applicant) Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (First Respondent) Jacqueline Carovska (Second Respondent) Nathan Everson (Third Respondent) Representation: Proceedings 2022/119584 K Presdee, solicitor, AMWU (Applicant) B Sakrzewski-Hetherington, solicitor and W Ash (Respondent) Proceedings 2022/153402 B Sakrzewski-Hetherington, solicitor and W Ash (Applicant) K Presdee, AMWU (Respondents) File Number(s): 2022/119584 2022/153402 Publication restriction: Nil

DECISION

At around 9.00am on 8 April 2022, Ms Jacqueline Carovska and Mr Nathan Everson, union organisers with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AMWU), attended the smallgoods factory of Primo Food Pty Ltd (Primo) at Chullora, NSW, for the purposes of inquiring into a suspected contravention of the Work Health and Safety Act 2011 (NSW) (WHS Act), in accordance with s 117 of that Act. Both Ms Carovska and Mr Everson held WHS entry permits under the WHS Act and on arriving at the Chullora site, presented a document purporting to be a notice of entry as required by s 119 of the WHS Act, to Clinton Jaftha, the human resources manager of Primo.
It is fair to say that Ms Carovaska's and Mr Everson's visit to the Chullora factory did not go particularly well. In short, the union organisers considered that their rights as WHS entry permit holders inquiring into a suspected contravention of the WHS Act were obstructed by Primo, while Primo considered that the union organisers were not entitled to enter the factory as they had not complied with the prerequisites justifying such an incursion. After Primo allowed them entry to the site despite its concerns, the union organisers engaged in conduct which was not, according to Primo, authorised by the WHS Act or which was prohibited under the WHS Act.
The parties clashed in particular, over Primo's insistence that at least one of their management representatives be present while the union officials spoke with workers regarding the suspected contravention(s) of the WHS Act. The union officials considered that s 118(1)(b) of the WHS Act, when read in conjunction with s 130, permitted, if not obliged them, to conduct their consultations with the workers, in private. Section 130 places an obligation on WHS entry permit holders to not disclose the name of any worker at the workplace to the person conducting the business or undertaking (PCBU), or a person managing or controlling the workplace, unless the worker consents.
Following what might be described as a confusing and rather chaotic visit, the union organisers left the factory at 11.15am. However, that was not the end of the matter. On 21 April 2022 the AMWU filed an application under s 142 of the WHS Act seeking orders from the Commission requiring Primo to do certain things when a right of entry is exercised in the future.
On 27 May 2022 Primo filed its own application under s 142 of the WHS Act seeking various declarations concerning the conduct of the union organisers on 8 April 2022 and orders requiring the union organisers to undertake 'corrective training'.
The two applications were case managed and unsuccessfully conciliated together. The matters were then listed to be heard together, with evidence filed in one proceeding to be considered as evidence filed in the other proceeding.
What emerged during the hearing was that the events of 8 April 2022 occurred because of different understandings on the part of the individuals involved, as to the parties' respective rights and obligations, rather than any desire on either side to impermissibly disrupt the legitimate activities of the other. Even the AMWU frankly submitted, in written submissions filed on 7 October 2022, that the Commission should "properly see what occurred as not two permit holders seeking to go beyond their rights at law, but two sides both trying to ensure that their rights were respected, with both sides behaving in a similar manner." For the reasons I will explain below, I consider that this a fair assessment of what occurred on 8 April 2022.
The existence of different views is somewhat understandable, as Part 7 of the WHS Act, which deals with workplace entry by WHS permit holders, has some scope for alternative interpretations, yet has received relatively little judicial interpretation.
For the reasons set out below, I have decided to dismiss both applications.

The Legislative Scheme

Before setting out my findings in respect of the events of 8 April 2022 and addressing the relief sought by the AMWU and Primo arising from those events, it is useful to set out the relevant legislative provisions and to explain their role in the present disputes.
Division 1 of Part 7 of the WHS Act contains only one provision: Section 116 - Definitions. It provides: 116 Definitions In this Part - official of a union means a person who holds an office in, or is an employee of, the union. relevant person conducting a business or undertaking means a person conducting a business or undertaking in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry. relevant union means the union that a WHS entry permit holder represents. relevant worker, in relation to a workplace, means a worker - (a) who is a member, or eligible to be a member, of a relevant union, and (b) whose industrial interests the relevant union is entitled to represent, and (c) who works at that workplace.
'WHS entry permit holder' is defined in s 4 of the WHS Act to mean "a person who holds a WHS entry permit". 'WHS entry permit' is defined in s 4 to mean "a WHS entry permit issued under Part 7." Division 5 of Part 7 - WHS Entry Permits - contain the provisions regarding the issuing, expiry and revocation of WHS entry permits. Sections 132 - 134, which are contained within Division 5, have some relevance to the current disputes: 132 Consideration of application In considering whether to issue a WHS entry permit, the authorising authority must take into account - (a) the object of this Act, and (b) the object of allowing union right of entry to workplaces for work health and safety purposes. 133 Eligibility criteria The authorising authority must not issue a WHS entry permit to an official of a union unless the authorising authority is satisfied that the official - (a) is an official of the union, and (b) has satisfactorily completed the prescribed training, and (c) holds, or will hold, an entry permit under - (i) the Fair Work Act, or (ii) the Industrial Relations Act 1996. 134 Issue of WHS entry permit The authorising authority may issue a WHS entry permit to a person if the authorising authority has taken into account the matters in section 132 and is satisfied about the matters in section 133.
The 'authorising authority' is defined in s 4 of the WHS Act to mean "the Industrial Relations Commission."
The object of the WHS Act is set out in s 3: 3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by - (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and (d) promoting the provision of advice, information, education and training in relation to work health and safety, and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.
As Industrial Commissioner Hartigan said in Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] QIRC 188 (First Enco Precast Decision) at [9] in relation the Work Health and Safety Act 2011 (Qld), which is relevantly identical to the WHS Act: One of the ways in which the object of the WHS Act is to be achieved is by the issuing of WHS permits. A WHS entry permit holder may enter a workplace to inquire into a suspected contravention of the WHS Act.
It was not in dispute that both Ms Carovska and Mr Everson held valid WHS entry permits and that the AMWU was the 'relevant union'. On the other hand, the question of who were 'relevant workers' was a matter of some contention.
Industrial Commissioner Hartigan in the First Enco Precast Decision, at [176], ruled that the onus of establishing that workers were not 'relevant workers' fell on the PCBU (which, in that case, sought orders that the entry permits were invalid), as the primary function of the workers, (which was then to be assessed against the relevant union's eligibility rules to determine if they were 'relevant workers'), was within the knowledge of the PCBU rather than the WHS entry permit holders. However, on appeal from the Industrial Court (which had upheld Commissioner Hartigan's decision), the Queensland Court of Appeal (Sofronoff P, Bond JA and Brown J) in Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2022] QCA 94 (Third Enco Precast Decision) while dismissing the appeal, confirmed the Industrial Court's view (in Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] ICQ 15 (Second Enco Precast Decision), per Davies J at [80] - [82]), that the onus fell on the PCBU in that case because it was the PCBU asserting that the relevant workers were not relevant workers. As Sofronoff P explained at [21]: The position would have been otherwise if the respondents, seeking to enforce their right of entry, had sought to invoke the Commission's jurisdiction to compel the appellant to permit entry. In that case, the respondents would have had to allege, and then prove, the facts which they said justified the Commission's exercise of its discretion to make the order compelling the appellant to submit to the respondents' right of entry.
As Sofronoff P had earlier explained at [18] (omitting footnote): In general, it is the rule that the party who asserts a conclusion must prove the facts that lead to that conclusion. Courts and tribunals do not make orders affecting persons just for the asking; something must be shown to move the court or tribunal to exercise its jurisdiction to make an order to bind another person. Hence the old maxim "He who moves, proves".
As discussed in more detail below, Primo ultimately conceded that the AMWU were entitled to represent 'fitters' and that 'fitters' worked at the Chullora site, but it argued that the union officials had no right to consult or confer with other workers, in particular electricians, who were not 'relevant workers' within the meaning of s 116. Primo also asserted that the WHS entry permit holders did not reasonably suspect that the WHS Act was or had been contravened in relation to, or affecting, a 'relevant worker'.
It was not in dispute that Primo was a 'relevant person conducting a business or undertaking' (PCBU).
Division 2 of Part 7 - Entry to Inquire into Suspected Contraventions - is central to the present disputes. Sections 117 - 119 are of particular importance: 117 Entry to inquire into suspected contraventions (1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker. (2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring. 118 Rights that may be exercised while at workplace (1) While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act - (a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention, (b) consult with the relevant workers in relation to the suspected contravention, (c) consult with the relevant person conducting a business or undertaking about the suspected contravention, (d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that - (i) is kept at the workplace, or (ii) is accessible from a computer that is kept at the workplace, (e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk. (2) However, the relevant person conducting the business or undertaking is not required under subsection (1) (d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State. (3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) (d). WHS civil penalty provision. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units. (4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse. Notes - At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120. The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth. 119 Notice of entry (1) A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to - (a) the relevant person conducting a business or undertaking, and (b) the person with management or control of the workplace. (2) Subsection (1) does not apply if to give the notice would - (a) defeat the purpose of the entry to the workplace, or (b) unreasonably delay the WHS entry permit holder in an urgent case. (3) Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120.
Industrial Commission Hartigan in the First Enco Precast Decision found, at [102] - [103], by reference to the Explanatory Memorandum to the Model Work Health and Safety Bill, published by Safework Australia, at paragraph 444, that it is "for the permit holders to discharge the onus to establish that they held a reasonable suspicion", in circumstances where that suspicion is disputed by the PCBU. However, as was made clear in the Second Enco Precast Decision at [80] - [82] and the Third Enco Precast Decision, as discussed in paragraph [17] and [18] above, the moving party bears the legal burden. If the moving party is the PCBU and not the WHS entry permit holders, it will be faced with having to prove a negative in circumstances where the permit holders were the only persons with the ability to know and prove the facts. In those circumstances, once the PCBU leads sufficient evidence to raise a doubt or by which it may be inferred that the WHS entry permit holders did not hold the requisite suspicion, the evidential burden will shift to the WHS entry permit holders to show they did have such a suspicion. As was explained by Campbell JA in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [78]: If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. See generally Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at [1]-[2], 371-2; Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 at [55], 64-65. As Hunt J put it in Apollo at 565: "… provided that the plaintiffs have established sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiffs would have to deal in the discharge of their overall burden of proof …. [T]he plaintiffs' burden of proof of the negative proposition for which they contend is not as difficult in this case as it might otherwise have been because of the defendant's greater means to produce evidence which contradicts that proposition."
To be clear, the WHS Act requires a WHS entry permit holder to hold a reasonable suspicion before being able to gain entry. It is essential therefore for the permit holder to make plain to the PCBU when seeking to gain entry, including through the provision of a notice of entry pursuant to s 119 which I discuss below, the basis upon which he or she has formed a reasonable suspicion and the PCBU is entitled to test those grounds. This is what I understand the Parliamentary Counsel's Committee meant when it stated in the Explanatory Memorandum to the Model Work Health and Safety Bill at paragraph 444, that: "If this suspicion is disputed by another party, the onus is on the WHS entry permit holder to prove that the suspicion is reasonable." However, if a PCBU seeks to challenge a WHS entry permit holder's suspicion in this Commission or in a Court, it will bear the legal burden of proving that the WHS entry permit holder did not hold the required suspicion, albeit that an evidential burden may well fall upon the WHS entry permit holder.
Commissioner Murphy considered the question of what constituted a 'reasonable suspicion' in Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor [2017] NSWIRComm 10001 (Acciona). At [65] - [66] he referred to R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 in which the Court of Appeal (Spigelman CJ, Simpson J and Smart AJ), considered the term "reasonably suspects" in the context of section 357E of the Crimes Act 1990 (NSW). After considering the authorities, Smart AJ said, at [53]: These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s. 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
Commissioner Murphy concluded at [67]: 67 In the present matter, the question to be answered was whether or not there was some factual basis, some material or materials with probative value, which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, s 19 of the WHS Act by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the Site.
This approach was approved by Industrial Commissioner Hartigan in the First Enco Precast Decision at [108]. [1] She concluded in that case that hearsay information received via a safety hotline, which was then conveyed orally to the WHS entry permit holders, was of probative value "in so far as it identified potential contraventions of the WHS Act as it referred to matters which could potentially be in contravention of s 19 of the WHS Act and s 40 of the Regulation," and that such information "afforded reasonable grounds for the suspicion to be formed."
In Acciona, however, Commissioner Murphy considered that the evidence relied upon by the WHS entry permit holders - being hearsay evidence and direct observation of workers feeling stressed, anxious and uncomfortable at work - lacked sufficient probative value to form the basis of a reasonable suspicion that the PCBU had contravened, or was contravening, section 19 of the WHS Act. In reaching this view Commissioner Murphy remarked, at [71]: The exercise of right of entry by WHS entry permit holders is an important mechanism by which unions, such as the CFMEU, are able to investigate suspected contraventions of the WHS Act. It is a right that should only be exercised responsibly and for its intended purposes. The health and safety of workers in the workplace, including their psychological health, especially in inherently dangerous industries such as civil construction, is an important issue. The attempted use of rights of entry on the basis of the sort of non-probative evidence relied upon by the CFMEU in this matter has the potential to undermine the very important purpose for which rights of entry exist.
Whether Ms Carovska and/or Mr Everson reasonably suspected that a contravention of the WHS Act had occurred or was occurring and hence whether they had a right to enter the workplace, was a central issue during the hearing. However, just as occurred in Enco Precast, this dispute was essentially resolved when Primo allowed Ms Carovska and Mr Everson to enter the Chullora site: see First Enco Precast Decision at [90] - [93] and [296]; Second Enco Precast Decision at [50], [51], [58] and [61]. I discuss this further below.
The other issue which assumed prominence in the hearing was whether the notice of entry that the union officials provided to Mr Jaftha, complied with the regulations, specifically regulations 27 and 28 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation). Regulation 27 and 28 provide: 27 Notice of entry - general A notice of entry under Part 7 of the Act must - (a) be written, and (b) include the following - (i) the full name of the WHS entry permit holder, (ii) the name of the union that the WHS entry permit holder represents, (iii) the section of the Act under which the WHS entry permit holder is entering or proposing to enter the workplace, (iv) the name and address of the workplace entered or proposed to be entered, (v) the date of entry or proposed entry, (vi) the additional information and other matters required under clause 28, 29 or 30 (as applicable). 28 Additional requirements - entry under Part 7, Division 2 A notice of entry under section 119 of the Act in relation to an entry under the Act, Part 7, Division 2 must also include the following - (a) so far as is practicable, the particulars of the suspected contravention to which the notice relates, (b) a declaration stating - (i) that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union, and (ii) the provision in the union's rules that entitles the union to represent the industrial interests of that worker, and (iii) that the suspected contravention relates to, or affects, that worker. Note - Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.
The note to regulation 28 references s 130 of the WHS Act. The operation of s 130 in the context of a s 117 workplace entry was also central to the disputes. It provides: 130 WHS entry permit holder not required to disclose names of workers (1) A WHS entry permit holder is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace. (2) A WHS entry permit holder who wishes to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker may only do so with the consent of the worker.
It was not in dispute that Mr Jaftha was a person (along with others) with the management or control of the workplace.
According to Primo, for the reasons which are set out later in this decision, informing the interpretation of s 130 are a number of other provisions of the WHS Act.
First, is s 68, which provides: 68 Powers and functions of health and safety representatives (1) The powers and functions of a health and safety representative for a work group are - (a) to represent the workers in the work group in matters relating to work health and safety, and (b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person's representative in compliance with this Act in relation to workers in the work group, and (c) to investigate complaints from members of the work group relating to work health and safety, and (d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking. (2) In exercising a power or performing a function, the health and safety representative may - (a) inspect the workplace or any part of the workplace at which a worker in the work group works - (i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace, and (ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, and (b) accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works, and (c) with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and - (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (d) with the consent of one or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and - (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (e) request the establishment of a health and safety committee, and (f) receive information concerning the work health and safety of workers in the work group, and (g) whenever necessary, request the assistance of any person. Note - A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices. (3) Despite subsection (2) (f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that - (a) does not identify the worker, and (b) could not reasonably be expected to lead to the identification of the worker. (4) Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.
Next, is s 70, which relevantly provides: 70 General obligations of person conducting business or undertaking (1) The person conducting a business or undertaking must - (a) consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking, and (b) confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group, and (c) allow any health and safety representative for the work group to have access to information that the person has relating to - (i) hazards (including associated risks) at the workplace affecting workers in the work group, and (ii) the health and safety of the workers in the work group, and (d) with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and - (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (e) with the consent of one or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and - (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (f) provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise his or her powers or perform his or her functions under this Act, and (g) allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided, and (h) permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works, and (i) provide any other assistance to the health and safety representative for the work group that may be required by the regulations. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units. (2) … (3) …
Next, is s 160, which provides: 160 Functions and powers of inspectors An inspector has the following functions and powers under this Act - (a) to provide information and advice about compliance with this Act, (b) to assist in the resolution of - (i) work health and safety issues at workplaces, and (ii) issues related to access to a workplace by an assistant to a health and safety representative, and (iii) issues related to the exercise or purported exercise of a right of entry under Part 7, (c) to review disputed provisional improvement notices, (d) to require compliance with this Act through the issuing of notices, (e) to investigate contraventions of this Act and assist in the prosecution of offences, (f) to attend coronial inquests in relation to work-related deaths and examine witnesses.
Lastly, Primo submitted that s 171 of the WHS Act is relevant to the interpretation of s 130 of the Act. It provides: 171 Power to require production of documents and answers to questions (1) If an inspector enters a workplace under this Division, or has within the last 30 days entered a workplace under this Division, the inspector or another inspector may - (a) require a person to tell the inspector who has custody of, or access to, a document, or (b) require a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at that workplace or within a specified period, or (c) require a person at the workplace to attend before the inspector at a stated reasonable time and place to answer questions put by the inspector. (2) A requirement under subsection (1) (b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document. (3) An interview conducted by an inspector under subsection (1) (c) must be conducted in private if - (a) the inspector considers it appropriate, or (b) the person being interviewed so requests. (4) Subsection (3) does not limit the operation of section 166 or prevent a representative of the person being interviewed from being present at the interview. (5) Subsection (3) may be invoked during an interview by - (a) the inspector, or (b) the person being interviewed, in which case the subsection applies to the remainder of the interview. (6) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units. Note - See sections 172 and 173 in relation to self-incrimination and section 269 in relation to legal professional privilege. (7) Subsection (6) places an evidential burden on the accused to show a reasonable excuse.
Division 6 of Part 7 of the WHS Act - Dealing with Disputes - explains why the parties commenced proceedings in the Commission, arising from the events of 8 April 2022, and sets out what the Commission may do to deal with a dispute 'about the exercise or purported exercise by a WHS entry permit holder of a right of entry'. Division 6 provides as follows: Division 6 Dealing with disputes 141 Application for assistance of inspector to resolve dispute If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. 142 Authorising authority may deal with a dispute about a right of entry under this Act (1) The authorising authority may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable). (2) The authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. (3) If the authorising authority deals with the dispute by arbitration, it may make one or more of the following orders - (a) an order imposing conditions on a WHS entry permit, (b) an order suspending a WHS entry permit, (c) an order revoking a WHS entry permit, (d) an order about the future issue of WHS entry permits to one or more persons, (e) any other order it considers appropriate. (4) The authorising authority may deal with the dispute - (a) on its own initiative, or (b) on application by any of the following to whom the dispute relates - (i) a WHS entry permit holder, (ii) the relevant union, (iii) the relevant person conducting a business or undertaking, (iv) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry, (v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder, (vi) the regulator. (5) In dealing with a dispute, the authorising authority must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this Part. 143 Contravening order made to deal with dispute A person must not contravene an order under section 142 (3). WHS civil penalty provision. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units.
No party sought the assistance of the regulator, SafeWork NSW, (s 4 and cl 1 of Sch 2 of the WHS Act), to appoint an inspector to attend the workplace to assist in resolving the dispute.
Commissioner Murphy considered the scope of the power given in s 142 in Acciona at [55]: Section 142 of the WHS Act authorises the Commission to exercise extremely wide powers to deal with a dispute about the exercise, or purported exercise, by a WHS entry permit holder of a right of entry under the WHS Act. The orders that the Commission may make under subsection 142(3) are broad in their scope and will, in many cases, require the Commission to examine and form a view about exercises, or attempted exercises, of rights of entry that have occurred in the past. Orders suspending or revoking WHS entry permits under subsections 142(3)(b) and (c) may well require the Commission to examine and form a view about past transgressions, or alleged past transgressions, by WHS entry permit holders.
The Queensland Court of Appeal also commented on the nature of the power to deal with a dispute in the Third Enco Precast Decision at [20]: The Commission has a wide power under s 142(3) of the Act to make such order as it considers appropriate to determine a dispute about a purported exercise of a right of entry under a permit. Before the Commission could make an order, it would have to be satisfied that valid grounds existed to make a particular order. That would require the Commission to be satisfied that relevant facts exist that raise the discretion conferred by s 142(3) and that relevant facts also existed that would justify the exercise of the discretion that has arisen. According to long established principle, it would have been necessary for the appellant, as the party attempting to invoke the Commission's jurisdiction to exercise the discretion in the appellant's favour, to allege, and to prove, the requisite facts, proof of which would satisfy the Commission that the order sought by the appellant should be made.
In Acciona Commissioner Murphy declined to make an order or determination, pursuant to s 142, as sought by the CFMEU, to the effect that: "Bullying, harassment and other intimidatory conduct which causes or is capable of causing risks to workers' psychological health can amount to a suspected contravention of the Work Health and Safety Act 2011 (NSW)" on the basis that this had been conceded by the respondent and it was therefore "no more than a statement of the legal position and is not in dispute." In those circumstances he saw no utility in making a determination in those terms.
He did, however, see utility in making the following orders, given the "initial issues which divided the parties": 1. As and from 17 January 2017, the respondents will not refuse entry to CFMEU WHS entry permit holders who seek entry under s 117 of the Work Health and Safety Act 2011 to investigate suspected contraventions of the Work Health and Safety Act in circumstances where the respondents have not had opportunity to investigate such contraventions first. 2. As and from 17 January 2017, the respondents will not refuse to allow CFMEU WHS entry permit holders to inspect and make copies of documents under s 118(1)(d) of the Work Health and Safety Act 2011 in circumstances where a notice has not been given under s 120 of the Work Health and Safety Act as such notice is unnecessary if the documents are not employee records or documents of someone other than the respondents as persons conducting the business or undertaking.
Utility, in the sense that the relief granted will have practical value to the successful party and so resolve, in whole or in part, the controversy between the parties, is plainly an essentially quality of any order to be made by the Commission. I would add, because it is a matter which has some bearing on my decision in this matter, orders must also be drafted in clear and unambiguous terms. A failure to comply with court (or Commission) orders exposes a person to adverse consequences and it is desirable therefore that they are drafted in a manner which makes it clear to the person the subject of the order, exactly what is required of them: see Hogan v Hinch (2011) 243 CLR 506 at [58] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). In this case, a contravention of an order made under s 142(3) exposes the contravener to a civil penalty of $10,000, in the case of an individual, or $50,000, in the case of a body corporate.
The orders made by Commissioner Murphy in Acciaona concerned the future exercise of the entry powers under s 117. Such orders were informed by, but did not address, past conduct. This approach was approved by Davies J, President of the Industrial Court of Queensland in the Second Enco Precast Decision. [2] Davies J, President said the following at [48] - [49]: 48. …Section 142(3) identifies remedies which govern the future exercise of the entry powers under s 117. Section 143 creates an offence to contravene orders under s 142(3), suggesting that those orders govern conduct of the parties in the future. 49. A separate regime is established to deal with past breaches. There are offence provisions, for instance. Prosecutions may only be launched by the WHS inspectors or the WHS Prosecutor.
The offence provisions to which Davies J, President referred are found in Division 7 of Part 7 and are discussed below.
Before leaving s 142 it must also be observed that s 142(5) expressly prohibits the Commission, in dealing with a dispute, conferring "any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this Part." This restriction must be borne steadily in mind when crafting an order under s 142(3).
Lastly, four of the sections in Division 7 - Prohibitions - are relevant, namely ss 144 - 147: 144 Person must not refuse or delay entry of WHS entry permit holder (1) A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under this Part. WHS civil penalty provision. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units. (2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse. 145 Person must not hinder or obstruct WHS entry permit holder A person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace in accordance with this Part. WHS civil penalty provision. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units. 146 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace A WHS entry permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper manner. WHS civil penalty provision. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units. 147 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. WHS civil penalty provision. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units. (2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.
This Commission does not have jurisdiction to deal with contraventions of the provisions of Division 7 of Part 7. Proceedings for contraventions of those provisions must be brought in either the Local Court or the District Court: s 255 of the WHS Act. Nevertheless, the AMWU asserted that Primo had contravened s 144 and/or s 145; while Primo asserted that the union officials had contravened s 146 and/or 147, and that such contraventions justified the relief that they respectively sought.
The AMWU also inferred, by the relief it sought, that Primo had acted contrary to s 46 of the WHS Act which provides: 46 Duty to consult with other duty holders If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. Maximum penalty - (a) in the case of an individual - 230 penalty units, or (b) in the case of a body corporate - 1,155 penalty units.
In the context of shared duties Primo referred to ss 28 and 29 of the WHS Act which provide: 28 Duties of workers While at work, a worker must - (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. 29 Duties of other persons at the workplace A person at a workplace (whether or not the person has another duty under this Part) must - (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

The Evidence and the Events of and leading up to, 8 April 2022

The proceedings were heard over two days: all evidence was received on the first day and after the provision of written submissions, oral submissions were delivered on the second day. Notably no party objected to any of the evidence tendered by any other party. Evidence was given by way of written statements and all witnesses were cross examined.
The AMWU called both Ms Carovoska and Mr Everson. Both gave evidence of the events of and leading up to, 8 April 2022.
The AMWU also called, in reply, Mr David Kelly, the AMWU's safety officer/organiser. Mr Kelly has worked a union official for around 30 years. He has been employed by the Construction, Forestry, Mining and Energy Union, the Plumbers and Gasfitters Employees Union and the AMWU. He holds a Bachelor of Arts degree and Master of Philosophy in economics from Sydney University and has completed post graduate courses in labour law and occupational health and safety at the University of Sydney. His role at the AMWU requires him to consult with, and advise members and delegates on, health and safety issues, as well as inspecting workplaces and safety management systems to ensure compliance with the WHS Act. He is also required, as part of his role with the AMWU, to provide information and support to organisers in the area of workplace health, welfare and safety and to train and assess organisers in their carrying out of functions under the WHS Act and the WHS Regulation.
Mr Kelly was involved in and gave evidence in respect of, the events of 8 April 2022, as well as evidence regarding the AMWU's use of a proforma 'notice of entry' that was used on 8 April 2022 and how, in his view, WHS entry permit holders are to complete the form. He also gave evidence as to the training the AMWU delivers to its WHS entry permit holders, including Ms Carvoka and Mr Everson. Much of Mr Kelly's evidence was in the nature of opinion evidence. I have had regard to Mr Kelly's opinions where it could be said that they were based on his training, study or experience and were probative of factual matters in dispute but have disregarded his views as to the legal effect, operation or interpretation of provisions in the WHS Act or WHS Regulation. For instance, I accept Mr Kelly's evidence that the form used by Ms Carovska and Mr Everson was a "standard form that was used widely ... at the CFMEU, as well as by other unions who exercised rights of entry in the building construction and the civil construction industry", but I have not had regard to opinions such as: "The Act does not authorise the PCBU to dictate how a permit holder should conduct their inquiry or to insert themselves into the conduct of the permit holder's inquiry."
Primo called Mr Jaftha as well as Mr Nathan Mascherin, Primo's WHO officer at the Chullora site and Mr Paul Burman, an engineering manager with Primo, both of whom became involved with the events of the 8 April 2022.
The following is an account of the facts giving rise to the present proceedings as revealed by the evidence.
Primo conducts a meat manufacturing and distribution operations at its site at Chullora. The site is divided into: 1. the production area, which is split into: 1. raw side; 2. cook house; 3. cook side; and 4. dispatch; 1. the dry good store, which is located in separate buildings to the production area; and 2. the maintenance department.
Although the maintenance department is physically separated from the production area, the maintenance workers predominantly work in the raw side, cook house and cook side areas of production.
Much of the Chullora site is regarded as a 'high care environment' because of the manufacture of food for consumption, with Primo having to comply with numerous statutory and other food safety standards and controls. Consequently, all visitors to the site must be escorted throughout their entire visit and if need be, don personal protective equipment.
The AMWU has coverage of a wide array of workers, principally those in mechanical and engineering trades. Who exactly the AMWU has coverage over, and therefore whether there was a suspected contravention of the WHS Act which related to, or affected, a 'relevant worker' and whether the WHS entry permit holders consulted, or attempted to consult with 'relevant workers', was a matter of controversy in the proceedings. It is uncontroversial however, that the AMWU has coverage over "fitters" and that fitters are employed by Primo at the Chullora site and may be required to work across all parts of the Chullora site.
Some time prior to 16 March 2022 Ms Carovska had assisted the Electrical Trades Union of Australia (ETU) with a disciplinary matter involving one of their members at Primo's Chullora site. In the course of dealing with this matter Ms Carovska had "asked a number of questions about practices, policies and procedures followed at the site". According to Ms Carovska Primo "did not admit to having" certain safe work method statements. Further, during this engagement she was apparently informed that some AMWU members at the site had some safety and industrial concerns. She passed on her contact details so that those members could contact her directly. Ms Carovska was not substantively challenged in cross examination in respect of this evidence and no evidence was led by Primo which called this evidence into question.
Ms Carovska then spoke with "at least two AMWU members" by telephone about a number of safety and industrial concerns they had about the Chullora workplace. The precise nature of those "concerns" was not explained in evidence.
On or about 16 March 2022 Ms Carovska received an email from a member of the AMWU (16 March Email). A redacted version of the email was admitted into evidence without objection. Ms Carovska's evidence was that based on the 16 March Email, together with "conversations with the AMWU members" and her "recent experience obtained through representing the ETU member" she "developed a reasonable suspicion that there was a contravention of the WHS Act."
Given its importance to Ms Carovska's state of mind I set out the content of the 16 March Email, as it was admitted into evidence, in full: From: [redacted] Sent: [redacted] Wednesday, 16 March 2022 9:21 PM To: Jacquie Carovska Cc [redacted] Subject: Updates on Primo Hi Jacquie Thank you for returning my call last week and for patiently listening to me air some of the issues that we are facing at Primo Small Goods. As requested, here are some of the more pertinent issues for your info, pl. While there are some issues throughout all 3 shifts, [redacted]. l. Absence of Toolbox Meetings • Toolbox meetings have always been scheduled on a fortnightly basis or earlier, if there is an urgent need, since the time I joined Primo in 2017. These meetings are important as we highlight potential hazards or incidents before they escalate, share a quick update on what is happening on the shop floor as well as share best practices. However, for close to a year now, these have not conducted and personnel have not had the opportunity to come together for these meetings. Our recommendation would be for this to be reinstated fornightly or at least monthly as we see value in these meetings. 2. Lack of Welfare or Wellbeing • If there are potential issues, we have been requested to highlight through email. Yet there was no outcome or follow up action . Emails go unreplied without even a reply informing that the matter has been looked into. Any feedback and suggestions to help improve practices and enhance OHS in Primo is sidelined by the senior staff. • When [redacted] had an accident, the engineering manager did not check on the wellbeing of the injured personnel. Neither (to our knowledge) did he investigate how the accident happened to help prevent it from happening again. Although the safety officer was also notified of the accident, [redacted] call was ignored. • The responses from senior staff sometimes dampen the morale of the team as it can be outrightly rude [redacted]. • [redacted]. 3. Staffing & Wage Issues • [redacted]. 4. Deployment of Staff for duties that they are not trained • [redacted] For example, the cleaners have been tasked to pull the covers of the machines before they can do deep and core cleaning. Though they have been provided with the tools, they are not competent and they don't have access to the dies. A task that had been routinely done by the fitters on a daily basis has no longer been prioritised. As such, the machines are not cleaned every day, but for auditing purposes, a lot of cover up is happening. For your info, there has been many cases of listeria in Primo. The changing of the air socks by the maintenance crew on a weekly basis is no longer carried out . This is a major OHS issue. Are we waiting for a major incident to happen before action is being taken . The lack of manpower has resulted in the wrong people doing the wrong job, which can potentially lead to major issues in terms of OHS and a drop in productivity. This lack of cleaning, introduces potential contamination issues, which certainly will be transferred to our end customers. 5. OH&S Issues at the Workplace • [redacted]. • No training has been provided for using the Boiler Room . We are deeply concerned should they be an explosion or any other emergency situation, how staff need to respond. For your info, we were all asked to sign an indemnity form by Paul via email, dismissing the company of any responsibility. We are recommending for training to be done for staff so that we are better equipped when faced with an emergency. • The roof space also poses a major hazard as there are no signs or safety barriers and insufficient lighting. [redacted] We are recommending more safety signs, regular servicing and better lighting amongst other improvements to help address this issue. • Another major issue is the low visibility that is caused as a result of the steam cleaning of the machines. When the machines are cleaned, the AH Us are not turned on. They have been set on a timer, where it goes into defrost mode, making visibility terribly low for around 4 hours. We are highly concerned as operating in such conditions are very dangerous. During this period of time, we are rushing to ensure that changeovers are done, removing covers from machine, sharpening the blades etc and an environment where it is smoky and foggy escalates the mistakes that can be made and an increase in accidents. With the cleaners too, they can have some type of injury as the floor is wet when it condenses. We are suggesting for more exhaust fans to remove the gases and for the AHUs to be turned on. Thank you for looking through the potential issues that we have in Primo. Grateful if your team can visit the shopfloor and help us steer this in the right direction. I am very concerned about the lack of hygiene and the drop in safety standards at Primo. We know that profitability is key in any company , but not at the expense of safety and wellbeing of staff. Thank you for looking into this matter. Regards [redacted]
On the morning of 8 April 2022 Ms Carovska met with Mr Everson at a coffee shop near the Chullora site. She showed him the 16 March Email and together they filled out a pro-forma document, bearing the AMWU logo and headed "Work, Health & Safety Entry Notice" (Notice of Entry). This was the document the union officials intended to give Primo after entering the workplace in purported compliance with s 119 of the WHS Act. Again, it is useful to set out the Notice of Entry as it was admitted into evidence: WORK HEALTH & SAFETY ENTRY NOTICE - text version (69628, rtf)
After completing the Notice of Entry Ms Carvoska and Mr Everson proceeded to the Chullora site, arriving at the guard house shortly after 9.00am.
The security guard contacted Mr Jaftha by telephone to advise him of the arrival of the union officials. Mr Jaftha was the human resources manager at the site and directly managed a team of 13 employees across the human resources, work health and safety and payroll teams. After informing Mr Jaftha of the arrival of the union officials, the security guard handed the phone to Ms Carovska. It is not in dispute that Ms Carovska advised Mr Jaftha that she and Mr Everson were exercising a right of entry under s 117 of the WHS Act and that at some point, said words to the effect that Mr Jaftha could not refuse or hinder their entry to the site. Mr Jaftha requested that they take a rapid antigen test for COVID-19 and advised he would meet them at the test area.
Mr Everson and Ms Carvoska were then escorted to an office where they took a rapid antigen test. Both were negative. At around 9.50am Mr Jaftha arrived. Both union officials showed him their WHS entry permits and then Ms Caravoka addressed, by hand, the Notice of Entry to Mr Jaftha, and handed it to him, saying words to the following effect: "There are number of issues that we want to investigate on site."
Mr Jaftha looked at the Notice of Entry and formed the view that he did not understand exactly what the issues were or where the union officials wanted to go on the site. His evidence was as follows: "Nothing on the Notice made obvious to me what the issue or issues actually were, or where it was that Jacqueline and Nathan wanted to go. The 'particulars' ticked on the notice were so broad, they were unhelpful. For example: a. There are about 20 first aid boxes located around the Site, we also engage 40 employees who are qualified to administer first aid. They are stationed through various different areas of the facility; b. Primo employs about 1000 workers at the Site. There are in excess of 600 task descriptions for those workers, most of which are manual. The 'particulars' given: "Ergonomic Risks", "Psychosocial" and "Hazardous manual tasks" would have related to any of those tasks; and c. In terms of traffic control and moving plant at the Site, Primo utilises forklifts, electric pallet jacks (a machine used to lift and move pallets of product) and palletisers (a machine used to stack goods onto a pallet) in the raw side, cook side and dispatch areas of production. Moving plant also travels from the production area to the maintenance department, where the charging and inspection bay is located."
Mr Jaftha then had a conversation with the union officials, in an attempt to obtain more information about their concerns, and during which the union officials outlined in broad terms some of their concerns. For instance, I accept that Ms Carovska said words to the following effect: "We've received multiple anonymous complaints. People are performing work and are pressured as they are understaffed. Your training practices may not be fit for purpose and employees may be suffering from psychosocial risk. First aid boxes are not adequately maintained and there are issues regarding the forklifts repair and maintenance and shared zones between pedestrians and forklifts. There are also concerns about muscular skeletal issues. We will be viewing different areas and speaking with production and maintenance employees and HSRs."
After the conversation Mr Jaftha indicated he wanted to get some legal advice and left the room. After around 15 minutes he returned with a mobile phone which he put on speaker. On the line were Ms Belle Sakrzewski-Hetherington and Mr William Ash, both inhouse lawyers for JBS Australia Pty Ltd, an entity within the same corporate group as Primo, who also appeared for Primo at the hearing. Ms Sakrzewski-Hetherington and Mr Ash repeated the concerns Mr Jaftha had raised regarding the Notice of Entry and asked for further particulars of the suspected contraventions. Ms Carovska gave various examples along the lines previously given to Mr Jaftha.
Ultimately, after several minutes of conversation, the representatives of Primo agreed that the union officials could enter the site but reiterated that they did not consider that the Notice of Entry was satisfactory. I accept that Mr Ash said words to the following effect: "Given what you have advised us verbally today, you may enter. We do not believe, though, that the tick and flick pro-forma notice satisfied the requirements of the regulations in respect of particulars of the suspicion. If such a notice, without any particulars, is relied on in the future, you are on notice that we will not allow you to enter. We will write to you about our position on this."
There was no evidence led to the effect that the WHS entry permit holders intend to exercise a right to enter the Chullora site in the future using the same Notice of Entry and the AMWU did not seek any relief directed toward allowing the WHS entry permit holders to enter in the future using the same or a similarly completed, notice of entry.
The union officials were then escorted to the maintenance department by the security guard, while Mr Jaftha went to put on his own PPE. While there was some dispute as to the time this occurred, it likely occurred sometime between 10.00am and 10.30am. I do not consider that the different recollections of each witness as to the exact time certain events took place, which was a focus of the cross examination of witnesses conducted by both parties, has any bearing on the reliability or credibility of each witnesses' evidence. The events of the morning of 8 April 2022 were clearly chaotic and somewhat emotionally charged and it is entirely understandable that the persons involved could not recall, or imprecisely recalled, the exact time certain things occurred.
Upon entering the maintenance workshop Ms Carovska saw the ETU member she had previously assisted, Mr Tristan Wootten. There were a number of workers in the workshop although it was not made clear in the evidence how many. Ms Carovska made the following announcement to the workers: "I'm Jackie Carovska and this is Nathan Everson from the AMWU. We're here to investigate some safety matters that have been raised with the union. We'd like to talk to anyone who might have any experiences they want to raise."
Thereafter Mr Wootten and another worker, Mr Hermann Kreller, both of them electricians, entered a room within the workshop with the union officials and began talking to them. The evidence established that Ms Carovska knew that Mr Wootten was an electrician, but she did not know what job the other worker had. Mr Everson did not know or inquire as to the work performed by the two workers with whom he and Ms Carovska spoke. It is more likely than not, and the AMWU submitted that it was open to me to find, that these two workers were not 'relevant workers', however, for reasons which will become apparent, nothing ultimately turns on this fact.
At around this time Mr Jaftha entered the workshop, together with Primo's WHS Officer, Nathan Mascherin. At some point Mr Paul Burman, Engineering Manager for Primo, joined them.
After a short period of time Mr Jaftha moved close to the union officials and the workers, such that he was within earshot of the discussions.
There was some dispute between the parties as to exactly what was said thereafter and more particularly, how it was said. What is clear is that the union officials were firmly of the view that they were entitled to conduct a private interview with the workers, and that attempts by Mr Jaftha and the other gentlemen to eavesdrop on their conversations or to have a representative of the company with them at all times, constituted an attempt by Mr Jaftha to hinder their investigation. I am satisfied that the union officials, in particular Mr Everson, became quite strident in their attempts to communicate to Mr Jaftha and the other Primo representatives, their belief that they were entitled to speak in private with the workers.
On the other hand, it is also clear that Mr Jaftha and the in house lawyers for Primo, were firmly of the view that the WHS Act did not give the union officials the right to have a private conference with the workers and that if there was a risk to workers' health and safety, they wanted to know what it was, allegedly so that steps could be taken to eliminate or reduce the risk.
For the reasons that follow below, it is not necessary for me to make a finding as to exactly who said what and how they said it, while the union officials were in the workshop. Nevertheless, I accept that the following account of part of the conversation given by Mr Jaftha, while perhaps not accurate in every respect, provides a reliable indication as to the tenor and nature of the exchanges: "Me [Mr Jaftha]: "Considering that you are raising issues regarding safety, either me or a WHS Officer will be present." Nathan: [Walking towards me, using a loud and stern tone of voice, which I found aggressive] "You cannot be within earshot of our discussions. You're hindering the investigation by not allowing the employees to speak freely. You need to leave, now!" Me: "That is not the case at all. We are here to work in partnership with you and the team members to ensure that we can rectify any of the safety concerns in a timely manner, especially considering you've issued us a notice regarding the safety or wellbeing of our team members, I want to know what these issues are so we can rectify and take any corrective actions immediately." "If someone is in imminent danger we need to fix it, you need to tell us where it is." Nathan: [With a raised voice and pointing his finger at me about 30cm from face, which I found intimidating] "You cannot be present, get out of the room!" Me: "Mate, no need to point or raise your voice that doesn't help---" Jacqueline: "You are hindering our investigation." "Get out of the room!" Me: "There is no need to raise your voice."
My assessment of the witnesses was such that I accept that Mr Everson in particular, became quite intemperate in some of his exchanges with the Primo managers however, I also accept that this was borne from a genuine belief that the Primo managers were inappropriately attempting to listen to the union officials' conversations with workers.
I should note that the solicitors for Primo did not put Mr Jaftha's account, or the other Primo witnesses' account, of the various oral exchanges directly to Mr Everson during cross examination. Nor did the solicitor for the AMWU put the AMWU witnesses' account of oral exchanges to the Primo witnesses in cross examination. While there was no unfairness arising from this in circumstances where the parties had exchanged written submissions and the AMWU had filed statements in reply after seeing the statements of Primo's witnesses, the failure to put key differences in terms to the witnesses in cross examination made it more difficult for me to determine which account was more likely to be the more accurate account.
There was no evidence that any of employees of Primo manhandled either Ms Carvoska or Mr Everson. It is also accepted by the AMWU that Primo did not stop the union officials from speaking with the electricians, even though they may not have been 'relevant workers'. Primo was, however, insistent on a company representative being privy to the union officials' conversations with the workers and I accept that it is more probable than not that Mr Jaftha also raised his voice during some of the exchanges with the union officials. It is clear, by reason of each side steadfastly believing the correctness of their position, that tempers became increasing frayed as the visit wore on. In the words of Ms Presdee, the solicitor for the AMWU: "Everyone's conduct could have been better."
At some stage Mr Everson sought advice, via telephone, as to next steps from Mr David Kelly, the AMWU's health and safety officer, while Mr Jaftha again sought advice via telephone from Ms Sakrzewski-Hetherington.
The situation having reached something of an impasse, Mr Jaftha suggested that a Primo health and safety representative (HSR) be allowed to be present. While Messrs Jaftha, Mascherin and Burman gave evidence that the union officials agreed to this course, this was disputed by the union officials, but in any event, Mr Mascherin was dispatched to find a woman called Julianna Nicoska.
It transpired that Ms Nicoska was the HSR for the "slice pack" - which was part of the production work group rather than the maintenance work group. The union officials considered that this disentitled her being present during their consultations with workers. They also considered that Ms Nicoska was not a valid HSR for reasons that are not relevant for present purposes. The HSR for the maintenance group was someone called Mr Schrinic, however he was not due to start work until 2.00pm. Mr Jaftha asked the union officials to wait until Mr Schrinic arrived, however they were not prepared to do this and again accused Mr Jaftha of hindering their investigation.
At or around this time the union officials had another 'speaker phone' conversation with Ms Sakrzewski-Hetherington who insisted that a representative of the business be present while the union officials walked through the facility and spoke with relevant workers.
During this conversation it is alleged by Mr Jaftha (corroborated by Mr Mascherin and Mr Burman) that the following exchange occurred: "Belle: "We are happy for you to speak with our workers we just-" Me [Mr Jaftha]: "If you don't want any of us here, we can get a representative from SafeWork here." Nathan: [In a raised voice] "Are you hindering our investigation? I have the same rights as a SafeWork Inspector!" Belle: "We need to have someone present to understand what the concerns are. We want to rectify safety-" Nathan or Jacqueline: [interrupting, in a raised voice] "Are you hindering our investigation?""
Both Ms Carovska and Mr Everton deny that Mr Everson said words to the effect that he had the same rights as a Safework Inspector. However, the terms of Mr Everton's denial is telling. In response to the account of the exchange given by Mr Burman Mr Everton stated in his reply statement: "I did not say "I have the same power and authority as SafeWork to conduct an investigation and you are impeding me." Such a statement is factually incorrect and I would not have used it. If I mentioned SafeWork during the visit, it would have been to the effect that as permit holders I had a similar power in that we can conduct an investigation. While we can make suggestions, we can't compel the company to make changes, nor can we direct workers to stop work." (Emphasis in the original)
There are numerous references in the evidence from all the witnesses, to the union officials repeating stating they were conducting an "investigation" and it is clear that both of them considered that their right to speak privately with workers was the same as that afforded to an inspector conducting an investigation. In fact, as I discuss further below, a WHS entry permit holder has a right, pursuant to s 117 (1) to entry a workplace for the purpose of inquiring into a suspected contravention of the WHS Act. For the reasons I will explain, the difference in terminology, by reference to the powers given to inspectors, is more than mere semantics. The weight of evidence supports a finding that Mr Everton did say words to the effect that he had the same rights to conduct an "investigation" as a SafeWork investigator.
While I do not consider, as I explain below, that WHS entry permit holders have the same rights to conduct an investigation as a Safework inspector, nevertheless I also accept that as at 8 April 2022 Mr Everson and Ms Carvoska both held an honest belief that as WHS entry permit holders entering a workplace pursuant to s 117 they had the same, or very similar rights, as an inspector when conducting an investigation, including in particular, the right to speak with workers in private, albeit that they also understood they had no rights or power to direct anyone do to anything in respect of such investigation.
According to Mr Jaftha after the above exchange, and in view of the ongoing impasse, he took the phone off speaker and started to walk away to speak with Ms Sakrzewski-Hetherington in private in a separate room. Mr Jaftha alleged that as he was walking away Mr Everson said words to the effect of: "He's speaking to his mummy!" and laughed. Both Mr Mascherin and Mr Burman gave evidence that words to this effect were said.
Notably Ms Carvoska did not address this evidence at all in her reply statement. Given the allegation made by Primo that such conduct amounted to conduct in contravention of ss 146 and 147 of the WHS Act I infer that she was unable to give any evidence that would have supported Mr Everson's account. Mr Everson's account - given in evidence in chief - was that at the point Mr Jaftha walked away he was on the phone to Mr Kelly trying to explain to him what Mr Jaftha had said, prompting the following exchange with Mr Kelly: "DK: What's happening? NE: Clinton's walked off DK: Why? Where's he gone? NE: I don't know. He's on the phone with his mum, I have no idea."
I accept that Mr Everson, at the least, made a remark about Mr Jaftha speaking with his mother on the phone, within earshot of Messrs, Kelly, Mascherin and Burman and Ms Carvoska, which was unnecessary and unprofessional.
After Mr Jaftha spoke with Ms Sakrzewski-Hetherington privately he returned to the group and the group had another exchange during which Mr Jaftha again expressed the view that there was nothing in the WHS Act that supported the view that the union officials could speak privately with workers and that they wanted someone present during any discussions with workers in order to fix any safety problems, while the union officials repeated that this insistence constituted hindering of their 'investigation'. I accept that both union officials made clear during the exchange they were happy to be escorted around the work site but insisted that their escort be out of earshot "when we are conducting the investigation."
There is some contest between the parties as to the exact words used during this exchange, with the Primo witnesses attesting to Mr Everson at one stage saying: "You don't know what the fuck you're talking about". This is denied by Mr Everson.
In any event, the exchange concluded with the union officials declaring that as they were being hindered, they would leave.
Messrs Jaftha, Mascherin and Burman escorted the union officials off the site just before 11:00am.

Issues in Dispute, Relief Sought by the Parties and Disposition of the Applications

Primo set out in its written closing submissions, which were filed in respect of both proceedings, four issues - one of which had two sub-issues, that it considered were "in dispute". In oral closing submissions Ms Presdee on behalf of the AMWU accepted that the issues identified by Primo, were the "issues at play". [3]
Primo identified the issues in dispute as follows (the designations in bold are my own): 1. whether section 118(1)(b) of the WHS Act confers a right for a permit holder to consult with relevant workers in private or in confidence, by operation of section 130 of the WHS Act (the Privacy Issue); 2. whether the AMWU's proforma notice, without more by way of particulars, meets the requirements of regulation 28 of the WHS Regulation (the Particulars Issue); 3. whether the permit holders had a right of entry under section 117 of the WHS Act in circumstances where: 1. there was no reasonable basis to ground their suspicions that a contravention of the WHS Act had or was occurring, where the permit holder bears the onus of providing otherwise (the Reasonable Suspicion Issue); and 2. they could not reasonably have believed that any contraventions related to or affected a relevant worker at the site, given the AMWU's coverage rules, "which Primo bears the onus of providing" (the Coverage Issue); and 1. whether or not Ms Carovska's or Mr Everson conducted themselves improperly, in contravention of sections 146 and 147 of the WHS Act by: 1. in Mr Everson's case: 1. misrepresenting to Primo representatives that he had the same power and authority as a safe work inspector: 2. swearing and engaging in aggressive and intimidating or belittling behaviour towards Primo representatives; and 3. misrepresenting to Primo representatives that he was entitled to consult with workers in private. 1. And in Ms Carovksa's case, by also misrepresenting to Primo representatives that she was entitled to consult with workers in private (collectively, the Misconduct Issue).
Although the parties agreed these were the issues in dispute it is important that I satisfy myself that they do comprise a current dispute "about the exercise or purported exercise by a WHS entry permit holder of a right of entry under [the WHS] Act" before making one or more orders as permitted by s 142(3). Whether there is a current dispute is a matter of fact, informed by whether the relief sought relates to the future exercise of rights: Second Enco Precast Decision at [50] - [61].
The AMWU in its application, sought the following orders: 1. In any exercise of a right of entry under section 117 of the [WHS] Act where prior notice has not been given, Primo representatives will take immediate steps to facilitate entry to the site in accordance with the [WHS] Act (Prayer 1 in the Schedule to AMWU's application - AMWU Prayer 1). 2. When entry to premises has occurred under section 117 of the [WHS] Act, Primo will: 1. make available a Primo representative who has a delegation to properly address safety and or operational issues to facilitate the entry. The nominated representative will consult and cooperate with AMWU Officials during the visit as required under s 46 of the [WHS] Act (Prayer 2a in the Schedule to AMWU's application - AMWU Prayer 2a); 2. immediately inform AMWU permit holders of any issues that may prevent or restrict access to any area of the site and confirm those reasons in writing prior to AMWU permit holders leaving the site or as soon as practicable thereafter (Prayer 2b in the Schedule to AMWU's application - AMWU Prayer 2b); 3. facilitate the ability of AMWU permit holders to exercise their rights under section 118 to consult with relevant workers in such a way that protects the rights of workers to raise an issue or concern with a WHS permit holder and do so confidentially (Prayer 2c in the Schedule to the AMWU's application - AMWU Prayer 2c); 4. inform AMWU permit holders of any reason why Primo is unable to provide access to workers on the site verbally at the time the request is made and confirm those reasons in writing prior to AMWU permit holders leaving the site or as soon as practicable thereafter (Prayer 2d in the Schedule to the AMWU's application - AMWU Prayer 2d).
Primo in its application, sought the following orders and declarations: 1. A declaration that the First Respondent's pro-forma notice of entry is not sufficient to satisfy the requirements of s 28 of the WHS Regulations, without being completed with further written particulars which include, at the minimum (without disclosing information prohibited by section 130 of the WHS Act): 1. Specifically, what the suspected contravention is or was; 2. Where the suspected contravention is or was occurring; and 3. Whether the contravention is currently occurring, and if not, when the contravention is alleged to have occurred (Prayer 1 in the Schedule to Primo's application - Primo Prayer 1). 1. A declaration that the Second and Third Respondent did not hold a reasonable suspicion, before entering the workplace, that contraventions of the WHS Act had occurred or were occurring (Prayer 2 in the Schedule to Primo's application - Primo Prayer 2). 2. A declaration that the conduct of the Second and Third Respondents was improper for the purpose of section 146 of the WHS Act (Prayer 3 in the Schedule to Primo's application - Primo Prayer 3). 3. Orders that the Second and Third Respondents undertake corrective training aimed at imparting to the Second and Third Respondent, the requisite knowledge to enable them to comply with their obligations as WHS entry permit holders, on or before [date] 2022 (Prayer 4 in the Schedule to Primo's application - Primo Prayer 4). 4. The Second and Third Respondents supply to the Applicant, evidence of compliance with Order 4 of these orders to the Applicant's satisfaction (Prayer 5 in the Schedule to Primo's application - Primo Prayer 5).
I set out below why each parties' application fails, by reference to the issues identified and the relief sought by the respective parties.

The Privacy Issue

The first issue identified as being in dispute is the Privacy Issue. The evidence establishes that on 8 April 2002 the question of whether s 118(1)(b), by reason of s 130 or otherwise, confers a right for an entry permit holder to consult with relevant workers in private or in confidence, was a matter in dispute between the parties which was about the exercise or purported exercise of a right of entry. AMWU Prayer 2c, to use the words of Davis J, President, in the Second Enco Precast Decision, 'frames a current dispute', namely whether in the future, when exercising the right of entry under section 117, the permit holders are to be entitled to confer with relevant workers confidentially, such that Primo should be obliged to 'facilitate the ability of AMWU permit holders to exercise' that entitlement.
Although I have jurisdiction to deal with that dispute, as framed, even if I found in favour of the AMWU, that is, even if I found that the WHS Act entitles permit holders to confer with relevant workers confidentiality, I would not grant AMWU Prayer 2c as it is too vague and too broad. As discussed in paragraph [43] above, orders should be drafted in a manner which makes it clear to the person the subject of the order, exactly what is required of them, such that it is clear whether the order has been contravened. The proposed order does not do that. How is it to be determined whether Primo has in fact facilitated the ability of AMWU permit holders to consult with relevant workers in such a way that protects the alleged right of workers to raise an issue or concern confidentiality? Any proposed order should stipulate "the way" in which such consultation should occur, rather than an objective, which may or may not be achieved despite best efforts. For example, an order might be made, in appropriate circumstances, pursuant to s 142(3)(e), stipulating that the permit holders be given access to a meeting room with a door in which to conduct consultations and that no representative of Primo management be present during such consultations.
However, I do not consider that WHS entry permit holders have a 'right' to consult with relevant workers "in such a way that protects the rights of workers to raise an issue or concern with a WHS permit holder and do so confidentiality."
First, the right of an entry permit holder to consult with relevant workers is not extended to any "issue or concern", but only in relation to the "suspected contravention". Thus, the order sought by the AMWU would confer rights on a WHS entry permit holder that are additional to the rights exercisable by the WHS entry permit holder under Part 7, contrary to s 142(5).
Second, and more substantively, the WHS Act does not, in terms, give a right to a WHS entry permit holder to consult with relevant workers in relation to a suspected contravention confidentiality. Section 118(1)(b) gives a WHS entry permit holder a right to "consult with the relevant workers in relation to a suspected contravention" and that is all. There are no words in s 118 which indicate that such consultation is to be confidential or private. The fact that s 130(1) states that a WHS entry permit holder "is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace", and 130(2) provides that a WHS entry permit holder who wishes to disclose the name of a worker may only do so with the consent of the worker, does not confer a right on the WHS entry permit holder to consult with workers in private or otherwise confidentiality. Section 130 is directed solely to the disclosure of names of workers.
Nevertheless, WHS entry permit holders do have a right to consult with the relevant workers. If a PCBU or its agent, insists upon being privy to such consultations and this results in relevant workers not being willing to consult with the WHS entry permit holders, the PCBU and/or its agent could be said to be hindering or obstructing the WHS entry holder in exercising their rights under s 118(1)(b), such that it may be appropriate for the Commission to exercise its discretion to make orders to remove any such obstruction. Depending on the circumstances, such conduct could also expose the PCBU and/or its agent, to a WHS civil penalty pursuant s 145.
Whether the actions of the PCBU in insisting upon being privy to any consultation actually amounts to hindering and obstructing or otherwise preventing the WHS entry holder in exercising their rights under s 118(1)(b) will be a question of fact in every case. While I accept the evidence of each of the AMWU witnesses that, in their experience, workers may often be reluctant, possibly even scared to talk to a union official if a manager is within earshot, despite the protection against 'discriminatory conduct' provided to workers under Part 6 of the WHS Act, this cannot be assumed to be the case in every situation and at every site and the AMWU witnesses did not attest that this was the case in each any every situation where they have sought to consult with workers. Whether consultations are being impeded by the presence of management needs to be established before the WHS entry permit holder may request, first of the PCBU and then, if necessary, this Commission, that arrangements be made to permit them to consult with relevant workers in private. It was not established in this case.
On 8 April 2022 the WHS entry permit holders assumed that they had a 'right' to speak to relevant workers in private and/or that the workers did not wish to consult with them within earshot of the Primo managers. However, even if the two workers with whom Ms Carovska and Mr Everson spoke were 'relevant workers', (which is very unlikely for the reasons discussed below), there is no evidence that any inquiry was made of them as to whether they were prepared to consult with them in the presence of management. There is no evidence that the WHS entry permit holders attempted to consult with actual relevant workers and were prevented from doing so by Primo's insistence on having someone present during the consultation. Indeed, the evidence is that the WHS entry permit holders left the workplace rather than attempt to conduct consultations in the presence of the Primo representatives.
Only when it is clear that the presence of representatives of the PCBU is preventing or hindering consultation in relation to the suspected contravention, and that despite this the PCBU continues to insist on being present, could it be said that the PCBU is hindering or obstructing the WHS entry holder exercising their rights under s 118(1)(b). In this event, to use the words of the Queensland Court of Appeal in the Third Enco Precast Decision at [20], relevant facts would exist that would raise the discretion conferred by s 142(3) and such facts may well justify the exercise of the discretion to make an order or orders of the kind I suggested at the end of [107] above.
The AMWU submitted that s 118(1)(b) must be read in conjunction with s 130 such that "any consultation that a WHS permit holder undertakes when inquiring into a suspected contravention would need to be conducted in such a way that the name of a worker could not be automatically known to management, without the worker's express consent" and that s 130 provides workers with a "guarantee of anonymity". I disagree.
As the High Court said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39], quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (French CJ, Hayne, Crennan, Kiefel and Bell JJ): "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
There is nothing in the statutory text which expressly states that consultations conducted pursuant to s 118(1)(b) are to be conducted in private, a fact conceded by the AWMU at paragraph [17] of its Closing Submissions dated 24 November 2024. Parliament could easily have provided that consultations with relevant workers be conducted in private, but it did not, despite expressly providing some protection for workers in s 130. The protection provided, by s 130, is limited however, to the WHS entry permit holder not being required to disclose the name of a worker to the PCBU and only being permitted to disclose the name of a person with the consent of the person. Such a protection would prevent, for instance, a PCBU refusing entry to a WHS entry permit holder to a workplace until they disclose the name of the worker who informed them of the suspected contravention.
Section 130 does not however, prevent the PCBU from ascertaining the identity of a worker engaging with the WHS entry permit holder through, for instance, observation. If a worker is identified by a PCBU by being observed consulting with the WHS entry permit holder it could not be said that the WHS entry permit holder by consulting with the worker, had breached s 130(2) of the WHS Act. Section 130 does not afford a worker a 'guarantee of anonymity' - it only dictates the circumstance in which a WHS entry permit holder may disclose the name of a worker. It is a matter then for the worker, knowing that they may be observed by management consulting with the WHS entry permit holder and therefore identified, whether they wish to consult. As noted above, if it transpires that observation, or listening in, by management is an impediment to consultation, it may then be appropriate for steps to be taken, to allow for consultation to occur in private.
There are numerous other matters which fortify me in finding that s 118(1)(b) does not give a WHS entry permit a right, simpliciter, to consult with workers in private.
First, when considering the context of a statutory provision to aid in interpretation, regard may be had to the purpose or object underlying the statute. This is also mandated by s 33 of the Interpretation Act 1987 (NSW) which provides: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
Of note in respect of the interpretation of s 118(1)(b), are the objects of the WHS Act set out in s 3(a), (b) and (c), namely protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant; to provide for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety consultation; and to encourage unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment.
While the AMWU considers that private consultations with workers will best achieve these objectives, on the basis that the workers will be able to be frank and fearless during such consultations, Primo's view is that allowing it to be present during consultations will allow it to quickly and appropriately address any risks to health and safety and so best achieve the objects of the WHS Act. It seems to me that both positions have merit, which leads me to the view that the method by which the objects of the WHS Act will be best achieved in a given circumstance will be entirely dependent on the circumstances existing at a particular workplace, rather than by interpretating s 118(1)(c) in a particular way. It may well be the case that in many, perhaps most instances, workers will not be prepared to consult with WHS entry permit holders if the PCBU is privy to the discussions, however, this cannot be assumed to be the case whenever a WHS entry permit holders enters a workplace pursuant to s 117 of the WHS Act. There may well be circumstances and workplaces where workers are happy for representatives of the PCBU to be present while they consult with WHS entry permit holder.
On the other hand, it should not be assumed that a wish on the part of the PCBU to be present during any consultation between the workers and the WHS entry permit holders, is borne of an altruistic desire to remedy any suspected contravention of the WHS Act. This is particularly so where s 118(1)(c) of the WHS Act separately provides the WHS entry permit holders with a right to consult with the relevant PCBU about the suspected contravention such that may be unnecessary for the PCBU to be present during the consultations with workers. I note that the WHS entry permit holders in this case confirmed that it would be their usual practice to report back to the PCBU following their consultation with workers, in order to ensure any risks to health and safety were addressed.
To the extent Primo submitted that s118(1)(b) gave it the right to be present during the WHS entry permit holder's consultation with workers, I reject that submission. Just as s 118(1)(b) does not expressly provide that consultations between the WHS entry holder and workers are to be conducted in private, nor does it provide that consultations with workers are to be conducted in the presence of the PCBU. The provision allows for consultation with workers, no more and no less. How those consultations proceed, in furtherance of the object of the WHS Act, will be different in every case. In short, regard to the purpose of the WHS Act does not support either the AMWU's construction of s 118(1)(c), or a construction which allows the PCBU a right to be present during the consultations.
Another contextual matter pointing against the construction contended for by the AMWU is found in ss 68, 70, 117, 160 and 171 of the WHS Act.
Section 117 permits a WHS entry permit holder to enter a workplace for the purpose of inquiring into a suspected contravention of the Act. This contrasts with s 68 which permits a HSR to investigate complaints relating to work health and safety and to inquire into anything that appears to be a risk to the health or safety of workers in the work group; and moreover s 160, which provides that an inspector (appointed under Part 9 of the WHS Act) may investigate contraventions of the Act and assist in the prosecution of offences.
The definition of "inquire" according to the Macquarie Dictionary, online edition, 2023 is: 1. to seek information by questioning; ask. 2. to seek to learn by asking. 3. inquire into, to undertake a process, often a formal one, to establish the facts about.
The definition of "investigate" according to the Macquarie Dictionary, online edition, 2023 is: 1. to search or inquire into; search or examine into the particulars of; examine in detail. 2. to examine in order to obtain the true facts: to investigate a murder. 3. to make inquiry, examination, or investigation.
The definition of "consult" more closely aligns with "inquire" rather than "investigate". According to the Macquarie Dictionary, online edition, 2023 "consult" means: 1. to seek counsel from; ask advice of. 2. to refer to for information. 3. to have regard for (a person's interest, convenience, etc.) in making plans. 4. (sometimes followed by with) to consider or deliberate; take counsel; confer. 5. a consultation, especially one with a medical practitioner.
The definition of the words alone ultimately sheds little light on whether the act of consulting with workers in relation to a suspected contravention pursuant to s 118(1)(b) is to occur in private. However, the express powers given to an HSR and moreover, to an inspector, are far more extensive than those given to WHS entry permit holders and indicates that the legislature has deliberately not allowed a WHS entry permit holder the same rights. In particular, the right to speak privately with a worker is expressly given to an inspector in certain circumstances, but is not expressly given to a WHS entry permit holder.
Section 171(1)(c) of the WHS Act provides that an inspector who enters a workplace may require a person at the workplace to answer any questions put by the inspector. A WHS permit holder has no such power. Further, and more relevantly, s 171(3) provides than an interview conducted by an inspector under s 171(1)(c) must be conducted in private if the inspector considers it appropriate or if the person being interviewed so requests. The only other persons who may be present during such an interview are: a person assisting the inspector (s 166); a representative of the interviewee (s 171(4)) and/or, the HSR (s 68(2)(c) and (d)).
While the WHS Act does not expressly provide a PCBU with the right to interview a worker concerning work health and safety (although pursuant to s 28(c) a worker must comply so far as they are able, with any instruction that is given by the PCBU to allow the PCBU to comply with the Act), in an acknowledgement that this may occur as an incident of the employee/employer relationship, s 70(1)(d) and (e) permits a HSR to be present at any such interview, with the consent of the worker.
The fact that the legislature has expressly provided that interviews with inspectors must be conducted in private in certain circumstances and has stipulated who may be present during such interviews or in interviews between the PCBU and the worker, but omitted to provide any parameters or other guidance in respect of a s 118(1)(b) consultation, strongly indicates that the legislature did not intend that such a consultation must be conducted confidentially or 'in private'; but nor did it intend that the PCBU must be privy to the consultation. Such a construction of s 118(1)(b) is generally consistent with the maxim expressio unius est exclusio alterius - where a statute expressly includes one thing, it can be assumed that it excludes other things of the same kind; and/or the maxim expressum facit cessare tacitum - an implication cannot be made on a topic with respect to which express provision has been made.
The third matter that supports a construction that s 118(1)(c) does not give WHS entry permit holders the right to consult with relevant workers in private is the principle that where a statute abrogates or diminishes common law rights of another, clear and unambiguous words are required and such statute should be construed no more widely than is necessary to give effect to the statutory object and purpose for which the right is conferred.
Flick J considered the tension between the statutory rights of entry under the Fair Work Act 2009 (Cth) and the rights of occupiers in Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065; 280 IR 47. His remarks at [29] - [30] are apposite to the tension between the rights of entry permitted under Part 7 of the WHS Act and the rights of the PCBU: 29. The statutory rights conferred upon permit holders are rights which diminish the common law rights of occupiers to determine who may enter and remain upon their property. 30. The statutory rights conferred, it is respectfully considered, should thus be construed no more widely than is necessary to give effect to the statutory object and purpose for which the right is conferred. When addressing s 484 of the Fair Work Act in Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85, (2012) 203 FCR 389 at 407, it was there observed: [63] … There is much to be said for the view that the statutory right of entry conferred on a permit holder by s 484 should not be construed as conferring any greater right than is necessary to achieve the statutory objective. The common law rights of an occupier, on this approach, are only to be diminished to the extent absolutely necessary to give effect to the right conferred. Subject only to the requirement that an occupier make a "reasonable request", the balance that the Legislature has sought to achieve between granting a statutory right of access and the consequent diminution of the common law rights of an occupier is thereby struck. An occupier, on this approach, need not be further involved itself in promoting or accommodating the interests of those seeking entry. Justice Tracey agreed with this reasoning: [2012] FCAFC 85 at [30], (2012) 203 FCR at 400. In developing this approach, it was later observed in Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991, (2017) 268 IR 355 at 364 to 365: [37] … Although the rights conferred are "beneficial ones [which] should be construed with an eye on the important role of organisations in protecting their members" (Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140 at [109] per Jessup J), they remain rights which are not "untrammelled" by legislative constraints. This approach to the construction of provisions such as s 484 sits comfortably with the well-accepted proposition that "clear and unambiguous words" are required before common law rights are abolished or modified: cf. Bropho v Western Australia (1990) 171 CLR 1 at 17 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. "Statutory authority to engage in what otherwise would be tortious conduct", it has been said, "must be clearly expressed in unmistakable and unambiguous language": Coco v The Queen (1994) 179 CLR 427 at 436 per Mason CJ, Brennan, Gaudron and McHugh JJ. See also: Momcilovic v The Queen (2011) 245 CLR 1 at [43] per French CJ.
As I have already observed, no words are used to make clear that consultations under s 118(1)(b) are to be conducted confidentiality and there is no need to construe the provision in this way to give effect to the object and purpose for which the right of entry is conferred. A WHS entry permit holder exercising a right of entry may be able to successfully inquire into a suspected convention even if the relevant PCBU is privy to their consultations with workers. A 'guarantee of anonymity' is not essential to a successful inquiry or to otherwise achieve the objects of the WHS Act, although it may be in a given case. Each case will turn on its on facts and circumstances and the Commission may step in, in an appropriate case, to allow the WHS entry permit holder the ability to consult with workers confidentiality, in order to protect the WHS entry permit holders right to consult.
In construing the right conferred by s 118(1)(b) I have taken into account the Full Federal Court's view, in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470 at [15], albeit in the context of right of entry provisions in the Fair Work Act 2009 (Cth) and the Occupational Health and Safety Act 2004 (Vic) that: "… notwithstanding the closely regulated environment of industrial and employment legislation, provisions relating to entry on to worksites and the regulation thereof should be construed conformably with the language used by Parliament and with an eye to common sense, so that they and can be implemented in a clear way on a day to day basis at work sites. The legislation needs to work in a practical way at the work site, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site."
A construction of s 118(1)(b) which does not include a right for the WHS entry permit holder to consult with relevant workers in private or a right to the PCBU to be privy to the consultation, is in conformity with the language used by the Parliament and with an eye to common sense and allows for the provision to be implemented in a clear way on a day to day basis at work sites.
Had Ms Carovska and Mr Everson entered the Primo site, been escorted around it by Mr Jaftha and despite making the announcements similar to that recorded in paragraph [75] above, (adjusted so that it was directed only to workers over which the AMWU had coverage) no worker came forward to consult with them, or if workers expressly told them that they would not speak with then in the presence of Mr Jaftha, it may, at that stage, or perhaps after an attempt was made to consult with workers in the presence of a HSR or other person suggested by Primo, have been appropriate for Ms Carovska and Mr Everson to request that all Primo representatives leave a particular vicinity for a reasonable period to enable any worker who did not wish to consult while Mr Jaftha was present, to come forward. If Primo did not accede to this request, it may have been appropriate at that stage for the AMWU to make an application to this Commission for an order pursuant to s 142(3)(e), along the lines that the WHS entry permit holders be allowed access to relevant workers without any representative of Primo being present, so as to allow the WHS entry permit holders to consult with the relevant workers in relation to the suspected contravention. However, in the absence of any facts to indicate that the presence of a Primo manager or other representative was or could be preventing consultation from occurring, there would be no basis for the Commission to make such an order. Such facts were not established in the present matter.
For completeness I also note that the AMWU, if it were satisfied that Primo's insistence on being present during consultations with relevant workers was intentionally or unreasonably hindering or obstructing the WHS entry permit holders from exercising their right under s 118(1)(b), could also bring proceedings in the Local or District Court against Primo pursuant to s 145. However, I should record that the evidence of Mr Jaftha to the effect that his motivation in insisting that he be present during any consultation was to enable him to "rectify and take any corrective actions immediately" was uncontroverted and no worker had indicated that they would not consult with Ms Carovska and Mr Everson if Mr Jaftha was present.
I should acknowledge that pursuant to s 128 of the WHS Act a WHS entry permit holder is obliged to comply with any reasonable request by the relevant PCBU or the person with management or control of the workplace, to comply with any work health and safety requirement that applies to the workplace and any other legislated requirement that applies to that type of workplace. Primo submitted that it needed to escort the WHS entry permit holders around the Chullora site to ensure both their safety, and to maintain food safety standards with which Primo must comply. I accept that it was reasonable for the WHS entry permit holders to be escorted in the circumstances and the AMWU did not contend otherwise. The need to escort the WHS permit holders around the workplace did not mean however, that Primo had a right to listen to the consultations that thereby ensued.
To use the words of the Queensland Court of Appeal in the Third Enco Precast Decision at [20], I am not satisfied that relevant facts exist in the present matter that raise the discretion conferred by s 142(3) and consequently I am not satisfied that relevant facts exist that would justify the exercise of the discretion to make the order sought in AMWU Prayer 2c. Put simply, there was no evidence that the presence of Mr Jaftha or other representative would hinder or obstruct the right of the WHS entry permit holders' to consult with workers and so I am not satisfied that valid grounds exist to make such an order, even if an order was fashioned to overcome the objections to the order sought in AMWU Prayer 2c that I identified at [107] and [109] above.
AMWU Prayer 2d also appears to be directed to resolving the Privacy Issue. To the extent such relief is directed to this issue, I repeat what I have said about the WHS entry permit holders' right to consult.
Further, there are no relevant facts that raise the discretion conferred by s 142(3), let alone facts sufficient to justify the exercise of the discretion by the making of an order as sought by AMWU Prayer 2d requiring Primo to inform the WHS entry permit holders of any reason why Primo is unable to provide access to workers on the site verbally at the time the request is made and confirm those reasons in writing prior to the WHS entry permit holders leaving the site or as soon as practicable thereafter. There is simply no evidence at all that Primo did not provide the WHS entry permit holders with access to relevant workers. On the contrary, the evidence is that Primo was willing to provide Ms Carovska and Mr Everson access to relevant workers, but such access was to be conditional on Mr Jaftha or another Primo representative being present. As discussed above, if it was established that this condition was or appeared to be, preventing the WHS entry permit holders from consulting with the relevant workers, suitable relief might be sought pursuant to s 145(3), however this was not established in this case. What was established was that Ms Carovska and Mr Everson were not happy with the condition imposed and chose, of their own accord, to leave the site rather than attempt to consult with relevant workers in the presence of Mr Jaftha or another Primo representative.
Further, the order sought by AMWU Prayer 2d, by its terms, would confer on the WHS entry permit holders rights that are additional to the rights exercisable by the WHS entry permit holders under Part 7, contrary to s 142(5). Section 118 does not give WHS entry permit holders the right to be informed, verbally or in writing, why Primo "is unable to provide access to workers" - the relevant right is the right to consult with relevant workers in relation to the suspected contravention.
In the circumstances, I will not make the orders sought in with AMWU Prayers 2c or 2d.

The Particulars Issue

The second issue identified as being in dispute is the Particulars Issue. Both parties sought relief which was directed to this issue: the AMWU, (albeit it obliquely as I will explain), by AMWU Prayers 1, 2a and (probably) 2b; Primo by Primo Prayer 1.
Undoubtedly the issue of whether the Notice of Entry was sufficiently particularised to comply with the requirements of reg 28 of the WHS Regulation was raised by Primo when Ms Carovska and Mr Everson first provided the Notice of Entry to Mr Jaftha. However, the dispute was resolved when Mr Jaftha said words to the effect of: "Given what you have advised us verbally today, you may enter. We do not believe, though, that the tick and flick pro-forma notice satisfied the requirements of the regulations in respect of particulars of the suspicion. If such a notice, without any particulars, is relied on in the future, you are on notice that we will not allow you to enter. We will write to you about our position on this."
The evidence given by Mr Carovska and Mr Everson confirmed that words to this effect were said, and it is not disputed that they were then allowed entry into the workshop.
As I observed above, no evidence was led to the effect that the WHS entry permit holders intend to exercise a right to enter the Chullora site in the future using the same Notice of Entry and the AMWU did not seek any relief directed toward allowing the WHS entry permit holders to enter in the future using the same Notice of Entry.
In these circumstances, there is no longer a current dispute about the Particulars Issue, in so far as it concerns the particular Notice of Entry given to Primo on 8 April 2022. The situation is similar to that which occurred in Enco Precast. In that case the WHS entry permit holders asserted a right to enter on 3, 4 and 5 September 2019 and presented on each occasion a notice of entry. Enco contended that there were no 'relevant workers' at the site, but also asserted that the WHS entry permit holders did not hold a reasonable suspicion of contravention so as to authorise entry and that the notice lacked sufficient particularity. Entry was refused on 3 and 4 September 2019 but was permitted on 5 September 2019. Thereafter, Enco filed an application in the Queensland Industrial Relations Commission seeking orders pursuant to s 142(3)(e), inter alia, that the notices of entry were invalid and of no force and effect because the WHS entry permit holders did not hold a reasonable suspicion of a contravention and the notices of entry were not sufficiently particularised. Industrial Commissioner Hartigan held, at [91] - [93] of the First Enco Precast Decision, that given that the Enco had allowed entry onto the site on 5 September 2019, the dispute as to whether the officials held a reasonable suspicion ceased to be a matter in dispute. This finding was upheld by Davies J, President in the Second Enco Precast Decision at [58] and [61] and was not the subject of the Third Enco Precast Decision.
While Industrial Commission Hartigan decided that issues with the notices of entry were no longer the subject of a current dispute in circumstances where the WHS entry permit holders had been allowed access to the workplace, she nevertheless proceeded, in the event she was wrong about that, to consider whether the permit holders in that case did hold a 'reasonable suspicion' in order to properly enter the workplace and in so doing, considered the adequacy of the particulars given in the notice of entry. I refer to the Commissioner's findings in this regard below.
The adequacy of the particulars in the notice was also addressed on appeal, by Davies J, President at [62] - [70] of the Second Enco Precast Decision, however, he ultimately did not determine the issue because he concurred (at [70]) that the adequacy or otherwise of the notices of entry served in that case was not a dispute for the purpose of s 142 as there was "no suggestion that entry is presently contemplated on any suspicion particularised in the notices delivered in September 2019." His Honour agreed that the alleged invalidity of the notices was not relevant to the future exercise of any rights.
In arriving at this view Davies J, President referred to the decision of Flick J in Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd to which I have already referred. While that decision concerned the right of entry given by s 481 the Fair Work Act 2009 (Cth), Davies J, President considered, at [65] that: The [Fair Work Act] regime is, for all practical purposes the equivalent to that established under the [WH] Safety Act, and, like s 119 provides for the provision of a notice of entry.
While observing at ([66] and [68]) that the notice required pursuant to s 487 of the Fair Work Act must be served before the permit holder enters the premises, while s 119 of the WHS Act (Qld) provides that the permit holder must give a notice of entry "as soon as reasonably practicable after entering the workplace" and so Flick J's remarks about the requirements of a notice of entry under s 487 "cannot be applied strictly to ss 117 and 119 of the [WH] Safety Act", Davies H, President nevertheless considered, at [69], that: … s 119 of the Safety Act and s 28 of the regulations are, as Flick J explained in relation to the equivalent provisions of the Fair Work Act, inextricably bound to the right of entry then being exercised.
Consequently, Davis J, President held at [70]: It follows that the adequacy or otherwise of the Notices of Entry served here is not a dispute for the purpose of s 142 of the Safety Act. The notices must reflect the claimed right to enter; in other words, the basis of the reasonable suspicion. As already observed, there is no suggestion that entry is presently contemplated on any suspicion particularised in the notices delivered in September 2019. The alleged invalidity of the notices is not relevant to the future exercise of any rights.
To the extent Primo Prayer 1 concerns the particular Notice of Entry given to Mr Jaftha by Ms Carovska on 8 April 2022, for the reasons articulated in the First and Second Enco Precast Decisions, there is no foundation to grant the relief sought by Primo, as there is no current dispute regarding the sufficiency of the Notice of Entry as entry was granted on 8 April 2023 and there is no suggestion that that particular Notice of Entry will be relied upon in the future by the WHS entry permit holders.
However, Primo Prayer 1 is not limited to the Notice of Entry given to Primo on 8 April 2023, but seeks a declaration that AMWU's "pro-forma notice of entry is not sufficient to satisfy the requirements of s 28 (sic) of the WHS Regulations, without being completed with further written particulars …"
In the absence of evidence that WHS entry permit holders representing the AMWU, when exercising rights of entry at Primo's premises in the future, will use, in order to give notice pursuant s 119, a document substantially in the same form as the Notice of Entry, I would be inclined to the view that there is no current dispute sufficient to raise the discretion conferred by s 142(3). However, it is clear, albeit implied, from the evidence of Mr Kelly, that AMWU WHS entry permit holders will very likely use the same or very similar form when giving notice, as that used by Ms Carovska, in the future. This being the case I am satisfied that Primo Prayer 1 frames a current dispute concerning the Particulars Issue, namely whether in the future, when exercising the right of entry under section 117, the use of AMWU's pro-forma notice of entry, without being completed with further written particulars, is sufficient to satisfy the requirements of reg 28 of the WHS Regulations.
The relevant parts of Mr Kelly's evidence were as follows: 7. The Notice that Ms Carovska and Mr Everson gave to the Applicant on 8 April 2022 was based on the template notice that I designed for the AMWU. 8. This form is based on a standard form that was used widely in my experience at the CFMEU, as well as by other unions who exercise rights of entry in the building construction and the civil construction industry. This form was recognised as meeting the requirements of the Act by the Regulator, which is now known as SafeWork NSW, but has been called by other names. 9. In my experience that (sic) most managers recognised this Notice is valid under the Act and complied with the obligations under the Act with little discussion. Those managers (by which I also take to mean human resources professionals and safety officers who I have dealt with when exercising a Right of Entry) who had little experience in dealing with union officials exercising their rights were more likely to question the notice and its contents. 10. In designing the form for the AMWU I had in mind to (sic) the requirements contained in Clause 27 and 28 of the Regulations, which require that particulars of the contravention be set out, as far as practicable. I also had regard for the requirement in the Act that a right of entry under section 117 can only be exercised if the permit holder has reasonable grounds to suspect that there has been a contravention of the Act. 11. The designing of the pro forma Notice is an ongoing work that is subject to revision based on organisers' experience in using the forms as well as the experience of other unions who work across the same industries as the AMWU. I also seek input from other officials who have responsibility for health and safety within the Union and the AMWU's internal lawyers also review the form for compliance with the Act and Regulations before it is allowed to be used. …. 16. Finally, Section 130 of the Act provides confidentiality for any work that has raised a concern to a permit holder. This means that a Notice may need to be general in nature, particularly if a worker believes that they will be easily identified by the manager who reads the notice.
Although I consider there is a current dispute which I may deal with, for the reasons which follow, I decline to grant the relief sought by Primo.
First and foremost, the Commission has no power to make a declaration. Section 142 of the WHS Act provides that the Commission may make various orders when dealing with a dispute by arbitration, including, by s 142(3)(e), "any other order it considers appropriate". However, I do not consider the wording of s 142(3)(e) to be sufficient to give me the power to make a declaratory order. A declaration, while having roots in equity, is a statutory remedy: AWB Ltd v Cole (No 2) [2006] FCA 913; 253 FCR 288 at [45]. While the High Court (Mason CJ, Dawson, Toohey and Gaudron JJ) said in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at [38] that superior courts have inherent power to grant discretionary relief, in New South Wales the power to grant declaratory relief is also vested in the Supreme Court by ss 63 and 75 of the Supreme Court Act 1970 (NSW). No such power is conferred on the District or Local Court and as inferior courts they have no inherent power to make declarations.
In the absence of clear and unambiguous words in s 142(3) allowing the Commission to make a declaratory order, I do not consider that the Commission has the power to make such an order, despite the apparently breadth of the power given by s 142(3)(e).
While s 175 of the Industrial Relations Act 1996 (NSW) provides the Commission with the power to determine any question concerning the application of any relevant law, for the purpose of exercising its functions in connection with a matter before it, it does not permit the making of a declaration of the kind sought by Primo. As Commissioner Sloan explained in Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 at [14] - [15], albeit in the context of a question as to the interpretation of a clause in an award: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Awards are industrial instruments: s 8 of the Act. The powers conferred on the Commission by s 175 are "for the purpose of [the Commission] exercising its functions". The powers do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] (Seymour C), citing Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67] and Health Services Union v Director-General, Department of Health (NSW) (2010) 193 IR 359; [2010] NSWIRComm 42 at [57]- [58].
Confirmation that this Commission does not have the power to make a declaratory order can be found in Lyne v Commissioner of Police [2021] NSWIRComm 1001 at [45] (Murphy C) and Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431; 320 IR 198 at [192], where Walton J confirmed that an interpretation of law by the Commission does not have the effect of a declaration.
The inability to grant declaratory relief is sufficient to dispose of Primo Prayer 1, however in the event that I am wrong about the extent of my power pursuant to s 142(3)(e), I record that I would nonetheless decline to grant Primo Prayer 1 in any event. Although I am satisfied that there is a current dispute about whether the use of AMWU's pro-forma notice of entry, without being completed with the particulars set out in the sub-paragraphs of Primo Prayer 1 is sufficient to satisfy the requirements of reg 28 of the WHS Regulations, given that reg 28 requires particulars of the suspected contravention to be provided "so far as is practicable", it is impossible to declare, in the abstract, what will and will not suffice in a given case.
To express the issue another way, the current dispute (about the adequacy of a pro forma notice) is not attached to facts. As such while the parties may be in dispute in the manner described in the proceeding paragraph, the dispute ultimately concerns a hypothetical instance where the AMWU might seek to use its pro-forma notice without the particulars set out in in the sub-paragraphs of Primo Prayer 1. Courts will not grant declaratory relief where there is not a 'real case' and only hypothetical questions are involved. A declaration should only be made where it will have actual consequences for the parties. As the majority explained in Ainsworth v Criminal Justice Commission at 581-582 (with footnotes omitted): It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".
As Primo granted entry on 8 April 2023 and as Primo Prayer 1 is not directed to a particular notice of entry, there is no real legal controversy which I may deal with by granting declaratory relief.
Had Primo refused entry on 8 April 2023 on the grounds that the Notice of Entry was not sufficiently particularised and one or other of the parties applied to the Commission to deal with the dispute arising in respect of the Particulars Issue, it may then have been appropriate for the Commission to determine whether the Notice of Entry was sufficiently particularised and to make consequential orders pursuant to s 142(3)(e). For instance, the Commission might order the WHS entry holders to provide additional particulars if the notice if it was determined that the notice was not sufficiently particularised and entry was still sought; or that Primo allow entry, on the basis that the Notice was sufficient. That said, there remains a real question as to whether the adequacy or otherwise of a notice of entry has any bearing on the right of entry - see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CPB Contractors Pty Ltd [2020] FCA 1598 at [25]. The real question is whether the WHS entry permit holder has a reasonable suspicion of a contravention concerning a relevant worker so as to give rise to a right to enter and the notice of entry is the means by which the WHS entry permit holder communicates to the PCBU the basis upon which it seeks entry to the workplace.
Although I do not propose to grant Primo Prayer 1 (or the related relief sought by the AMWU for reasons which I will explain shortly), given the centrality of the Particulars Issue in the proceedings, it may assist the parties if I make some observations regarding AMWU pro-forma notice and the particulars of the suspected contravention provided in the Notice of Entry given to Primo in this case.
Flick J in Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd had to consider whether the notice of entry given in that case met the requirements of s 518 of the Fair Work Act and in particular s 518(2)(b) which required that the notice "specify the particulars of the suspected contravention, or contraventions". At [54] - [55] he said: There is a degree of precision required by s 518(2)(b). So much is made explicit by both the term "specify" and the identification of that which is to be specified, namely "particulars" of the suspected contravention. It will not be sufficient if an Entry Notice merely states that there is or has been a "suspected contravention" or even that there is or has been a "suspected contravention" of (for example) a particular clause of an enterprise agreement. A permit holder seeking to exercise a right of entry needs to provide further details to an occupier. Section 518(2)(b), it is considered, does not require a permit holder to: - "specify the particulars" as to the basis upon which the permit holder "reasonably suspect[s]" a contravention to have occurred, but s 518(2)(b) does require a permit holder to: - "specify the particulars", namely set forth the facts, matters and circumstances said to give rise to "the suspected contravention, or contraventions". Such a requirement not only imposes a discipline upon the permit holder seeking to exercise the statutory right such that the permit holder is required to focus attention upon those "particulars" which go to the "suspected contravention"; such a requirement also enables an occupier or employer whose common law rights are being displaced by the statutory right of entry to make an informed decision as to whether the statutory right is being lawfully exercised or whether the permit holder is acting in excess of the right conferred.
Of course, as was observed in the First and Second Enco Precast Decision, His Honour's remarks cannot be applied strictly to ss 117 and 119 of the WHS Act, both because the service of a notice of entry does not precede the entry onto premises by the WHS entry permit holder and because reg 28(a) of the WHS Regulation only requires a notice of entry to include (not specify) particulars of the suspected contravention to which the notice relates so far as is practicable.
Industrial Commissioner Hartigan considered in the First Enco Precast Decision at [114] that "the purpose of an entry notice under the WHS Act is to create a record of entry and to, inter alia, inform the occupier of the premises the nature of the reasonable suspicion held." She held at [115] that "the notices provided by the permit holders on 3, 4 and 5 September 2019 were adequate in so far as they informed Enco of the nature of the reasonable suspicion held. That is, the suspicion related to the lifting register not being complete and up to date and access and egress around the site being non-compliant under normal or emergency situations."
I agree with Industrial Commissioner Hartigan that the purpose of a notice of entry given pursuant to s 119 is to inform the occupier of the nature of the reasonable suspicion held, as, to the use the words of Flick J, this then enables an occupier or employer whose common law rights are being displaced by the statutory right of entry to make an informed decision as to whether the statutory right is being lawfully exercised or whether the permit holder is acting in excess of the right conferred. I would add however, that another purpose of the notice of entry, consistent with the object of the WHS Act, must surely be to inform the PCBU of the nature of the suspected contravention so that remedial steps can be taken as soon as possible to remove or eliminate any risk to workers' health and safety. To that end, and consistent with the wording of reg 28 of WHS Regulation, the WHS entry permit holder should strive to provide as much particularisation of the suspected contravention as is practicable.
Section 119(2) recognises that there may be instances where it is not appropriate for a notice of entry to be given in accordance with s 119(1), however the default position is that a notice that complies with the regulations should be given as soon as reasonably practicable and that it should include, particulars of the suspected contravention. The provision of as detailed particulars as is practicable will hopefully enable the PCBU to be both satisfied that the WHS entry permit holder holds a reasonable suspicion of a contravention and is therefore entitled to enter the workplace, but will also facilitate the prompt inquiry into and remediation of, any work health and safety risk.
As I have already stated it is impossible to declare, in the abstract, what will and will not amount to compliance with reg 28 of the WHS Regulations. Consequently, it is not possible to say whether the AMWU's pro-forma notice of entry will satisfy the requirements of reg 28 in a given situation or not.
Generally, I would endorse the remarks made by Logan J about the use of pro-forma notices in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CPB Contractors Pty Ltd. His Honour in that case made interlocutory orders permitting WHS entry permit holders to enter a workplace in circumstances where the PCBU was refusing entry on the grounds that insufficient details of an alleged contravention had been provided in a notice purportedly given under s 119 of the Work Health and Safety Act 2011 (Qld). While he did not have to decide for the purposes of the interlocutory application, whether the particulars given in the notice in that case were adequate, his Honour noted the following at [22]: Another issue which will arise at trial is the utility and, therefore, adequacy of what one might describe as a "tick and flick" pro forma template notice which was employed for the purpose of purported compliance with s 119 of the WHS Act. I can well see the benefit in endeavouring to construct, in advance, in relation to technical requirements, a document which admits of ready use at the worksite. Care, though, does need to be taken with such documents to ensure that they are not employed uncritically to the detriment of engaging with the particular basis upon which the reasonable suspicion has been formed and the related suspected contraventions.
It seems to me the present matter, that Primo had good cause to question the adequacy of the particulars given in the Notice of Entry and therefore to query whether the WHS entry permit holders in fact reasonably suspected that a contravention of the Act had or was occurring. The 'particulars' section of the AMWU pro-forma notice contains a list of what might be described as 'topics'. Ms Carovska and Mr Everson had ticked certain of those topics by way of providing particulars of the suspected contravention. No other information was provided.
A tick to indicate that the suspected contravention related to a particular topic might be sufficient in some cases, but not in others. For instance, indicating that the suspected contravention related to "first aid" might be sufficient for a small workplace, as it would presumably sufficiently enable the PCBU to determine the scope of the inquiry and the general location or facilities that the WHS entry permit holder might need to inspect, however it may not be sufficient at a large workplace. As noted above, in the present matter Mr Jaftha gave evidence that there were about 20 first aid boxes located around the Chullora site and around 40 employees were qualified to administer first aid, stationed around the facility.
The AMWU pro-forma notice has a section to permit the WHS Entry permit to provide "further details". No further details were provided in this case, despite the fact that the 16 March Email had details which the WHS entry permit holders could have provided to Primo, without identifying the worker that sent the email. For example, the 16 March Email identified a lack of training being given to staff before being permitted to enter the boiler room. Consequently, it was feared that if there was an explosion or other emergency in that room, staff in the location would not know how to respond. The Notice of Entry identified that a suspected breach of the WHS Act was occurring due to failure to "provide information training and instruction or supervision necessary to protect persons for risk". The only topic ticked by way of "particulars" that could be regarded as related to the boiler room training risk identified appears to be "hazardous manual tasks", but generally it seems no particulars were given in respect of the identified risk. It seems to me that it would have been far preferable, and more likely to achieve the twin objectives of allowing Primo to understand the basis upon which Ms Carovska and Mr Everson sought entry and to allow Primo, if appropriate, to address the suspected breach, to simply state that suspected breach was a failure to provide adequate training before allowing people to access the boiler room, to ensure that they know what to do in case of an explosion of other emergency.
Similarly, it seems to me informative particulars could have been given, but were not, in respect of the lack of signs, safety barriers and lighting in the roof space and the other risks referred to in the 16 March Email.
I am inclined to agree with Mr Jaftha that nothing on the Notice of Entry made it obvious what the issues or issues actually were and that the 'particulars' ticked on the notice were so broad they were unhelpful. However, for the reasons I have explained, I do not propose to grant the relief sought by Primo in respect of the Particulars Issue.
Before turning to the relief sought by the AMWU arising from the Particulars Issue, I should stress that particulars of the kind I have suggested could have been provided in this case may not always be practicable and a PCBU should generally be slow to consider, given the object of the WHS Act and the important purpose for which WHS entry permit holders are permitted to enter a workplace, that a WHS entry permit holder does not have a reasonable suspicion of a contravention simply because the particulars of the convention are not as detailed as it would like. For instance, the WHS entry permit holder may have received a complaint to the effect that scaffolding at a construction site is unsafe, but no other detail is provided. Provided the complaint provides sufficient probative value to form the basis of a reasonable suspicion that there is a contravention of the WHS Act, which will depend on all the facts and circumstances concerning the complaint, the WHS entry permit holder may enter the workplace for the purpose of inquiring into the suspected contravention and provide a notice of entry which does little more than identify that workers' health and safety is being put at risk due to unsafe scaffolding. Ultimately what is practicable will vary in each and every case.
It seems to me AMWU Prayers 1, 2a and 2b, arise from the Particulars Issue in the sense that the AMWU considered that it had complied with its obligations when it entered the site by providing a notice of entry which complied with s 119 of the WHS Act and reg 28 of the WHS Regulation, yet despite this Primo, for a period of time, did not immediately allow Ms Carovska and Mr Everson access to the maintenance workshop or other areas of the Chullora site, ostensibly due to the Particulars Issue.
For the reasons I discussed at [151] to [157], in circumstances where Ms Carovska and Mr Everson were granted access to the workplace within a relatively short time after their arrival and there is no evidence that they were prevented or restricted in their access to any area of the site thereafter, nor was there any evidence that they were prevented or restricted from consulting with the Primo representatives in respect of the suspected contravention, I do not consider that there are relevant facts to raise the discretion conferred by s 142(3), let alone facts sufficient to justify the exercise of the discretion by making the orders sought in AMWU Prayers 1, 2a or 2b.
There are other reasons for denying the relief. AMWU Prayer 1 has no utility in circumstances where Primo already has an enforceable obligation not to refuse or unduly delay entry into the workplace by a WHS entry permit holder seeking entry pursuant to s 117(1) of the WHS Act, without reasonable excuse: s 144. Further, Primo must not intentionally and unreasonable hinder or obstruct a WHS permit holder in entering a workplace or in exercising any rights at a workplace in accordance with Part 7: s 145. Contravention of ss 144 or 145 has the same civil penalty as would apply pursuant to s 143 for contravention of an order made by the Commission pursuant to s 142(3).
Primo Prayer 2a would require Primo to "make available a Primo representative who has delegation to properly address safety and or operational issues to facilitate the entry" and to "consult and cooperate with AMWU Officials during the visit as required under section 46 of the Act."
There are a number of problems with Prayer 2a. First, the order, by its terms, would confer on the AMWU rights that are additional to the rights exercisable by the WHS entry permit holders under Part 7, contrary to s 142(5). Section 118 does not give WHS entry permit holders the right to consult with a Primo representative who "has delegation to properly address safety and or operational issues".
Second, s 46 does not oblige Primo to consult with the AMWU officials. Section 46 obliges persons who have a duty in relation to the same matter under the WHS Act, so far as is reasonable practicable, to consult with each other. It was not explained by the AMWU how the WHS entry permit holders had any duty which overlaps with a duty held by Primo. A WHS entry permit holder is not obliged to inquire into a suspected breach of the Act and the scope of its inquiries is entirely discretionary. Primo suggested that either s 28 or s 29 of the WHS Act meant that WHS entry permit holders share duties in relation to the health and safety of workers, however s 28 refers to the duties of workers, not WHS entry permit holders and while s 29 does apply to WHS entry permit holders who are at a workplace, it does not impose a duty upon them to ensure the health and safety of workers and others. Nevertheless, s 118(1)(c) does give a WHS entry permit holder a right to consult with a relevant PCBU about the suspected contravention and so Primo was obliged to consult with the AMWU officials in respect of the suspected contraventions. However, as already noted, there was no evidence that Ms Carovska or Mr Everson were prevented or impeded from so consulting.
AMWU Prayer 2b, would also confer on the AMWU rights that are additional to the rights exercisable by the WHS entry permit holders under Part 7, contrary to s 142(5). Section 118 does not give WHS entry permit holders the right "to be immediately informed of any issues that may prevent or restrict access to any area of the site and confirm those reasons in writing prior to AMWU permit holders leaving the site or as soon as practicable thereafter." In any event, there is no evidence that they were so prevented or restricted in this case.

The Reasonable Suspicion Issue

The third issue identified as being in dispute is the Reasonable Suspicion Issue. By Primo Prayer 2, Primo seeks a declaration that Ms Carovska and Mr Everson did not hold a reasonable suspicion, before entering the workplace, that contraventions of the WHS Act had occurred or were occurring.
For the reasons set out at [162] - [165] I do not have the power to grant a declaratory order in the form sought by Primo.
For the reasons set at [151] to [157] there is no longer a current dispute concerning the legality of Ms Carovska's and Mr Everson's entry onto the site on 8 April 2022. Whether they did or did not hold a reasonable suspicion of a contravention of the WHS Act is moot in circumstances where Primo granted them access in any event.
In the event I am wrong about that, I consider that Primo - who bears the burden of proof, as it seeks to challenge the exercise of the right of entry (see commentary at [22] - [23] above) - has not established that the WHS entry permit holders did not hold a reasonable suspicion.
I consider that the lack of particularisation of the suspected contravention(s) in the Notice of Entry was sufficient for an evidential burden to shift to Ms Carovska and Mr Everson. They ultimately discharged that burden by producing the 16 March Email which they both read before attempting to exercise a right of entry. I consider that the 16 March Email, while hearsay in nature, provided sufficient probative value in conjunction with the other information Ms Carovska had received, to form the basis of a reasonable suspicion that Primo had contravened, or was contravening, section 19 of the WHS Act. Notably Primo offered no challenge to the authenticity of the 19 March Email which clearly raised some matters which could, if proved, amount to a contravention of the Act. I accept that the matters referred to could relate to or affect 'relevant workers' as the evidence suggested such workers could be required to attend all parts of the Chullora site, not just the maintenance department.
That said, the evidence also established that the WHS entry permit holders had ticked 'topics' on the Notice of Entry by way of particularisation, which are difficult to reconcile with the evidence tendered by the WHS entry permit holders to establish that they held the required reasonable suspicion. In cross examination Mr Everson was unable to provide clear reasons why the boxes 'Electrical', 'Traffic Control', 'First Aid', 'Psychosocial' and 'Safety Data Sheets' had been ticked and neither Mr Everson or Ms Carovska explained in their evidence why each 'topic' box had been ticked.
As I have already observed, Primo had good cause to question the adequacy of the particulars given in the Notice of Entry and therefore to query whether the WHS entry permit holders in fact reasonably suspected that a contravention of the Act had or was occurring. Ultimately however, I am satisfied that the permit holders did hold a reasonable suspicion, although I also consider that there is no longer a current dispute concerning this issue that would enable or warrant the Commission granting any relief in respect of this issue in any event.

The Coverage Issue

The third issue identified as being in dispute is the Coverage Issue. Primo did not seek any relief directly in respect of this issue and it conceded that it employed 'fitters' at the Chullora site who were covered by the AMWU. The question of the AMWU's coverage and hence whether any suspected contravention related to 'relevant workers' at Primo was nevertheless the subject of evidence and debate during the hearing, and AMWU's Prayers 2a, 2b, 2c and 2d were premised to some extent on the assertion that the WHS entry permit holders were hindered or prevented from consulting with 'relevant workers'.
Fortunately, despite its potential to be a matter with some complexity (as it was in Enco Precast), the Coverage Issue may be dealt with relatively briefly.
The AMWU tendered its current Rules in evidence. Only three sub-rules are relevant for present purposes and only parts thereof (with emphasis added): 1A. Without in any way limiting or being limited by sub-rules 1B, 1C, 1D, 1E, 1F, 1G, 1H and 1I the Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or calling or branches thereof: (a) … fitters … … … 1G. Without in any way limiting the generality of the foregoing or being limited by sub-rules 1A, 1B, 1C, 1D, 1E, 1F, 1H and 1I, the Union shall also consist of an unlimited number of persons engaged in or in connection with: (a) The manufacture, preparation, processing or putting up of:- (i) …; (ii) …; (iii) Soups and other preparations of vegetables and/or food from animals; fish or sea food sold in containers; (iv) …; (v) …; (vi) …; (vii) …. Provided that this paragraph shall not extend to persons engaged in or in connection with the manufacture, preparation, processing, or putting up:- (i) In the states of Victoria and South Australia of pastes, spreads and similar preparations of preserved meat; (ii) In the states of New South Wales, Victoria and South Australia of nut food; (iii) In the state of New South Wales and in the state of Western Australia outside a radius of 30 miles of the General Post Office, Perth, of fish and seafood sold in containers; unless the said persons are engaged in establishments where the chief product or products or one of the chief products manufactured in such establishment is otherwise provided for herein. (b) (Without restricting the interpretation of the foregoing and subject to sub-rule 1G(ba)) the preparation and preservation as food of fruit and vegetables, their juices and pulp, meat, fish, sea food and the by-products of all of them together with such other persons whether employed in the industry or not as have been appointed officers of the Union or its branches and admitted as members thereof. Provided that this paragraph shall not extend to persons:- In the States of New South Wales, Queensland, South Australia and Western Australia engaged in any establishment where the predominant part of the product of such establishment is manufacture, preparation or putting up of preserved meat, rabbits, or poultry or to Berri Food Co-operative Ltd. in the manufacture, preparation, processing, or putting up of fruit juices at the companys' premises as constituted as 10 July, 1974 at Berri in the State of South Australia. Provided further that this paragraph shall not extend to persons engaged in the manufacture, preparation, processing or putting up of fruit juices in establishments respondent to the Aerated Waters Award 1974 or to an establishment where the work of that establishment falls within the scope of that award and such work is the predominant work performed at the said establishment. … … 1J. Any person who is eligible for membership of the Union under the provisions of any of sub-rules 1A or 1B or 1C or 1D or 1E or 1F or 1G or 1H or 1I shall not be excluded from membership of the Union by any other of sub-rules 1A or 1B or 1C or 1D or 1E or 1F or 1G or 1H or 1I. And further, without in any way limiting and without in any way being limited by the remainder of these rules, the Union shall also consist of independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the Union.
As I have recounted, the two workers with whom Ms Carovska and Mr Everson attempted to consult with were both electricians. While AMWU sub-rules 1G(a) or (b) would catch electricians working at Primo, on the basis that all persons working at Primo are engaged in or in connection with the manufacture, preparation, processing or putting up of food from animals or the preparation and preservation of food as meat, sub-rule1G(b) specifically excludes persons engaged in any establishment where the predominant part of the product of such establishment is manufacture, preparation or putting up of preserved meat, rabbits, or poultry in New South Wales. Pursuant to sub-rule 1J however, anyone eligible for membership under sub-rule 1A shall not be excluded from membership of the Union by, inter alia, sub-rule 1G. The upshot is, fitters (and potentially other kinds of workers covered by sub-rules other than sub-rule 1B) are eligible for membership of the AMWU, but sub-rule 1G does not provide a right to all workers at Primo to join the AMWU.
The AMWU did not assert that it had coverage over electricians at Primo.
While it seems clear that on 8 April 2023 the WHS entry permit holders only spoke with workers who were not in fact 'relevant workers', there were relevant workers at the site, including fitters, and the WHS permit holders reasonably suspected that a contravention of the Act had occurred or was occurring which related to, or affected, such workers. However, as I have already explained, there is no evidence that the WHS entry permit holders were hindered or obstructed in their consultations with such workers. The fact is the WHS entry permit holders voluntarily left the site without attempting to consult with relevant workers. In the circumstances, there are no facts justifying the grant of any relief to either party in respect of the Coverage Issue.

The Misconduct Issue

The final issue identified as being in dispute is the Misconduct Issue. Primo Prayer 3, seeks a declaration that the conduct of Ms Carovska and Mr Everson was improper for the purpose of s 146 of the WHS Act; Primo Prayer 4 seeks orders that Ms Carovska and Mr Everson undertake corrective training aimed at imparting to them requisite knowledge to enable them to comply with their obligations as WHS entry permit holders; and Primo Prayer 5 seeks that Ms Carovska and Mr Everson supply evidence that they have complied with the proposed order requiring training "to the Applicant's satisfaction".
I decline to grant any of the relief sought for the following reasons.
First, for the reasons set out at [162] - [165] I do not have the power to grant a declaratory order, so I would not grant Primo Prayer 3 in the form in which it is sought.
Moreover, the Commission does not have jurisdiction to determine whether conduct is in breach of ss 146 or 147. That is matter for the Local or District Courts: s 255 of the WHS Act.
If I were to find that the WHS entry permit holders had acted in a way that delayed, hindered or obstructed persons at the Chullora site or disrupted work at the Chullora site, it might be appropriate for me to make orders directed to ensuring that it did not happen in the future, although if such conduct was also intentional and unreasonable such orders would arguably have little utility given s 146 already prohibits such conduct. However, in the present matter there was no evidence that the WHS entry permit holders delayed, hindered or obstructed persons at the Chullora site or disrupted work at the Chullora site beyond what is a natural consequence of the exercise of a right of entry.
Similarly if I were to find that the WHS entry permit holders had made misrepresentations about things authorised by Part 7 of the WHS Act, it might be appropriate for me to make orders directed to ensuring that it did not happen in the future, although if such conduct was done intentionally or recklessly such orders would arguable have little utility given that s 147 already prohibits such conduct.
While I consider that relevant facts exist that raise the discretion conferred by s 142(3) to grant Primo Prayer 4, namely Mr Everson's statements to the effect that he had the same rights to conduct an "investigation" as a SafeWork investigator, and Mr Everson's and Ms Carovska's insistence that they had a right or entitlement to confer with relevant workers in private, I do not consider that those facts justify the exercise of the discretion to make the order sought by Primo.
As I remarked at the beginning of this decision, the events of 8 April 2022 occurred because of different understandings on the part of the individuals involved, as to the parties' respective rights and obligations, rather than any desire on either side to impermissibly disrupt the legitimate activities of the other. I noted that the existence of different views was understandable, as Part 7 of the WHS Act, which deals with workplace entry by WHS permit holders, has received relatively little judicial interpretation.
So far as I have been able to ascertain there is no decision which has determined or even remarked upon, whether WHS entry permit holders have a right to consult with relevant workers pursuant 118(1)(b) in private. This being the case, while undoubtedly, to the use the words of Ms Presdee, Ms Carovska's and Mr Everson's conduct "could have been better", it was borne of a genuine belief that Primo was acting contrary to its legal entitlements. That is not to excuse their conduct to the extent it involved directing expletives and demeaning remarks to Mr Jaftha and the other Primo representatives however, making orders requiring them to attend corrective training is unnecessary at this point in time. The delivery of this decision will no doubt serve as an educative process for both parties, a fact acknowledged by Ms Presdee in closing oral submissions.
Lastly, and for completeness, I note that I would not grant Primo Prayer 5 to the extent that compliance with the order would depend upon Primo being satisfied with the evidence provided to it regarding the training undertaken by the WHS entry permit holders. I repeat the remarks I made at [43] above regarding the need for orders to be clear and unambiguous.

Conclusion and Orders

While the applications filed by both parties raised a number of important issues, for the reasons set out above, it is not appropriate to grant any of the relief sought by the parties. This being the case I make the following orders: 1. The Application brought by the AMWU in proceeding no. 119584 of 2022 is dismissed. 2. The Application brought by Primo Foods Pty Ltd in proceeding no. 153402 of 2022 is dismissed. Janet McDonald Commissioner

Endnotes

Upheld on appeal in Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029.
Upheld on appeal on a different point: Second Enco Precast Decision
Which approach was undisturbed by the Court of Appeal in the Third Enco Precast Decision.

Amendments 04 August 2023 - Paragraph [64] - inserted content of email. Paragraph [65] - inserted content of entry notice. 10 August 2023 - Paragraph [65] - inserted image. 04 September 2023 - 1. Inserted the word 'to' in paragraph [17] after 'then' and before 'be'. 2. Replaced the word 'burden' with the word 'bears' in paragraph [22]. 3. Replaced the word 'obtaining' with the word 'obtained' in paragraph [63]. 4. Removed typo at the beginning of heading 4 in paragraph [64]. 5. Inserted a comma after the word 'explain' in paragraph [91]. 6. Corrected 'of' to 'off' in paragraph [99]. 7. Removed 'not' after 'cannot' in paragraph [112]. 8. Inserted a comma after 'however' in paragraph [118]. 9. Removed 'with' before 'which' in paragraph [168]. 10. Corrected 'provide' to 'provided' in paragraph [183]. 11. Inserted the words 'permit holder' after 'entry' in fourth sentence in paragraph [189]. 12. Corrected the word 'difficult' in paragraph [196]. 13. Replaced the word 'of' with the word 'with' in paragraph [203]. 14. Inserted a comma after the word 'completeness' in paragraph [213]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2023

Crimes Act 1990(NSW)

Work Health and Safety Regulation 2017(NSW)

[2017] NSWIRComm 10001

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch

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