BGC Contracting Pty Ltd v The Construction Forestry Mining

the statutory background 49 Some of the relevant provisions of the State Act are as follows. 50 Section 12 of the State Act provides that the Commission is a Court of Record and shall have an official seal. Section 23 provides that subject to the State Act, the Commission has cognisance of and authority to inquire into and deal with any industrial matter. Section 24 gives the Commission jurisdiction to determine in any proceedings before it whether any matter is an industrial matter. Section 44 empowers the Commission to summon any person to attend at a conference. Section 44(6)(ba) provides that the Commission may at such a conference give such directions with respect to industrial matters and make such orders as will in its opinion prevent the deterioration of industrial relations in respect of that matter until conciliation or arbitration has resolved the matter, or will enable conciliation or arbitration to resolve the matter or encourage the parties to exchange or divulge attitudes or information. Paragraph (bb) of that subsection provides that the Commission may also with respect to industrial matters, at such a conference, give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under the State Act. 51 Under s 44(9), where such a conference has not settled any question, dispute or disagreement in relation to an industrial matter, the Commission may hear and determine that question, dispute or disagreement and may make an order binding the parties in relation to whom the matter is not settled. 52 Section 49G defines an authorised representative as meaning a person who holds an authority in force under Div 2G of Part II of the State Act. Section 49H provides that an authorised representative of an organisation may enter during working hours any premises where relevant employees (a term also defined by s 49G) work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions. It is that subsection under which the respondent's officers sought entry to the Site on 17 January 2004. 53 Section 49M of the State Act relevantly provides that an occupier of premises must not refuse or intentionally and unduly delay such entry. Contravention of that section may give rise to civil penalties.

the federal act 54 Part VID of the Federal Act makes provision for AWAs to be made between an employer which is a constitutional corporation (there is no argument that the applicant is not such a corporation) and an employee, being an agreement that deals with matters pertaining to the relationship between an employer and employee. Such an agreement may be made before the commencement of the employment, see s 170VF. 55 An AWA starts operating on the later of the day after a filing receipt is issued by the Australian Industrial Relations Commission ("the AIRC") or the day specified in that agreement as the starting day or the day the employment commences - see s 170VJ. There are 17 filing receipts in evidence. 56 Section 170VQ(1) relevantly provides that during its period of operation an AWA operates to the exclusion of any award that would otherwise apply to the employees' employment, subject to exceptions in subsections (2) and (3) which do not appear to have relevance to the present matter. 57 Section 170VR(1) of the Federal Act provides that subject to that section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency. Some of those exceptions are found in s 170VR(2) which provides that provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter: (a) occupational health and safety; (b) workers' compensation; (c) apprenticeship; (d) any other matter prescribed by the regulation [there is no suggestion at this stage that there is any such other relevant matter prescribed by the regulations]. 58 The applicant contends that rights of entry under the State law do not fall within any of these exceptions. 59 Section 285B of the Federal Act contains provisions relating to investigating suspected breaches of that Act and s 285C contains provisions pursuant to which a person who holds a permit - and the same person is referred to in s 285B - may enter the premises for certain purposes described in that section. 60 Section 412 confers jurisdiction on this Court with respect to matters arising under the Federal Act in relation to the various applications, actions, questions and other matters referred to in that subsection. 61 Section 422 relevantly provides that an appeal lies to this Court from a judgment of a court of a State in a matter arising under the Federal Act. Subsection 422(2) provides that it is not necessary to obtain the leave of this Court or the court appealed from in relation to such an appeal. 62 Section 414 relevantly provides that the jurisdiction of the Court under s 422 (i.e. the appellate jurisdiction just identified) is exclusive of the jurisdiction of any court of a State to hear and determine such an appeal.

Further consideration of the contentions and my reasoning 63 In addition to its reliance on ss 170VQ(1) and (4) and s 170VR(1), as I understand the applicant's case, both in the Commission and in this Court it argues that the provisions in the State Act which purport to provide rights of entry to the Site are inconsistent with the provisions of s 285B and s 285C (and related sections) of the Federal Act, either because the Federal provisions were intended to regulate that subject matter completely, exhaustively or exclusively, or because the provisions of the State Act alter, impair or detract from the operation of the Federal Act in that respect. 64 The provisions of the AWAs are not in evidence at this stage in this Court. 65 In my view, as I held in Woodside Energy v MacDonald [2003] FCA 69 which raised very similar questions, the applicant's case raises serious questions to be tried both in relation to whether the right of entry provisions under the State Act are inconsistent with the provisions of the Federal Act to which I have just referred, and also as to the application of ss 170VQ(1) and (4) and 170VR(1). I now turn to the balance of convenience. 66 As I observed in Woodside (at par 120) the phrase balance of convenience is a convenient shorthand reference to the risk of doing an injustice to the party to be enjoined if an interlocutory injunction is granted, in comparison with the risk of doing an injustice to the party seeking the interlocutory injunction if such an order is not made. Of course, those two factors - the serious question to be tried and the balance of inconvenience - are not in watertight compartments; they are considered separately and also together. 67 I also observed in Woodside, that usually an interlocutory injunction is granted to preserve the status quo pending the hearing and determination of the principal proceedings in which final relief is sought. 68 Embodied in that question, so far as is relevant to the present matter, is the question whether restraining the respondent from exercising its rights to resort to the Commission for what are in substance equivalent to enforcement orders and also restraining it from exercising the entry rights which it claims, amounts to maintaining the status quo. 69 In my view, the status quo is that the respondent may continue to seek entry and, if it is denied entry and if subsequently the relevant provisions of the State Act are held to have application (i.e. there is a finding in its favour), the respondent could have recourse to the relevant Tribunal for the appropriate penalties. It might be said that all it would be deprived of in the meantime (by an interlocutory injunction) is access to the Site and the workers by virtue of a mandatory order from the Commission. But an injunction restraining the respondent from exercising or seeking to exercise its rights of entry might be seen as going beyond merely preserving the status quo. 70 For present purposes, I shall work on the assumption that the interlocutory orders sought by the applicant are designed to maintain the status quo, though I have some doubt about that proposition. 71 In my opinion, the balance of convenience is finely balanced. 72 The factors which I take into account as being advanced by the applicant include the following. 73 First there is the question of the most appropriate forum to resolve these questions. It is not entirely clear what the Commission intends to do next Monday but from the material before the Court, it appears that the Commission will on Monday hear evidence on matters which include: (a) whether there are AWAs in fact covering all of the employees of Killarnee; (b) the content of the AWAs and whether they say anything about rights of entry; (c) who the parties to the AWAs are and whether the Killarnee entity employing the workers is also a party to any relevant AWA; and (d) whether the AWAs were validly made. 74 The respondent refers to this as "the AWA evidence". 75 In my view, the Commission has jurisdiction or power to enquire into the factual situation concerning the existence and content of the relevant AWAs. 76 It will then need to consider the effect of ss 170VQ and 170VR. It will also need to consider, subject to there having been compliance with s 78B of the Judiciary Act, the questions arising under s 109 of the Constitution. 77 It appears that the Commission proposes to consider that matter (i.e. the constitutional matter) next Friday. The Commission appears in this matter, I must say, to be proceeding at a somewhat unusually precipitous pace to a consideration of an important constitutional point. My provisional view is that in considering the questions of interpretation and application of the statutory provisions of the Federal Act, and the constitutional question the Commission is, as a "Court of the State of Western Australia" invested with Federal jurisdiction to decide those matters under s 39(2) of the Judiciary Act. 78 This Court quite clearly also has jurisdiction in respect of the matters in issue between the parties in this application. In exercising its functions or deciding not to do so, the Commission may also have to travel a part of the way down that path. If, as events transpire, it emerges that the Commission falls into jurisdictional error or error of law which may impinge on the rights of the parties to this application, this Court would, in my view, have power within its jurisdiction conferred by the Federal Act, or by the Judiciary Act (or both) - or power conferred by the Federal Court of Australia Act 1976 (Cth) - to make orders to ensure that those rights were not unduly prejudiced pending either an appeal or in the exercise of its other federal jurisdiction. 79 Counsel for Lavalin urges the Court to grant the interlocutory injunction, because it wants a legally binding determination by way of a speedy disposition of the constitutional point in this Court. 80 I have considered the submissions of the applicant and Lavalin to the effect that this Court is the more appropriate forum in which to resolve the constitutional questions which they raise. 81 I accept that generally such matters should not be determined other than in a superior court. But in the circumstances, and on the evidence before me to date, I see no overbearing prejudice to the applicant or Lavalin in allowing the Commission proceedings to go ahead. The Commission cannot, of course, conclusively decide the constitutional questions or the proper application of the relevant provisions of Part VID of the Federal Act, or the interpretation and application of ss 285B and 285C. 82 I also consider that each of the matters which the Commission proposes to consider next week would be a "matter arising under" the Federal Act within s 422 of that Act. 83 Accordingly if the Commission falls into error in carrying out its task, then this Court has exclusive jurisdiction to hear and determine an appeal in relation to that matter. 84 I take into account the evidence that the relevant work to be carried out by Killarnee on Site is expected to last between three and six months. 85 The likelihood is that the Commission will make factual findings relatively quickly. As Mr Kucera submitted, proceedings before the Commission are quite well advanced. The grant of the injunction sought would, in my view, give rise to the substantial risk that the respondent would be finally shut out from what it claims are its rights. 86 I should say something about the undertaking proffered by the respondent in paragraph 32 of Mr Kucera's affidavit sworn today. I incorporate that undertaking by reference without reading it out. The undertaking does not extend to Killarnee and the applicant has, in my view, a clear interest in the question of potential industrial unrest involving the employees and its subcontractors. I note the respondent's evidence that BGC has only four workers on site, but Killarnee has between 40 and 60 employees on site. 87 Nevertheless, the undertaking given by Mr Kucera in paragraph 32 of his affidavit will be noted in the orders which I propose to make. 88 On balance, I think that the interests of justice are best served by allowing the proceedings before the Commission to proceed at least to the stage where it finds whether there are in place AWAs in respect of all the workers concerned. Only at that stage will the Commission be obliged to consider the applicant's arguments that the relevant provisions of the Federal Act can have no application either as a matter of construction or by reason of s 109. 89 If the Commission gets to that stage and decides against the applicant on all those points and proceeds to make the orders sought by the respondent, the applicant may, in my view, immediately appeal to this Court under s 422 of the Federal Act. If appropriate, the Commission's orders could be stayed. But the Court will then have the benefit of findings of fact made by the Commission. 90 For the foregoing reasons, and for the present, I do not propose to make the interlocutory injunction sought. 91 However, I will make an order giving liberty to the applicant to make further application for urgent interlocutory relief on 48 hours written notice to the respondent. The orders which I propose to make are as follows: The Court notes the respondent's undertaking through counsel as expressed in paragraph 32 of the affidavit of Timothy Robert Kucera, sworn and filed today, namely: 'The CFMEUW undertakes that it will not seek any orders from the Western Australian Industrial Relations Commission against BGC Contracting Pty Ltd in Commission matter C13 of 2004 and will upon the acceptance of this undertaking immediately discontinue that matter insofar as it seeks any relief against BGC Contracting Pty Ltd.' 92 And the Court orders that: 1. The applicant's application for the interlocutory relief sought in its amended application filed on 19 February 2004 is refused, but with liberty to renew that application on two day's written notice to the respondent. 2. The application is otherwise adjourned to a directions hearing on a date to be fixed, at which time the Court will also consider the motion filed by SNC-Lavalin (SA) Inc on 19 February 2004 to be joined as a respondent to this application. I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Counsel for the Applicant: Mr M C Hotchkin

Solicitors for the Applicant: Messrs Hotchkin Hanly

Counsel for the Respondent: Mr T R Kucera

Counsel for the intervenor in the motion: Mr T H F Caspersz

Solicitors for the intervenor in the motion: Messrs Blake Dawson Waldron

Date of Hearing: 20 February 2004

Date of Judgment: 20 February 2004