BGC Contracting Pty Ltd v The Construction Forestry Mining &

REASONS FOR JUDGMENT Introduction 1 In January 2004 representatives of the Construction Forestry Mining and Energy Union of Workers ('CFMEU'), a State-registered union, sought entry to a site at the Burrup Peninsula where an ammonia plant is under construction. They asserted rights of entry for discussions with relevant employees under the provisions of the Industrial Relations Act 1979 (WA) ('the State Act'). Entry was denied by contractors on site on the basis that their employees were covered by Australian Workplace Agreements ('AWAs') made under the Workplace Relations Act 1996 (Cth) ('the Federal Act'). 2 The dispute over the rights of entry was taken to the Western Australian Industrial Relations Commission ('the Commission') by the CFMEU. The contractors, however, commenced proceedings in this Court to seek declarations and injunctions based upon the proposition that the state unions and their representatives had no rights of entry to the site with respect to any of the AWA employees. The Commission, on 24 March 2004, made a declaration that representatives of the CFMEU holding the requisite authorities under the State Act were entitled to enter the site for the purpose of holding discussions with relevant employees who wished to participate in those discussions. Carr J granted interlocutory relief restraining the CFMEU from exercising or purporting to exercise any right of entry to the site for the purposes of holding such discussions or for the investigative purposes referred to in s 49I of the State Act until the hearing and determination of the contractors' application to this Court. 3 The proposition upon which the contractors based their claims for relief is not easy to formulate with any precision. Essentially they argued that the rights of entry under the Federal Act are limited and narrower than those conferred by the State Act. They said the Federal Act was inconsistent with the provisions for rights of entry under the State Act and that those provisions were therefore invalid to the extent of the inconsistency. They relied upon s 109 of the Constitution which gives paramountcy to Commonwealth laws over inconsistent State laws. 4 For the reasons that follow, I do not consider that there is any inconsistency and that State rights of entry remain valid for the purpose of authorised representatives of state unions having discussions with relevant employees, including employees who are eligible to become members of those unions, even though such employees may be parties to AWAs under the Federal Act. That is subject to the important limitation that the State Act cannot authorise employees to stop work for discussions at a time or in a manner which would be in breach of their obligations under AWAs. The right of entry to investigate breaches of certain State laws, awards and agreements, in my opinion, remains unaffected by the Federal law. 5 The rights of entry conferred by the State Act are conferred upon State-registered organisations for purposes related to the State Act. The rights of entry conferred by the Federal Act are conferred upon federal unions and representatives of a federal official, the Employment Advocate, for purposes related to federal awards and agreements. One does not impair the other. The limitation that rights of entry for the purpose of discussions with relevant employees does not authorise such employees to stop work in breach of the AWAs is important. Indeed the CFMEU might take the view, having regard to that limitation, that like Shylock in the Merchant of Venice, it has established its right to a pound of flesh but cannot spill a drop of blood in the exercise of that right. There are nevertheless some practical means of having discussions with relevant employees who are willing to participate which would not involve any breach of an AWA. So discussion could be conducted during a meal break. The rights of entry under the Federal Act for discussions in respect of Federal awards can only be conducted during mealtime or other breaks. These practical matters are to be worked out on the ground. The Court is not asked in these proceedings, nor required, to specify that working out in any detail. 6 For the reasons set out in more detail below, the application will be dismissed. There will be liberty to apply on the question of costs. Factual History 7 The Burrup Peninsula near Karratha in the north west of Western Australia is the site of a major industrial development including the construction of a liquid anhydrous ammonia production plant. The plant is to be located on an area of land comprising about 72 hectares, 32 hectares of which is the construction site and is fenced off for construction work. 8 On 17 December 2002, Burrup Fertilisers Pty Ltd entered into an agreement with SNC-Lavalin (SA) Inc ('SNC') under which SNC was to carry out the 'engineering, procurement and construction' of the plant on the construction site. It is not in dispute that SNC is and was at all material times in possession of the site for the purpose of enabling it to perform its construction obligations. Allan Gamble of SNC is the construction manager responsible for the overall management of the site. He has been working on the project since September 2002. 9 On the same day that SNC entered into its contract with Burrup Fertilisers it entered into an agreement with Oilfield Construction Services Ltd, now Paramount (WA) Ltd ('Paramount'). Under that agreement Paramount was to carry out work in respect of the engineering and construction of the plant. 10 In May 2003, Paramount made an agreement with a security company, Lythven Pty Ltd trading as Shelf Security and Secretarial Support and Administrative Systems ('Lythven'). Lythven provide security personnel to control access to the site and to carry out surveillance of the site under that agreement. 11 On 28 November 2003, Paramount made an agreement with BGC Contracting Pty Ltd ('BGC') under which BGC would provide construction services designated 'site wide concrete' on the construction site. The terms of the agreement were incorporated in a formal contract dated 19 April 2004. It is not in dispute that BGC is performing work on the site for the purpose of enabling SNC to perform its obligations and its agreement with Burrup Fertilisers. I infer, although there was no direct evidence on the point, that BGC had, at least, non-exclusive possession of the site necessary to carry out its obligations under its contract with Paramount. 12 On 19 December 2003, BGC entered into an agreement with Shamrock Holdings (WA) Pty Ltd, trading as Killarnee Formwork ('Killarnee'), under which Killarnee was to provide concrete works and formwork at the site. By cl 27 of that agreement, BGC undertook to give Killarnee non-exclusive possession of the site or sufficient of the site to enable Killarnee to commence work. If such non-exclusive possession did not cover the whole site from the commencement of the works possession would be given from time to time of such parts of the site as were necessary to enable Killarnee to carry out the works. The 'site' was defined, in a somewhat circular way, as '... the land and other places to be made available and any other land and places made available to [Killarnee] by the Main Contractor for the purposes of the Sub-contract' (cl 2). 13 BGC reserved a right of access to any part of the site for any purpose (cl 27.2). Killarnee was required to integrate its work with that of other contractors engaged by BGC so as not to cause any unreasonable interference with, or disruption, delay or hindrance to those other contractors. 14 At all material times all of the persons employed by BGC and working on the site were parties to AWAs made with BGC under the Federal Act. All but one of the employees of Killarnee working on the site were parties to AWAs with Killarnee. Four of those employees may not have had valid AWAs because more than 21 days had elapsed between their execution and filing at the Australian Industrial Relations Commission ('AIRC'). There was some evidence adduced by Killarnee that it was the practice of the office of the Employment Advocate in Perth to accept for filing AWAs lodged electronically more than 21 days after they were actually signed. This is evidently done on the basis that the electronic lodgment somehow constitutes a signing of the agreement by the employer. Beyond the statement that this was based on 'internal legal advice' no exposition of a legal justification for this surprising practice was advanced. In the event, counsel for Killarnee did not press the contention that the late lodged AWAs were valid because of their electronic lodgment. It was also conceded by counsel for Killarnee that one of its employees, Mr Kuret, who was employed on site between 26 January 2004 and 3 March 2004, was not employed under a valid AWA. In the end, given the nature of the relief being claimed, nothing turns on the fact that some of the Killarnee employees were not working under AWAs. 15 The AWAs made by BGC with its employees were in a common form. They made comprehensive provision for the terms and conditions of employment. Clause 20 provided for continuity of service as follows: 'CONTINUITY OF SERVICE (1) In order to maintain a continuity of service to our client and to ensure the competitiveness of the business, the employee agrees not to participate in actions or activities which are detrimental to the interests of the employer (eg unauthorised stop-work meetings, strike action, work bans or limitations or the like) while employed under the terms of this agreement. (2) Issues and grievances will be handled through the dispute settling procedure outlined in Clause 19. (3) Failure to comply with sub-clause (1) above may result in disciplinary action and/or termination.' 16 Dispute settling procedures were set out in cl 19. Under those procedures the employee was to raise any issue with his or her direct supervisor either directly or through another BGC employee. If not resolved the matter would be referred to the Project Manager who would meet with the employee and, where applicable, his or her representative. If unable to resolve the dispute the Project Manager was required to involve the Civil Operations Manager and/or the Chief Executive Officer or delegate at a formal meeting. The ultimate recourse was to arbitration by an arbitrator, agreed by the parties, or appointed by the Chairman of the Western Australian Chapter of the Institute of Arbitrators. 17 Similar provisions appeared in the AWAs between Killarnee and its employees, cl 18 providing for continuity of service in terms virtually identical to cl 20 of the BGC AWA and cl 17 providing for dispute settling procedures by a process similar to that under the BGC AWA. 18 The execution of the works by BGC and Killarnee was so arranged that employees of BGC were required to work alongside employees of Killarnee. If Killarnee employees were to stop work for discussions with union representatives then those stoppages could affect the work of BGC employees. By way of example, according to the uncontested evidence of Gregory Heylen, BGC's General Manager Civil, BGC employees required to backfill concrete structures on the site could not do so until Killarnee employees had positioned the concrete and erected the structures. BGC employees could be held up if the erection of the structures by Killarnee employees were delayed. 19 It is common ground on the pleadings that on or about 17 January 2004, Michael Buchan and Mark Hudston, authorised representatives of the CFMEU under the State Act, sought to exercise a right of entry to the site pursuant to Div 2G of Pt II of the State Act. A security guard employed by Lythven refused them permission to enter. 20 Unchallenged evidence was given at the hearing by Ernest Thompson, the Managing Director of Killarnee, that on 19 February he was telephoned by Mr Buchan who asked to meet him at the gate to the site. Mr Thompson telephoned SNC's Construction Manager, Allan Gamble, and BGC's Project Manager, Peter Coleman, to ask if it were alright to meet Mr Buchan. Subsequently he went to the gate with three foremen from Killarnee and met Mr Buchan and a Mr Lovett from the Metal Workers Union. Mr Lovett asked him some questions about the Killarnee AWA. Mr Buchan handed him a letter asking for entry to the site. The letter, dated 18 February 2004, invoked ss 49H and 49I of the State Act as the basis for the right of entry with respect to relevant employees of Killarnee. 21 Mr Thompson told Buchan and Lovett that he had no authority to permit them to enter the site. He then rang Allan Gamble who said that the union representatives would have to give 24 hours notice to get on site. He also consulted with Mr Buckeridge of BGC who said the union representatives would have to apply in order to enter. The evidence did not indicate what kind of application was meant. Procedural History - Proceedings in the State Commission and in the Federal Court 22 The procedural history leading up to the commencement of the present application is set out in interlocutory judgments of Carr J, which are referred to below. 23 Following the refusal of entry to Messrs. Buchan and Hudston on 17 January 2004, the CFMEU commenced proceedings in the Commission on 20 January 2004. The application then filed was for a compulsory conference pursuant to s 44 of the State Act. The respondents to that application were BGC, Killarnee and SNC. A conciliation conference took place on 23 January 2004 before the Commission. The conference was adjourned to 3 February 2004 to enable Mr Buckeridge of BGC to have discussions with various workers on site and to report back to the Commission. The conference reconvened on 4 February 2004. BGC's solicitor who attended both conferences raised the question of inconsistency between the Federal and State Acts in relation to sites at which AWAs were in force. 24 The CFMEU, pursuant to a direction from Commissioner Kenner, filed an amended application on 9 February 2004. A notice of answer and counter proposal were filed on 13 February 2004. The question of the validity of the State provisions in relation to sites covered by AWAs was raised in the notices filed by BGC and Killarnee. 25 On 12 February 2004, the Australian Workers Union served a written request on SNC seeking access to the site on 13 February 2004 'to meet with union members and potential members'. On the same date the Commission issued an amended notice of hearing referring to the State Act and to the proceedings initiated in the Commission which it described as being in the matter of 'right of entry'. It named the CFMEU, SNC, BGC and Killarnee in the notice. The notice indicated that the Commissioner would sit at Karratha to hear the matter on 23 February 2004. 26 On 17 February 2004, the present proceedings were instituted in this Court. On 19 February, counsel for BGC asked the Commission to stay its proceedings until the Federal Court had heard and determined the application before it. That request was refused. An application for urgent interlocutory relief was brought before Carr J in these proceedings on 20 February 2004. BGC, which was then the only applicant, sought an order restraining the CFMEU from taking any further steps in the pending proceedings in the Commission and from purporting to exercise rights of entry under the State Act. The claim for interlocutory relief was refused upon the undertaking given by the CFMEU that it would not seek any orders from the Commission against BGC and would immediately discontinue its proceedings in the Commission in so far as they involved a claim for relief against BGC. BGC was given liberty to renew its application on two days written notice to the CFMEU - BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 272. 27 On 15 March 2004, Commissioner Kenner published his reasons for refusing BGC's request that the proceedings in the Commission be stayed pending the hearing and determination of the Federal Court action. In the event BGC applied to Carr J on 18 March 2004, under the liberty previously reserved. Carr J ordered on that day that the CFMEU be restrained from exercising or purporting to exercise any right of entry to the site for the purposes of holding discussions with employees of BGC or Killarnee or for the other investigative purposes referred to in s 49I of the State Act in relation to those employees or their employment. The CFMEU was also restrained from taking any further steps in the pending proceedings in the Commission - BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 417. For reasons which appear more fully from the most recent interlocutory judgment given by Carr J, the Commission nevertheless proceeded and on 24 March 2004 made a declaration that representatives of the CFMEU holding the requisite authority under the State Act were entitled to enter the site '... for the purpose of holding discussions with relevant employees of [Killarnee] who wish to participate in those discussions'. A renewed application to extend the interlocutory relief came before Carr J on 16 April 2004 and on 7 May 2004 his Honour extended the injunctions previously ordered until the hearing of these proceedings or until further order - BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 569. 28 The present proceedings progressed through various interlocutory steps to hearing on 5 July 2004. Killarnee and SNC were joined as applicants along the way. The Attorney-General for Western Australia and the Minister for Employment and Workplace Relations of the Commonwealth intervened. The Pleadings and Relief Claimed 29 The statements of claim filed by each of the applicants, in so far as they allege matters of fact, are not substantially disputed by the CFMEU except in respect of the contention that all the workers on site are and were at 17 January 2004, covered by AWAs. 30 Each of the applicants contends that all the employees on site were and are parties to AWA agreements and that '... any right of entry under the State Act is inconsistent with the rights of entry under the Federal Act and is therefore invalid to the extent of the inconsistency by virtue of s 109 of the Constitution'. In the alternative it is asserted by each of the applicants that '... if Division 2G of the State Act is not invalid in purporting to give authorised representatives of the [CFMEU] a right of entry to the site in respect of the workers, by virtue of s 109 of the Constitution, it is invalid by virtue of s 170VR(1) of the Federal Act. 31 In each case the relief claimed is the same: '1. A declaration that the Respondent does not have any rights under Division 2G of the Industrial Relations Act 1979 (WA) ('the State Act') in respect of premises known as the Ammonia Plant Construction Project, comprised within Certificate of Title Volume 3125 Folio 243, in respect of persons working on the site who are parties to Australian Workplace Agreements registered pursuant to Part VID of the Workplace Relations Act 1996 ('the Federal Act'). 2. An injunction restraining the Respondent whether by its officers or authorised representatives from purporting to exercise any right pursuant to Division 2G of the State Act in respect of persons working on the site who are parties to Australian Workplace Agreements registered pursuant to Part VID of the Federal Act. 3. Costs.' The reference to Div 2G of the State Act should be taken as a reference to Div 2G of Pt II of the State Act. 32 The applicants claim relief which they say is not dependent upon them establishing that all workers on site were and are covered by AWAs. The true position is, as I have found earlier in these reasons, that most, but not all, workers were covered by AWAs. The workers not covered were employees of Killarnee. 33 The CFMEU takes a jurisdictional objection to the BGC claim. It relies upon its discontinuance of proceedings against BGC in the Commission and the limited form of declaration issued by the Commission on 24 March 2004 which related to employees of Killarnee. Reliance was also placed on a letter sent by the CFMEU to BGC on 18 March 2004 stating that, on the basis of facts disclosed by BGC, the CFMEU had no intention of exercising any right of entry under the State Act in relation to any employees of BGC at the site. The CFMEU says that by reason of these matters there is no 'justiciable controversy' between BGC and it in these proceedings and that the Court therefore has no jurisdiction to entertain BGC's application. In relation to the second and third applicants' pleadings, apart from the dispute which eventually evaporated, as to the universality of the AWA coverage over workers at the site, the CFMEU joins issue on the question of the existence of a right of entry under the State Act notwithstanding the provisions of the Federal Act. In considering that question it is necessary first to have regard to the Federal and State Acts and to the particular provisions said to be inconsistent. The Industrial Relations Act 1979 (WA) - Overview 34 The State Act is described in its long title as: 'An Act to consolidate and amend the law relating to the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organizations of employers and employees, and for related purposes.' The State Act applies to industry geographically or functionally linked to the State of Western Australia in various ways set out in s 3. Its objects are stated in s 6. One of those objects is 'to promote collective bargaining and to establish the primacy of collective agreements over individual agreements' (s 6(ad)). 35 The State Act establishes the Commission (Pt II Div 1 and 2). The Commission is empowered to make awards (Pt II Div 2A, s 34) and to register industrial agreements (Pt II Div 2B, s 41). Ancillary provisions relating to enforcement and investigation are found in Div 2F of Pt II which concerns the 'Keeping of Employment Records' (s 49D) and access to such records (s 49E). Division 2G provides, according to its title, for 'Right of entry and inspection by authorised representatives' (ss 49G-49O). The rights so created are conferred upon representatives of industrial organisations of employees registered under the State Act. Registration of organisations is provided for in Div 4 of Pt II (s 53). 36 Other parts of the State Act relate to constituent authorities including the Public Service Arbitrator and Appeal Boards and the Railways Classification Board (Pt IIA), enforcement of the State Act, awards, industrial agreements and orders (Pt III), the Western Australian Industrial Appeal Court (Pt IV), the Registrar and officers of the Commission (Pt V), freedom of association (Pt VIA), employer-employee agreements (Pt VID) and miscellaneous matters (Pt VII). The Industrial Relations Act 1979 (WA) - Rights of Entry and Inspection for Authorised Representatives 37 The provisions of the State Act directly relevant for present purposes are those found in Div 2G of Pt II relating to rights of entry and inspection. This Division was inserted into the State Act by the Labour Relations Reform Act 2002 (WA). Key definitions are set out in s 49G: '"authorised representative" means a person who holds an authority in force under this Division; "relevant employee", when used in connection with the exercise of a power by an authorised representative of an organization, means an employee who is a member of the organization or who is eligible to become a member of the organization.' Section 7(1) defines 'organization' as 'an organization that is registered under Division 4 of Part II'. 38 There is a right of entry conferred by s 49H upon 'authorised representatives' of organisations: '(1) An authorised representative of an organization may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions. (2) If an award, order or industrial agreement that extends to the relevant employees makes provision as to entry onto premises by an authorised representative and - (a) does not require notice to be given by the representative; or (b) requires a specified period of notice to be given by the representative, the authorised representative is not required to give notice under this section. (3) If subsection (2) does not apply, the authorised representative is not entitled to exercise a power conferred by this section unless the authorised representative has given the employer of the employees concerned at least 24 hours' written notice.' 39 A separate right to enter premises to investigate breaches of the State Act and related statutes, awards, orders and industrial agreements is conferred by s 49I. This is a right also to be exercised by 'an authorised representative of an organization'. Section 49I provides: '(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of this Act, the Long Service Leave Act 1958, the MCE Act, the Occupational Safety and Health Act 1984, the Mines Safety and Inspection Act 1994 or an award, order, industrial agreement or employer-employee agreement that applies to any such employee.' The remaining subsections of s 49I relate to the powers of authorised representatives to inspect records and other documents and limitations on those powers. 40 The authorised representative cannot require an employer to produce an employment record of an employee who is party to an employer/employee agreement and has requested the employer in writing that the record not be available for inspection by authorised representatives (s 49I(3)). The powers conferred by s 49I cannot be exercised in order to investigate a suspected breach of an employer/employee agreement to which a relevant employee is a party unless the authorised representative is authorised in writing by that relevant employee to carry out the investigation (s 49I(5)). There is a requirement for written notice to be given to an employer before production of employment records or other documents can be required (s 49I(6)). 41 An authority is issued to a representative of an organisation for the purposes of Div 2G by the Registrar upon application by the secretary of the organisation. Section 49J provides, inter alia: '(1) The Registrar, on application by the secretary of an organization of employees to issue an authority for the purposes of this Division to a person nominated by the secretary in the application, must issue the authority. (2) The Registrar must not issue an authority for the purposes of this Division to a person who has held an authority under this Division that has been revoked under subsection (5) unless the Commission in Court Session on application by any person has ordered that the authority be so issued. (3) A person to whom an authority is issued is an authorised representative of the organization on whose behalf the application for the authority was made. (4) The authority remains in force unless it is revoked or suspended under this section.' Subsections (5) to (9) are related to the revocation of authorities. 42 The right of entry does not extend to premises principally used for habitation by the employer and his or her household (s 49K). The authority must be shown on request and provision for this is made in s 49L: '(1) If - (a) a person proposes to enter, or is on, premises in accordance with section 49H or 49I; and (b) the occupier requests the person to show his or her authority, the person is not entitled under that section to enter or remain on the premises unless he or she shows the occupier the authority in force under this Division. (2) In this section - "occupier" includes a person in charge of the premises.' 43 The right of entry is supported by a prohibition against refusal of entry in s 49M: '(1) The occupier of premises must not refuse, or intentionally and unduly delay, entry to the premises by a person entitled to enter the premises under section 49H or 49I. (2) A person must not intentionally and unduly hinder or obstruct an authorised representative in the exercise of the powers conferred by this Division.' The Workplace Relations Act 1996 (Cth) - Overview 44 The Federal Act is described in its long title as 'An Act relating to workplace relations, and for other purposes'. Its principal object is said to be: '... to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia ...' (s 3). The various means by which this principal object is to be achieved are set out in s 3. They include: '(b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and (c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act;' 45 The following definitions appear in s 4: '"occupier", in relation to premises, includes a person in charge of the premises; ... "premises" includes any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place;' 46 The Australian Industrial Relations Commission ('AIRC') is established by Pt II of the Federal Act (s 8(1)). It has the functions conferred on it by the Federal Act and by the Registration and Accountability of Organisations Schedule to the Federal Act (s 8A). It is supported administratively by the Australian Industrial Registry (Pt IV). Part III of the Federal Act was repealed in 1993. 47 The office of the Employment Advocate is established by Pt IVA (s 83BA). The functions of the Employment Advocate are set out in s 83BB(1) of the Federal Act. They include the following: '(a) providing assistance and advice to employees about their rights and obligations under this Act; (b) providing assistance and advice to employers (especially employers in small business) about their rights and obligations under this Act; (c) providing advice to employers and employees, in connection with AWAs, about the relevant award and statutory entitlements and about the relevant provisions of this Act; (d) performing functions under Part VID, including functions relating to the filing and approval of AWAs and ancillary documents; (e) investigating alleged breaches of AWAs, alleged contraventions of Part VID and any other complaints relating to AWAs; ... (i) any other functions given to the Employment Advocate by this Act, the Registration and Accountability of Organisations Schedule or any other Act; (j) any other functions prescribed by the regulations.' The Employment Advocate is subject to direction by the Minister (s 83BC). 48 Division 2 of Pt IVA provides for the appointment, by the Employment Advocate, of authorised officers and for their powers, including powers to enter and inspect premises. These are referred to in more detail later in these reasons. The Federal Act also provides for inspectors to be appointed by the Minister (s 84). They have power to enter and inspect premises to which awards or certified agreements apply (s 86(1A)). The AIRC can request the Secretary of the Department to have an inspector investigate a matter concerning the safety of employees or others which has arisen in relation to an industrial dispute (s 87). 49 The Federal Act contains provisions for Dispute Prevention and Settlement (Pt VI) and the functions and the powers of the AIRC in relation thereto. Part VIA relates to Minimum Entitlements of Employees, Pt VIB to Certified Agreements, Pt VID to Australian Workplace Agreements (referred to in detail below), Pt VIE to the no disadvantage test and Pt VII to cooperation between Commonwealth and State industrial authorities. Part VIII concerns penalties and remedies for contravention of awards and orders. Part IX provides for entry and inspection by organisations and is dealt with in more detail below. Part X has been repealed. Part XA contains provisions relating to freedom of association. Part XI relates to offences against the Federal Act. The remaining parts concern costs in proceedings (Pt XII), miscellaneous provisions (Pt XIII), the jurisdiction of the Federal Court (Pt XIV), matters referred by Victoria (Pt XV) and provision for contract outworkers in Victoria in the textile, clothing and footwear industries (Pt XVI). The Workplace Relations Act - Australian Workplace Agreements 50 Part VID of the Federal Act provides for AWAs. A key provision is s 170VF which provides in subs (1): 'An employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and employee.' Section 170VG deals with the content of AWAs. It requires that the employer must ensure that the AWA includes a dispute resolution procedure. If it does not include such a procedure, it is taken to include the model procedure prescribed by the Regulations. AWAs have a nominal expiry date, which cannot be more than three years after the AWA date. The AWA date is defined in s 170VA: '... means the date on which the employer and employee sign the AWA or, if they sign on different dates, the later of those dates.' There is provision for the extension of the nominal expiry date (s 170VH(3)). The period of operation of AWAs is specified in s 170VJ(1): 'An AWA for a new employee starts operating on the later of: (a) the day after a filing receipt is issued for the AWA; or (b) the day specified in the AWA as the starting day; or (c) the day the employment commences; and stops operating at the earlier of the following times: (d) the end of the day when a refusal notice is issued in relation to the AWA; (e) the time when a termination under section 170VM takes effect; (f) the time when another AWA between the employer and employee starts to operate.' For an existing employee an AWA will begin to operate on the later of the day following the issue of an approval notice or the day specified in the AWA as the starting day. It stops operating at the time of termination under s 170VM or the commencement of another AWA between the employer and employee (s 170VJ(2)). 51 There is provision for the appointment of bargaining agents in relation to the making, approval, variation or termination of AWAs (s 170VK). 52 AWAs are required to be filed with the Employment Advocate (s 170VN(1)). The Employment Advocate must issue a receipt to the person who filed the document if satisfied that filing requirements have been met or that a failure to meet filing requirements has not disadvantaged, and will not disadvantage, a party to the AWA (s 170VN(2)). The time limit for filing an AWA is set out in s 170VN(3): 'The Employment Advocate must not issue a filing receipt for an AWA unless the AWA was filed within 21 days after the AWA date.' Filing requirements are specified in s 170VO. Sections 170VPA to 170VPK deal with the approval of AWAs and ancillary documents. They comprise Div 5 of Pt VID. 53 Division 6 of Pt VID deals with the effect of an AWA. It comprises ss 170VQ to 170VU inclusive. 54 Key parts of s 170VQ are as follows: '(1) During its period of operation, an AWA operates to the exclusion of any award that would otherwise apply to the employee's employment. This subsection has effect subject to subsections (2) and (3). ... (4) During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment.' Subsection 170VQ(6) defines the relationship between AWAs and certified agreements made under the Federal Act. Certified agreements prevail over AWAs to the extent of any inconsistency subject to the conditions and qualifications set out in that subsection, which are not material for present purposes. 55 The relationship between AWAs and State laws is set out in s 170VR which is as follows: '(1) Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency. (2) 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 regulations. (3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the AWA. (4) To the extent of any inconsistency, an AWA prevails over prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations. (5) In this section: Commonwealth law means an Act or any regulations or other instrument made under an Act. prescribed conditions means conditions that are identified by the regulations. State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or State agreement.' 56 Section 170VT provides: '(1) A party to an AWA must not breach the AWA.' 57 Division 7 of Pt VID deals with enforcement and remedies and provides penalties for contravention of provisions of Pt VID. Relevantly, s 170VV provides: '(1) An eligible court may make an order imposing a penalty on a person who contravenes a penalty provision. (2) The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases. (3) An application for an order under subsection (1) that relates to an AWA or ancillary document may be made by a party to the AWA or ancillary document. (4) In this section: penalty provision means subsection 170VK(2) or (4), section 170VP, section 170VT, section 170VU, subsection 170WE(1), subsection 170WF(1), subsection 170WG(1) or (2) or subsection 170WH(1) or (2).' There are provisions for damages for breaches of AWAs (s 170VW), compensation for shortfall in entitlements (s 170VX), the grant of injunctions (s 170VZ), interest on judgments (s 170W) and a small claims procedure (s 170WA). 58 In Div 8 there is a limited immunity conferred on industrial action in respect of AWAs (s 170WC(1)). Division 9 contains miscellaneous provisions including a provision prohibiting the disclosure by Registry officials of information that the official knows or has reasonable grounds to believe would identify a person as having been a party to an AWA (s 170WHB(1)). This is subject to a number of exceptions including disclosure authorised in writing by the AWA party. Hearings by the AIRC in relation to AWAs under Pt IVD are to be held in private (s 170WHD). The Workplace Relations Act - Rights of Entry for the Employment Advocate with Respect to AWAs 59 Division 2 of Pt IVA provides for the appointment by the Employment Advocate of authorised officers. The key provisions of s 83BG are as follows: '(1) The Employment Advocate may, by instrument in writing, appoint as an authorised officer: (a) a person who is appointed or employed by the Commonwealth; or (b) a person who is appointed or employed by a State or Territory. (2) In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Employment Advocate.' Section 83BH deals with the powers of authorised officers. In the relevant parts it provides: '(1) An authorised officer may exercise powers under this section for the following purposes (compliance purposes): (a) for the purpose of ascertaining whether the terms of an AWA have been complied with, or are being complied with; (b) for the purpose of ascertaining whether the provisions of Part VID or Part XA have been complied with, or are being complied with; (c) for the purpose of ascertaining whether other provisions of this Act that are prescribed by the regulations have been complied with, or are being complied with. (2) The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes. (3) An authorised officer may, without force, enter: (a) a place of business in which the authorised officer has reasonable cause to believe that work to which an AWA applies is being performed or has been performed; or (b) a place of business in which the authorised officer has reasonable cause to believe that there are documents relevant to compliance purposes; or (c) a place of business in which the authorised officer has reasonable cause to believe that a breach of Part VID (AWAs) or Part XA (freedom of association) has occurred, is occurring or is likely to occur.