Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd

Federal Court of Australia|2022-12-06|Before: Colvin J

Solicitor for the Cross-Claimant: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Counsel for the Cross-Respondents: Mr I Neil SC with Ms S Constable

BETWEEN: COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Cross-Claimant

JOHAN JANSE VAN RENSBURG Fourth Cross-Respondent

order made by: COLVIN J DATE OF ORDER: 6 december 2022

The cross-claim is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Section 484 of the Fair Work Act 2009 (Cth) provides for circumstances in which there is a statutory right for a union official to enter work premises. It states that a permit holder may enter premises 'for the purposes of holding discussions with one or more employees'. The employees are described as those: (a) who perform work on the premises; (b) whose industrial interests the permit holder's organisation is entitled to represent; and (c) who wish to participate in those discussions. 2 At this point, it is sufficient to note that the exercise of the statutory right of entry is closely regulated, for example by requiring the official to hold a permit and to give an entry notice before entering premises. 3 In 2021, Mr Adam Woodage of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Union) was refused entry to premises occupied by Austal Ships Pty Ltd (Austal) at Henderson and Naval Base in Western Australia. He was refused entry on four occasions. The reason for the refusal was the same on each occasion. It did not concern whether he held a permit or whether the appropriate notice had been given. Nor did it concern whether there were employees of the kind described in the Fair Work Act with whom Mr Woodage wished to speak. Rather, he was refused entry on the basis that his purpose was to obtain signatures on a petition to be used for an application for a majority support determination by the Fair Work Commission. The relevant employees of Austal were of the view that entry for such a purpose was not authorised by s 484 because it was not within the statutory language of 'holding discussions with one or more employees'. For that reason, they refused entry. 4 Section 501 of the Fair Work Act provides that a person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises. Section 502 provides that a person must not intentionally hinder or obstruct a permit holder exercising rights to enter. The Union seeks declarations that Austal and its relevant employees (Austal Parties) contravened these provisions when they refused entry to Mr Woodage. It also seeks damages and orders requiring the payment of a pecuniary penalty by each of the Austal Parties to the Union. 5 A statement of agreed facts has been filed. On the basis of the facts as agreed, I am asked to determine whether the Fair Work Act has been contravened in the manner alleged. Issues of relief in the event that I find that there have been contraventions are to be held over for later consideration, if required. 6 It is agreed that, on each of the four occasions in issue, the purposes of Mr Woodage's intended entry to Austal's premises were: (1) to provide a general update to members and potential members employed at the Henderson Premises who wanted to speak with him about industrial issues on site; (2) to speak with those members and potential members about seeking a majority support determination for an enterprise agreement to cover their employment; (3) to invite those members and potential members to sign a petition in support of a majority support determination (if they did support it); (4) to try to persuade those members and potential members who were unsure, reluctant or disinclined to support a majority determination to support it and, if so, sign the petition; and (5) to obtain signatures from those members and potential members who were willing to provide them. 7 The sole issue is whether entry for those purposes was entry for the purposes of holding discussions with employees. In the course of oral submissions, senior counsel for the Austal Parties accepted that their defence of the claim by the Union depended upon the agreed fact that one of the purposes of Mr Woodage was to ask employees to sign the petition then and there during the discussions. The proposition contended for by the Austal Parties was that s 484 of the Fair Work Act did not authorise entry for the purpose of soliciting, obtaining and coming away with such a signed petition. 8 For the Union it was contended that the purpose of obtaining signatures on a petition relating to their employment was included within the statutory language of 'holding discussions with one or more employees'. In the alternative, it was said that as some of the purposes for entry were within the statutory language, that was sufficient and the fact that there was an additional purpose of obtaining signatures on a petition did not mean that the entry was unauthorised. It was common ground that the other purposes of Mr Woodage were within the statutory language of 'holding discussions'.

Outcome 9 For the following reasons, the submissions of the Austal Parties should be accepted. There was no contravention by the Austal Parties and the claim to that effect (advanced by way of cross-claim in the proceedings in this Court) should be dismissed.

Relevant principles of statutory construction 10 The meaning to be given to statutory instruments is their contextual meaning; that is, the text of the statute should be considered whilst at the same time having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), [37]-[39] (Gageler J). 11 There are challenges in using purpose to aid construction where it is apparent that the legislation seeks to balance competing interests or policy considerations: Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 268 FCR 128 at [80]-[84] (Allsop CJ, Griffiths and O'Callaghan JJ). If an express statement of purpose is to assist in resolving a particular issue of construction then it must be expressed with sufficient specificity for it to be deployed in that way: Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529. The Court must not conjure a purpose that is more specific than the context discloses and then use that purpose to construe the legislation: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [26]. Ultimately, 'the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed': Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at [16]. 'Understanding context has utility if, and 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': Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]. 12 The Fair Work Act has a number of express statements of purpose. In order to promote wider economic interests, it seeks to achieve a balance between the interests of employers and employees when it comes to workplace relations: s 3. The particular provisions that allow for union officials to enter work premises are themselves a particular respect in which the legislation seeks to strike an appropriate balance between those interests. As stated in s 480: The object of this Part is to establish a framework for officials of organisations to enter premises that balances: (a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of: (i) this Act and fair work instruments; and (ii) State or Territory OHS laws; and (b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and (c) the right of occupiers of premises and employers to go about their business without undue inconvenience. 13 Section 480 is a non-operative provision that is enacted to guide the provisions in Part 3-4, including s 484. The use to which it may be put in construing the provisions of Part 3-4 was described by Allsop CJ, White and O'Callaghan JJ in Australian Building and Construction Commission v Powell [2017] FCAFC 89; (2017) 251 FCR 470 at [46] in the following way: … if there were two constructions available from the words, one of which fulfilled the object fully, the other of which did not fully do so, that would provide a reason or a consideration to prefer the former. But it does not follow that words that have a meaning that go beyond the object, and so can be seen to fulfil the object, should be read down to conform only with the boundaries or parameters of the stated object.

Majority support determinations 14 A majority support determination is a statutory mechanism by which the Fair Work Commission may facilitate bargaining about enterprise agreements: see s 169. If such a determination is made then the employer must commence bargaining. Before making a determination, the Commission must be satisfied that a majority of employees who will be covered by any new agreement want to bargain and it is up to the Commission to decide the method by which to determine that is the case: s 237. In practice, one method adopted by the Commission is by receiving a petition in support of bargaining that has been signed by a majority of employees. 15 Therefore, the Fair Work Act contemplates the possibility that steps might be taken for the purpose of satisfying the Commission that a majority of employees want to bargain. However, the Fair Work Act does not expressly refer to the use of a petition for that purpose.

The statutory context 16 Chapter 3 of the Fair Work Act specifies the rights and responsibilities of employers, employees and their associations. It is a law of general though not universal application. It governs a very large number of employment relationships and conduct in workplaces throughout the country. 17 The Chapter is divided into Parts. Each Part commences with a non-operative guide to its provisions and has a statement of object. For example, the object of Part 3-1 is set out in s 336 which states: (1) The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; (c) to provide protection from workplace discrimination; (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part. 18 Part 3-2 deals with unfair dismissal. The objects provision for that Part refers to procedures and remedies that are described as 'intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned': s 381. 19 Part 3-3 deals with industrial action. It regulates the circumstances in which protected industrial action may be undertaken. The description of its object states that it 'establishes the process that will allow employees to choose, by means of a fair and democratic secret ballot, whether to authorise protected industrial action for a proposed enterprise agreement': s 406. 20 Part 3-4 (which contains s 484) deals with the right of entry. The objects provision for this Part has been quoted above. 21 Part 3-5 deals with stand down. It provides for limited circumstances in which employees may be stood down by an employer during a period when the employee cannot be usefully employed. 22 Part 3-6 deals with obligations that arise where an employer dismisses 15 or more employees for reasons of an economic, technological, structural or similar nature. 23 Part 3-7 prohibits the payment of corrupt benefits that are made to secure influence in relation to the conduct of certain organisations. 24 It can be seen that the provisions concerning the right of entry of union officials to premises form part of a set of provisions that regulate industrial relations. They also give the force of law to many of the protections that industrial action seeks to secure. It both regulates the circumstances in which employees may withdraw their labour and provides statutory protection for workplace rights. 25 Within that context, Part 3-4 provides that a union official who is a permit holder may enter premises of a workplace: (1) to investigate contraventions of the Fair Work Act or an industrial instrument where it relates to or affects a covered employee (s 481, s 483A); or (2) for the purposes of holding discussions with covered employees who wish to participate in those discussions (s 484). 26 These provisions facilitate the representation of employees. They confer a right to enter private property to enable union officials to speak to covered employees. They regulate the intersection between the fundamental freedom of association as it pertains to workers and real property rights. It deals with balancing those competing foundational rights. For that reason their interpretation should not be seen as being aided by application of the principle of legality: as to which principle, see Coco v The Queen (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ), R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131; and Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [21] (Gleeson CJ), quoted with approval in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [15]. 27 There are detailed provisions that regulate the way in the statutory right of entry may be exercised and what may be done in the exercise of the right. They are quite prescriptive. In broad terms, and without being comprehensive, the provisions: (1) require the union official to hold an entry permit; (2) require an entry notice to be given in advance and require entry to be confined to the day specified in the entry notice; (3) require a person exercising a right of entry to produce relevant documentation; (4) require compliance with any occupational health and safety requirement that applies to the premises; (5) confine entry to working hours; (6) confine the holding of discussions to mealtimes or other breaks; (7) require any interviews or discussions to be held in rooms or areas agreed with the occupier (or in crib rooms if no such room or area can be agreed); (8) require compliance with reasonable requests to take a particular route to reach a room; and (9) require the union official not to enter any part of the premises that is used mainly for residential purposes. 28 There are also provisions concerning applications for entry permits, the content of entry notices and the resolution of disputes about entry by the Fair Work Commission including disputes about the frequency of visits. There is power to restrict entry by those who have misused entry rights and power to revoke or suspend entry permits. 29 In short, the legislative regime is extremely detailed with a considerable number of limits and constraints upon the exercise of the limited right to enter premises.

The contextual meaning of 'holding discussions' 30 The parties in their submissions referred to contextual materials concerning the terms of s 484 (and its statutory predecessor). However, none of those materials provide any indication as to the purpose of the particular terminology 'holding discussions'. Therefore, in construing s 484, it is necessary to first have regard to the statutory language of s 484 within the surrounding statutory context, particularly the overall terms of Chapter 3 and the detailed regulation of the right to enter in Part 3-4. Then, to the extent that there are competing possibilities as to meaning, regard to s 480 may assist if there is a clear statement of purpose that can be advanced more effectively by one construction over another. 31 Having regard to its context, the reference in s 484 to 'holding discussions' is to a face to face conversation between a union official and an employee or employees that is to take place on work premises during a work break in a room set aside for that purpose or in a crib room. 32 A discussion is a conversation of a particular kind. It may involve an exchange of ideas or it may be directed towards reaching a common view or the making of a decision. It includes both an informal exchange in which particular matters are talked over by the participants and a structured critical examination of issues. Its semantic breadth may extend to embrace strident debate as well as the textured layers and subtlety of a diplomatic exchange. 33 However, the expression 'holding discussions' when applied to an official going onto work premises to speak to an employee indicates a focus upon practical matters of a kind that might affect employees and their enjoyment of the protections afforded by the Fair Work Act. As was observed by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 at [72]: 'Even a brief conversation comprising little more than an introduction and an enquiry as to whether a worker has any concerns may constitute a discussion in the relevant sense'. 34 As has been explained, a discussion is not simply informational. It may be a way in which to exchange information or different viewpoints on a particular topic. However, it may also be undertaken for the purpose of persuading a participant in the discussion to a particular view or to seek a commitment to a particular course of action or it may concern a decision to be made. It may have the object of reaching consensus or it may be used to describe an exchange of divergent views. It may involve interrogation or inquiry by one participant of the other. It may have a set agenda or it may be free flowing and undirected. 35 Significantly for present purposes, a discussion may seek to persuade or reach consensus or make a decision or even to secure agreement. However, a discussion that reaches such a conclusion comes to an end. At that point, there is nothing more to discuss. 36 Therefore, the holding of discussions would include conversations where the topic to be addressed is whether an employee is willing to support a particular course of action. The discussion may reach a point where the employee decides to do so. However, the holding of discussions does not extend to then securing some form of commitment that has a future significance beyond the conclusion of the discussion. 37 If one party to a discussion seeks to secure some form of agreement or pledge of commitment that will have future consequences as an act of will of a participant in the discussion then the purpose moves beyond discussion. It seeks to secure something that will have future operative effect. It moves beyond discussion to securing a binding indication as to future behaviour (which may or may not have legal significance). Whether it is sought in the form of an oral statement, a handshake or a signature, the seeking of a commitment that will guide or bind future behaviour goes beyond a discussion. 38 The signing of a petition of the kind in issue in the present case is in that category. A discussion with an employee may end in the employee communicating a willingness to commence bargaining. However, the engagement between union official and employee moves beyond discussion when there is any attempt to secure a form of commitment to that outcome by signing a petition. A discussion results in no pledge, commitment or binding agreement of a kind that is to be used in later dealings. A party who joins the consensus that emerges in a discussion or who joins in a decision or who chooses not to debate further is free thereafter to adopt an inconsistent position, to reflect further and change their view, to act freely. It is the nature of a discussion that it has no consequence beyond the fact of the dialogue and exchange itself. The further step of seeking to secure a commitment (whether formally or informally and whether legally enforceable or not) is to go beyond holding discussions. 39 Therefore, an official who seeks to engage in a discussion with an employee in order to secure a commitment to a particular course of action in the future, namely securing a signature on a petition to be used to support an application to commence bargaining, has a purpose that extends beyond discussion. 40 Significantly, s 480 is couched in terms that make no reference to entry to premises to secure an agreement or commitment by an employee. It refers to discussions, investigations and providing information. There is nothing in its terms to suggest that the reference to discussions is intended to embrace some special or unusual meaning that would include a step that results from the discussions or the recording of a pledge or commitment to be used to support some future action. 41 Further, having regard to the detailed context in which s 484 resides, it should be approached on the basis that the words 'holding discussions' like the many other provisions concerned with the limits of what may be done by way of right of entry was intended to confine with some precision what can occur. The legislation has provisions that require permits to enter, require notice of entry and confine entry to very tightly prescribed places at specified times. The whole scheme manifests a concern to tightly circumscribe the statutory right to entry that can be exercised by union officials. 42 It was submitted for the Union that entry to obtain signatures on a petition would not confer unlimited scope to abuse the statutory right to enter. A considerable list of the limits upon the abuse of the right of entry that are provided for in the legislation were relied upon. However, the issue is not whether the conduct might be justified on the basis that the regulatory structure would allow for any abuse of a right of entry to be adequately addressed or controlled. No doubt there is conduct other than discussions that might be supervised within such a structure. However, in the case of s 484, the legislature has chosen to balance the interests of employers and employees by limiting the extent of the statutory right to entry conferred by that provision to entry for the purposes of 'holding discussions'. It is not open to this Court to expand the scope of the provision beyond the limits of that terminology. For reasons that have been given, the purpose of securing signatures on a petition to be used in an application for a majority support determination by the Commission is a purpose that goes beyond holding discussions. 43 It was suggested that obtaining a signature on a petition was no different to taking a note of any discussions that were held and that a purpose of making such notes would not mean that an entry exceeded the statutory authority. Further, it was said that the making of the record created by the note would not mean that an oral exchange with an employee would cease to be a discussion. However, the taking of a note by an official or an employee is not analogous to the present case. The note would not alter the nature of their interaction. It is the taking of the further step of seeking a signature on a petition that is to be used in an application to the Commission that takes the interaction beyond discussion. It is the seeking and making of a record of a commitment for the purpose of it being used in that way that takes it beyond what is meant by a discussion. A mere record of the conversation that constituted the discussion would not have that character. 44 Finally, it was submitted that obtaining a signature was no different to engaging in a conversation for the purpose of securing an oral commitment which was then to be presented to the Commission. However, an entry for such a purpose may also fall outside the statutory term 'holding discussions'. It too would have the purpose of seeking to secure a form of binding pledge as to the support of the individual for the commencement of bargaining. Therefore, the argument proceeds from a premise that may not able to be sustained. 45 For all those reasons, entry for the purposes of obtaining signatures on the petition was not entry for the purposes of holding discussions.

Alternatively, the significance of multiple purposes that include lawful purposes 46 On the agreed facts, the purpose of securing signatures on the petition was one of a number of purposes held by Mr Woodage. As has been noted, the Union advanced an alternative submission to the effect that as the purposes of Mr Woodage included 'holding discussions' the fact that he also had an extraneous purpose did not take him outside s 484. So, is an entry for the purposes of holding discussions as well as another purpose one that is authorised by s 484? 47 The Union relied upon a series of decisions to support an affirmative answer to that question. They commence with Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90; (2010) 186 FCR 88. At the time of that decision, the relevant provisions were contained in the Workplace Relations Act 1996 (Cth). Section 760 of that Act was in substantially the same terms as s 484 of the Fair Work Act. Section 767 provided that a permit holder 'exercising, or seeking to exercise, rights … under section 760 … must not intentionally hinder or obstruct any person, or otherwise act in an improper manner'. A union official who had exercised a right of entry under s 760 was alleged to have contravened s 767. 48 The Court considered whether there could be a contravention of s 767 in circumstances where the permit holder had not entered for the purposes of holding discussion with eligible employees. Spender J held that if the permit holder did not enter for such purposes then there could be no contravention of s 760: at [9]. Dowsett J reasoned in a way that did not determine the point, saying at [41]: I am unpersuaded that a permit holder can be described as exercising, or seeking to exercise a right under s 760 if there is no such right because of the absence of the requisite purpose. I would, however, prefer to leave that question unresolved, largely because it has not been argued. 49 However, earlier at [39], his Honour said as to s 760: … The permit holder must rather satisfy the requirement that he or she have the required purpose. Establishment of, or challenge to the existence of such purpose may involve examination of whether there was an adequate factual basis for having the prescribed purpose. If, for example, the permit holder did not have some basis for a belief that there were eligible employees on the premises, then it may be difficult to conclude that he or she had the purpose of entering into discussions with people fitting that description. His or her purpose may rather have been to discover whether there were such people on the premises. Of course, a person may have more than one purpose. 50 Dowsett J observed that the question whether entry had been authorised by s 760 had not been addressed by the primary judge: at [45]-[47]. Partly for that reason his Honour found that the matter should be remitted. Taken together, these statements express no conclusion as to whether a person who enters for the purpose of holding discussions with employees as well as for another purpose may be said to be exercising the right of entry conferred by s 484. At its highest, it is obiter reasoning that the absence of a purpose of holding discussions with employees means that a permit holder is not exercising the right of entry. 51 Logan J found that there was no right of entry under s 760 but that the findings of contravention should be upheld: at [135]-[137]. His Honour did not address the issue of multiple purposes. 52 In Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 at [104], Charlesworth J was concerned with whether the test for whether a permit holder held the statutory purpose was subjective. Reference was made to the reasoning of Dowsett J in John Holland to the effect that a person may have more than one purpose but the reference was not made in a manner that bears upon the question that is posed by the Union's alternative case. Later, her Honour reasoned in the following way at [115]-[116]: It may be confidently inferred that at least one of Mr Sloane's purposes for entering the Site was to meet the Employees there and to make it known to them that he was an official of CFMEU, the organisation entitled to represent their industrial interests. He was dressed in clothing identifying himself as a CFMEU official, permitted himself to be introduced as a person working locally for CFMEU and stood in close proximity whilst Mr McDermott provided brochures to the Employees titled What Your Union Can Do For You. He greeted the Employees and engaged in friendly banter with them. In those circumstances, whether Mr Sloane personally said words to the Employees concerning any particular industrial issue is not the point. At the time that he entered the Site, Mr Sloane intended to have exchanges with the Employees at least to the extent I have described. That intention is sufficient proof that he entered the Site for the purpose of holding 'discussions' with the Employees within the meaning of s 484 of the FW Act, albeit discussions of a brief and introductory nature. 53 Charlesworth J then proceeded to find (at [115]-[118]) that Mr Sloane was 'seeking to exercise the right of entry under s 484' and therefore could be liable for misconduct under s 500 of the Fair Work Act which provided that: 'A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner'. In short, the fact that Mr Sloane's purposes included the purpose of holding discussions with employees was enough to establish that he was seeking to exercise the right of entry conferred under s 484. 54 Then in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080, Tracey J was again concerned with whether there had been a contravention of s 500 of the Fair Work Act. Referring to McDermott, his Honour said that for the purposes of establishing such a contravention, the prescribed purpose need not be the only purpose: at [53]. His Honour then said at [55]: If the permit holder enters a site for the purpose of holding discussions with members who satisfy the criteria prescribed by s 484, he or she may be found to have exercised or to have been seeking to exercise the right of entry: ibid; see also Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528 at 534-535; [2017] FCAFC 77 at [30]-[31] (Flick J, with whom Besanko and North JJ agreed). 55 All these cases are dealing with instances where it was maintained that the permit holder was not seeking to exercise the statutory right of entry and for that reason could not be said to have contravened s 500 (or its predecessor). There is support for the position that, in such instances, the analysis proceeds on the basis that it is sufficient to demonstrate that a person was seeking to exercise the statutory right of entry if one of the purposes of the permit holder was the holding of discussions with relevant employees. A person may be seeking to exercise a right to enter even though they may have purposes other than holding discussions with employees. 56 As was noted by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [158]: It is also to be remembered that the second element of a s 500 contravention requires proof that the permit holder was exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the [Fair Work Act]. At the very least, proof that each of the elements listed in s 484 pertained at the time of the official's entry, is not required in respect of an allegation that the permit holder was seeking to exercise rights under Pt 3-4. (original emphasis) 57 The present case gives rise to a different question. It arises in the context of alleged contraventions of s 501 and s 502 by the Austal Parties. Section 501 applies where a person 'who is entitled to enter the premises' is refused entry. Relevantly for present purposes, s 502 applies where a permit holder is intentionally hindered or obstructed in exercising a right of entry. In each case the issue is not whether a person was 'seeking to exercise' rights of entry but rather whether the person seeking to enter had an entitlement or right to do so. 58 For that reason, the authorities relied upon by the Union do not assist. 59 The construction of s 484 contended for by the Union would mean that a permit holder would have a right to enter for any number of purposes provided the purposes included holding discussions with employees. A construction of that kind would run counter to the surrounding context in which there are detailed provisions circumscribing the right of entry. It would authorise entry for purposes that are not stated in the legislation. The ordinary grammatical reading of s 484 is that it specifies the only purposes for which a permit holder may enter the premises. In that regard, I respectfully refer to the analysis of Flick J in Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991 at [34]-[39].

Conclusion 60 For those reasons the cross-claim must be dismissed. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

Workplace Relations Act 1996(Cth)ss 760, 767

Fair Work Act 2009(Cth)ss 3, 169, 237, 336, 381, 406, 480, 481, 483A, 484, 500, 501, 502, Chapter

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