Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman

Judgment

1. This is an application for leave to appeal and, if leave is granted, an appeal against a decision of Murphy C in Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2016] NSWIRComm 1000 ('the impugned decision'). That decision resolved a dispute notified by the appellant pursuant to s.142 of the Work Health and Safety Act 2011 (NSW) ('the WHS Act') concerning right of entry to the respondent's premises for purposes said to be authorised by the WHS Act.
2. When the matter came on for hearing the Full Bench required the parties to address the question of Leave to Appeal as a preliminary issue. Having considered those submissions the Full Bench decided to refuse leave and announced reasons would be published in due course. Our reasons follow.

The decision at first instance

1. The Commissioner, having set out the relevant legislation, summarised the factual position. It is unnecessary to descend to the detail because no criticism was made of that summary.
2. The appellant had sought relief in respect of the rights of its officials to enter the premises of the respondent for the purpose of investigating suspected breaches of the WHS Act. The Commissioner set out at [23] of the decision the original relief sought. Later, at [37], he detailed the orders ultimately sought as follows: .. the CFMEU sought that the Commission make the following orders and determination to resolve the dispute: (a) Bullying, harassment and other intimidatory conduct which causes or is capable of causing risks to workers' psychological health can amount to a suspected contravention of the Work Health and Safety Act 2011 (NSW); (b) As and from the date of these orders, CFMEU WHS permit holder who reasonably suspect contraventions of the Work Health and Safety Act 2011 (NSW) in respect to bullying and harassment and other intimidatory conduct which causes or is capable of causing risks to workers' psychological health can enter the Respondents' workplace under s 117 of the Work Health and Safety Act 2011 (NSW) subject to complying with all other applicable obligations under Part 7 of the Work Health and Safety Act and the Fair Work Act 2009 (Cth); (c) As and from the date of these orders, the Respondents will not refuse entry to CFMEU WHS permit holders who seek entry under s 117 of the Work Health and Safety Act 2011 (NSW) to investigate suspected contraventions of the Work Health and Safety Act 2011 (NSW) in circumstances where the Respondents have not had opportunity to investigate such contraventions first; (d) As and from the date of these orders, the Respondents will not refuse to allow CFMEU WHS permit holders to inspect and make copies of documents under s 118(1)(d) of the Work Health and Safety Act 2011 (NSW) in circumstances where a notice has not been given under s 120 of the Work Health and Safety Act 2011 (NSW) as such a notice is unnecessary if the documents are not employee records or documents of someone other than the Respondents' as persons conducting the business or undertaking.
3. The Commissioner rejected a submission by the respondent to the effect that the Commission lacked jurisdiction to deal with the dispute. No challenge is made to that part of the decision. Murphy C also declined to make the orders set out in subparagraphs (a) and (b) above but made orders in terms of subparagraphs (c) and (d).
4. Murphy C declined to make the first "order" because it was "no more than a statement of the legal position and is not in dispute." The order set out in subparagraph (b) above was also declined. The appeal is only directed to the refusal to make that order.
5. After referring to R v Rondo [2001] NSWCCA 540 and authorities cited in that case the Commissioner summarised the issue before him as follows at [67]: In the present matter, the question to be answered was whether or not there was some factual basis, some material or materials with probative value, which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, section 19 of the WHS Act by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the Site.
6. Murphy C referred to the evidence, earlier summarised by him, said to support the "reasonable suspicion" and held at [68] and [69] that it lacked: ..sufficient probative value to form the basis of a reasonable suspicion that Pacifico had contravened, or was contravening, section 19 of the WHS Act.

The questions raised by the appeal

1. The Application for Leave to Appeal and Appeal set out the questions raised by the Appeal in the following terms: (i) Whether the Commissioner acted on a wrong principle in holding that hearsay evidence and direct observations of workers could not ground a reasonable suspicion on the part of a WHS permit holder that a contravention of the Act had occurred or was occurring. (ii) Whether the Commission mistook the facts in holding that the WHS permit holders did not [hold] a reasonable suspicion that a contravention of the Act had occurred or was occurring.

Principles on leave to appeal

1. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated at [10] and [11]: It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].
2. That statement has been approved since in a number of decisions: Merrin v Mosman Municipal Council [2016] NSWIRComm 1048 at [6]-[7]; Fire Brigades Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 at [11]; Industrial Relations Secretary v Wattie [2017] NSWIRComm 2007at [11]. In the last mentioned decision the Full Bench added at [12]-[13]: Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal.
3. These principles were most recently endorsed in Commissioner of Police v Morris [2017] NSWIRComm 1010 at [6]. We will apply them.

Consideration

1. On a fair reading of the Commissioner's decision the first question said to be raised by the appeal does not arise. The Commissioner did not hold that such evidence cannot form the basis of a reasonable suspicion. Murphy C specifically sought to apply the decision in Rondo and quoted from the passage in that decision in which the contrary proposition (that hearsay evidence may support a reasonable suspicion) is specifically endorsed. The Commissioner correctly summarised the issue before him as quoted in [7] above and then proceeded to answer that question by reference to the evidence before him.
2. The second question said to be raised by the appeal is in our view no more than a challenge to the Commissioner's factual conclusions. As we have observed no challenge was made to the Commissioner's summary of the relevant evidence. The question to which he directed himself was correct. The appellant simply argues the Commissioner should have reached a different conclusion.
3. In our view, on the totality of the evidence before him, that conclusion was open.
4. It was for these reasons we refused leave.

Order

1. The Full Bench confirms its order: 1. Leave to appeal is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2017