//
[2008] AIRC 781
General information, not legal advice.
Australian Industrial Relations Commission
2008-12-01
Original judgment source is linked above.
s.770(2)(b) - Right of entry
Application for orders in relation to abuse of system by Andrew Quirk - abuse of rights conferred by Part 15 of the Workplace Relations Act 1996 - meaning of "abuse of rights" whether rights exercised -whether abused - use of profanities - alleged abusive conduct - failure to produce entry permit when requested.
[1] The applicant is an inspector appointed pursuant to s.57 of the Building and Construction Industry Improvement Act 2005 (BCI Act). By operation of s.73 of the BCI Act and s.770(2) of the WR Act he is entitled to bring these proceedings in which he seeks orders under s.770 of the Workplace Relations Act 1996 (WR Act) revoking or suspending the respondent's right of entry permit for abuse of rights conferred by Part 15 of the WR Act. Under s.770(1) of the WR Act the Commission may suspend or terminate or impose conditions on an entry permit if it is satisfied that an organisation or one of its officials has abused rights so conferred.
[2] The respondent is an organiser for the Construction, Forestry, Mining and Energy Union (CFMEU) and is the holder of a permit under the WR Act. The permit entitles him during working hours to enter workplaces for the purposes of holding discussions with members and potential members and investigating suspected breaches of industrial laws, industrial instruments and occupational health and safety (OHS) laws. The respondent denies abusing his rights under Part 15 of the WR Act.
[3] The standing of the applicant to bring the proceedings is not contested. It is common ground that on 2 and 3 October 2008 the respondent issued notices to enter a Hansen Yunken Pty Limited (HY) worksite at 284 Castle Hill Road, Castle Hill, New South Wales (the worksite). On 3 October and again on 4 October 2008, the respondent entered the worksite. After entering the site on 3 October the respondent put up a variety of posters the nature of which is discussed later in these reasons. After entering the worksite on 4 October 2008 the respondent had a heated exchange with one of HY's managers and then met with and addressed a group of employees in the worksite lunch sheds. The issue is whether the respondent abused his rights in the course of his two visits to the HY worksite.
[4] It will assist in a proper understanding of the issues in this case by starting with an overview of the relevant statutory mandates. A good beginning is the provisions relating to the Commission's function. Section 770 of the WR Act provides as follows:
(1) If the Commission is satisfied that an organisation, or any official of an organisation, has abused the rights conferred by this Part, then the Commission may make whatever orders it considers appropriate to restrict the rights of the organisation, or officials of the organisation, under this Part.
(a) an order that revokes or suspends some or all of the permits that have been issued in respect of the organisation; and
(b) an order that imposes limiting conditions on some or all of the permits that have been issued in respect of the organisation or that might in future be issued in respect of the organisation; and
(c) an order that bans, for a specified period, the issue of permits in respect of the organisation, either generally or to specified persons.
For the purposes of this subsection, limiting condition means a condition that limits the circumstances in which a permit has effect.
(4) An organisation, or an official of an organisation, who is subject to an order under this section must comply with the order.
(6) The powers of the Commission under this section are exercisable by:
(b) a Presidential Member assigned by the President for the purposes of the matter concerned; or
(7) Without limiting subsection (1), a permit holder abuses rights conferred by this Part if, in exercising rights under Division 6, the permit holder engages in recruitment conduct that is unduly disruptive, either because the permit holder's exercise of powers of entry is excessive in the circumstances or for some other reason.
recruitment conduct means encouraging employees to become members of an organisation.
[5] Curiously the headnote to s.770 speaks of "abuse of system" whereas the contextual reference is to "abuse of rights conferred by this Part". It is important therefore to understand the nature and extent of the rights conferred by Part 15 in order to determine whether or not those rights or any of them have been abused.
[6] Part 15 carries the title "Right of Entry". Division 1 sets out the objects of the Part, the definitions, the form of entry notice and the extraterritorial application of the Part. Section 736 is important. It sets out as an object the establishment of a framework that balances the rights of organisations in respect of their role and the rights of employers and occupiers to quiet enjoyment of their premises. The other objects of the Part are to ensure that organisations and employers understand their rights and obligations under Part 15 and to ensure permits are suspended or revoked where rights are misused.
[7] Division 2 deals with the authority and conditions for issue of permits. Division 3 is concerned with expiry and revocation of permits and confers jurisdiction on the Registrar to revoke or suspend a permit in certain defined circumstances.
[8] Division 4 is headed "Right of entry to investigate suspected breaches". Within that Division s.747 confers on a permit holder the right to enter premises during working hours to investigate suspected breaches. Section 748 gives a permit holder the right during working hours to inspect material and machinery, inspect and copy records and interview employees who are members or eligible to be members of the organisation. A permit holder also may apply to the Commission under s.748 for an order allowing her/him to enter premises and to inspect and make copies of non-member records or to have the employer produce such records.
[9] Sections 749 and 751 to 753 impose certain limitations and/or conditions on the rights of a permit holder to enter premises to investigate suspected breaches. Section 749 requires the permit holder to give at least 24 hours notice of entry, to identify s.747 as the section authorising the entry and the suspected breach or breaches and to enter on a day specified in the entry notice. Under s.750 the Registrar may grant an exemption certificate in respect of the specified notice period where advance notice of the entry might result in destruction, concealment or alteration of relevant evidence. Section 751 requires a permit holder to comply with any reasonable request by an employer or occupier as to the meeting place and the route to it. It also imposes an obligation on the respondent to comply with the occupational health and safety requirements of the employer or occupier. Section 752 makes it clear that an entry permit does not authorise entry on to any part of premises used for residential purposes. Section 753 stipulates that the rights conferred by Division 4 are subject to any conditions attaching to the entry permit. Section 754 simply imposes the onus of proving reasonable grounds, in any case where that is required, on the person asserting it.
[10] Division 5 of Part 15 is headed "Entry for OHS purposes". The Division confers no rights on a Part 15 permit holder. It imposes restrictions or limitations on the rights of an official of an organisation who holds a permit to enter premises under State or Territory OHS laws. The exercise of any right under State or Territory OHS laws is subject to the official holding a Part 15 entry permit and exercising the right only during working hours (s.756). Under s.757 an OHS right to inspect or access employment records on premises is subject to a condition that the permit holder gives at least 24 hours written notice of intention to exercise the right. Section 758 imposes an obligation on the permit holder to produce her/his permit if requested to do so and to leave the premises if she/he fails to comply with a reasonable request by the occupier of the premises to comply with a health and safety requirement. Section 759 provides that a right to enter under an OHS law is subject to any conditions attaching to the entry permit.
[11] Division 6 carries the heading "Right of entry to hold discussions with employees". Within Division 6 s.760 confers on a permit holder a right of entry to premises for the purposes of holding discussions with members and persons eligible to be members who carry on work covered by an award or a collective agreement binding on the permit holder's organisation. The remaining provisions of Division 6 impose conditions or limitations on the exercise of a permit holder's right to enter. The permit holder:
[12] Division 7 concerns prohibitions in respect of the exercise of rights under an entry permit. It stipulates that a permit holder must not hinder or obstruct a person, or otherwise act in an improper manner when exercising or seeking to exercise any of their rights of entry. It also stipulates that a person must not delay, hinder or obstruct a permit holder in the exercise of their rights (s.767). Section 768 provides that a person must not intentionally or recklessly misrepresent their authority to do a particular thing under Part 15.
[13] Division 8 deals with enforcement of civil remedies in the Federal Court or the Federal Magistrates Court in respect of civil penalty provisions in Part 15. Division 9 concerns the Commission's powers to deal with abuses of the rights conferred by Part 15. It is unnecessary for me to rehearse all of the relevant provisions of Division 9 at this point.
[14] As may be seen from the foregoing summary the rights conferred by Part 15 consist of a statement of an absolute right tempered and conditioned by a number of limitations and restrictions on the exercise of the right. In my view the rights conferred by Part 15 can be defined as the parcel of rights that are to be exercised in accordance with their specified limitations and restrictions. Abuse of the rights may result in revocation or suspension of the rights or the imposition of further conditions on the exercise of them. What is not defined by Part 15 is the term "abuse". Dictionary definitions of the term suggest a meaning of "wrong or improper use". In the context of the expression "abused the rights conferred" by Part 15, the right might be said to be abused if its exercise cannot reasonably be reconciled with the duty or duties to which the holder of the rights is subjected by the several limitations and restrictions in Part 15 itself. So much is consistent in my view with the views expressed by Senior Deputy President Watson in Re Australian Building and Construction Commission. [2]
[15] The applicant relies on the witness statements and oral evidence made and given by the following witnesses:
Villiami Akaoula, Leading Hand, Structural Systems (Northern) Pty Ltd.
[16] Summonses issued for James Greenless and Adam Host were not served and, although the applicant sought to rely on witness statement filed in their names, I ruled that the statements would not form part of the evidence if they were not available for cross-examination.
[17] The respondent gave evidence in his defence but called no other witness.
[18] The essence of the claims of abuse made against the respondent may be summarised as follows:
1. On 3 October 2007 the respondent without proper notice entered the worksite for the purpose of holding discussions;
2. On 3 October 2007 the respondent entered the worksite for a purpose foreign to the purposes for which the entry notice was given less than 24 hours beforehand;
3. The respondent on 4 October 2007, after entering the worksite in accordance with notice given on 3 October 2007, refused to produce his entry permit when requested to do so;
4. While on the worksite on 3 and 4 October 2007, the respondent engaged in abusive conduct including personal abuse and "the wholesale use of profanities";
5. The respondent on 4 October 2007 did not comply with HY's request to hold discussions with employees in the worksite car park.
[19] The respondent admits that on 2 October 2007 he issued an entry notice to hold discussions with employees on the worksite on 3 October 2007, but denies that his entry onto the worksite on 3 October was in pursuance of that entry notice. He admits the use of profanities while on the HY worksite on 3 and 4 October 2007, but denies being asked to produce his entry permit at any time while on the worksite on 4 October 2007. He also denies being asked to hold discussions with employees in the car park.
[20] The issue to be determined is whether the respondent abused the rights conferred by Part 15 of the WR Act. That is a question of fact. It is generally accepted that the standard of proof in cases such as these however, is the balance of probabilities to the level of satisfaction in Briginshaw v Briginshaw. [3] The disputed issues of fact that need to be addressed are whether the respondent:
[21] At about 3pm on 2 October 2007 the respondent sent a written entry notice by facsimile transmission to HY. The notice stated that the respondent intended to visit the site on 3 November 2007 to hold discussions with employees. The notice records that it is a notice under s.738 of the WR Act and that the entry is authorised by s.760.
[22] It is common ground that the respondent attended the worksite at about 7.50am on 3 October 2007. When the respondent entered the site on 3 October he signed the visitors register. Soon after he was confronted by Mr Sukkar, who questioned the respondent's reason for being on site. Specifically, Mr Sukkar said to the respondent "[w]hat are you here to do?" Although the respondent does not recall this exchange I accept that he told Mr Sukkar that he was going to put up some posters in the sheds. I also accept Mr Sukkar's evidence to the effect that he told the respondent that he could not put the posters up if they were not associated with safety. There followed a brief exchange between the respondent and Mr Sukkar. As the respondent conceded in cross-examination that he did not have a particularly accurate recollection of the discussion with Mr Sukkar on 3 October, I accept Mr Sukkar's version of the exchange.
[23] After Mr Sukkar walked away the respondent went over to the crib shed and put up some posters. He then went to the first aid shed and gave Peter Durrington, the HY First Aid Officer, an entry notice of intended visits on 4 and 5 October 2007. The respondent then left the worksite, leaving behind a bundle of posters in the first aid shed. Although not entirely clear it appears that on his way out he exchanged greetings with Mr Ghenim in the car park, commenting that HY must have an issue with posters. He did not return to the worksite at any time during 3 October 2007.
[24] There are differences in the evidence given by Mr Sukkar and Mr Ghenim about the events following the respondent's departure from the worksite. Nothing turns on their evidence in relation to those events so far as it pertains to the respondent's right of entry or his conduct on the day. It does have some bearing however, on the events of 4 October 2007. The thread of consistency that runs through their evidence is that there was a telephone discussion between Messrs Sukkar and Ghenim of the one part and the Inspector Gregory Hogan in his role as an Australian Building and Construction Inspector of the other. That discussion was followed by consultation with HY management and Mr Ghenim removing the posters that the respondent had left on the site. Mr Ghenim's decision to remove the posters was based on the telephone advice of Inspector Hogan, which according to Mr Ghenim was to the effect that any posters that encouraged joining a union must be removed.
[25] The applicant submitted that the respondent entered the worksite at 7.50am on 3 October 2007 for the stated purpose of holding discussions with employees. It is said that he failed to give 24 hours notice of the entry and, contrary to the purpose specified in the notice he did give on 2 October 2007, he in fact entered the site to put up posters promoting union membership generally and/or CFMEU membership in particular.
[26] Section 760 of the WR Act, in my view, requires that the right of entry be exercised as a matter of fact, rather than as a matter of law. In other words did the respondent enter the worksite on 3 October 2007 in the exercise of his right under Division 6 of Part 15 or otherwise in the purported exercise of that right? [4] I think not. Section 763 makes its clear that the right of entry is not authorised by Division 6 unless the permit holder gives 24 hours notice of the entry and entry is on a day specified in the notice. Although the respondent had given written notice of intention to enter the site to hold discussions with employees the right to enter pursuant to that notice did not arise until 3pm on 3 October. Mr Sukkar, in full knowledge of the right of entry notice given the previous day, did not challenge the respondent's explanation for being on the worksite at 7.50am. It may be inferred that he accepted that the respondent was there to put up posters. Mr Sukkar gave him qualified permission to put up posters provided only that he not put the posters up if they were not associated with safety.
[27] There is no evidence that, at 7.50am on 3 October 2007, the respondent asserted or otherwise represented any right to be on the worksite in the exercise of a right under Part 15 of the WR Act. In particular there is no evidence that he was purporting to enter the site pursuant to the notice given on 2 October 2007. There is no evidence that he held discussions with employees or made any attempt to do so. It is evident that the duration of his visit was very brief.
[28] The applicant submitted also that because the respondent did not enter the worksite again on 3 October 2007 he must be taken to have been exercising the right for which he gave notice on 2 October. Alternatively, the respondent misrepresented his intentions. The suggestion is that the respondent was required to exercise his right of entry in accordance with his notice by reason of s.763(c). Two things may be said about the major premise in that submission. First, while the issue of a notice under s.763 is evidence of an intention to exercise the right conferred by s.760, it is not of itself evidence of the fact of the exercise of the right. [5] Secondly, s.763(c) does not impose an obligation to enter on "the" day specified in the notice. It simply requires that the entry be made on "a" day specified in the notice. In other words the notice must specify a date for entry and the entry pursuant to the notice cannot be made on any date other than that specified in the notice. As for the issue of misrepresentation the respondent gave an explanation in cross-examination for not attending the site at or after 3pm on 3 October 2007, namely that he proceeded to another job as directed by his superiors. In those circumstances common courtesy dictates that the recipient of the notice be informed of the need to cancel the visit, but it is not an express or implied requirement of the legislation and it is not an abuse of the right under Division 6 of Part 15 of the WR Act.
[29] To the extent that it is suggested that the respondent was engaged in recruitment conduct in putting up the posters on 3 October 2007, I am satisfied that he was neither exercising rights under Division 6 nor engaging in conduct that was unduly disruptive. In the circumstances it is not necessary for me to determine the nature or purport of the posters.
[30] I am not satisfied that the respondent abused the rights conferred by Part 15 of the WR Act when he visited the HY worksite on 3 October 2007.
[31] The respondent's entry notice for 4 October 2007 was delivered to HY at about 7.50am on 3 October. The respondent arrived at the worksite at about 10.35am on 4 October 2007. He first went to the shed where he had left the bundle of posters the day before and sought to recover them. He discovered the posters were not where he had left them and noticed that the posters he had put up the day before had been taken down. He then proceeded to the office and spoke to Mr Ghenim.
[32] According to Mr Ghenim's witness statement [6] the respondent was talking on his mobile phone when he entered the office. He states that he heard the respondent say "I'll show those Hansen Yuncken c****." Mr Ghenim gave the following account of what transpired after the respondent finished his phone call:
Quirk: "Who f***** took my posters off the wall?"
Quirk: "I'll sort you out, you c****. Where are my f***** posters?"
Ghenim: "I've thrown them in the f***** bin. I don't f***** appreciate you coming here to site putting posters up after we have clearly f***** advised you not to. I also don't appreciate you coming to site making threats to Hansen Yuncken. You can remove yourself off the site if you are going to make threats and using that sort of language."
[33] Mr Ghenim said that the respondent then walked out of the office and went down to the shed "occupied by Structural Systems". According to Mr Ghenim he and Mr Sukkar followed the respondent to the shed. When they got to the shed the respondent was speaking to the workers inside. Mr Ghenim said that he stood outside the shed just behind Mr Sukkar who stood in the doorway to the shed. He said he heard Mr Sukkar say "Andrew, can you show me your Federal Permit?" The respondent did not produce his permit and continued speaking to the workers in the shed. Mr Ghenim said he then heard Mr Sukkar say "Andrew, I need to see your Federal Permit and can you also sign the visitors register." There was another request from Mr Sukkar for the respondent to go to the office and sign the register followed by a request that the respondent use the car park to hold his discussions. Mr Sukkar is then reported to have said that HY was a code compliant company and that he was sure the respondent would "know what that means".
[34] Mr Sukkar, who was in an office adjacent to where the exchange between Mr Ghenim and the respondent took place at about 10.35am, said he heard the respondent yelling and came out of his office into the reception area. He said he heard Mr Ghenim say to the respondent:
"I put them in the f***** bin. Joe [Sukkar] told you yesterday not to put them in our sheds. We were required to remove them because of our company's procedures."
Mr Sukkar states that the respondent then turned around and started to walk out of the office at which point he heard the respondent say "I'll f***** sort you c**** out. I'll f***** bring some boys out here to sort you c**** out." Mr Sukkar said he followed the respondent to the lunch sheds. He said he was standing immediately outside the lunch room on a stair leading into the room. Mr Sukkar said that he asked the respondent to sign the register and show his "Federal Permit." The respondent is alleged to have said go and get the register and I will sign it. According to Mr Sukkar he then told the respondent that he wanted him to hold his meeting in the car park outside the first aid shed.
[35] I need to refer also to the evidence of Villiami Akauola. He is a Leading Hand post-tensioning worker employed by Structural Systems (Northern) Pty Ltd (Structural Systems). Structural Systems is a specialist engineering, contracting and manufacturing company engaged by HY to carry out post-tensioning. Mr Akauola states that at about 10am on 4 October 2007 he went to the lunch sheds, which are located next to the HY site office, for a smoko break with six other named Structural Systems employees. Soon after he started his smoko he heard someone yelling and swearing. Subsequently the respondent walked into the lunch shed and started addressing those present. Mr Akauola goes on to relate an exchange between Mr Sukkar and the respondent. According to his statement Mr Sukkar asked the respondent to sign the visitors register and "show his card about four or five times".
[36] Although the respondent gives a different version of the conversations in the office and in the shed there are similarities in the general thrust of what was said. There is however some significant divergence in how the conversation started in the office and in respect of some of the more critical issues in the shed. The respondent denies that he was talking on his mobile phone when he entered the office on 4 October 2007. He also denies that he made the statement that Mr Ghenim attributed to him while allegedly talking on his mobile phone. He also denies asking if his entry notice was received and using any profanities in his opening remarks. According to the respondent the initial exchange in the office was to the following effect:
Quirk: "I left some posters here yesterday, where are they?"
Ghenim: "I told you what I would do with your f***** posters, your f***** posters are in the f***** bin."
Quirk: "You are a f***** asshole, Hansen & Yuncken are an anti-union company whose aim was to rip off the workers, so that the greedy f***ers can make more money for their f***ing selves. We are going to have a f***** blue about this, I am going to get f***** Andrew Ferguson down here and make a f***** issue of it."
Ghenim: "Get out of my f***** shed don't talk to me like that."
[37] Referring to the events at the lunch shed, the respondent says he left the office and walked down to the shed, where he addressed about four workers who were sitting at a table having smoko. While he was addressing the workers Mr Sukkar came to the shed. The respondent says that he heard Mr Sukkar say the following words to him:
"I have not given you permission to have a meeting in the shed."
His response was "Go f*** yourself", to which Mr Sukkar responded by saying "You do not have permission to have a meeting in the shed." The respondent said that he ignored Mr Sukkar and continued addressing the workers for a few more minutes before returning to the site office, signing the register and leaving the site.
[38] The respondent said he did not see or speak to Mr Ghenim at the lunch shed. He denies having been asked by Mr Sukkar for his entry permit and he did not recall telling Mr Sukkar to go and get the register for him to sign.
[39] The applicant submitted that the evidence of Messrs Sukkar and Ghenim ought to be believed. Both witnesses, it was submitted, were unshaken in their evidence and gave truthful accounts of the events to the best of their ability. I am satisfied that each of the witnesses, including the respondent, who were called to give evidence were doing their best to assist the Commission. No doubt however, memories have been affected by the passage of time between when the events occurred and the date of the hearing and, accordingly, the unassisted oral evidence of the witnesses at the hearing and the written statement made by the respondent on 8 October 2008, are not, in all cases, as reliable as the statements made by Messrs Sukkar and Ghenim in closer proximity to the events.
[40] One important exception to the general observation about the superior reliability of the proximate written statements concerns the first appearance of the respondent in the worksite office on 4 October 2008. I prefer the evidence of the respondent about how he started the conversation he had with Mr Ghenim when he arrived at the office. I do so for two reasons. First, there is no logical reason why the respondent would ask if his entry notice had been received as a prelude to asking what had happened to his posters. He had been to the shed to collect the posters he left behind the previous day and found they were missing. He was, by his own admission angry about it. It is more logical that he would ask about the posters than about his entry permit. The second reason why I prefer the respondent's evidence on this point is that on 5 October 2008 Mr Ghenim wrote to the ABCC, marked to the attention of the applicant, reporting the events of 3 and 4 October 2007. [7] In his letter Mr Ghenim refers to the mobile phone comment and then records the question about the posters as it appears in Mr Ghenim's statement.[8] In my view it is more likely than not that the respondent asked about his posters on his arrival rather than raising anything about the entry notice.
[41] I have serious doubts also about the accuracy of Mr Ghenim's account of the alleged mobile phone conversation and its substance. According to Mr Ghenim there were at least two other people present in the office at the time the respondent entered. Neither of those people was called to give evidence and no explanation was given for their absence. I infer that had either been called their evidence would not have assisted the applicant's case. In my view Mr Ghenim has confused the chronology of what was said by the respondent during his time in the office. Mr Sukkar's evidence supports that conclusion.
[42] I am satisfied that the respondent entered the site on 4 October 2007 in the exercise of his right to enter under the notice given to HY on 3 October 2007. Although his first expressed concern upon entering the office was the whereabouts of his posters it is clear from what then transpired the respondent was there pursuant to the entry notice. It is clear also that the respondent became agitated by the suggestion that his posters had been assigned to the bin. It is important to note that Mr Ghenim admitted in cross-examination that he had in fact lied about putting the posters in the bin. He still had the respondent's posters and subsequently gave them to the applicant. Mr Ghenim denied in cross-examination that he had deliberately sought to provoke the respondent by lying to him about his posters. I am not entirely satisfied that Mr Ghenim intended to provoke the respondent. His intention in that regard notwithstanding it was a provocative thing to do and Mr Ghenim ought to have appreciated as much.
[43] I accept the evidence of Mr Sukkar to the effect that, while at the lunch shed, he asked the respondent to show his entry permit, although not necessarily in the terms that he says he asked for it. There is no reason to doubt Mr Sukkar on this point. Mr Sukkar had spoken to Inspector Hogan of the ABCC the previous day about the respondent's visit to the site. In the course of that conversation Inspector Hogan had advised that he should ask the respondent to see his "right of entry" when he comes onto the site. [9] Mr Sukkar's evidence about his request of the respondent is corroborated by the evidence of Messrs Ghenim and Akauola.
[44] The respondent denies being asked to produce his entry permit. It is clear that the respondent was speaking at the same time as Mr Sukkar was talking to him in the lunch shed. I am satisfied that he was speaking in a raised voice. It is clear however, that the respondent heard Sukkar speak as he responded in a way which I consider to be insulting. I am satisfied that Mr Sukkar asked the respondent to produce his entry permit in terms that the respondent would have understood as meaning his entry permit. It may be that the respondent did not clearly hear what was being said, although I doubt that to be the case. In any event the respondent was obliged to engage with Mr Sukkar in a more meaningful way than he did when he confronted him in the lunch shed. In my view, Mr Sukkar asked the respondent to produce his entry permit and, contrary to the requirements of s.765, the respondent did not produce it.
[45] I also accept Mr Sukkar's evidence to the effect that he asked the respondent to sign the visitors register and conduct his meeting in the car park. I am satisfied that the respondent would have heard the request. He did sign the register, but failed to comply with the requirement to hold his meeting in the car park. There are mitigating circumstances however, as the request was not reasonable in my view. The respondent had started talking to the workers in the shed when Mr Sukkar arrived at the shed. He was in fact speaking to the workers when Mr Sukkar spoke to him. He was not told while he was at the office that he had to conduct his meeting in the car park. It seems to me that having been provoked by the lie about his posters; although he did not know it to be a lie at the time, it was adding coals to the fire to ask him to move his meeting while he was in full flight addressing the workers.
[46] The applicant submitted that, in the course of visiting the worksite on 3 and 4 October 2007, the respondent conducted himself in an aggressive and abusive manner towards HY employees. I think the evidence of the respondent himself is conclusive of that fact. I am not satisfied however that his conduct in those regards amounted to abuse of his rights under Part 15 of the WR Act. Although Mr Ghenim said he felt threatened the objective facts do not support a finding to that effect. Mr Ghenim's responses were just as profane in addressing the respondent. Mr Ghenim's conduct was itself provocative. He gave almost as good as he was given. While such profanity is not to be encouraged, or even condoned, this was after all a construction site not a kindergarten.
[47] The applicant contended that the respondent abused the rights conferred on him by Part 15 of the WR Act in the exercise of those rights on 3 and 4 October 2007. I have found that the respondent did not exercise or purport to exercise his rights in visiting the worksite on 3 October 2007. I am satisfied that the respondent was exercising his rights under Part 15 of the WR Act when he visited the worksite on 4 October 2007. I am satisfied that he gave 24 hours written notice of his intention to enter the worksite on 4 October 2007 and specified that the entry was authorised by s.760.
[48] I am satisfied that during the respondent's visit to the site on 4 October 2007 he was asked to produce his entry permit. I am further satisfied that he refused or failed to comply with the request to produce his permit. His refusal or failure in that regard cannot reasonably be reconciled with the duty cast upon him by s.765 and was an abuse of the right conferred by s.760.
[49] The respondent was asked to hold discussions in a particular place. He refused to comply with the request. I am satisfied however that the request was not reasonable in the circumstances. Accordingly, I am not satisfied that the respondent abused of his rights in that regard.
[50] The respondent's submissions suggest that care should be taken in making findings against the respondent in circumstances where the applicant as prosecutor has failed produce all relevant material that would weaken his case and strengthen that of the respondent. True it is that fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant should be disclosed to the defence. [10] This of course is not a criminal trial and, while I hold some concerns about the applicant's conduct of the investigation and the proceeding I am not persuaded that any miscarriage of justice arises from any defects in those respects.
[51] In the course of the hearing I ruled that I would deal first with the issue of the alleged abuse of rights and allow the parties an opportunity to deal with the question of orders as the case requires. I have found that the respondent has abused the rights conferred upon him by s.760. The parties will now be given an opportunity to lead such further evidence and make such further submissions as they may be advised as to the orders that should be made.
E Young of Counsel instructed by R Davies and J Teng of Building and Construction Commission for Gregory Alfred.
J Pearce of Counsel instructed by R Mallia of Construction, Forestry, Mining and Energy Union for Andrew Quirk.
[1] Cf. Office of Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union 10 See R v H [2004] UKHL 3; [2004] 2 AC 134, 147 [14].
Printed by authority of the Commonwealth Government Printer
Gregory Charles Alfred
Andrew Quirk [2008] AIRC 781;