Application for orders in relation to abuse of the system - orders by consent - power to make consent orders.

[1] The applicant is an Australian Building and Construction Inspector under the Building and Construction Industry Improvement Act 2005 (BCII Act). By order of the Commission made on 17 November 2008 he was substituted as the applicant in this proceeding for Nigel Hadgkiss who initiated the proceeding on 14 March 2008. The applicant is entitled by operation of s.73(4) the BCII Act and s.770(2) of the Workplace Relations Act 1996 (WR Act) to apply for orders restricting the rights of an organisation or officials of the organisation under Part 15 of the WR Act.

[2] The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation of employees registered under the WR Act. Messrs Buchan and Molina were at all relevant times, and still are, officials of the CFMEU holding right of entry permits under Part 15 of the WR Act. Mr Heath was at all relevant times, but is no longer, an official, of the CFMEU who held a right of entry permit. I will refer to the CFMEU and Messrs Buchan, Molina and Heath collectively as the respondents.

[3] A right of entry permit authorises the holder of the permit during working hours to enter workplaces for the purposes of holding discussions with potential members and investigating suspected breaches of industrial laws, industrial instruments and occupational health and safety (OHS) laws. Section 770 confers jurisdiction on the Commission to make orders restricting the rights of an organisation or its officials if it is satisfied those rights have been abused. Senior Deputy President Watson in his reasons for decision in Australian Building and Construction Commission [1] provides a useful summary of purpose and effect of the applicable provisions of Part 15 of the WR Act and it is unnecessary for me to rehearse the same account of them for present purposes.

[4] On 18 November 2008, I made orders in this matter by consent of the parties. These are my reasons for so doing.

[5] In this application it was contended that each of Messrs Buchan, Molina and Heath abused the rights conferred on them by Part 15 of the WR Act. The CFMEU through the actions of its officials was said to have abused its rights also under Part 15. Before outlining the respective abuses in which the respondents are said to have engaged, it is necessary to mention another official of the CFMEU who figures prominently in the scheme of the claims against the respondents, but who is not a party to these proceedings. I refer here to Joseph McDonald.

[6] Mr McDonald was and is an official of the CFMEU, being its Assistant State Secretary for Construction and General Division, Western Australia Divisional Branch. Also, he was and is the Assistant Secretary of the Construction, Forestry, Mining and Energy Union of Workers which is registered under the Industrial Relations Act 1979 (WA) (IR Act). He does not and did not at any relevant time hold a right of entry permit under either the WR Act or the IR Act.

[7] Mr Buchan is said to have abused the rights conferred on him under Part 15 of the WR Act in the following ways:

• being at the Pindan construction site on 22 February 2007 in company and in concert with Mr McDonald who was purporting to exercise rights he did not have under Part 15:

- failed to exercise the purported rights with due diligence, reasonable civility and avoidance of unnecessary obstruction by repeatedly making offensive statements to site personalities;

- refused repeated directions to leave the site when he had no lawful basis to remain on site;

• deliberately sought to mislead the occupier of the site as to the basis of his right to enter.

• attended the Q-Con site on 24 April 2007 in company and in concert with Mr McDonald who was purporting to exercise rights he did not have under Part 15:

- failed to exercise purported rights with due diligence, reasonable civility and avoidance of unnecessary obstruction by repeatedly making offensive statements to site personnel;

- in concert with Mr McDonald remained on site after repeated directions to leave in circumstances where he had no legal right to be or remain on site;

• entered the Q-Con site at about 4pm on 27 April 2007:

- purporting to exercise OHS and recruitment rights;

- acted in an improper manner by refusing to comply with reasonable directions regarding site safety;

- remained on site contrary to reasonable requests and directions to leave;

- embarked on a general safety inspection despite reasonable requests to comply with OHS requirements applicable to the areas inspected and generally.

[8] Mr Molina is said to have abused the rights conferred on him under Part 15 of the WR Act in the following ways:

• in company and in concert with Mr McDonald on 14 February 2007 entered the Doric Construction Pty Ltd site at Armadale Shopping Centre at about 8.45am and again at about 12.10pm at which time Mr McDonald purported to exercise a right under Part 15, namely an OHS right, which he did not have:

- failed to exercise the purported right with due diligence, reasonable civility and avoidance of unnecessary obstruction, by behaving in an abusive manner toward site personnel;

- untruthfully asserted to police that he had a right to be on site when he knew that he had no such right and was unlawfully on the site;

• used the OHS right for a collateral purpose, namely to promote the CFMEU by distributing union paraphernalia to workers;

• failed to produce his entry permit for inspection when requested to do so.

[9] Mr Heath is said to have abused the rights conferred on him under Part 15 of the WR Act in the following ways:

• attended the Q-Con site on 24 April 2007 in company and in concert with Mr McDonald who was purporting to exercise rights under Part 15 which he did not have:

- failed to exercise the purported rights with due diligence, reasonable civility and avoidance of unnecessary obstruction by being abusive toward site personnel;

- with Mr McDonald remained on site after repeated directions from site personnel to leave in circumstances where he had no legal right to be, or to remain, on site;

• repeatedly refused directions to leave when he had no lawful basis to remain on site.

• entered the Q-Con site at about 4pm on 27 April 2007:

- purporting to exercise OHS and recruitment rights;

- acted in an improper manner by refusing to comply with reasonable directions regarding site safety;

- remained on site contrary to reasonable requests and directions to leave;

- embarked on a general safety inspection despite reasonable requests to comply with OHS requirements applicable to the areas inspected and generally.

[10] The actions of the officials as set out in the preceding paragraphs are said to be also the actions of the CFMEU and it has thereby abused its rights under Part 15 of the WR Act.

[11] The applicant initially sought the following substantive orders:

• the permits of Messrs Buchan, Molina and Heath be suspended of revoked;

• all permits held by officials of the CFMEU, construction and General Division, Western Australia Divisional Branch carry a condition that the permit holder is not permitted to enter or to remain on premises in the company of or in concert with Joseph McDonald;

• the CFMEU return all permits held by officials of the union to the Industrial Registrar within seven days of the order for endorsement of the condition;

• the CFMEU take all reasonable steps to ensure that McDonald does not purport to exercise rights under Part 15 of the WR Act.

[12] The application was listed for hearing over 10 days commencing on Monday, 17 November 2008. The parties filed witness statements in accordance with the Commission's directions. On 13 November 2008, the applicant lodged in my chambers a proposed consent order, which was in the following terms:

"The Australian Industrial Relations Commission, being satisfied that the CFMEU, Michael Buchan and Walter Molina have abused the rights conferred by Part 15 of the Workplace Relations Act 1996 (WR Act), orders that:

1. The permit held by Michael Buchan be suspended as follows:

(a) 3 months immediate suspension from the date of this order;

(b) a further 2-month suspension to apply to any permit then held by Michael Buchan, if Michael Buchan breaches any provision of Part 15 of the Workplace Relations Act during the period of 12 months from the date of this order; and

(c) if Michael Buchan does not breach any provision of Part 15 WR Act for a period of 12 months from the date of this order, then no further period of suspension of his permit will be imposed.

2. The permit held by Walter Molina be suspended as follows:

(a) 2 months immediate suspension from the date of this order;

(b) a further 1-month suspension to apply to any permit then held by Walter Molina, if Walter Molina breaches any provision of Part 15 of the Workplace Relations Act during the period of 12 months from the date of this order; and

(c) if Walter Molina does not breach any provision of Part 15 WR Act for a period of 12 months from the date of this order, then no further period of suspension of his permit will be imposed.

4. The following condition be imposed on all current permits and all permits to be issued in the next 2 years in respect of the Construction and General Division, Western Australia Divisional Branch of the CFMEU: that the permit holder is not permitted to enter or remain on premises being construction sites in the company of, or in concert with, Joseph McDonald except where McDonald has been invited in advance on to those premises by an owner and has complied with the requirements of the direction in order 5.

5. A written direction be given to Mr McDonald by a duly authorised officer of the CFMEU that Mr McDonald must not purport to rely on any right of entry under the Workplace Relations Act 1996 in order to facilitate access to construction sites when he in fact holds no right of entry permit under the Act.

6. (a) The CFMEU not apply to the Registrar under s.740 of the Act for the issue of a permit to Mr McDonald for a period of 2 years.

(b) If, after the period, the CFMEU intends to apply for such a permit, it is to give 7 days' prior written notice to the Director of the Inspectorate of Fair Work Australia (however described).

(c) The CFMEU not oppose the Director of the Inspectorate of Fair Work Australia having the opportunity to make submissions on the application.

7. (a) The CFMEU not apply to the Registrar under s.740 of the Act for the issue of a permit to Doug Heath for a period of 2 months.

(b) If, after that period, the CFMEU intends to apply for such a permit, it is to give the Australian Building and Construction Commissioner (ABCC) 7 days' prior written notice.

8. Doug Heath's consent to these orders does not constitute any admission by him that he abused any right conferred by Part 15 of the Workplace Relations Act 1996."

[13] The parties were notified on 13 November 2008 that the listing would proceed as scheduled on 17 November 2008 in order that all or any jurisdictional issues in respect of the proposed consent order could be resolved and for the Commission to be satisfied that the respondents fully understood the terms and consequences of the order were it to be made. The parties cannot by consent confer jurisdiction on the Commission to make orders it does not have power to make. Thus it was necessary to establish the jurisdictional pre-requisites for an order to be made. The point is succinctly stated in the judgment of the High Court in Thomson Australian Holdings Pty. Ltd. v Trade Practices Commission. [2] In that case the High Court allowed an appeal against orders made by consent in the Federal Court of Australia in respect of alleged breaches of the Trade Practices Act 1974. In the joint majority judgment the Court stated:

"The parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make. As we have seen, the relevant jurisdiction of the Court in relation to the granting of an injunction is limited to the hearing and determination of actions in which application is made for the making of orders under s. 80 (1) restraining a person from engaging in conduct of a specified kind. The orders made (which were the orders sought) restrain the defendants from engaging in conduct that does not necessarily constitute a contravention of Pt IV. The paragraphs are not limited to restraining the defendants from making an arrangement or arriving at an understanding or giving effect to an arrangement or understanding where the arrangement or understanding has the purpose or would have or be likely to have the effect of substantially lessening competition or restraining the defendants from engaging in conduct giving effect to such a provision. The orders therefore lack the essential feature which distinguishes conduct amounting to a contravention of Pt IV from conduct which does not amount to such a contravention."

[14] Of particular concern in the case before me are the proposed orders affecting the interests of Messrs McDonald and Heath. Mr McDonald because he is not a party to the proceeding and does not and did not at any relevant time hold an entry permit and Mr Heath because he no longer holds an entry permit and because he does not admit the allegations against him.

[15] Ms Archer submitted that the CFMEU admits the alleged conduct as against Mr Heath and Mr McDonald. As s.770 of the WR Act expressly provides for orders to be made against an organisation in respect of abuse of its rights under Part 15, orders may be made directed to it restraining it from issuing permits without certain conditions or at all. The admissions of the CFMEU are not however admissions of Messrs McDonald and Heath and neither the CFMEU's admissions nor the Commission's orders bind them directly. Thus the CFMEU is bound by its admissions and the orders against it. It is bound to comply with the orders in the exercise of its powers under its rules in the administration and control of its offices and officials. Counsel for the respondents did not suggest that there was any impediment within the rules of the organisation to the CFMEU's compliance with the Commission's orders.

[16] It should be noted that proposed orders 1(b) and 2(b) have the characteristics of a suspended sentence in penal proceedings. The additional periods of suspension specified in those orders do not limit the orders that may be made in respect of any fresh abuse of rights under Part 15 of the WR Act, but will stand as further suspensions in respect of the abuses alleged and admitted in this proceeding. There is no apparent obstacle to making orders in that form.

[17] Upon hearing Ms Gail Archer of Senior Counsel for the applicant, Mr Gavin MacLean of Counsel for CFMEU, Messrs Buchan and Molina and Mr Andrew Skerritt of Counsel for Mr Heath, I am satisfied that the Commission has jurisdiction, subject to some agreed minor alterations, to make the proposed orders by consent.

[18] I am satisfied also that the respondents understand the terms and consequences of the proposed orders. I have made the orders accordingly. A copy of the order has been provided to the applicant, ABCC, representatives of the parties and the CFMEU, Construction and General Division, Western Australia Divisional Branch. A copy of the order will be provided to the Industrial Registrar along with a copy of this decision and the list of parties who appeared at the hearing.

G Archer, Senior Counsel instructed by C Rawson of the Australian Government Solicitor for Australian Building and Construction Commission.

G MacLean, Counsel instructed by M Swinbourn for Construction, Forestry, Mining and Energy Union and M Buchan, D Heath (initially) and W Molina.

A Skerritt, Counsel instructed by O'Connor Lawyers for D Heath

[1] 2 (1981) 148 CLR 150.

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