Kirby v JKC Australia LNG Pty Ltd

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 57 of 2015

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

JUDGE: WHITE J DATE: 18 SEPTEMBER 2015 PLACE: ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT 1 This is a judgment on an application for interlocutory injunctions. 2 Issues have arisen between the applicants and the respondents concerning the exercise by the former of rights of entry under the Fair Work Act 2009 (Cth) (the FW Act) and the Work Health and Safety (National Uniform Legislation) Act 2011 of the Northern Territory (the WHS Act). 3 The fourth applicant is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). Each of the first three applicants, Mr Kirby, Mr Malone and Mr Lynch, is an organiser employed by the CEPU. 4 The first respondent is JKC Australia LNG Pty Ltd (JKC). It is the principal engineering, procurement and construction contractor for the Ichthys On-shore Construction Project at Blaydin Point located approximately 50 km from Darwin in the Northern Territory (the Project). This is a substantial project which has been underway since April 2012. The overall site area is said to be approximately 340 ha. The Project involves the erection of substantial infrastructure over a number of areas on the site; the work of numerous contractors and subcontractors; and the involvement of many thousands of employees, some of whom are members of the CEPU. 5 The second respondent, Mr Casey, is the Senior Employee Relations Advisor employed by JKC. 6 The third respondent is Mr Lee. He is the Principal Employee Relations Consultant for the Project but is employed by Construction Services Northern Territory (CSNT), an organisation apparently owned by the Chamber of Commerce and Industry of Western Australia. CSNT has been contracted by JKC to manage the exercise of rights of entry by those holding entry permits under the FW Act and the WHS Act. 7 In the substantive proceedings, the applicants seek declarations that one or more of the respondents contravened ss 501 and 502 of the FW Act on eight separate occasions by refusing or delaying their entry onto the Project site or by hindering or obstructing the exercise of their rights of entry. The applicants also seek declarations that on two occasions the respondents contravened a provision in the WHS Act by similar conduct. They seek the imposition of civil penalties in respect of each of those alleged contraventions. 8 The proceedings have only just been commenced and it may be some time before they come to trial. 9 The applicants seek interlocutory injunctions restraining the respondents from: (a) refusing them entry to the premises of the Project if they have given a notice specifying those premises and a day of entry in accordance with the provisions of the FW Act; (b) prohibiting them from using a camera to document health and safety concerns at the premises while they are exercising a right of entry under s 117 of the WHS Act; (c) hindering or delaying them from exercising a right of entry to the site under s 484 of the FW Act or s 117 of the WHS Act. 10 The principles relating to the Court's grant of interlocutory injunctions are settled and it is not necessary to refer to the authorities in detail. They were summarised by the Full Court in Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74]. An applicant for an interlocutory injunction must identify the legal or equitable rights which it seeks to have determined at the trial and in respect of which final relief is sought. When such rights have been identified, the Court has regard to two principal matters: first, whether the applicant has made out a prima facie case, in the sense that if the evidence remains as it is, at trial, there is a probability that it will be held entitled to relief; and secondly, whether the balance of convenience favours the granting of the injunction. That includes consideration of whether damages or other remedies will be an adequate remedy. 11 On the hearing of an application for an interlocutory injunction, the Court does not undertake a preliminary trial, nor does it make a prediction as to the ultimate success or otherwise of the applicants' claim. It is sufficient if the applicants show a sufficient likelihood of success to justify in the circumstances of the case the preservation of the status quo pending the trial of the action. 12 The two matters just identified are not independent of one another. The more the balance of convenience favours the respondent, and the more serious the consequences for the respondent if an injunction is granted, then the greater the strength of the prima facie case to be established by the applicant. Conversely, if the balance of convenience favours the applicant strongly, then the strength of the prima facie case required to support the interlocutory injunction will usually be less. 13 The rights which the applicants assert presently are rights which are vested in them as permit holders under Pt 3-4 of the FW Act and WHS Act. In particular, they assert rights arising under s 484 of the FW Act and s 117 of the WHS Act. Section 484 provides: 484 Entry to hold discussions A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers: (a) who perform work on the premises; and (b) whose industrial interests the permit holder's organisation is entitled to represent; and (c) who wish to participate in those discussions. ... 14 There is no dispute that each of the individual applicants is a permit holder to whom s 484 refers. 15 Section 487 of the FW Act requires, relevantly, that a permit holder must, before entering premises pursuant to s 484, give the occupier an entry notice for that entry. Again, it does not seem to be contentious that JKC is the occupier of the Project site for this purpose. The entry notice under s 484 must comply with s 518 of the FW Act and must be given during working hours at least 24 hours, but not more than 14 days, before the entry. It was not suggested that any of the exemptions in s 487 is pertinent presently. 16 The requirements for entry notices applicable to entries pursuant to s 484 are those contained in s 518(1) and (3): 518 Entry notice requirements Requirements for all entry notices (1) An entry notice must specify the following: (a) the premises that are proposed to be entered; (b) the day of the entry; (c) the organisation of which the permit holder for the entry is an official. ... Requirements for entry notice for entry to hold discussions (3) An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must: (a) specify that section as the provision that authorises the entry; and (b) contain a declaration by the permit holder for the entry that the permit holder's organisation is entitled to represent the industrial interests of an employee or TCF award worker who performs work on the premises; and (c) specify the provision of the organisation's rules that entitles the organisation to represent the employee or TCF award worker. 17 The Fair Work Regulations contain a prescribed form of entry notice. The prescribed form commences as follows: I, [Full Name], of [Name of Organisation], and having been issued an entry permit under section 512 of the Fair Work Act 2009, give notice that I propose to enter [Name and Address of Premises] on [Date of proposed entry]. 18 The applicants seek the first interlocutory injunction because of a disagreement as to the description of the premises to be given in an entry notice in order to satisfy the requirement in s 518(1) that "the premises" be specified. That issue arises because on Friday, 11 September 2015, Mr Kirby gave to Kentz, a contractor on the Project to employing numerous employees, some of whom are members of the CEPU, a notice of entry using the prescribed form which, in the space for "name and address of premises", gave the following detail: Impex, Blaydin Point; Areas where employees of Kentz are working 19 Mr Lee told Mr Kirby that a notice giving this description of the premises did not meet the requirements of the FW Act. He said: The site consists of many different workplaces (or premises) as defined by the Act and the different Kentz companies are working at multiple locations across a number of work packages across the Blaydin Point site. You need to tell us which work area you want to go to. 20 Mr Kirby and the CEPU maintained that their notice was sufficient and contended, in effect, that Mr Lee was seeking to impose an obligation which s 518 itself did not require. There is some background to this dispute to which it is unnecessary to refer presently, beyond noting that JKC and CSNT have taken the view that, once a permit holder has specified a part of the site to be visited, the permit holder cannot later, even on notice, change that specification. 21 So the dispute, it seems, is whether it is sufficient for an entry notice to specify simply the overall premises to be entered or whether it must specify the particular part of those premises which the permit holder proposes to visit. This issue seems essentially to be one of statutory construction. In resolving that issue, the Court will have regard at trial to the definition of "premises" contained in s 12 of the FW Act: Premises includes: (a) any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place; and (b) a part of premises (including premises referred to in paragraph (a)). 22 This definition, expressed in inclusionary terms, is expansive. The breadth of the definition is emphasised by the reasons of the Full Court of the Supreme Court of Western Australia in Molina v Zaknich [2001] WASCA 337; (2001) 125 A Crim R 401, to which counsel for the applicants referred. 23 The case for the applicants is relatively straightforward. Their submission is that s 518 requires only specification of the premises and does not require specification of a particular part or parts of the premises, which the permit holder proposes to visit. The applicants emphasise that s 518(1) requires that the notice specify "the premises that are proposed to be entered", without any further particularity, and "the day of the entry", again, without any further particularity. 24 The respondents, on the other hand, draw attention to the size of the Project site in this case, the multiple number of contractors on the site, the very large number of employees on the site, and the multiple number of places on the site at which work is being carried out. They submit that, giving s 518 a practical operation in those circumstances, it should be construed as requiring specificity of the part or parts of the overall site to be visited. 25 The respondents relied on the reasons of the Fair Work Commission in Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2012] FWA 3939; (2012) 221 IR 268, in which Kaufman SDP considered a notice of entry under s 484 which did no more than specify the premises to be visited as "Qantas Airways Limited, premises in Mascot, Sydney". Kaufman SDP did not consider that that notice satisfied the requirements of s 518 saying: [21] ... In my view, where the premises comprise many different "parts", as is the case here, for the purposes of giving notice under s 518 of the Act, the part or parts of premises to which entry is sought ought be described with sufficient particularity so that it is, or they are, identifiable, or at least, capable of being ascertained by the recipient of the notice. The words "the Qantas Airways Limited premises in Mascot, Sydney" do not meet this requirement. Although it refers to a suburb, it does not disclose to what part or parts of the vast array of buildings and structures entry is being sought. ... [24] I accept Qantas' submissions in relation to the lack of specificity of the premises; an entry notice needs to identify with sufficient particularity the places that are sought to be entered so that the occupier or employer can make appropriate arrangements in relation to the proposed entry. It must be limited to premises, or parts of premises, where members of the union perform work. The "Qantas Airways Limited premises in Mascot" is not so limited. In my view, the premises sought to be entered should bear some connection with the breach that is alleged to be suspected, either because it is the physical area at which the relevant work is performed, or because documentation relating to the alleged breach are reasonably likely to be located there. 26 The respondents emphasised, in particular, the statement that an entry notice should specify with sufficient particularity the places that are sought to be entered so that the occupier can make appropriate arrangements in relation to the proposed entry. 27 As I have said, it appears that the issue at trial will be essentially one of statutory construction. It is neither necessary nor desirable for the Court to express any concluded view on the issue presently. On my present understanding, however, it does appear that the applicants' position is at least reasonably arguable. 28 The first matter is that, while the provisions in Pt 3-4 of the FW Act concerning rights of entry are highly prescriptive, s 518 requires only that an entry notice specify "the premises" at which entry is proposed, and not the particular part of the premises proposed to be entered. That, to my mind, seems significant presently because it is reasonable to suppose that when s 518 was drafted, those involved must have contemplated that it may have to be applied in relation to very large premises, such as those of the present kind, as well as more confined premises. It also seems to be significant that s 518 uses the word "premises", which the Act itself has defined in the expansive way to which I referred earlier. 29 At the trial, it will be necessary to give close consideration to the judgment of Kaufman SDP in the Qantas case but, at present, I am not inclined to think that it will be conclusive of the issue to be decided. First, it may well be that Kaufman SDP's reasons are obiter. Secondly, and although this is not entirely clear, it seems that the case before Kaufman SDP proceeded on the basis that Qantas had more than one set of premises in Mascot, including more than one set of premises at Sydney Airport. 30 If that be right, it is readily understandable that Kaufman SDP considered that a notice of entry should specify the particular premises of Qantas which the permit holder wished to enter. On my understanding, in the present case it is uncontentious that there is but a single site, albeit a very large site. Perhaps that is confirmed by the evidence to the effect that there is a single point of entry for visitors to the whole site. 31 It is also unclear presently as to the extent to which the decision in Qantas had regard to the expansive definition of the word "premises" in s 12 and its interaction with s 518. 32 Counsel for the respondents referred to ss 490, 491 and 492 of the FW Act, submitting that practical working of those provisions suggested that s 518 should be construed as referring to parts of premises. There may be merit in that submission, but it is a matter which can be assessed appropriately only at trial. 33 Counsel also contended that the word "premises" has an ambulatory meaning in s 518, so that on some occasions it refers to the whole of a premises and on others to parts of premises. Again, one would not rule that out as a possible construction, but it would be unusual. 34 The matters I have just mentioned are sufficient, in my opinion, to indicate that the applicant has established a prima facie case in the sense discussed earlier, in relation to the first of the interlocutory injunctions it seeks. 35 Similar considerations arise in relation to the specification in an entry notice of the day of the proposed entry and not the proposed day and time of entry. 36 As to the balance of convenience, the respondents emphasised the inconvenience to them if the applicants do not specify the particular places on the Project site which they wish to visit. That arises from the very size of the Project, the multiple places at which work is carried out, the large number of employees who are there, and also the high number of exercises of rights of entry by permit holders from the various unions which have coverage of employees engaged on the Project. 37 These seem to me to be important considerations bearing on the balance of convenience, but there are matters to be balanced against them. One of them seems to be this: if the construction of s 518 for which the applicants contend is correct, then inconvenience of the kind on which the respondents rely must be taken to have been contemplated by the legislature as an incident of the scheme which it has provided for rights of entry. 38 It also seems that there may be alternatives available to the respondents. Quite apart from entering into some arrangement with the applicants to resolve their concerns, there is the potential for the respondents to ask the Fair Work Commission to deal with disputes about the exercise of rights of entry: see ss 505 and 505A of the FW Act. So the respondents are not without a means of addressing the practical considerations to which they refer presently arising from an application of the FW Act in accordance with its own terms. 39 I also consider that, when addressing the balance of convenience, regard must be had to the purpose for which union officials are granted rights of entry. The FW Act recognises that they have a significant role. They have entitlements of entry, despite the exercise of those entitlements amounting otherwise to a trespass on the property of JKC. The construction of s 518 on which the respondents rely does have the effect of introducing a degree of inflexibility into the exercise of rights of entry, as the contents of the affidavit of Mr Kirby in relation to the events concerning his right of entry on 1 September 2015 indicate. 40 This does not seem to be a case in which damages would be an adequate remedy. 41 Accordingly, I am inclined to think that the balance of convenience in relation to the first proposed injunction favours the applicants. 42 The applicants have proffered the usual undertaking as to damages. The Court accepts that undertaking. Accordingly, subject to settling its precise terms, I will issue that injunction. 43 The second proposed interlocutory injunction stands differently. What is sought is an injunction to restrain the respondents from prohibiting the applicants from using a camera to document health and safety concerns at the project site when they are exercising a right of entry under s 117 of the WHS Act. Section 117 provides: Entry to inquire into suspected contraventions (1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker. (2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring. 44 The effect of s 117 is to permit a "WHS entry permit holder" to enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act which relates to or affects a "relevant worker". The rights which a WHS entry permit holder may exercise, having entered a workplace, are those specified in s 118. Broadly speaking, they are rights of inspection, consultation, requiring the production for inspection and copying of relevant documents, and a right to warn persons of risks perceived by the WHS entry permit holder. Section 118 does not include expressly any right to use a camera. 45 The individual applicants have exercised rights under s 117 and have sought to take photographs at various times of what they have observed during their inspections. The respondents have prohibited them from doing so and, accordingly, an issue has arisen between the parties. Again it seems that the resolution of this issue at the trial may be principally one of statutory construction. 46 The applicants' contention is that it is implicit in the power to inspect that they have a power to make a record of what it is that they have inspected and that this includes doing so by photography or filming. It may well be accepted that a power to inspect includes a power to record that which has been inspected by making notes or sketches or drawings. And there is a sense, I suppose, in which it can be said that the taking of a photograph or making a film is not markedly conceptually different from doing any one of those things. 47 However, to my mind, it is significant that in a provision which is highly prescriptive as to what might be done by a permit holder, there is no express grant of authority to take photographs or to make a film. 48 The applicants also submitted that s 499 of the FW Act has the effect of stating exhaustively the kinds of requirements or requests which may be made by an occupier of premises to someone entering under s 117 and that these do not include a prohibition on the use of a camera. Again there may be merit in that submission but it is difficult to assess presently. Accordingly, I express no view about it, beyond saying that the prospect of that construction of s 499 being upheld does not, to my mind, establish a prima facie case for the purposes of the application for the interlocutory injunction. 49 In my view, the applicants have not made out a prima facie case for the grant of the second injunction. It may well be that the balance of convenience may favour the applicants, bearing in mind that there may not be much difference between making a sketch on the one hand and taking a photograph on the other, but I am not satisfied that it is sufficient to warrant the grant of the interlocutory injunction. I refuse that aspect of the application. 50 By the third of the proposed interlocutory injunctions, the applicants seek to have the respondents restrained from hindering, obstructing or delaying officials of the CEPU who are permit holders from exercising a right of entry to the Project site under s 484 of the FW Act or s 117 of the WHS Act. An injunction in those terms would replicate obligations already imposed on the respondents by ss 501 and 502 of the FW Act and by ss 144 and 145 of the WHS Act. That by itself counts against the issue of the injunction. 51 Further, it is desirable that any injunction issued by a Court inform the persons enjoined of what it is exactly that they must do or refrain from doing. The terms of the proposed third injunction do not achieve that standard. For those reasons I refuse the grant of the third injunction which has been sought. 52 I will hear from the parties as to the terms of the interlocutory injunction which I have indicated I will issue. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.