6.5 Extrinsic material
99 The court was taken to various extrinsic materials from which it was said some guidance might be drawn in ascertaining the proper construction of s 13(2)(j) of the Building Code. The material itself was not the subject of controversy, either in terms of its provenance or its capacity properly to inform the court's present task.
100 Of primary significance is the explanatory statement that was issued at the time that the Building Code took effect (and consistently with the requirements of s 15G of the Legislation Act 2003 (Cth)). Marked as "Attachment A" to that instrument is a document described as "[a]n overview of the contents of the code". It contains explanatory notes about various of the provisions contained within the Building Code. As is sometimes the case with explanatory statements, most of them do not venture beyond bland restatements of what the code provides. Helpfully, however, there are some that do.
101 In relation to s 5 of the Building Code, the explanatory statement records (at [15]) that the code "…has been developed to ensure that Commonwealth funded building work is productive, efficient, delivered on time and on budget, and that those who engage in taxpayer funded building work do so in a manner that is fair, lawful and promotes freedom of association."
102 Two passages from the explanatory memorandum warrant particular consideration. The first, at [66], concerns s 11(3)(l) (which, as has already been discussed, concerns the content of enterprise agreements). It makes the following observations about that provision (emphasis added):
Paragraph 11(3)(l) prohibits clauses that include requirements to apply building association logos, mottos or indicia to company supplied property or equipment. For example, clauses that require the presence of building association logos on clothing and equipment provided by an employer or the flying of a building association flag from a structure on site would be prohibited on the basis that these are inconsistent with the proposition that membership of building associations is a matter of individual choice. That is, such clauses result in practices that imply that membership of a building association is a mandatory part of employment with that employer, or to work on that particular site.
103 The second, at [98], concerns s 13(2) of the Building Code. It records that s 13(2) "…places a number of specific obligations on code covered entities in order to promote freedom of association". In the series of dot points that follow, it records by way of example some measures that code-covered entities "must ensure". One such measure aligns with s 13(2)(j) of the Building Code - it provides that code-covered entities must ensure that:
…conduct that implies that membership of a building association is anything other than an individual choice for each employee is not permitted. In support of this, code covered entities are required to ensure that building association logos, mottos or indicia are not applied to clothing, property or equipment supplied by, or which provision is made for by, the employer (paragraph 13(2)(j)). This is because such practices can result in an implication that membership of a building association is a mandatory requirement of employment with the particular employer or at a particular site. These practices are inconsistent with the proposition that membership of a building association is a matter for individual choice.
(emphasis added)
104 Again, those are powerful indicators that s 13(2)(j) of the Building Code should be construed in the manner for which the respondents contend. They are clear enough in terms: they reveal an intention to prohibit the application - any application - of building association logos, mottos or indicia to project-provided clothing, property or equipment on the justification that it can imply that building association membership is something other than a matter of individual choice.
105 Whether that connection (between the relevant application of logos, mottos or indicia and the implication to which reference is made) is correctly or properly or even fairly drawn is not to the point; what is plain is that it is, in fact, drawn. That connection (between application and implication), in turn, informs a proper assessment of the intention that might be presumed to have animated the inclusion of s 13(2)(j): the explanatory statement suggests, I think very clearly, that the purpose of the provision is to require that building association logos, mottos or indicia not be applied at all to project-supplied clothing, property or equipment.
106 That purpose appears to be reflected yet further in the "Statement of Compatibility with Human Rights" that comprises "Attachment B" to the explanatory statement (hereafter, the "Statement of Compatibility"). That attachment was apparently completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), which requires that federal bills and legislative instruments be accompanied by a "statement of compatibility". Such a statement must, in turn, include an assessment of whether the bill or legislative instrument that it accompanies is compatible with human rights, defined by s 3 of that Act to mean "the rights and freedoms recognised or declared by" a number of international instruments.
107 Amongst other things, the Statement of Compatibility concludes that the Building Code "…is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011". It recognises that the Building Code engages with various species of rights guaranteed by the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (the "ICCPR") and the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (the "ICESCR"). Of present significance are the right to free association for which art 22 of the ICCPR and art 8 of the ICESCR provide, and the right to freedom of expression for which art 19(2) of the ICCPR provides.
108 The Statement of Compatibility records, in broad terms, the objective of the Building Code to promote building employees' rights to freely associate; that is, to join or not join a building association. Of some significance is the manner in which that right is said to interact with rights of free expression. The Statement of Compatibility recognises that the Building Code "…engages the right to freedom of expression by requiring code covered entities to ensure that a range of activities that offend the principle of freedom of association are not engaged in". Specifically, it recognises that the Building Code gives effect to some constraints upon what would otherwise be rights of free expression (including, for example, that code-covered entities ensure against the display of "no ticket, no start" signs). Nonetheless, it concludes that such constraints as there are are "…reasonable, necessary and proportionate in the pursuit of the legitimate policy objective of protecting the rights and freedoms of employees in the building industry to choose to become, or not become, a member of a building association…"
109 The Statement of Compatibility pays particular attention to the subject matter of s 13(2)(j) of the Building Code. It states that s 13(2) of the Building Code requires that code-covered entities must ensure that "…building association logos, mottos or indicia are not applied to clothing, property or equipment supplied by, or which provision is made for by the employer". That requirement is explained:
The right to freedom of association can also be infringed by the presence of building association logos, mottos or indicia on clothing, property or equipment that is supplied by, or which provision is made for by, the code covered entity. The presence of such signage on clothing or equipment that is supplied by a code covered entity carries a strong implication that membership of the building association in question is being actively encouraged or endorsed by the relevant employer and is against the principle that employees should be free to choose whether to become or not become a member of a building association. This prohibition only applies to clothing, property or equipment that is supplied by, or which provision is made for by, the code covered entity. Section 13 would not prevent these items from being applied to clothing, property or equipment that was supplied by other individuals at the site or by the relevant building association.
110 It is plain from those passages that the Building Code was designed to prevent - that is, to require that code-covered entities adopt practices to ensure against - the application per se of building association logos, mottos or indicia to relevant clothing, property or equipment. The evident inspiration for that intent is equally apparent: it emerges as a matter of policy judgment from a belief that the application of such logos, mottos or indicia to project-supplied property, clothing or equipment "…carries a strong implication that membership of the building association in question is being actively encouraged or endorsed [etc]".
111 No doubt there is legitimate scope to argue against that policy judgment. On that score, two observations warrant noting. First, the existence of that judgment is impossible to ignore. Second and more importantly, the task for this court is not to second-guess whether it's right or wrong. The court's only task, for present purposes, is to divine and then give effect to a construction of the provision that aligns with the reason for which it was enacted. Again, the observations within the Statement of Compatibility serve as a powerful indicator in favour of the construction of s 13(2)(j) of the Building Code for which the respondents contend.
112 The extrinsic material is not all one way, however. In evidence before the court was correspondence dated 3 July 2017 that the Minister for Employment, Senator the Hon. Michaelia Cash, sent to the chairman of the Commonwealth Parliamentary Joint Committee on Human Rights, Mr Ian Goodenough MP. That correspondence records that it was sent by way of answer to correspondence that Mr Goodenough sent to the Minister on 15 June 2017 on behalf of the Committee that he chaired. Attached to the Minister's correspondence was what she described as a "…detailed response to the questions raised by the Committee" about the Building Code.
113 The Minister's response is split into multiple parts. One is headed "Prohibiting the display of particular signs and union logos, mottos or indicia - Right to freedom of expression and association and the right to form and join trade unions". Within that part of the document, the Minister turned her attention to the effect of s 13(2)(j) of the Building Code. Although lengthy, it is convenient to replicate her observations:
…
Paragraph 13(2)(j) requires code covered entities to ensure that building association logos, mottos or indicia are not applied to clothing, property or equipment supplied or provided for by the employer, or any other conduct is engaged in which implies that membership of a building association is anything other than an individual choice for each employee.
The Statement of Compatibility with Human Rights for the 2016 Code states that these measures are reasonable, necessary and proportionate in pursuit of the legitimate policy objective of protecting the rights and freedoms of employees in the building and construction industry to choose to become, or not become, a member of a building association and ensure that this choice does not impact on an employee's ability to work on a particular site.
With regard to the stated objective, the Committee has noted that the ILO supervisory mechanisms have found that under the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) it is a matter for each nation state to decide whether it is appropriate to guarantee the right not to join a union. It is clear from the provisions of Part 3-l of the Fair Work Act 2009 - as implemented by the then Federal Labor Government - that Australia has decided it is appropriate to also guarantee the right not to join a union.
These measures are necessary to protect the right to join or not to join a union because of the pervasive culture that exists within the building and construction industry in Australia in which it is understood that there is such a thing as a 'union site' and on those sites all workers are expected to be members of a building association. Evidence of the existence of this culture can be found in many decisions of the courts, including most recently:
• In Australian Building and Construction Commissioner v Barker & Anor [2017] FCCA 1143 the Federal Circuit Court was satisfied that two workers had been deprived of their right to work and earn income for two days when, on 28 January 2016, they were told by Mr Barker, a CFMEU official in the role of shop steward/delegate, that they could not work on the project unless they paid union fees. When a site manager informed Mr Barker that the workers had a right not to be in a union, Mr Barker replied 'No, everybody's got to be in the union, this is an EBA site, it's in your EBA that they all have to be on site in the union and have an EBA.'
• In Australian Building and Construction Commissioner v Moses & Ors [2017] FCCA 738 the Federal Circuit Court was satisfied that CFMEU organiser Mr Moses, accompanied by a CFMEU delegate, threatened workers at Queensland's Gladstone Broadwalk project to the effect that if they did not join the CFMEU then no work would occur by the workers that day and they would be removed from the project. He told the workers that if they wanted to work on the project, which was a union site, they would have to join the CFMEU.
• In Director of the Fair Work Building Industry Inspectorate v Vink & Anor [2016] FCCA 488 a CFMEU official was found to have entered a construction site and, in an incident described as "sheer thuggery" by the Court, removed workers' belongings from the site shed, including lunches from the refrigerator. The Court concluded the conduct on site was intended "to give a clear message to all employees that benefits on the work site would only be afforded to members of the union."
In this context, the measures prescribed in the Code are clearly necessary to ensure that freedom of association is protected. It is clear from the CFMEU's repeated record of contraventions of this right that it does not respect freedom of association and that it is therefore necessary that an instrument such as the Code include stronger protections of this right than those already contained in the Fair Work Act 2009.
The CFMEU's misrepresentation of a worker's choice to become or not become a member of a union has been ongoing with contraventions dating back a number of years.
There is also evidence that the idea that a worker must be a member of a building association has become so ingrained in the building and construction industry that even employers are making misrepresentations about freedom of association in fear of the CFMEU.
For example, in Director of the Fair Work Building Industry Inspectorate v Construction Forestry, Mining and Energy Union (Quest Apartments and Greek Community Centre) [2016] FCA 1262 the director of Arteam, Mr Hanna, was found to have sent a text message to workers on 11 March 2014 stating they must have union membership before starting work at two Melbourne projects. Despite a worker informing Mr Hanna of his right to choose whether or not he joined a union Mr Hanna told the worker that the CFMEU could close the site and prevent others from working if the employee refused to pay union membership fees. As a result, the worker left the site and did not perform any work. In handing down penalties Justice Tracey of the Federal Court stated:
Mr Hanna had become immersed in the culture of at least some commercial construction sites on which compulsory union membership was accepted by both employers and employees...
There are thousands of small contractors involved in the construction industry. Many are, potentially, susceptible to pressure to require employees to join a union, fearing that if they do not do so they will not be engaged to work on commercial construction sites.
The display of signs asserting that non-union members will not be permitted to work on a particular site, or that seek to vilify or harass employees who do not participate in industrial activities, along with the presence of union logos, mottos or indicia on clothing, property or equipment issued or provided for by the employer gives workers a strong impression that not only is union membership compulsory for anyone that wishes to work on the particular site, but that relevant employers support this position.
…
114 Again, those extracts tend to underline the intention that is the subject of analysis above: that is to say, an intention that the Building Code should serve to ensure against the relevant application of building association logos, mottos or indicia per se. Nonetheless, there is at least some reason to doubt that conclusion. Under the subheading "Conclusion - reasonable and proportionate measures to achieve the stated objective", the Minister made the following observations:
To the extent that the right to freedom of expression is limited by these measures (noting the protection of freedom of association provided by paragraph 13(1) of the Code), that limitation is clearly reasonable and proportionate in pursuit of the legitimate objective explained given the culture of the building industry and the ongoing threats to freedom of association by certain building unions. For example, they do not prevent posters and signs that merely encourage or convey the benefits of union membership or communicate other union information from being displayed on a site, nor do they prevent workers from applying union logos, mottos or indicia to their own personal clothing, property or equipment.
115 A couple of observations may be made of that material. First, although not beyond reconciliation, the Minister's statement that the Building Code does not constrain the display of "posters and signs that merely encourage or convey the benefits of union membership or communicate other union information" sits uneasily against the observations contained within the Explanatory Statement and the Statement of Compatibility. Although it is possible that posters or signs attached to project-supplied property or equipment might convey those messages without containing building association logos, mottos or indicia, it is much more realistic to assume that they would. If that assumption be drawn, there is an obvious tension between the above observations and those made earlier in the document, and within the Explanatory Statement and the Statement of Compatibility.
116 Second and more importantly, although there is no doubt that the Minister's response to the Parliamentary Committee's inquiries qualifies as relevant extrinsic material (the consideration of which the Acts Interpretation Act authorises for the purposes of divining the proper construction of the Building Code), it is appropriate to approach it with greater care than might be called for in respect of other material. The Minister's response was not a contemporaneous explanation: it post-dated the introduction of the Building Code by many months. To the extent that it may be done at all, there is an obvious danger in construing legislative instruments according to subsequent conduct or statements: see, in that vein, Australian Education Union v Department of Education (2012) 248 CLR 1, 16 [33] (French CJ, Hayne, Kiefel and Bell JJ, with whom Heydon J agreed in the result). Moreover, the Minister's response was given in answer to questions posed by a committee that was substantially comprised of her political opponents. It can be presumed to have been (and at least some of its content makes clear that it was) prepared with an eye to realising partisan political advantage (or avoiding political disadvantage) of one kind or another.
117 Lendlease and the CFMMEU both contended that s 13(2)(j) of the Building Code should be construed consistently with, or otherwise under the light afforded by, the ICCPR and the ICESCR. It is unnecessary to repeat the observations above about the interaction of s 13(2)(j) of the Building Code with those instruments. Nothing about the relevant rights that are sought to be established by them suffices to overcome the contextual and extrinsic indicators that favour the construction for which the respondents contended.
118 Additionally, the CFMMEU sought to rely upon the International Labor Organization Freedom of Association and Protection of the Right to Organise Convention, signed 9 July 1948 (entered into force 4 July 1950). It made the following submission:
41. Under international law, the right to freedom of association in a workplace focuses on a positive right to associate rather than a right not to associate. The display of union materials in a workplace is an element of this right. Though domestic Australian law also protects the right not to associate, that does not negate the importance of the positive limb of freedom of association.
42. The Freedom of Association Committee of the Governing Body of the ILO has considered the right to freedom of expression and concluded that "[t]he display of union flags at meetings in the workplace, the putting up of union bulletin boards, the distribution of union news and leaflets, the signing of petitions and participation in union rallies constitute legitimate trade union activities. The prohibition of the placing of posters stating the point of view of a central trade union organization is an unacceptable restriction on trade union activities".
43. In cases of ambiguity, the BCIIP and the Building Code should be construed in a manner cognisant of these international rights, as expounded by the international bodies with the most expertise in their interpretation and application. In the case of cl 13(2)(j), that favours the construction advanced by Lendlease and the CFMMEU.
119 Accepting, as I do, the central thrust of that submission (if not its conclusion), the same point may be made about it as may be made of the other international instruments. Such light as they might shed upon which construction of s 13(2)(j) of the Building Code should be preferred is overcome by the contextual and extrinsic indicators already referred to.