Lendlease Building Contractors Pty Ltd v Australian Building and Construction Commissioner

SNADEN J: 1 The applicant ("Lendlease") operates, or otherwise forms part of, a large and well-known construction business. The second respondent ("Dalton") is an Australian Building and Construction Inspector, appointed as such pursuant to s 66(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (hereafter, the "BCIIP Act"). The first respondent (the "Commissioner") is the holder of a statutory office created by s 15 of the BCIIP Act. 2 By written notice issued on or about 29 November 2019, Dalton issued Lendlease with a compliance notice pursuant to s 99(2) of the BCIIP Act. By that notice (hereafter, the "Compliance Notice"), Lendlease was required to: (1) remove, or cause to be removed, or otherwise modify or alter, or cause to be modified or altered, certain posters and other written communications published or otherwise displayed at one of its construction sites, specifically the Monash University Technology, Education & Design building project, located at Wellington Road, Clayton, Victoria (hereafter, the "Site"); and (2) remove, or cause to be removed, or otherwise modify or alter, or cause to be modified or altered, a flag that has been (and, presumably, remains) attached to a tower crane in place at the Site; and (3) produce reasonable evidence of its compliance with those requirements. 3 The posters and written communications referred to in [2(1)] (hereafter, the "Posters") can loosely (and, I should hope, not controversially) be described as union messages: that is, communications authored by or otherwise published or displayed at the Site at the initiative of officers or members of the Construction, Forestry, Maritime, Mining and Energy Union (hereafter, the "CFMMEU"). All of them are said to contain insignias or other features commonly associated with the CFMMEU. 4 The flag referred to in [2(2)] (hereafter, the "Flag") is described in the Compliance Notice as the Eureka Flag. 5 The CFMMEU is a trade union registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth). It is eligible to (and very likely does) represent the industrial interests of workers engaged in what can, for now, be loosely described as construction work, including that which is the subject of the construction project being undertaken at the Site. 6 The Compliance Notice asserts Dalton's belief that the Posters and the Flag have been displayed at the Site in contravention of subparagraph 13(2)(j) of the Code for the Tendering and Performance of Building Work 2016, which is a legislative instrument created pursuant to s 34 of the BCIIP Act (and is more conveniently known as the "Building Code"). The following provisions of the Building Code assume some prominence in the present proceeding (errors original): 13 Freedom of association (1) A code covered entity must protect freedom of association in respect of building work by adopting and implementing policies and practices that: (a) ensure that persons are: (i) free to become, or not become, members of building associations; and (ii) free to be represented, or not represented, by building associations; and (iii) free to participate, or not participate, in lawful industrial activities; and (iv) not discriminated against in respect of benefits in the workplace because they are, or are not, members of a building association. (2) Without limiting subsection (1), the code covered entity must ensure that: … (j) 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 or any other conduct which implies that membership of a building association is anything other than an individual choice for each employee… 7 It is not presently disputed that Lendlease is and relevantly was a "code covered entity" and that the CFMMEU is and was a building association (within the meaning attributed to those terms by the Building Code). 8 By the present proceeding, Lendlease seeks various forms of relief, the ultimate design of which is to relieve it of a need to comply with the Compliance Notice. By an interlocutory application lodged with the court on 7 February 2020, the CFMMEU applies under r 9.12 of the Federal Court Rules 2011 (Cth) (hereafter the "Rules") for leave to intervene in the proceeding. That application is supported by an affidavit affirmed on 7 February 2020 by the CFMMEU's Senior National Legal Officer, Lucinda Weber. 9 Lendlease neither consents to nor opposes the CFMMEU being granted leave to intervene. The respondents oppose it. For the following reasons, leave to intervene as sought should and will be granted.

Intervention generally 10 Rule 9.12 is in the following terms: 9.12 Interveners (1) A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court. (2) The Court may have regard to: (a) whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding; and (b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and (c) any other matter that the Court considers relevant. (3) When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including: (a) the matters that the intervener may raise; and (b) whether the intervener's submissions are to be oral, in writing, or both. Note 1: The Court may give leave subject to conditions - see rule 1.33. Note 2: The Court may appoint an amicus curiae. 11 The court enjoys a broad discretion to grant or not grant what is presently sought. It is common ground that that discretion will typically be informed at least by the following considerations, namely: (1) whether or not, or to what extent, the CFMMEU can point to an interest likely to be affected by the determination of the proceeding; (2) whether or not, or to what extent, the contentions that the CFMMEU hopes to advance in the proceeding are likely to be advanced in any event by the principal parties; (3) whether or not, or to what extent, a grant of leave to intervene might unduly complicate the efficient progression of the proceeding through to hearing and determination. 12 It is convenient to address each of those considerations in turn.

What is the CFMMEU's interest? 13 The CFMMEU identifies three legal interests that it says that the determination of the present proceeding will potentially affect. The first is said to arise by reason of the Lendlease Building / CFMMEU (New South Wales, Australian Capital Territory, Victoria and Tasmania) Agreement 2016 (hereafter, the "Enterprise Agreement"), which is an agreement made pursuant to Pt 2-4 of the Fair Work Act 2009 (Cth), the terms of which bind Lendlease and the CFMMEU in respect of construction work performed by Lendlease employees at the Site. Clause 29.4 of the Enterprise Agreement is in the following terms: 29.4 Union Delegate Rights (a) Where an Employee has been elected as a Union Delegate, the Company will recognise the following rights: … (iii) the right to place information related to permitted matters on a notice board in a prominent location in the workplace, except that the material must not breach freedom of association, privacy and other applicable laws; and … (vi) the right to represent the interests of members in their workplace to the Union, Company and industrial tribunals/courts. "Union Delegate" is defined by cl 1 of the Enterprise Agreement as an employee "…elected by Union members and endorsed by the Union to represent the interests of Union members employed by the Company as required". "Union" is defined by the same clause to mean the CFMMEU. Clause 29.5 of the Enterprise Agreement confers upon "Employee Representative[s]" rights equivalent to those that cl 29.4 confers upon Union Delegates. The CFMMEU contends that the determination of the present proceeding may bear upon its right to publish material pursuant to that clause. 14 The second interest is said to arise pursuant to what the CFMMEU describes as an implied licence granted to it by Lendlease, pursuant to which it contends that it is permitted to publish or present communications in the way that it does at the Site. Again, it contends that the determination of the present proceeding may bear upon its rights under that licence. 15 The third interest is said to arise by reason of cl 31 of the Enterprise Agreement, which regulates the manner in which certain disputes between Lendlease and the CFMMEU are to be resolved. Amongst other things, that clause provides for the referral of such disputes for arbitration before the Fair Work Commission. There is presently such a dispute (or a dispute that purports to be such a dispute) before the Fair Work Commission about whether subparagraph 13(2)(j) of the Building Code requires that Lendlease take steps to prohibit the CFMMEU from engaging in certain types of communications at the Site (including communications that appear to bear a resemblance to those that are the subject of the Compliance Notice). The CFMMEU contends that the determination of the present proceeding will affect the rights that it hopes to vindicate in that proceeding before the Fair Work Commission. 16 The respondents contend that the CFMMEU does not have an interest in the outcome of the proceeding sufficient to warrant a grant of leave to intervene. They advance the following submissions on that theme (references omitted): 8 Nothing decided in this proceeding will bring about any direct affectation of any of the CFMMEU's legal interests… The CFMMEU is not a "code covered entity" such that it cannot be directly, or indirectly, bound or affected by any construction or interpretation of the Building Code adopted in these proceedings, including regarding section 13(2)(j) thereof. 9 The CFMMEU relies upon an implied or actual licence to place logos, mottos or indicia on Lendlease equipment and property, largely derived from the terms of enterprise agreements, including relevantly clauses 29.4 and 29.5 of the [Enterprise Agreement]. 10 Even if the existence of that licence or right be accepted, nothing determined in this proceeding directly affects the existence or operation of that licence or right. If it is implied and is capable of being removed at any time, then nothing decided in this proceeding affects that position. If it is express and conferred by the [Enterprise Agreement], equally nothing determined in this proceeding could directly affect its existence or enforceability. Clauses 29.4 and 29.5 of the [Enterprise Agreement] are (and will remain) terms of an enterprise agreement, enforceable as such under section 50 of the Fair Work Act 2009 (Cth). Nothing the Court determines in this proceeding can possibly affect that legal position. 11 Any affectation beyond this is indirect, in addition to being speculative, contingent and hypothetical. Accordingly, any such possible or potential indirect affectation could not be described as substantial either. Ordinarily, this would be sufficient reason enough to refuse the application. 17 In his oral submissions, counsel for the respondents contended that there is no right inuring to the CFMMEU's benefit under cll 29.4 or 29.5 that might conceivably be affected by the outcome of this proceeding because the communications to which the Compliance Notice pertains are not communications that were affixed to notice boards at the Site. I accept that submission. Those clauses do not confer rights to communicate at large; they refer only to communications placed upon notice boards. The Posters and the Flag are not communications that have been placed on notice boards at the Site. 18 The respondents also (and more broadly) contend that the CFMMEU's interests in the outcome of the present proceeding are merely indirect or contingent, in that what is at issue in this proceeding is not whether the CFMMEU should be permitted to communicate at the Site in the manner that it does, nor whether it might continue to do so pursuant to rights conferred by the Enterprise Agreement or an implied licence. Rather and more narrowly, the submission continued, the issue that presents for determination in the present proceeding is whether Lendlease should be required to take the steps that the Compliance Notice purports to require (or, perhaps more precisely, whether it has a basis in law upon which it might escape what is otherwise its obligation to comply with that notice). Assuming that it should be so required - and that, at some point in the future, it takes the steps that the Compliance Notice contemplates - any issue that might then arise as between Lendlease and the CFMMEU about rights that the latter asserts (whether under the Enterprise Agreement or an implied licence, or howsoever otherwise) should be determined then and only then. 19 Respectfully, it is artificial to characterise the impact that this proceeding might visit upon the CFMMEU's interests as contingent or indirect. Unless granted the relief that it seeks, Lendlease will be obliged to act in a manner that adversely affects at least some of the rights that the CFMMEU asserts. It is as good as inconceivable that it would not do so. To require that the CFMMEU should, only then, commence a proceeding of its own to vindicate the rights that it now asserts - and, thereby, rehash the same (and other) contentions about the application of the Building Code as will inevitably arise for consideration in the present proceeding - would be needlessly inefficient. Although not determinative of anything, it is not lost on me that any such proceeding would likely be one in which the Commissioner would be entitled to intervene as of right: BCIIP Act, s 109(1). 20 I consider that the CFMMEU has an interest in the outcome of the present proceeding - whether direct or otherwise - that is sufficient to warrant an exercise of the court's discretion to grant it leave to intervene.

What additional contribution can the CFMMEU offer? 21 So far as is currently ascertainable, it appears that there are three bases upon which the Compliance Notice might be challenged, namely: (1) on the basis that: (a) properly construed, subparagraph 13(2)(j) of the Building Code only applies to communications that offend principles of free association; and (b) none of the Posters or the flag are examples of such communications; (2) on the basis (perhaps related to subparagraph (1) above) that the principle of legality should favour a construction of subparagraph 13(2)(j) of the Building Code that does not limit the CFMMEU's freedom to publish or express views at the Site (including in such a way that features insignias commonly associated with it); and (3) on the basis that subparagraph 13(2)(j) of the Building Code (or perhaps, some other statutory provision by which the requirements of the Building Code are made enforceable) is unenforceable insofar as it purports to require or has the effect of requiring measures that would restrict the CFMMEU's implied constitutional right to communicate freely about political matters. 22 The CFMMEU has indicated that it intends to advance the third of the above contentions if granted leave to intervene (and also the other two, to the extent that Lendlease does not). Before me, senior counsel for Lendlease indicated that his client would not advance it. 23 The respondents contend that the CFMMEU's foreshadowed constitutional challenge should not now be indulged by means of a grant of leave to intervene because none of the communications that are the subject of the Compliance Notice qualify as political communications in respect of which the implied constitutional right might offer protection. There may or may not be force in that submission. The Posters that are the subject of the Compliance Notice may well not touch upon the free and informed choice that is to be exercised by the people of the Commonwealth in their capacity as electors: Clubb v Edwards (2019) 366 ALR 1, 14 [29] (Kiefel CJ, Bell and Keane JJ). Whether they might attract the implied constitutional protection, though, is not a question that I should now contemplate, particularly in light of s 78B(1) of the Judiciary Act 1903 (Cth). Although I express (indeed can express) no opinion about its strength, I do not consider that the question is so obviously misconceived that I should foreclose entirely upon permitting its agitation in this proceeding. 24 The respondents complain, fairly enough, about the potential for duplication in the submissions to be advanced by Lendlease and the CFMMEU. That potential cannot be discounted entirely; but the CFMMEU has indicated that it does not intend to - indeed, that it will not - repeat any submissions that Lendlease advances. It should be held to that undertaking as closely as is reasonably practical, including by means of appropriate costs orders, if necessary.

Complication and delay 25 The respondents contend that: 15 …[T]he constitutional argument will contribute to wasted costs and delays for the principal parties to the litigation, bring about the potential interventions of various Attorneys-General pursuant to section 78A of the Judiciary Act 1903 (Cth) and lead to unnecessary factual debates and evidence and complex constitutional arguments. At trial, the [c]ourt would not embark upon the determination of a constitutional issue of the kind contemplated by the CFMMEU when its resolution is not necessary for the determination [of] any direct legal right or interest of the CFMMEU in the proceedings presently before the [c]ourt. Nor would it do so in respect of other, hypothetical factual scenarios. This is especially so having regard to section 15A of the Acts Interpretation Act 1901 (Cth), which applies to the Building Code by reason of section 13 of the Legislation Act 2003 (Cth). 26 Respectfully, I don't accept that contention. The CFMMEU's proposed constitutional challenge to the Building Code (or to the legislative provisions by which it is made enforceable) will, of course, add to the time that it will take to hear and determine the proceeding. But it is unlikely to materially alter what is likely to be a case that proceeds almost entirely, if not entirely, as a matter of legal argument rather than evidential contest. I do not accept that the complication that a grant of leave will introduce is sufficient to warrant against its being granted.

Conclusion and case management 27 I am satisfied that it is in the interests of justice that the CFMMEU be granted leave to intervene in the proceeding in order that it might lead evidence and make submissions that are additional to those led and made by Lendlease. 28 After the hearing of the CFMMEU's application for leave to intervene, the court explored with the parties (and the CFMMEU) what orders might be appropriate by way of case management. Senior Counsel for Lendlease supplied a minute of orders that enjoyed broad support; but that was premised upon the matter being listed for hearing during (or not long after) the court's May 2020 appeals sitting. The court undertook to explore the possibility of accommodating such a listing. That exploration has occurred and, regrettably, the commitments of the court and the parties' counsel do not permit that accommodation. Moreover, as all counsel fairly conceded, the matter does not present with an urgency that should warrant the impact on other litigants that its expedition would inevitably visit. 29 The matter will, instead, be listed for hearing on Wednesday, 2 September 2020, with an estimated duration of one-and-a-half to two days. Despite having indicated that I would make appropriate case management directions in chambers, I will instead, in light of this listing development, invite the parties to rejig the order that was proposed at the hearing. There is reason to be confident that they will be able to agree on the directions that should be made. If they cannot, they can indicate as much; whereupon I will make case management orders in chambers. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.