Woodside Energy Ltd v McDonald

Woodside Energy Ltd v McDonald - [2003] FCA 69 - FCA 2003 case summary — Zoe

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factual and procedural background 4 On 7 November 2002, Woodside filed an application in this Court seeking declarations that: · Mr Joseph McDonald, who is now the first respondent, has no right of entry to the Land; · the provisions of Division 2G of Part II of the Industrial Relations Act 1979 (WA) ("the State Act"), the division which provides for right of entry and inspection of premises and interviewing employees by authorised representatives of unions on to the land, are inconsistent with the provisions of Part IX, Division 11A of the Workplace Relations Act 1996 (Cth) ("the Act"), which makes similar (but not identical) provision, and accordingly are inoperative; and · the provisions of Division 2G of Part II of the State Act concerning the right of entry on to the Land are inconsistent with certain certified agreements which were set out in a schedule to the application. 5 Woodside also sought an order that Mr McDonald be restrained and enjoined from entering and being on the Land except with its prior authorisation. 6 Notice of a Constitutional Matter was served on the Attorneys-General of the States, the Northern Territory and the Commonwealth in accordance with s 78B of the Judiciary Act (1903). At this stage none of the Attorneys has intervened. 7 On 11 November 2002, the State union filed a claim in the Industrial Magistrates Court of Western Australia against Woodside and CBI seeking, amongst other things, interim orders that they allow the State union's authorised representatives access to the Land. Woodside and CBI foreshadowed that as part of their defences in those proceedings they would put in issue whether the provisions of Division 2G of Part II of the State Act had any application. On 27 November 2002, the Industrial Magistrate ordered that the State union's interlocutory application and the claim generally be adjourned pending the determination of this application. 8 On 26 November 2002, the Minister for Employment and Workplace Relations of the Commonwealth of Australia ("the Minister") filed a notice of intervention pursuant to s 471(1) of the Act. 9 It is convenient to summarise the facts of this matter initially by reference to the pleadings and then by reference to some of the affidavits. Where there is a substantial factual dispute I shall identify it to the extent necessary. 10 Part of Woodside's case is that the North-West Shelf Gas Project is one which requires strict security and safety measures so as to ensure the safe operation of its plant, the security of the project from any external threat and the health and safety of all persons entering on to the Land. It restricts entry to the Land so that no person is permitted to enter without its prior approval, other than to report to a visitors' centre situated on the Land. There are signs drawing attention to such restrictions at both the entry to the Land and the entry to the Site. The Site is fenced off and secured by turnstiles and gates. 11 The Contractors have employed a large number of persons to carry out the construction of Phase IV. Before that construction commenced, each of the Contractors entered into an agreement with one or more of the following industrial organisations registered pursuant to the Act, namely: · the Australian Workers' Union; · the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and · the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. 12 Those certified agreements ("the Certified Agreements") were listed, as I have mentioned, in a schedule to the application. Each of them has been certified by the Australian Industrial Relations Commission ("the AIRC") pursuant to Division 2 of Part VIB of the Act. The schedule lists some 58 agreements made with about 42 Contractors. 13 Woodside pleads that the Certified Agreements govern the terms and conditions of employment of the persons employed by the Contractors on the Site. CBI is said to be a party to and bound by two of the Certified Agreements. 14 It is here that an important issue emerges. It would appear that the Contractors and the unions who entered into the Certified Agreements did so pursuant to s 170LL of the Act on the basis that they were "Greenfields" agreements. 15 Section 170LL provides, in summary, that if a relevant "single business" is a new business that the employer proposes to establish, or is establishing when the agreement is to be made, and the agreement is to be made before the employment of any of the persons who will be necessary for the normal operation of the business or part, and whose employment will be subject to the agreement, then the employer may make what is known as a Greenfields agreement with one or more organisations of employees. In summary, the significant difference between a Greenfields agreement on the one hand and either a certified agreement made with an organisation of employees under s 170LJ or with the employees directly under s 170LK, on the other hand, is that the two latter categories require either approval by a valid majority, or that the agreement be made with a valid majority, of the employees. The State union contends that, on the facts, the Certified Agreements were not Greenfields agreements within s 170LL and should not have been so certified. It submits that CBI (and the contractors sued in application W346 of 2002) did not establish new businesses when they embarked upon the execution of the work on Phase IV, but were simply carrying on already existing businesses. The parties opposing that submission (and the Minister) contend that the execution of each of those respective works is a "project or undertaking" within the meaning of s 170LB(1) which was itself a "single business" within the meaning of s 170LL and was, at the relevant time, "a new business". 16 In its amended statement of claim Woodside refers to and conveniently summarises the right of entry provisions of Part IX Division 11A of the Act. First it refers to the power, conferred by s 285A, upon a Registrar of the AIRC to issue a permit to an officer or an employee of an industrial organisation. 17 Section 285B relevantly provides that a person who holds such a permit may, if he or she suspects that a breach has occurred, or is occurring, of the Act or an award of the Commission, an order of the Commission, or a certified agreement that is in force and binds the organisation, may enter during working hours any premises where employees work who are members of the organisation. Entry is to be for the purpose of investigating the suspected breach - s 285B(2). After such entry, the relevant person may, for the purpose of investigating the suspected breach, during working hours inspect or view any work, material, machinery, or appliance, that is relevant to the suspected breach and may, again during working hours, interview any employees who are members or who are eligible to become members of the organisation, about the suspected breach - s 285B(3)(b) and (c). 18 Such a permit holder may also enter premises in which work is being carried on to which an award applies that is binding on the organisation or employee and in which employees who are members, or who are eligible to become members, of that organisation work, for the purposes of holding discussions (during meal-time or other breaks) with any of those employees who wish to participate in those discussions - s 285C. 19 Woodside refers to the fact that Mr McDonald held such a permit until 19 July 2001 when a Full Bench of the Commission ordered that it be revoked. Woodside pleads that at all material times neither the State union nor its Federal counterpart was bound by any award, order or certified agreement under the Act with respect to work being performed on the Land. 20 Woodside then pleads certain terms of the Certified Agreements which define the extent to which those agreements operate to the exclusion of Federal and State awards or industrial agreements, and govern right of entry to the Land. Woodside claims that, purporting to exercise rights under the State Act, various officers of the State union have, during a period between 4 October 2002 and 28 October 2002 entered the Land. 21 Woodside also pleads that Mr McDonald wrongly entered upon and remained upon the Land on several occasions between 4 October 2002 and 25 October 2002, claiming that he had a right of entry pursuant to the State Act. Woodside complains that Mr McDonald on two occasions obstructed and hindered construction work on the Site or attempted to do so, thus causing harm and/or damage. 22 Woodside claims that the entry provisions of the State Act are in the circumstances of this matter inconsistent with the provisions of the Act by reason of s 109 of the Constitution and accordingly do not entitle Mr McDonald or any officers or authorised representatives of the State union to enter upon the Land without Woodside's consent. 23 Further and alternatively, Woodside claims that those provisions of the State Act are inconsistent with the Certified Agreements and by reason of s 170LZ(1) of the Act do not entitle Mr McDonald or any officers or authorised representatives of the State union to enter or be upon the Land without Woodside's consent. 24 Section 170LZ relevantly provides that, subject to that section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency. Section 170LZ(2) relevantly provides that provisions in a certified agreement that deal with the matter of occupational health and safety operate subject to the provisions of a State law that deals with that matter. 25 In its defence, the State union contends that on 8 October 2002 two of its authorised representatives (Mr Mark Hudston and Mr Bob Wade) sought to enter the Land in accordance with their rights under the State Act, but were refused entry. The State union also pleads that Mr Wade was a representative of the Federal union and together with another representative of that union (Mr Tom Dixon), having given due notice under s 285D(2) of the Act, entered the Land in exercise of rights of entry provided by ss 285B and/or 285C of the Act. 26 The State union admits that the AIRC has purported to certify the Certified Agreements but denies that those agreements were validly made or validly certified. In the alternative, it says that if those agreements were validly made and certified, they did not have effect within the meaning of s 170LY(1)(b) of the Act. The defence also raises factual issues. I have not attempted to summarise all of the issues raised by the defence. 27 In its cross-claim, the State union pleads that Mr Hudston and Mr Wade each hold an authority issued by the Registrar of the Western Australian Industrial Relations Commission under s 49J of the State Act. The State union says that on 8 October 2002, Mr Hudston and/or Mr Wade in their capacity as authorised representatives of the State union sought to enter the Land and/or the Site during working hours for the purpose of investigating a breach or breaches of the Occupational Safety and Health Act 1984 (WA), the Long Service Leave Act 1958 (WA) and/or the State Act. The State union alleges that employees of Woodside, acting on its behalf and also on behalf of CBI, refused them access to the Land or Site and told them to leave. 28 Section 49H of the State Act provides that an authorised representative (defined by s 49G as meaning a person who holds an authority in force under Part II, Division 2G) of an organisation may enter, during working hours, any premises where relevant employees (a relevant employee is defined by s 49G as meaning an employee who either is or is eligible to become a member of the organisation) work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions. Subsections 49H(2) and (3) deal with the question of whether notice is required before the exercise of such a power. It should be noted that the State union is not relying upon s 49H for the purposes of its cross-claim; it is relying only on s 49I. 29 Section 49I(1) of the State Act relevantly provides that an authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of the State Act, the Long Service Leave Act 1958 (WA), the Occupational Safety and Health Act 1984 (WA) or an award, order, industrial agreement or employer-employee agreement that applies to any such employee. 30 Section 49I(2)(a) relevantly provides that for the purpose of investigating any such suspected breach, the authorised representative may during working hours, inspect or view any work, material, machinery, or appliance that is relevant to the suspected breach. No notice is required before that power is exercised. 31 Section 49M(1) provides that the occupier of premises must not refuse, or intentionally and unduly delay, entry to the premises by a person entitled to enter the premises under ss 49H or 49I. Section 49M(2) provides that a person must not intentionally and unduly hinder or obstruct an authorised representative in the exercise of the powers conferred by Division 2G. 32 The State union pleads that Messrs Hudston and Wade were entitled to enter the Land and/or the Site under s 49I of the State Act, and that as occupiers of the Land and/or the Site Woodside and CBI have contravened s 49M(1) and/or s 49M(2) of the State Act. The State union seeks the imposition of a penalty of $1,000 upon each of Woodside and CBI in respect of each such alleged contravention and final and interlocutory orders of the type which I have set out above. 33 Woodside has filed a reply which, in essence, joins issue with the State union's defence. Woodside and CBI have filed defences to the State union's cross-claim. They raise some additional matters which it is not necessary for me to describe at this point. In essence, those defences rely largely on the matters raised by Woodside in its amended statement of claim. 34 CBI has filed an additional cross-claim seeking relief against the State union on a basis substantially similar to that pleaded by Woodside in its amended statement of claim.

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Application w346 of 2002 35 On 17 December 2002, (that is, nearly 6 weeks after Woodside filed application W311 of 2002) the Construction, Forestry, Mining and Energy Union ("the Federal union") and Mr Wade filed this application. In it the applicants seek a declaration that Mr Wade has a right under the Act (i.e. the Federal Act) to enter the Land and also the premises on the Site used by a further two of the Contractors, Brambles Australia Limited ("Brambles") and Wylie & Skene Pty Ltd ("Wylie & Skene") who are the second and third respondents to the application. The applicants also seek, as part of the first declaration, a declaration that after entry to the premises Mr Wade has the right to exercise the powers provided for in ss 285B and 285C of the Act. The applicants seek a declaration that the Mobile Crane Hiring Award 2002, an award of the AIRC, is in force and applies to work that is being carried out on the Site by Brambles and that the National Building and Construction Industry Award 2000, also an award of the AIRC, is in force and applies to work that has been carried on by Wylie & Skene on the Site. The applicants seek the imposition of penalties on all three respondents under s 285F(2) of the Act for contraventions of ss 285E(2) and 285E(4) of the Act. Section 285E(2) prohibits an occupier of premises from refusing or unduly delaying entry to premises by a person entitled to enter those premises under ss 285B or 285C. Section 285E(4) prohibits an employer from refusing or failing to comply with a requirement under s 285B(3)(a) or subsection 285B(4). The applicants seek orders that any penalty or penalties be paid to the Federal union. The fourth and fifth respondents are two of the unions ("the AMWU" and "the AWU") which entered into the Certified Agreements on behalf of various employees of Brambles and Wylie & Skene. 36 By way of interim and interlocutory relief the applicants seek the following orders: "1. [Woodside, Brambles and Wylie & Skene] by themselves, their servants or agents, refrain from refusing or unduly delaying entry to the premises by [Mr Wade] for the purpose of exercising powers under s 285B or s 285C of the [Act]. 2. [Woodside, Brambles and Wylie & Skene] by themselves, their servants or agents, refrain from hindering or obstructing [Mr Wade] in the exercise of powers under sections 285B and 285C of the [Act]." 37 The factual bases for the interlocutory relief sought by the applicants in this application are similar to, but not identical with, the facts upon which the State union relies in application W311 of 2002. Forty affidavits were read as evidence common to both applications. The following is a brief description in chronological order of some of the events which are deposed to in those affidavits and which have led to these proceedings. I should stress that this description should not be taken as finding of facts. It is simply a review of some of the affidavit evidence which is before the Court; a review for the purposes of deciding whether serious questions to be tried have been raised, where the balance of convenience lies and whether there are any other discretionary matters which should be taken into account.

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the events of 4 October 2002 38 Working hours on the Site commence at 6.30am. At about 5.30am on Friday 4 October 2002, Mr McDonald, the Assistant Secretary of the State union, and Mr Hudston, who is an organiser employed by the State union, arrived at the car park on the Land. When approached by security guards they showed them their right of entry under the State Act and said that they were "allowed to be here". 39 The affidavit evidence of Mr Allan Reid, Woodside's Construction Manager for Phase IV, is that at approximately 6.00am he approached the two men and asked them to leave the Woodside leases immediately. Mr McDonald said words to the effect: "I won't leave until I have met with some of the CFMEU members that work on the Construction Site." 40 On more than one occasion Mr Reid told Mr McDonald that he was not authorised to be on the Land and requested him to leave. Mr McDonald, on each occasion, refused to do so and then said words to the effect: "I want to meet with some of my workers". 41 Mr Hudston, in his affidavit sworn on 21 January 2003, denies that Mr Reid spoke to him at all on the morning of 4 October 2002. 42 At about the same time, workers began to arrive for work at the Site and gathered near the entry turnstile. At about 6.20am the workers walked across to the northern side of the car park. Mr McDonald stood on the back of a utility and spoke to them. The meeting of the workers lasted until approximately 8.15 am. Mr McDonald and Mr Hudston left the Land at about that time. 43 Mr Hudston's evidence is that he was told (implicitly, this was at the meeting) by employees of CBI, Brambles and others that they had concerns about safety issues on the Site generally, but specifically including extreme heat while working in confined spaces, sub-standard machinery, excessively long working hours, a failure to employ an adequate heat management policy, a lack of fresh water at some areas on the Site, unsafe rigging scaffolding and crane operations and discriminatory treatment and victimisation of union members and delegates. He says that he explained to the workers present at the meeting that representatives of the State union would attempt to gain access to the Site and investigate for them the issues which had been raised with him. 44 Later that morning, at approximately 10.30am, Mr McDonald and Mr Hudston returned to the visitors parking area on the Land. One of the security guards asked them to leave, but they refused. At approximately 12 noon they left the Land, but returned at approximately 4.00pm when Mr McDonald spoke to some workers as they walked to their cars in the car park at the conclusion of their working day. When again asked by Mr Reid to leave, Mr McDonald made a reply which included the use of the word "Gestapo". He continued to talk to the workers around him. Shortly afterwards Mr McDonald and Mr Hudston left.

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the events of 14 October 2002 54 At approximately 6.00am on the same date, Monday 14 October 2002, Mr McDonald, Mr Wade and a Mr Tom Dixon, another official of the Federal union, arrived on the Land at the visitors' car park in a utility. Mr Reid told them that they were trespassing and asked them to leave immediately. Mr McDonald made no response, but walked towards the gates where buses enter the Site. The two other men also ignored him. 55 A bus was about to enter the Site. Mr McDonald, who had been walking quickly towards the bus-entry gate (which had been opened to admit the bus) then ran towards the gate. A security guard started to close the gate, but had not closed it fully before Mr McDonald ran through the opening. Mr McDonald ignored the security guard's calls for him to stop and ran into the secured area. Mr Reid chased him into that area and repeatedly asked him to leave. Mr McDonald refused to do so and waived a card at him saying words to the effect: "This gives me the right to enter the Construction Site." 56 Mr Reid says that Mr McDonald did not allow him to look at the card. 57 At about the same time Mr Wade and Mr Dixon also entered the secured area. Mr Reid asked Mr Wade to leave. Mr Wade took a card out of his wallet and waived it around saying words to the effect: "This means I have authority to be on the Construction Site." 58 Mr Reid says that Mr Wade did not give him the card or the opportunity to read it. 59 Mr Reid also asked Mr Dixon to leave the Woodside lease. He refused to do so and did not produce any card or identification. 60 Mr McDonald then approached a bus, provided by CBI to transport its workers to their work area within the Site, which was parked nearby with a group of workers on board. Mr Reid asked Mr McDonald not to get on the bus. Mr McDonald ignored Mr Reid, got on the bus and sat at the rear. Mr Wade and Mr Dixon left the secured area and returned to the visitors' car park. At approximately 6.50am the bus driver drove the bus out of the secured area with Mr McDonald still on board. 61 [Mr Reid says that at this stage he was unaware of a facsimile which had been sent by the State union to Woodside's Perth office on Friday 11 October 2002. His secretary gave him a copy of that facsimile at 10.00am on the morning of 14 October 2002. The facsimile, dated 11 October 2002, advised Woodside that Mr Wade and Mr Dixon held permits issued pursuant to s 285A of the Act and that they intended to exercise a right of entry "in line with ss 285B & 285C of the Act" by visiting the Woodside leases on the Burrup Peninsula on Monday 14 October 2002 and Tuesday 15 October 2002. 62 In the facsimile the Federal union stated that the State union maintained that its authorised representatives were able to exercise rights of entry under the State Act. The purpose of the entry to the premises were said to be "to hold discussions and investigate breaches".] I return to the events of the morning of 14 October 2002. 63 At approximately 11.00am, Mr McDonald got off the bus, but remained on the Land just outside the Site. 64 At approximately 12 noon some CBI workers had left their work area and gathered around Mr McDonald. This was on the Land but just outside the turnstile entry to the Site. The workers left at approximately 2.30pm, but the three Federal union officials remained in the visitors' car park.

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december 2002 74 On 11 December 2002, by facsimile, the Federal union gave notices to Woodside, Brambles and Wylie & Skene of Mr Wade's intention to exercise rights of entry under ss 285B and 285C of the Act. Separate notices were given in relation to each section. In each notice some particulars were given, preceded by a sentence to the effect that it was not conceded that the Federal union was required to provide that information. 75 On Friday 13 December 2002 at approximately 6.55am Mr Wade attended at the Land and, after producing his permits to enter (both State and Federal), was allowed to enter the Site. He was given two letters dated 12 December 2002 from Woodside's solicitors. The first of those letters, omitting formal parts, read as follows: "As you and your union know, we act for Woodside Energy Limited. We refer to your facsimile dated 11 December 2002 addressed to the Manager, Woodside Energy Limited and sent to facsimile numbers 9186 6880 and 9325 8178 in respect of your claim that you suspect a breach of the Workplace Relations Act 1996 (Cth) ("the WR Act"). As you are aware, this site has particular safety and security requirements with which all persons entering it must comply. Given that it is a breach of the WR Act which you say you suspect, our client does not see how you could have any need to go to safety or security sensitive areas. In other words, it is not apparent to our client why you could conceivably have occasion to exercise powers specified in s 285B(3)(b) of the WR Act. If there are particular documents which you need to see, our client will, on the basis that your suspicion is genuine, make arrangements for such documents to be inspected in a safe and convenient manner. This process will be facilitated if you specify any documents which you wish to inspect. If there are employees whom you wish to interview during their working hours as permitted by s 285B(3)(c) of the WR Act, this too can be facilitated in a safe and convenient manner which will not involve you having to go to safety or security sensitive areas. Please specify to our client any employees (being members or persons eligible to be members of the CFMEU) you wish to interview so that suitable arrangements can be made. It will of course be necessary to make such employees available without undue interference with their or their employer's work." 76 The second letter of the same date from Woodside's solicitors, again omitting formal parts, was in the following terms: "As you and your union know, we act for Woodside Energy Limited. We refer to your facsimile dated 11 December 2002 addressed to the Manager, Woodside Energy Limited and sent to facsimile numbers 9186 6880 and 9325 8178 concerning the two contractors named by you - Brambles Australia Limited and Wylie & Skene. We are instructed that employees employed by the two companies you name in your notice in the area described in your notice work pursuant to agreements made under section 170LL of the Workplace Relations Act 1996 (Cth) ("the WR Act") and operate in respect of work on the project to the exclusion of all other industrial awards and agreements. We are instructed that our client has been informed that the awards specified in your notice do not apply to the work being performed in respect of the project by persons employed by the two companies you name in your notice in the area described in your notice. In any event, we note that you intend to seek entry to the premises specified in your notice at 7.00am for the purpose of holding discussions with employees during the employees' meal times or other breaks. We are instructed that no employees employed by the two companies you name in your notice in the area described in your notice have relevant breaks at or around the time you have specified. Accordingly, you do not have a right of entry onto the premises for the purposes you have stated." 77 Discussions then took place initially between a Mr Michael Creedy, an employee relations co-ordinator for Project IV, and Mr Wade. There is a dispute in the affidavits about the content of those discussions. There then followed two separate sets of discussions between Mr Wade and representatives of Brambles and Wylie & Skene respectively. Again there is a degree of dispute about what took place during those discussions. 78 Mr Wade's evidence is that he was refused entry on to the Site to hold discussions with employees during their meal breaks or other breaks and to investigate what he suspected to be breaches of the Act. At approximately 8.45am he left the Site.

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Jurisdiction and the Power to Grant an Interlocutory Injunction 79 The State union contends that the subject matter of its cross-claim, and in particular the interlocutory relief sought, falls within the accrued jurisdiction of this Court. It acknowledges that s 49M(1) and (2) are "civil penalty provisions" within the meaning of s 49O in relation to which Part III of the State Act confers jurisdiction on an Industrial Magistrates Court (see s 83E). But it argues that its cross-claim arises out of a substratum of facts which is common to the claims made by Woodside in the amended statement of claim. In the amended statement of claim Woodside pleads that the State union has claimed that its authorised representatives have rights of entry pursuant to the State Act, but asserts that they do not have such rights. The factual basis, so it is put, of Woodside's claim is the entry and claimed rights of entry of Mr McDonald and other officers of the State union upon the Land and the Site. As such, so the State union contends, Woodside's federal claim and the claim made by the State union in its cross-claim emerge from a single justiciable controversy involving a common substratum of facts. The determination of issues arising under the State Act, so the State union submits, involves the Court exercising federal jurisdiction. I accept those submissions. 80 In those circumstances, the State union argues that s 79 of the Judiciary Act 1903 (Cth) has the effect that this Court, in the exercise of federal jurisdiction, must apply the State Act as a source of rights and remedies even though, on its own terms, the State Act identifies only the Industrial Magistrates Court as the Court which is to provide those remedies. For the latter of those propositions the State union relies upon a decision of the High Court of Australia in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559. 81 Furthermore, the State union argues that in the context of a claim for interlocutory relief, the Court is not obliged to resolve to finality questions about its jurisdiction to hear and determine an application. It submits that it is sufficient to establish that there is a serious question to be tried that the Court has jurisdiction: OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 at 273-274; Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 30-31.

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my reasoning on the jurisdictional point 82 In my view, the State union states the propositions decided in OD Transport and Australian Paper too widely. 83 Those cases are authority, in my opinion, for the proposition that there may be cases in which this Court may grant an interim injunction without finally deciding whether it has jurisdiction, for example where extensive factual inquiry is required. However, where it is possible to decide whether a court has jurisdiction, in my opinion, it should do so. I think that this is such a case. 84 Woodside, in its written submissions argues that the State Act provides an exhaustive code of the available remedies for a contravention of the civil penalty provisions of that Act. 85 Woodside also submits that the Industrial Magistrates Court does not have power to grant an interim injunction, but may only make an interim order if it has found that a person has contravened a civil penalty provision. Woodside contends that this Court's jurisdiction under the State Act is similarly limited. As to whether this Court has power to grant an injunction in the present circumstances under s 23 of the Federal Court of Australia Act (1976) (Cth), Woodside submits that there is no such power because the Court has acquired its jurisdiction under a statute (the State Act) which provides an exhaustive code of the available remedies. The power to grant an interlocutory injunction under s 23 should not, so Woodside submits, be exercised in the present matter, because this is not a case where it is necessary to ensure that a judgment, if ultimately obtained, will not prove useless. 86 In my view, it is sufficiently clear from Edensor that this Court, in the exercise of federal jurisdiction, has jurisdiction to enforce rights claimed by the State union under the State Act. In the reasons of Gleeson CJ, Gaudron and Gummow JJ at [68] and [77] the following passages are to be found: "[68] It is well established from the decisions under s 79 of the Judiciary Act, most recently that in Austral Pacific Group Ltd (In liq) v Airservices Australia, that a State statute may be applicable as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies. . . . [77] … as has been indicated earlier in these reasons, Smith v Smith does not cut across the established line of authority that the identification of a State Supreme Court as the forum for the administration of a remedy created by State law does not exclude the administration of that remedy by courts in the exercise of federal jurisdiction." 87 In my view, there is nothing in the provisions in the State Act upon which the State union relies which makes it impossible for them to be "picked up" by s 79 of the Judiciary Act. I think that this Court has jurisdiction to determine the cross-claim. 88 Woodside's contention that neither the Industrial Magistrates Court nor this Court has power to grant an interlocutory injunction until a person has been found to have contravened a civil penalty provision is based upon what it says is the proper construction of s 83E of the State Act, the relevant provisions of which are as follows: "83E Contravention of a civil penalty provision (1) If a person contravenes a civil penalty provision, an industrial magistrate's court may make an order imposing a penalty on the person, not exceeding - (a) in the case of an employer, organisation or association, $5,000; and (b) in any other case, $1,000. (2) Subject to subsection (3), if a person contravenes a civil penalty provision an industrial magistrate's court may, instead of or in addition to making an order under subsection (1), make an order against the person for the purpose of preventing any further contravention of that provision. . . . (5) An interim order may be made under subsection (2) pending final determination of an application under this section. . . ." 89 Woodside's argument is very similar to that advanced by the appellants in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 in relation to what I consider to be analogous provisions in s 298U of the Act. 90 For the reasons given in the joint judgment at [25-27] and by Gaudron J at [104] to [108] in Patrick Stevedores, I consider that not only does this Court have jurisdiction in relation to the cross-claim, but also has power, in the exercise of that jurisdiction, to grant an interlocutory injunction either by way of an interim order under s 83E(5) or pursuant to s 23 of the Federal Court of Australia Act or both.

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Whether there is a serious question to be tried 91 The State union submits that there is strong evidence to find that there exists a serious question to be tried. It says that the question is whether Woodside and CBI have contravened s 49M(1) and/or 49M(2) of the State Act by refusing its two authorised representatives entry to the Site on 8 October 2002. I make no assessment of whether the evidence is "strong". It has yet to be tested and some of it is disputed. There are also several legal issues to be resolved. But I accept that the affidavit evidence and other material put before the Court to date raises that matter as a serious question to be tried. 92 As part of that overall question, I consider that there are at least the following serious questions to be tried: 1. Whether the Certified Agreements were validly made and certified and had effect at the relevant time. 2. (a) Whether the State union has, through its authorised representatives any, and if so what, rights of entry to the Site under the provisions of Division 2G of Part II of the State Act? (b) Whether the provisions of Division 2G of Part II of the State Act, to the extent that they purport to confer those rights of entry to the Site, are inconsistent with the provisions of ss 285B and 285C of the Act and, by reason of s 109 of the Constitution, do not entitle any officers or authorised representatives of the State union to enter the Site? (c) (i) Whether those provisions are inconsistent with the Certified Agreements and by reason of s 170LZ(1) of the Act do not confer such entitlement? (ii) Whether the rights of entry provided by the State Act fall within the expression "terms and conditions of employment", and in particular the word "conditions" in s 170LZ(1) of the Act? 3. Whether Mr Hudston and/or Mr Wade's purpose in seeking to enter the Site on 8 October 2002 was one or other of the purposes specified in ss 49H(1) and 49I(1) of the State Act? 93 The authorities show that it may be appropriate for the Court to make some assessment of the apparent strength of the State union's claim, as this may have a bearing on whether interlocutory relief should be granted - see, for example, Branson J's observation to that effect in Construction, Forestry, Mining and Energy Union v CSR Limited [2000] FCA 1203 at [22] and the authorities there cited. 94 My assessment, provisional as it must be at this stage of the proceedings, is that the State union's case in the cross-claim is not a strong one. 95 In reaching that assessment I have not attempted to resolve the factual disputes between the parties about what took place on 8 October 2002 and the question whether CBI was legally able to bring about the entry of the State union's representative to the Site. Those are factual and legal issues which in themselves raise serious questions to be tried. 96 My provisional assessment in relation to the other questions can be shortly stated. 97 First, I consider that a strong case has been made out by the cross-respondents and the intervenor for the proposition that the provisions in the State Act which purport to provide rights of entry to the Site are inconsistent with the provisions of ss 285B and 285C (and related sections) of the Act, either because the federal provisions were intended to regulate that subject matter completely, exhaustively or exclusively, or because the provisions of the State Act alter, impair or detract from the operation of the Act in that respect. 98 My provisional view is that, for similar reasons, those provisions are inconsistent with the provisions of the Certified Agreements which confer rights of entry to the Site on representatives of the unions which are parties to them. 99 Again provisionally, I consider that the authorities on the meaning of the word "conditions" in the expression "terms and conditions of employment" [the phrase used in s 170LZ(1) of the Act] in the industrial law sector strongly suggest that rights of entry of the type provided by the State Act fall within the expression "conditions"; see, for example, Australian Tramway Employes Association v Prahran and Malvern Tramway Trust (1913) 17 CLR 680 at 693; a passage cited with approval in The Queen v Findlay; Ex parte The Commonwealth Steamship Owners' Association (1953) 90 CLR 621 at 630 and The Queen v Booth; Ex parte Administrative and Clerical Officers' Association (1978) 141 CLR 257 at 263. If that is the case, then my provisional view is that those provisions are inconsistent with the provisions relating to that matter in the certified agreements. 100 In relation to the State union's argument based on s 170LZ(2) of the Act when read with s 49I(1) of the State Act, my provisional view is that the latter provision is not "… a State law that deals with the matter [of] occupational health and safety" within the meaning of the former subsection. 101 Similarly, the evidence at this stage is such that the objective purposes of Messrs Hudston and Wade when they sought to enter the Land on 8 October 2002 (assuming the correctness of single instance authorities of this Court that such a purpose is to be assessed objectively) has not, in my view, been established convincingly in the light of the contradictory affidavit evidence adduced on that point and what appears to have been changing purposes. The situation may, of course, change radically at trial. 102 Having decided that there are serious questions to be tried in this application, I propose next to consider whether there are serious questions to be tried in application W346 of 2002. I will then consider where the balance of convenience lies in respect of each of those applications.

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Application w346 of 2002 103 At this stage of these proceedings no pleadings have been filed. I have described above the declarations which the applicants seek in the principal application and the interlocutory relief which they seek. The applicants rely on their affidavit evidence about the events which took place on 13 December 2002. They say that there exists a serious question to be tried that Woodside, Brambles and/or Wylie & Skene have contravened s 285E(2) and/or (4) of the Act by refusing and/or hindering or obstructing the right of entry which Mr Wade sought to exercise on that date. 104 In those circumstances it is quite clear that this Court has jurisdiction pursuant to s 285F of the Act. 105 The applicants rely on the uncontradicted evidence that Mr Wade was at the relevant time the holder of a permit issued by the Registrar under s 285A of the Act. 106 Mr Wade's evidence is that of a total of about 500 workers on the Site, about 230 are members of the Federal union. 107 The applicants rely upon the Federal union's letters of 11 December 2002 as constituting valid notice to Woodside, Brambles and Wylie & Skene that Mr Wade intended to exercise his rights of entry pursuant to both ss 285B and 285C on 13 December 2002. 108 Woodside's position is that: · The Federal union has rights of entry under s 285B(a) of the Act, provided that it and its officers comply with the preconditions in Division 11A of Part IX of the Act; and · The Federal union does not have rights of entry under s 285C of the Act because no award applies to work being carried on on the Site. 109 Woodside contends that there is no evidence of a genuinely and reasonably held suspicion that there was a breach of the Act or award or certified agreement but that the evidence shows that Mr Wade's purposes are wider than to investigate any breach. That is, to organise, recruit new members, service members, deal with industrial matters and oversee terms and conditions of employment all being outside the powers conferred by s 285B. 110 Brambles and Wylie & Skene advance similar arguments, together with some additional defences which it is not necessary to describe here. They can be found in their outline of submissions. Woodside, Brambles and Wylie & Skene dispute whether the notices of 11 December 2002 were sufficient notice. 111 Mr Wade swears that at all relevant times he suspected that a breach had occurred or was occurring of Part XA of the Act, which deals with freedom of association. The applicants contend that Woodside is the occupier of the Land and the Site and that, as contractors on the Site, Brambles and Wylie & Skene each occupy so much of the Land and the Site as is necessary for them to perform the work which they are contracted to perform for Woodside. The denial of this latter assertion is one of the additional defences (referred to above) upon which Brambles and Wylie & Skene rely. 112 Mr Wade's evidence is that he suspected that Woodside, Brambles and/or Wylie & Skene had been involved in a breach of Part XA. He says that he based those suspicions on the following: · what was said to be the planned and carefully orchestrated arrangements by Woodside and the Contractors effectively to deny employees on the Site including members of the Federal union, the capacity to be represented by that union and/or the union of their choice, by denying them the capacity to participate in and vote upon the Certified Agreements which purport to bind them. [This is a reference to what the applicants, in their written submissions, described as "the inappropriate and illegitimate use of Greenfield agreements made by businesses which were said not to be "new" as required by s 170LL.] Mr Wade says that he suspects that these agreements have been used as a mechanism to deny members of the Federal union a right to participate in the negotiations and to choose to be represented by their union; · complaints received "on a number of occasions" of victimisation and discrimination from employees who have acted in a delegate role representing the interests of the Federal union, including one employee who was forced by pressure from Brambles management to resign from the Federal union and join the AMWU; and · information that employees of a sub-contractor to Wylie & Skene were required to become employees of Wylie & Skene and become subject to the Greenfields agreement, in circumstances where it is said that their membership of the Federal union and the application of an award to which the Federal union is a party, appear to have been motivating factors. 113 Woodside and the respondent employers, in their respective affidavits, dispute these assertions and put all of these matters in issue. 114 The applicants rely upon the evidence of what took place when Mr Wade attended the Site on 13 December 2002. 115 In respect of the application of s 285C(1)(a), the applicants submit that in relation to the work being performed on the Site by employees of Brambles, the relevant award is the Mobile Crane Hiring Award 2002 and for those employed by Wylie & Skene the relevant award is the National Building and Construction Award 2000. 116 The applicants argue that, as a matter of law, those awards still "apply" to the work being carried on by their members on the Site within the meaning of s 285C(1). Their point is that although, to the extent of any inconsistency between those awards and the Certified Agreements (assuming them to be valid), the latter provisions prevail, the awards still apply for a range of functions including, for example, the application of the non-disadvantage test. They submit that to treat an award as not applying where there is a certified agreement in force would mean that no union, even those that were parties to the agreement, could take advantage of s 285C. This, so the applicants submit, would be a curious and unintended outcome. The applicants argue that as freedom of association is a central pillar of the Act, s 285C should not be read down, in the absence of clear words, to reduce the capacity of union members to meet with their union representatives at work.

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Whether the applicants have raised serious questions to be tried 117 In my view, the evidence before the Court to date establishes that there is a serious question to be tried as to whether the employer respondents contravened s 285E(2) and (4) of the Act. As part of that overall question there exist at least the following serious questions of fact and law to be tried, namely: · whether the notices given on 11 December 2002 were adequate? In particular, were Woodside, and the employers entitled to some particulars of the suspected breaches and to know who Mr Wade wanted to interview? · whether, objectively, there were grounds for Mr Wade to suspect contravention of the freedom of association provisions of the Act? · whether work was being carried out on the Site to which either or both of the awards mentioned above apply? This in turn involves the proper construction of s 285C when read with s 170LY(1) and also the extent of the eligibility of the relevant employees to be members of the Federal union; · whether the Certified Agreements were valid i.e. was each of the respective businesses a "new business"? 118 I find it impossible to make a sensible assessment of the strength of the applicants' case, because key parts of it depend on factual matters which are in dispute. For example, were there objectively grounds for Mr Wade to suspect contravention of the freedom of association provision? Was there work being carried on on the Site to which a relevant award applied and are there employees who are members or are eligible to become members of the Federal union working on the Site? All I can say is that my impression at this stage is that the applicants' case in this matter is somewhat stronger than the case of the cross-claimants in application W311. 119 I now turn to consider the balance of convenience and other related matters in each of the two applications. I propose at some stages of that consideration to deal simultaneously with factors which I think are relevant to both applications. At other stages, where appropriate, I shall consider each application separately.

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the balance of convenience 120 The phrase balance of convenience is a convenient shorthand reference to the risk of doing an injustice to the party to be enjoined if an interlocutory injunction is granted, in comparison with the risk of doing an injustice to the party seeking the interlocutory injunction if such an order is not made. 121 Usually an interlocutory injunction is granted to preserve the status quo pending the hearing and determination of the principal proceedings in which final relief is sought. 122 On one view, the proposed interlocutory injunctions would alter the status quo. Although expressed in negative terms, the proposed orders would require Woodside and the employers to take positive steps to admit the State and Federal union's representatives to the various premises, make their employees available for interview, provide access to the areas where work is being carried out on the Site (including access to materials, machinery and appliances) and submit to what would otherwise be trespasses to property in their possession. All of this in a situation where they challenge the rights asserted by the State and Federal union and seek the Court's determination of that dispute before they are obliged to take these steps. The employers (and the AMWU and the AWU) argue that the status quo is the continuation of the industrial regime which has been in existence since Phase IV started in January 2002. That includes the exclusion of the State and Federal union from the Site. 123 On the other hand, the status quo might well be regarded as one in which those unions have statutory rights of entry which should be recognised and observed on an ongoing daily basis. 124 The State and Federal unions acknowledge that it is inevitable that one or other of the competing rights claimed will be compromised pending the trial. But they say that the temporary denial of the right of Woodside and the employers to refuse entry will have no practical consequence, whilst the denial of entry pending trial is likely to have a significant practical impact which will result in irremediable loss and damage to those unions. In those circumstances, they submit that the balance of convenience clearly favours the grant of the interlocutory relief sought because there is, so it is put, a greater risk of injustice to them, if the relief is denied, than to Woodside and the employers if it is granted. 125 I think that at this stage it is important to have regard to the history and the wider context of these matters. 126 The State and Federal unions, in their affidavits, acknowledge that they are the successors of what used to be the Australian Building Construction Employees' and Builders' Labourers Federation ('the BLF"). In the early stages of the construction of plant for the treatment of natural gas on the Land the BLF sought, unsuccessfully to represent the industrial interests of the construction workers at the North-West Shelf Gas Project. In respect of Phase I of that project the Australian Conciliation and Arbitration Commission (Mr Commissioner Brack), on 23 February 1983, ruled (288 CAR 272 at 281 and 284) as follows: "The NW Shelf Development Project is not a building project, though contracts let separately and to be let separately provide for the construction of what may be regarded as buildings in the ordinary sense of the word. The project is in or in connection with hydrocarbons as I have described that in relation to the AWU rule. It follows that the eligibility rule of the BLF does not allow it to claim all sorts of work on the project simply because some buildings are to be part of it. There must be a closer relationship to enable such a claim to be made. See Watson's case Reg. v. Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77 [at 79]. . . . It is my opinion, from what is before the Commission, that none of the work in the civil off plots contract or the civil on plots contract is work associated with construction, repair, demolition or removal of a building or buildings in the ordinary sense or to related operations such as the excavation or levelling of building sites. It is my opinion also that none of the work in the civil on plots contract is such work either." 127 Mr Commissioner Brack's decision was upheld on appeal: 289 CAR 421. 128 There was a similar result in later proceedings in the Commission in relation to Phase II - see 299 CAR 134 at 139. 129 Woodside submits that Phase IV is not significantly different from Phases I and II of the Project and relies upon an affidavit filed on behalf of the AMWU by Mr C Saunders, its Federal President. 130 There are also ongoing proceedings in which the Federal union has been seeking to amend the eligibility rules in its constitution so as to be able to include riggers, scaffolders, trade assistants and other occupations within the civil and mechanical engineering sectors of the construction industry. As mentioned earlier, the industrial interests of the employees on the Site are at present represented by the AMWU, AWU and at least one other union. 131 On or about 25 July 1997, the Federal union applied to the AIRC for the consent of a designated Presidential Member to such an alteration of its eligibility rules. That application was heard by Senior Deputy President Williams in various States over the period from 9 October 1997 to 3 June 1999. There were many objections from both employee and employer organisations and others. On 28 January 2000, Williams SDP granted his consent to the eligibility rules being altered as proposed. 132 Mr Saunders' evidence is that during those proceedings the AMWU and the Federal union reached an agreement regarding coverage, a term of which was that the Federal union would not pursue its application to amend its rules with respect to persons eligible for membership of the AMWU in Western Australia and that the Federal union would recognise the AMWU's coverage of civil and mechanical engineering sectors of the construction industry until not less than 12 months after the Federal union's application to amend its rules was finally determined. 133 The AWU and various employer organisations appealed against Williams SDP's decision (which, on 19 April 2000 was stayed pending determination of the appeals or until further order). On 28 February 2001 a Full Bench of the AIRC upheld the appeals and concluded that Williams SDP had erred in a number of respects. 134 In essence, the Full Bench expressed the view that there were other organisations to which the relevant employees might more conveniently belong and which would more effectively represent them and that, in the exercise of its discretion, consent should be refused because it would lead to demarcation disputes in the industries concerned. The industries concerned included construction work of the type being carried on on the Site (see pars [6] and [7] of the supplementary decision of the Full Bench given on 13 June 2001). 135 The Federal union applied to the High Court for orders to quash the decision made by the Full Bench on 13 June 2001. Those proceedings were remitted, by consent, to the Full Court of this Court and were heard in February 2002. On 27 May 2002 the Full Court (by a majority) granted writs of certiorari and mandamus in respect of the decision of the Full Bench, on grounds which included the ground that it had misconceived its duty by focusing on industries other than the construction industry and by misconstruing the legal effect of the proposed rule. The matter was re-listed before the Full Bench of the AIRC on 20 June 2002 which, in a decision dated 31 July 2002, again quashed Williams SDP's decision of 28 January 2000. 136 On 7 August 2002 the Federal union again applied to the High Court for a writ of certiorari to quash the decision of the Full Bench made on 31 July 2002 and a writ of mandamus to compel it to hear its application according to law. The parties to the action in the High Court have consented to it being remitted to a Full Court of this Court where it awaits formal programming for the filing and serving of material. 137 One of the issues raised in application No W346 of 2002 is whether the rules of the Federal union already render any, or any significant number of, employees on the Site eligible for membership of that union by virtue of the work being carried out by them on the Site. 138 Certainly in application W346 of 2002 and probably in W311 of 2002, these matters have at their centre a demarcation dispute or a "turf war" between the State and Federal unions on the one hand and the AMWU and the AWU (and possibly other unions), on the other, for the right to represent the industrial interests of those working on the Site. It can be seen from the evidence summarised immediately above that this is a long-running dispute which has extended over a period of nearly 20 years and is still continuing. 139 There have also been some quite recent proceedings in the AIRC in which attempts were made to resolve by conciliation a dispute over the rights of entry of the Federal union to the Site. Those proceedings started with an application made by the Federal union under s 99 of the Act. 140 It is common ground that Commissioner O'Connor convened a number of conciliation conferences, the last of which was on 4 December 2002. The State and Federal unions assert (but Woodside denies) that the application was discontinued on or about that date. There are disputes about the positions adopted by the respective parties in those proceedings and the reasons why the application was discontinued (if it has been discontinued). It is not necessary for me to consider those disputes. However, I take into account, but only to a very limited extent, the fact that there is at least one alternative forum in which this dispute has the potential to be resolved in an expeditious manner.

[28]

Whether urgent relief is required to enable recruitment and retention of members 141 In various paragraphs of his affidavit sworn on 16 December 2002 in application W346 of 2002, under the heading "The Need for Interlocutory Relief", Mr Wade refers to being unable to recruit new members until the finalisation of these proceedings, and being under pressure from the executive of the Federal union to recruit new members. Mr Wade says that the ongoing capacity of the State and Federal unions to provide an organiser resident in Karratha "… is only economically viable if I am able to continually sign up new members". This was one of the three main matters mentioned in relation to the need for interlocutory relief. Another was the risk of irretrievably losing existing members if denied access to the Site until the trial of these proceedings. 142 The hearing of the applications for interlocutory relief lasted a day and a half. It was only during the last few minutes of the hearing that senior counsel for the State and Federal unions proffered an undertaking that, if granted the interlocutory relief sought, their representatives would desist from enrolling new members on the Site during any visits. The undertaking was qualified as being extended if I ultimately regarded this matter "as being a relevant consideration". I do regard the matter as a relevant consideration. Its relevance goes to the real purpose of the State and Federal unions in seeking access to the Site. The purpose of recruitment of members is not one referred to in s 285B of the Act and that section does not confer any such power. I note that the Federal union relies on s 285C. But the evidence to date suggests that, at best, only a handful of employees carry out work on Site to which the awards (upon which the Federal union relies) apply. 143 I regard the Federal union's express purpose of recruitment and the like as weighing against the grant of interlocutory relief. It would result in what I consider to be a substantial change in the status quo, in the context of a long-running demarcation dispute, before the respective rights of the parties have been considered and finally determined. 144 I note the undertaking, but it came very late in the piece.

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Safety of Employees 145 In some of the earlier affidavits filed in these proceedings - see for example paragraphs 24, 25, 35-37, 67, 75-85 and 89-90 of Mr Hudston's affidavit sworn 13 December 2002, concerns are expressed about matters of safety on the Site. At the hearing on 19 December 2002, this issue of industrial safety was urged upon me by counsel for the State and Federal unions as being the main reason why I should, on that day, hear his clients' application for urgent interlocutory relief by way of orders granting his clients immediate access to the Site. 146 Safety was not at the forefront when the matters were fully argued on 23 and 24 January 2002. It was hardly mentioned in the outline of submissions filed by the applicants in application W346 of 2002, perhaps because it was felt that the point had been made adequately in the outline of submissions filed earlier in application W311 of 2002. But there were other areas where there was substantial overlap between the two sets of submissions. 147 A considerable amount of evidence has been filed on behalf of Woodside and the employers on the issue of safety on the Site. [See, for example, Mr Doyle's affidavit sworn on 19 December 2002]. The evidence deals in particular with the problem of working in very hot conditions. The evidence explains, in great detail, the comprehensive steps being taken by Woodside and the employers to protect and enhance the safety of the employees on Site. There are two factors which are superimposed on that safety regime. 148 First, there is the supervisory role of Worksafe Western Australia. There are some suggestions in the evidence filed on behalf of the State union that Worksafe Western Australia is incompetent and that the State union has the necessary skills and resources to monitor safety on the Site - see for example paragraphs 52, 92 and 93 of Mr Hudston's affidavit sworn on 13 December 2002. 149 Mr Doyle, in his affidavit, squarely deals with that issue. He refers to sixteen visits to the Site by Worksafe inspectors between 8 October 2001 and 21 November 2002. He says Worksafe has not communicated to Woodside or its corporate project manager any dissatisfaction with the way heat stress or any other health or safety issues are being dealt with. Apparently in response to a complaint made by Mr Hudston, on 29 October 2002 a Worksafe Western Australia inspector attended the Site to investigate work being carried out in confined spaces, namely large pipes. According to Mr Doyle's evidence the inspector, after making his inspection, was satisfied with the procedures and controls in place. 150 In October 2002 Phase IV was awarded a "Worksafe Gold Certificate of Achievement" by Worksafe Western Australia. Mr Doyle explains the auditing process (over a period of 3-4 days) which led to that award and the factors taken into assessment. They include low levels of (or a reduction in) work-related injury or disease. 151 The State and Federal union relied on the death on Site on 18 November 2002 of a Mr Coleman, an employee of another contractor. Their evidence was that, in part due to lack of communication by Woodside with the workers on Site in relation to the death, it could be inferred that the death was work-related. Mr Doyle's evidence is that Woodside did communicate with the workers on Site about this death, that Worksafe Western Australia has investigated it and that it did not appear to be related to the method of Mr Coleman's work. 152 The second superimposed factor to which I have referred above is the supervisory safety role played by the AMWU, the AWU and the other unions representing the industrial interests of the employees on site. There is evidence of their numerous attendances on site. 153 I am not satisfied on the evidence before me that matters of safety on the Site require, or point at all substantially towards, the need for the interlocutory orders sought. On the evidence to date I put very little weight on that factor. Apart from anything else, if the State or Federal union had evidence of a particular and specific safety concern, based perhaps on what the employees have told them, it is unthinkable that they would not identify the particular risk rather than let it continue. They have not done so.

[30]

discrimination and breaches of provisions concerning freedom of association 154 I have already outlined above Mr Wade's concerns about alleged discrimination and breaches of freedom of association provisions in both the State Act and the Act. Mr Hudston, in his affidavit of 13 December 2002 expresses similar concerns. 155 CBI, Brambles and Wylie & Skene Pty Ltd have filed affidavits which challenge the factual assertions upon which these concerns are said to be based. They say that there can be no reasonable suspicion of a breach of the freedom of association provisions. They say further that, if there were any such breaches, they would not be readily susceptible of investigation by inspecting or viewing any "work, material, machinery or appliance" in accordance with s 285B of the Act because, so it is submitted, no such work, material, machinery or appliance could be relevant to an alleged breach of this nature. Woodside makes a similar submission. 156 Brambles says that it has been operating on the Site since January 2001 and that Wylie & Skene has been operating on Site since June 2002, but that the State union has made no attempt to exercise its alleged right of entry until October 2002. CBI makes similar submissions. 157 The State and Federal unions argue that if the interlocutory orders are not made, their interests and the interests of their members would be "severely and irremediably prejudiced". The proper investigation of these complaints will, so it is asserted, be compromised and potential court proceedings may be prejudiced. They say further that a number of members have threatened to resign from the union in the light of their current incapacity to service their complaints and concerns. Mr Hudston's evidence is that, in his experience, in these circumstances (including the existence of other unions able to recruit on the Site) the majority of State and Federal union members will terminate their membership in the absence of the interlocutory orders sought. He says that those who do so as a result of being disgruntled for lack of service are unlikely to be able to be recruited back to the union. 158 CBI, Brambles and Wylie & Skene point out that representatives of the State and Federal union can communicate with members or potential members off-site and they appear to have done so to date. 159 I note the evidence from the State and Federal union of their denial of access not only to the Site and the Land, but also to the accommodation area in Karratha provided for the relevant employees. 160 However, my impression is that this aspect (difficulty of gaining access to members and employees eligible to be members) has been somewhat exaggerated. The State and Federal union is free to convene meetings anywhere else in the vicinity of the Land. It can also communicate with members and those eligible to be members in Karratha. At those meetings, they can explain to those employees the efforts which they have made (including a cross-claim in application W311 of 2002 and the filing and prosecution of application W346 of 2002) and point out why their representatives have not been on-site to date, despite what might be described as vigorous attempts. Mr Hudston, in paragraph 75(b) of his affidavit sworn on 13 December 2002, says that Mr Wade has such meetings with workers from the Site on an almost daily basis. 161 I am not satisfied that there is a sufficient risk of irreparable harm to either the State or the Federal union or its members if the interlocutory relief sought were to be refused.

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delay 162 In relation to the State and Federal unions' concerns about safety, discrimination, retention and recruitment of members, I think that there has been a significant and substantial delay on their part, sufficient in itself to warrant refusal of the interlocutory relief sought. 163 In respect of the cross-claim, I note the State union's reliance on the very substantial changes to the right of entry provisions in the State Act which came into force on 1 August 2002. I accept that those amendments significantly expanded the rights of entry hitherto provided. 164 Nevertheless, on their own case, the State and Federal unions could have attempted to avail themselves of their rights of entry under the Act as a means of achieving the same end. There is evidence that work on Phase IV started as early as in January 2002. 165 Given the history of the presence of the State and Federal unions in the Pilbara, I think that they must have been aware (and provisionally I infer that they were aware) of the extent to which their members and persons whom they claim to be eligible to be members were having their interests represented by the AMWU, the AWU and other unions. 166 I note, in that regard, the evidence adduced on behalf of the State and Federal unions about the substantial increase of their members working on the Site and what was said to be a substantial increase in the number of complaints toward the end of the year 2002. On the face of it, those are plausible reasons for their inaction in relation to entry on the Site. 167 However, my provisional impression from all of the evidence before the Court to this stage is that both the State and the Federal unions have, for some as yet undisclosed reason, delayed the relief which they seek in the cross-claim in application W311 of 2002 and in application W346 of 2002. Even if that impression is wrong, the delay is such that it weighs very heavily against granting interlocutory relief of the type sought. I also take into account the long history of the demarcation disputes referred to above.

[32]

inconvenience to woodside, the employers, the amwu and the awu 168 In my view, there is at first glance some appeal in the submissions made on behalf of the State and Federal union to the effect that the grant of the interlocutory orders sought would have no discernible or practical consequence or prejudice for Woodside, Brambles or Wylie & Skene. It might be thought that all that was involved was making available a staff member or two to admit authorised representatives of the unions on to the Site and to escort them either to inspect or view work, materials, machinery or appliances and interview employees about the suspected breaches and to facilitate the holding of discussions with any employees who wish to participate in those discussions. Viewed in that light, it might be thought that the balance of convenience was fairly even on either side. 169 On the other hand, I think that there is some substance in Woodside's submission that there is a risk that the conduct of Messrs McDonald, Wade and Dixon on 14 and 25 October 2002 may be repeated to its prejudice. I have described that conduct earlier in these reasons. The conduct included causing interference to the performance of work on 14 October 2002 (the incident with the bus), and an attempt further to disrupt the performance of work by calling on employees to shut down the Site. 170 Senior counsel for the State and Federal union sought to distinguish between the conduct of Mr McDonald on the one hand and that of Mr Wade and Mr Dixon on the other. However, I note that Mr McDonald is the Assistant Secretary of the State union (and possibly an office bearer of the Federal union). He appears to be the senior person responsible for the State and Federal union in relation to these matters. He has not sworn any affidavit to date. In my assessment, there is a very real risk that the sort of behaviour demonstrated by him would be repeated if the State or Federal union were granted the interlocutory orders sought. I also take into account that conduct as weighing in the balance against the grant of discretionary interlocutory relief. 171 One can understand what might have been the frustration on the part of the union representatives concerned about what they perceived to be a denial of their statutory rights of entry. However, on the state of the evidence to date, part of the conduct on 14 and 25 October 2002 was, in my opinion, inexcusable. Facts may emerge at trial which radically alter that view. 172 CBI submits also that it is reasonably to be apprehended that further disruption will occur to the performance of its work if interlocutory orders are made. Mr Dodgson deposes to those concerns in paragraph 12 of his affidavit sworn on 15 January 2003. 173 In an earlier affidavit, sworn on 19 December 2002, Mr Dodgson swears as follows: "20. The construction project is presently behind schedule and interruptions for discussions with employees who are eligible to be members may cause additional problems. Where employees are performing duties on critical path work, disruption to their activities for the purpose of discussions would be likely to have flow on effects, particularly when the employees concerned are involved in work with cranes which provide materials and equipment for use by other workers. 21. Where employees work in teams, discussion with a member or individual who is eligible to be a member may prevent the whole team from continuing work and would impact on the teams (sic) output." 174 CBI submits that it would have to take employees from their other duties to facilitate representatives of the State union accessing the Site. I take these factors into account but, apart from the risk of a repetition of the conduct of the 14 and 25 October 2002, would, at this stage, accord them only a marginal degree of weight. CBI is apparently well able to cater for the visits of AMWU and AWU representatives to the Site. The same applies to similar arguments advanced on behalf of Brambles and Wylie & Skene in application W346 of 2002. 175 In application W346 of 2002 the AMWU and AWU submit that the "status quo position" is that the Federal union has very limited, if any, coverage of workers on the Site and should not be allowed to engage in a collateral strategy to extend coverage. They submit that the balance of convenience in this regard strongly favours the status quo. I take into account the very limited number of employees on Site who, on the evidence to date, are carrying out work to which the awards relied upon by the State and Federal union may apply. It is not necessary for me otherwise to summarise their submissions. 176 I accept the submission advanced on behalf of Woodside that there is a risk of the creation or exacerbation of a demarcation dispute on Phase IV between the AMWU and AWU (at least) on the one side and the State and Federal union on the other. It would be one thing if that dispute took place in the context of there having been a final hearing and determination of the respective rights of the parties involved. But, to increase the risk of industrial disputation (which I think would probably occur) if orders of the type sought by the State and Federal union were made before such final determination, is in my view, a factor which also weighs in the balance against granting interlocutory relief in either of these matters. 177 In short, I am not persuaded on the evidence and arguments before the Court to date that these are matters in which urgent relief of the interlocutory nature sought in both applications should be granted. In particular, I am not satisfied that the risk of either the State or Federal union or any other interested person suffering irreparable harm outweighs the other factors which I have reviewed above as weighing on the opposite scale of the balance.

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Judgment (41 paragraphs)

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Legislation Cited (7)

Cases Cited (9)

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