WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CFMEU MINING & ENERGY DIVISION, WA DISTRICT BRANCH

CLAIMANT

-v-

TIWEST PTY LTD (ACN 009 343 364)

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

DATE WEDNESDAY, 23 MARCH 2005

FILE NO. M 243 OF 2004

CITATION NO. 2005 WAIRC 01518

REPRESENTATION 

APPLICANT MR J BOOTS (OF COUNSEL) INSTRUCTED BY MESSRS BOOTS & CO LAWYERS

RESPONDENT MR P VAN HATTEM (OF COUNSEL) AND MR D CRONIN (OF COUNSEL) INSTRUCTED BY MESSRS FREEHILLS BARRISTERS & SOLICITORS

REASONS FOR DECISION

Claim

1         By its claim filed on 20 September 2004 the Claimant seeks the imposition of monetary penalties on the Respondent for its alleged contravention of section 49M(1) of the Industrial Relations Act 1979 (the Act) and an injunction to prevent further breaches of that provision.

2         The alleged contraventions are set out in paragraphs 3, 4 and 5 of the schedule to the claim, as amended during the course of the hearing on 2 March 2005.  I set out those paragraphs:

1. The Respondent employer permitted the authorised officials of the Applicant Union to enter the site but not to speak with members and eligible members of the Applicant Union at the place where the employees take their meal breaks during the employees’ meal breaks.  The Applicant Union asserts that this is contrary to s. 49H(1) of the Act and a contravention of s. 49M(1) of the Act.

2. Further, the Respondent employer refused the authorised officials of the Applicant Union to discuss safety issues with employees at the employees’ work station.  The Applicant Union asserts this is contrary to s. 49I(1) of the Act and a contravention of s. 49M(1) of the Act.

3. And further, the Respondent employer refused the authorised officials to investigate breaches of the Occupational Health and Safety Act 1984 (WA) by discussing the same with the employees at the employees’ work station, and the Applicant Union asserts this is contrary to s. 49I(1) of the Act and a contravention of s. 49M(1) of the Act.

Response

3         By its response filed on 13 October 2004 the Respondent denied the alleged contraventions but did not give any particulars in that regard. 

4         Statutory Provisions

5         The relevant provisions are contained in Division 2G of the Act which is headed “Right of entry and inspection by authorised representatives”.  I set out the relevant provisions within that Division.

6         49G.    Interpretation

7         In this Division —

8         “authorised representative” means a person who holds an authority in force under this Division;

9         “relevant employee”, when used in connection with the exercise of a power by an authorised representative of an organisation, means an employee who is a member of the organisation or who is eligible to become a member of the organisation.

10      49H.    Right of entry for discussions with employees

(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.

(2) If an award, order or industrial agreement that extends to the relevant employees makes provision as to entry onto premises by an authorised representative and —

(a) does not require notice to be given by the representative; or

(b) requires a specified period of notice to be given by the representative,

 the authorised representative is not required to give notice under this  section.

If subsection (2) does not apply, the authorised representative is not entitled to exercise a power conferred by this section unless the authorised representative has given the employer of the employees concerned at least 24 hours’ written notice.

11      It is common ground that section 49H(2) did not apply.

12      Section 49I, so far as it is material, provides:

13      49I.    Right of entry to investigate breaches

(1) 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 this Act, the Long Service Leave Act 1958, the MCE Act, the Occupational Safety and Health Act 1984, the Mines Safety and Inspection Act 1994 or an award, order, industrial agreement or employer‑employee agreement that applies to any such employee.

(2) For the purpose of investigating any such suspected breach, the authorised representative may —

 (a) subject to subsections (3) and (6), require the employer to produce for the representative’s inspection, during working hours at the employer’s premises or at any mutually convenient time and place, any employment records of employees or other documents kept by the employer that are related to the suspected breach;

 (b) make copies of the entries in the employment records or documents related to the suspected breach; and

 (c) during working hours, inspect or view any work, material, machinery, or appliance, that is relevant to the suspected breach.

14      Section 49J(1) provides for the Registrar, on application by the secretary of an organisation of employees, to issue an authority for the purpose of the Division to a person nominated by the secretary.  It is not in dispute in this matter that Mr Gary Wood and Ms Kathryn Heiler at the material time held valid authorities.

15      “Organisation” is defined in section 7(1) of the Act to mean “an organisation that is registered under Division 4 of Part II” (of the Act).  Section 58 of the Act provides for the registration of an organisation.  By section 60 of the Act an organisation shall, upon and during registration, become and be for the purposes of the Act a body corporate by its registered name, having perpetual succession.  An organisation can sue and be sued.

16      It will be noted that sections 49H and 49I confer a right upon an authorised representative of an organisation to enter any premises where relevant employees work for the purposes of holding discussions with employees and investigating suspected breaches of specified legislation, an award, order, industrial agreement or employer-employee agreement.

17      Section 49M specifies the conduct which gives rise to civil penalties.  It provides:

18      49M.    Conduct giving rise to civil penalties

(1) 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 section 49H or 49I.

(2) A person must not intentionally and unduly hinder or obstruct an authorised representative in the exercise of the powers conferred by this Division.

(3) A person must not purport to exercise the powers of an authorised representative under this Division if the person is not the holder of a current authority issued by the Registrar under this Division.

19      Section 49O provides that a contravention of section 49M is not an offence but is a civil penalty provision for the purposes of section 83E of the Act.  A contravention of a civil penalty provision renders a person liable to a monetary penalty and/or injunctive control (See section 83E(1) and (2))

20      Section 83E(6) provides:

 (6) An application for an order under this section may be made by —

 (a) a person directly affected by the contravention or, if that person is  a represented person, his or her representative;

 (b) an organisation or association of which a person who comes  within paragraph (a) is a member;

 (c) the Registrar or a Deputy Registrar; or

 (d) an Industrial Inspector.

The Facts

21      On 23 August 2004 Gary Wood and Kathryn Heiler working for The Construction, Forestry, Mining and Energy Union of Workers (CFMEU) sent a facsimile transmission to Tony Martin of “Tiwest” concerning the Kwinana “site”.  I set out the narrative text of the message contained in the facsimile transmission:

You are advised that the above named CFMEU officials hold a current permit issued pursuant to section 49J of the Industrial Relations Act1979 ("the Act").

This fax gives you notice that the above named CFMEU officials intend to exercise right of entry, by visiting the site nominated above in order to speak with members and eligible members from/on:

11.30 am Tuesday 24 August 2004

The purpose of entry to the premises is to hold discussions with employees.

Any queries in relation to this matter should be addressed to Gary Wood on

GARY WOOD & KATHRYN HEILER

22      The site referred to is a pigment plant at Kwinana where synthetic rutile and other raw materials are processed to produce white pigment for use in paints and other products.  The production process is hazardous by its very nature.  There are many potential hazards on site including exposure to acids and other chemicals; exposure to harmful gasses and exposure to moving vehicles and the moving parts of plant and equipment.  There are both audible and visible alarms in case of difficulty or emergency.  Accordingly persons who have not completed a full safety induction are not permitted to move about the site unescorted.  Those entering the site are required to wear protective clothing, helmets, goggles and footwear.  They are issued with a respirator and instructed concerning the use of the same.

23      The plant is located within a large site containing an administration area, maintenance area, two production areas and an amenities building containing lockers, showers and changing rooms.  Located in the Southeastern corner of the site is a third party facility, being a chemical factory.

24      The operation on the site runs continuously facilitated by two twelve-hour shifts over twenty-four hours.  At the material time about seventy people worked at the site.  Workers on site receive a paid meal break, which is usually taken in one of the fifteen crib rooms scattered throughout the site.  Meal breaks are taken at times which are suitable having regard to operational requirements.

25      On 23 August 2004 the facsimile message sent by Mr Wood and Ms Heiler came to the attention of Ms Karen Franz, a Human Resources Adviser at the Kwinana site.  She consequently contacted Mr Wood and discussed with him the proposed visit.  She thereafter made enquiries as to the availability of a suitable venue for Mr Wood and Ms Heiler to meet with relevant employees and to have discussions.  She located an office at the North end of the administration building to be used for the requisite purpose.  She regarded the office to be suitable because it was adequately furnished and permitted privacy.  Employees could enter and leave the office without having to walk through the administration building, which some employees might have found intimidating.

26      Leading up to the arrival of Mr Wood and Ms Heiler, Ms Franz contacted supervisors to inform them of the forthcoming attendance of the union representatives.  One of those contacted was Mr Graham Ireland who was in turn instructed to advise all supervisors in production areas 1 and 2 about the attendance and availability of the union representatives.  Mr Ireland duly advised the supervisors in those sections that they should inform employees within those sections of the fact that union representatives would be attending and would be available to meet with employees.  Ms Franz and Mr Ireland were both of the view that only a very small number of employees at the site were eligible for membership of the union and might be interested in meeting with union representatives.

27      At about 11.30 am on 24 August 2004 Mr Wood and Ms Heiler attended the security gate immediately outside the site.  Ms Franz was informed by security of their arrival.  She left the administration building and exited the site in order to meet with the representatives and escort them onto the site.  Each of Mr Wood and Ms Heiler received respirators and were instructed in their use and thereafter were issued with entry cards.  They were then accompanied to the administration area.

28      Both Mr Wood and Ms Heiler testified that they spoke to Ms Franz in the foyer of the administration building at which place Mr Wood requested that they be permitted to see members at their place of work and he specifically asked to be able to meet with members at the crib room.  Both Mr Wood and Ms Heiler testified that Ms Franz informed them that such was not possible.  Mr Wood said that he repeatedly asked to be permitted to go onto site, which was refused.  Ms Heiler too made the same requests, which were similarly refused.  Ms Franz said it was not possible for them to go to work areas given that the site was a chemical plant.  She is alleged to have said that there was no one available to escort them and that she was too busy to do so.  She told them that a meeting room had been made available for them to meet with any employee who wanted to speak to them.

29      Mr Wood was concerned with what had transpired and accordingly sought legal advice by telephoning a lawyer.  He was advised that there was little that they could do in the circumstances.  Both he and Ms Heiler accepted that they could not do anything at that time and therefore reluctantly proceeded to set up in what was described as a “dusty, dingy room”.  Subsequently a couple of members arrived to see them.  A couple of other curious employees just dropped in to see what they were doing.

30      Ms Heiler testified that one of the reasons for attending the site was to discuss with relevant employees health and safety issues and also to investigate possible breaches of legislation, which governed the same.  During their discussions with workers at the site a complaint was received concerning the safety risks posed by inadequate manning levels.  Consequently it was decided to ask Ms Franz to be permitted to inspect the work area to investigate such concerns.  Mr Wood and Ms Heiler allege that Ms Franz initially refused their request but about twenty minutes later had a change of heart and agreed to accompany Mr Wood and Ms Heiler on a tour of the site in the company of Mr Ireland.  Ms Franz’s evidence is that she did not refuse but wanted to know the specific detail of the suspected breaches.  Her evidence is that she then went to contact Mr Ireland to escort the authorised representatives around the site.   Accordingly the four of them subsequently walked through the site. According to Mr Wood and Ms Heiler they specifically asked to be taken to see members at their work places and also asked to be taken to specific places within the site but were not taken to the places requested.  Consequently they were not able to see or speak to employees and their tour of the site was little more than a walk-through of short duration.  Ms Franz and Mr Ireland on the other hand testified that they took Mr Wood and Ms Heiler to each particular location requested and that they were not refused entry to any part of the site they had asked to be taken to with the exception of the crib rooms.  They were not denied an opportunity to inspect or view anything they had asked to see. 

31      It is common ground that the tour was completed at about 2.30 pm and Mr Wood and Ms Heiler left the site at about 2.40 pm.  Later that afternoon Mr Wood and Ms Heiler met just outside the perimeter of the site with fifteen or twenty employees, some of whom became quite vocal during the course of their meeting.

32      Where there is a direct conflict in the evidence, I prefer the evidence of Mr Wood and Ms Heiler to that of Mr Ireland and Ms Franz.  Mr Ireland was rather too careful in the delivery of his evidence.  He lacked spontaneity and was far too considered in his approach.  The same can be said of Ms Franz.   Ms Franz in particular was unimpressive under cross-examination.  She was most hesitant.  She was not forthright in answering questions.  She did not answer some questions directly.  Her recollection of the events is poor.  Answers given in cross-examination revealed that she does not now recall aspects of what occurred and what was said.  Ms Heiler too, albeit to a lesser extent, suffers from a degree of lack of recollection of certain matters.   The same cannot be said of Mr Wood.  He was by far the most impressive of the witnesses.  He was spontaneous in answering and came across as being truthful.  I accept his testimony as being accurate.  I prefer his version of events to those of other witnesses on issues in direct conflict.

Considerations under sections 49H and 49I

33      The right of entry provisions in sections 49H and 49I of the Act are enabling provisions.  They give power to authorised representatives to do those things specified within those provisions.  The term “entry” connotes more than the physical entry into premises, but rather must be taken to mean, within the context of section 49M(1) of the Act, an entry for the purpose of doing the things specifically sanctioned by sections 49H and 49I.

Claimant’s submissions

34      The Claimant submits that sections 49H and 49I should be interpreted to give full effect to the rights conferred.  To do so, those sections should be read in conjunction with the objects of the Act found at section 6 and in particular the following subsections thereof which provide:

 (ab) to promote the principles of freedom of association and the right to organise;

(ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements;

(af) to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(d) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes; and

(f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation;

35      It is suggested that when that is done the inevitable conclusion that flows is that the authorised representative may enter the employer’s premises, being the whole of the premises and not a room designated by the employer, and may, for the purposes set out in sections 49H and 49I, interview employees at their workstation.

36      The Claimant says that the intention of section 49H is to enable registered organisations to communicate with and service members in relation to matters concerning their employment and/or union affairs and to recruit new members.  That intention is thwarted if the employer can dictate where the representative will go and where discussions will be held.  Such an approach effectively renders section 49H otiose and of no effect.

37      The proper construction of section 49H was examined in a decision of the Full Bench of the Western Australian Industrial Relations Commission in The Most Reverend B Hickey, Archbishop of Perth v ISSOA 83 WAIG 3953.  His Honour the President said at page 3955 (paras 27 – 31):

It was not contended to the Full Bench, and certainly not seriously, that entries to the school premises during lunch hour were not entries “during working hours” within the meaning of s49H(1) of the Act.  In any event, I would, if necessary, apply the authority relating to the same words in the Workplace Relations Act 1996 (as amended), s285C, that the words refer to the period of time during which the premises are open for work and ordinarily occupied for that purpose, and does not include a time when employees are merely on the premises to work overtime (see AMIEU v Australian Food Corporation Pty Ltd (2001) 111 IR 425).

What is embraced by the word “discussions” with employees is not easy to define.  “Discussions” with employees are, in my opinion, not meetings, but discussions may involve more than two persons, and certainly might include a debate (see AMIEU v Thomas Borthwick and Sons (Pacific) Ltd (1001) 39 IR 379).  That point was not in issue in these proceedings either and I make no judgement on the issue (see Re Steelworks Employees and Others – Port Kembla Awards [1962] AR 334 at 373 (NSW IC) per Richards, Beattie and Kelleher JJ – which goes a little further).

There is a useful discussion of these sorts of these provisions, too, in Re An Application by the Director of Brisbane Catholic Education Office Re J S Shepley (1987) volume 29 number 4 AILR 61, where reasons for decision are given by Birch C of the Queensland Industrial Commission (as it was then called).  Whilst I have not been able to examine the precise terms of the then relevant Queensland legislation, some of the observations made by Birch C are relevant to the Act in its own terms.

That case is authority, if it were needed, for the proposition that authorised representatives exercising a right of entry have a right to go where teachers are when they are not actually working, but during working hours and to seek to hold discussions and to hold discussions with those who wish to participate in such discussions and not to do so with those who do not.  That as a matter of evidence seems to occur to a great extent without disputation in the schools the subject of this application.

The crux of this matter was that the ISSOA was not seeking to hold discussions with relevant employees in school staffrooms alone.  (I use the word “staffroom” in these reasons to include lunchrooms, tearooms or other rooms of a similar kind where teachers gather during the working day).  It was seeking that its representative not be excluded from such places for the purposes of s49H discussions.  The order which was made met this application in that it stated the obvious, namely that school premises could be entered, and that this did not exclude school staffrooms.

38      The construction of section 49H was also examined in the matter of The Construction, Forestry, Mining and Energy Union of Workers v SNC-Lavalin (SA) Inc and Another 85 WAIG 139, a decision of Commissioner Kenner arbitrating a dispute referred to the Commission pursuant to section 44(9) of the Act because it was alleged that the employer had denied entry to an authorised representative.

39      At page 143 (paras 35- 43) of his decision Commissioner Kenner said:

As I observed in Transfield Services, the statutory scheme in Divisions 2F and 2G of the Act is in similar terms to the right of entry provisions contained in Division 11A of the WR Act.  The statutory scheme in relation to right of entry under the Act as it now is, seems to seek to balance the legitimate interests of both employee organizations and employers.  In relation to employee organizations, the right of entry provision enables accredited representatives to enter employer premises, for the purposes of holding discussions under s 49H.  Presumably, the intention of the legislature in relation to a provision of this kind, is to enable registered organizations under the Act, to communicate with and to service existing members in relation to matters concerning their employment or union affairs, and additionally, no doubt to enable an opportunity to recruit new members.

Additionally, the right of entry prescribed by s 49I of the Act, perhaps as complimentary to the scheme in Divisions 2F and 2G of the Act as a whole, seems to acknowledge the legitimate role of registered organizations in the process of observance and enforcement of awards, industrial agreements and other legislation relevant to the workplace, as recognized in a long line of authority of industrial courts and tribunals throughout the various jurisdictions. 

The rights of employee organizations under the scheme, are balanced against those of employers, as in recognition that a right of entry  to an employer’s premises can involve a substantial interference with an employer’s rights otherwise possessed, a power exists under s 49J of the Act, for the Commission to suspend or revoke an authorized representative's authority to enter premises in the event that such a representative acts in an improper manner or intentionally and unduly hinders an employer or employees during their working time.  In this regard, by s 49N of the Act, the Commission is given a general supervisory power in relation to matters arising under Divisions 2F and 2G, as long as it does not make any award, order or register an industrial agreement, containing provisions additional to or inconsistent with the statutory scheme.

Also in my view, the statutory scheme under the Act in relation to right of entry, must be interpreted consistent with the principal objects of the Act, in particular those contained in ss 6 (ab), (ad), (af), (d), and (f).

In my opinion, as a matter of construction, the approach adopted by the applicant as to the meaning and effect of s 49H is to be preferred to that suggested by the respondents.  That is, the focus of the inquiry when one considers the operation and effect of s 49H is the relevant “purpose” for which a right of entry is sought to be exercised.  It seems to me that the same rationale of construction, would also apply to s 49I of the Act, in relation to the right of entry to investigate the various breaches, set out in this section.  In my view, as a matter of plain language, taking the words used in s 49H(1) on their ordinary and natural meaning, the words “for the purpose of” control and condition the operation of the preceding words in the subsection, by which the right to enter is invoked. 

What s 49H does in my opinion, is enable an authorised representative, to enter premises during working hours to hold discussions with relevant employees, who wish to participate in those discussions.  There is no obligation on any relevant employee to participate in those discussions.  Whether a relevant employee wishes to do so or not, is a matter entirely for him or her. 

If the contention of the respondents as to the proper construction of s 49H were correct, it seems to me that there would be such barriers to a right of entry, for discussion purposes, to effectively render s 49H otiose and of no effect.  That is, it is difficult to see in practical terms, if an accredited representative of an organization cannot enter relevant premises for the purposes of holding discussions, without first identifying the relevant employees who wish to participate in those discussions, how such matters could be ascertained.  It seems unlikely that parliament would have intended that the employer would effectively maintain an ongoing survey of employee wishes in this regard, about which accredited representatives could be informed, on seeking to exercise a right to enter to hold discussions.  Furthermore, such a construction is predicated upon the assumption, that employees would be sufficiently informed and aware of their rights, in relation to the expression of such a desire. 

Given the general purpose of right of entry provisions, including those existing in the Act prior to the legislative amendments in August 2002, such a construction in my opinion, would have been very unlikely in the ordinary course.  In that regard, it is appropriate, as the applicant did in its written submissions, to have regard to the relevant parliamentary debate leading to the enactment of Divisions 2F and 2G of the Act, as an aid to construction, having regard to s 18 of the Interpretation Act 1984 (WA) and as is permitted by s 19 of that Act.  In that regard, it seems to be the case that the intention was to repeal the existing provisions in ss 49AB and 49B of the Act, which relied upon provisions in awards, industrial agreements and orders of the Commission, and replace them with comprehensive provisions similar to those contained in the WR Act.  Given that the rights of entry under the Act prior to its amendment, were conditioned by such rights existing in awards, industrial agreements and orders of the Commission, and no such instruments that the Commission is aware of, required the ascertainment of the expressed wishes of employees as a condition precedent to entering premises, it would be a surprising result, if the new provisions were intended to erode rights which formerly existed.

Furthermore, some assistance can be gained from the terms of the right of entry provisions contained in the WR Act as set out in Division 11A, particularly section 285C dealing with the right to enter to hold discussions, which is in similar terms as s 49H of the Act.  Whilst great weight cannot be placed on it, some support for the “purpose” focus of the interpretation of s 49H, can be drawn from the fact that a proposed amendment to the terms of Division 11A of the WR Act, to restrict right of entry to accredited representatives (permit holders under the WR Act) who had been expressly invited or requested by employees to enter premises, was not favored by the Commonwealth Senate: See Senate Employment, Workplace Relations, Small Business and Education Legislation Committee “Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999”1999.  Presumably, if the contention of the respondents was correct, then such an amendment would be unnecessary.

40      Sections 285B and 285C of the Workplace Relations Act 1996 provide similar, although not identical, powers to those contained in sections 49H and 49I of the Act.  In ANZ Banking Group Ltd v FSU Print 951766 the decision of the Full Bench of the Federal Commission was delivered on 8 September 2004.  The issue before the Commission was the right to interview employees at their workstation pursuant to section 285B.  At paras 39-43 of the Commission’s decision it said:

[39] It is clear that right of entry under s.285B (or C) of the Act is not at large.  It is for specified purposes and subject to specified conditions.  In that statutory context, it can be concluded that the conditions or limitations upon the right of entry are specified in the Act.  If further conditions or constraints were intended, the Parliament would have identified and specified such further limitations.  It follows that there is no warrant for imposing further conditions upon the statutory right of entry.  There is also no warrant for inferring a condition that the permit holder identifies the suspected breach to the employer.  Nor is there any warrant for importing a condition that the right of entry for the purpose of interviewing employees during working hours may not be at the worksite.  With respect, we do not agree with the ANZ’s contention that the location of interviews undertaken pursuant to s.285B(3)(c) of the Act is entirely at the employers prerogative.  Any additional condition not evident in s.285C of the Act might be seen to detract from the purpose of the provision and exercise of a statutory right of entry.

[40] The statutory right to an interview should not be negated and should be substantively implemented, and the Commission may make orders to facilitate that if a dispute occurs.  We think it likely that the Commission has a broad discretion as to the location of an interview that it designates in any order, if it issues an order.  Factors have to be balanced, and factors such as the need not to disrupt a business, privacy or health and safety considerations may conceivably lead to a range of locations for an interview being ordered, but always having regard to the need for the statutory rights to be substantively implemented.

[41] Again, the touchstone for entry and for the power to make orders is the statutory right to have an interview for the relevant statutory purpose.  The word “interview” should not be interpreted in a narrow, broad or in a technical manner, but according to ordinary usage.

[42] Did the FSU seek an “interview” pursuant to s.285B of the Act?  The ANZ submitted that the dispute should be characterised as having two dimensions, namely, an FSU claim to walk through the employer's place of business and to interview employees at their workstations.  Whilst the proceedings at first instance included reference to a “walk through”, to the extent that it formed a discursive fact it did not become a juridical concept in the order of Smith C.  We see nothing in the order, the subject of this appeal, which deals with a general and unconditioned right to walk through the premises of the appellant.

[43] In our view, the real issue in dispute was, simply, does s.285B of the Act confer upon the FSU the right to interview employees at their place of work, wherever that might be within the premises of the appellant, and was this being sought by the FSU?  There is no conditional aspect of the legislation in relation to where the right to interview an employee conferred by s.285B of the Act might take place.  The dispute was not about a generalised unconditional right or a power to walk through the appellant’s premises, and if it had been then both jurisdictional and discretionary objections could be made. The terminology of a “walk through” is more likely to cause confusion and error than to be helpful in the process of determining the Commission’s relevant jurisdiction and the discretionary exercise of its dispute settlement function provided for by s.285G of the Act.  The right of entry and the exercise of the power conferred upon an authorised person by s.285B of the Act is conditioned by the object of an interview and not otherwise.

41      The Claimant submits that the observation of the Australian Industrial Relations Commission in ANZ Banking Group Ltd v FSU (supra) has equal application to the state legislation.  As with the federal legislation, the state legislation does not designate what part of the premises the authorised representative may enter, nor does it give the employer the right to designate a particular place for the investigation of breaches, the conducting of interviews or the holding of discussions.

Respondent’s submissions

Section 49H

42      The right of entry conferred by section 49H may not be exercised unless the representative has given the employer of the employees concerned at least twenty-four hour’s written notice of the entry.  Accordingly it is for the Claimant to prove for the purpose of section 49H(3) that the Respondent was the employer of relevant employees at that time.  The Respondent suggests that there is no evidence to prove that the Respondent was the employer of relevant employees.

43      The Respondent also asserts that in any event that, entry onto the Kwinana site by the representatives was not refused by any person.  Indeed the undisputed evidence is that the representatives did enter the Kwinana site.

44      The Respondent submits that the alleged refusal of entry is the refusal to permit the representatives to speak with relevant employees at the place where employees take their meal breaks during their meal breaks.  In that regard the Respondent points out that there were no set meal breaks, given that the plant operated with a degree of flexibility which permitted employees to take their meal breaks when they chose having regard to their particular circumstances.  Further it is suggested that the right of entry is confined to the premises where relevant employees work.  The places at which they had their meals were not places where the employees work.  They were places where employees took breaks from work.

45      Another argument advanced by the Respondent is that the notice given by Mr Wood and Ms Heiler did not identify any premises (as defined) other than the Kwinana site, to which entry was permitted.  If the representatives intended to exercise a right of entry in relation to any particular part of the premises comprising the Kwinana site, such part being “premises” in its own right, it was incumbent on Mr Wood and Ms Heiler to have specified each part in the notice given.  They did not do so.  The statutory right was, at best, a right to enter the Kwinana site as a whole, which right was exercised.  There was no statutory right to enter any premises within the site, because no notice of their intention to do so had been given.  It is suggested that Parliament could not have intended that the representatives, having gained entry, could insist on entering particular parts of the premises without notice, particularly in areas where employees do not work, such as crib rooms, changing rooms, showers and toilet facilities and the like.

46      The Respondent argues that, as an occupier of a hazardous site, it has statutory and common law duties concerning the safety of persons on the premises.  There is also a duty to afford the right of entry.  Neither duty overrides or is subservient to the other.  Both must be discharged.  As long as entry is permitted, and the purpose of the entry is not frustrated, reasonable measures to protect the safety of the representatives must be permissible.  Accordingly there was a need for the representatives to be escorted in hazardous areas.

47      The Respondent says that the arrangements made by Ms Franz in response to the notice were sensible, practicable and convenient to all concerned.  Entry in accordance with the notice occurred without undue delay.  The representatives were provided with a furnished office to be used exclusively for their purposes and all employees were notified of their attendance.  The arrangements made by Ms Franz were conducive to and facilitated the purpose for which the entry was made.

48      By contrast the requirement that the representatives be taken to the crib rooms for discussions was not going to be fruitful given that there were fifteen crib rooms on site, of which, in seven of them there was no real possibility of encountering any relevant employees.  Of the remaining eight rooms, it was possible that they could have been used by up to seventy employees of whom no more than six could have been relevant employees.  It would have been a matter of chance or coincidence if a relevant employee had been present at the precise time that the representatives attended the same.  Further their attendance may have been objected to by other employees.

Section 49I

49      The Respondent says that although the right of entry conferred by section 49I does not require prior written notice, the entry must nevertheless be for a specified purpose, namely, investigating any suspected breach of the legislation and other matters specified in the section.

50      The claim alleges a suspected breach of the Occupational Safety and Health Act 1984 (OSHA) as the basis of the right under section 49I, however the evidence of the representatives fell far short of them having a suspicion on 24 August 2004 that there had been a breach of the OSHA. Mr Wood, in cross-examination, suggested that he suspected a breach of the Mines Safety and Inspection Act 1994.  It is pointed out that such Act was not specified in the claim but in any event has no application to the Kwinana site and was not capable of being breached in relation to that site.  Accordingly the Respondent submits that there is no evidentiary basis on which the Court could conclude that any right under section 49I had been enlivened on 24 August 2004.

51      The Respondent submits that entry was not refused in any event.  It points out that after the representatives had been on site for some time they expressed the desire to investigate suspected breaches.  They were then escorted around the site, and taken to each part of the site they specifically asked to see.  Any questions raised were answered.  In the circumstances it cannot be said that there was a refusal to permit the representatives to discuss safety issues with employees at their workstation or a refusal to permit the representatives to investigate breaches of the OSHA.

52      Further the Respondent points out that the matters of complaint are the refusal to permit discussion with employees for the purpose of investigating suspected breaches.  That is a right which is not conferred by section 49I.  That section is to be contrasted with section 285B(3)(c) of the Workplace Relations Act 1996, which expressly confers the right to “interview” relevant employees.  The omission of any right of interview can only lead to the conclusion that the legislature did not intend section 49I to confer on an authorised representative the rights claimed by the Claimant.  Accordingly it is submitted that the failure to facilitate interviews during the investigation was not a denial of any right conferred by section 49I.  In particular it was not a denial of entry under the section.

Respondent’s Further Submissions

53      The Respondent submits that the claim should be dismissed for any of the following reasons:

The Claimant has not adduced evidence to found an inference that it has the legal capacity to apply to the Court for the orders sought in the claim.

The Claimant has not adduced evidence to found an inference that the Respondent has the legal capacity to be the subject of the orders sought in the claim.

The Claimant has not adduced evidence to found standing to apply to the Court for the orders sought in the claim.

The Claimant has not adduced evidence to found an inference that the Respondent was the occupier of the Kwinana site.

The Claimant has not adduced evidence to found an inference that the Respondent engaged in conduct for the purposes of section 49M.

Conclusions

The Claimant alleges that the Respondent has contravened section 49M(1) of the Act in the following ways:

By refusing to permit the authorised officials of the Claimant union to speak with members and eligible members of the Claimant union at the places where the employees take their meal breaks during their meal breaks; and

By refusing to allow authorised officials of the Claimant union to discuss safety issues with employees at their workstation; and

By refusing the authorised officials to investigate breaches of the Occupational Health and Safety Act 1984 (WA) (sic) (Occupational Safety and Health Act 1984) by discussing the same with the employees at the employee’s workstation.

54      With respect to each alleged contravention of section 49M(1) the Claimant must prove, on the balance of probabilities, the following matters:

That it is registered under section 58 of the Act and that it is capable of suing whether under section 60 or otherwise; and

That the Claimant is a registered body corporate and is capable of being sued; and

That the Claimant has standing pursuant to section 83E(6) of the Act to make the claim; and

For the purposes of section 49M(1), that the Respondent was at the material time the occupier of the relevant premises; and

That Mr Wood and Ms Heiler were duly authorised representatives pursuant to section 49J of the Act and that they gave the requisite notice; and

That the Respondent has in the three specified instances refused entry into the relevant premises for Mr Wood and Ms Heiler, being persons who were entitled to enter the premises under section 49H or section 49I of the Act.

55      The Respondent takes issue with respect to all matters requiring proof save that Mr Wood and Ms Heiler on 23 August 2004 gave notice of their intention to exercise their right of entry and that at the time of exercise of such right each of them held a valid authority issued pursuant to section 49J of the Act.

56      The Industrial Magistrate’s Court is a court of law and is governed by the powers conferred on it by the Act.  Its jurisdiction differs from that of the Western Australian Industrial Relations Commission (WAIRC).  In particular, section 26 of the Act, which requires the WAIRC to act “according to equity, good conscience and the substantial merits of the case”, does not apply.  In this Court, matters in issue between the parties need to be strictly proved to the requisite standard of proof.  The Respondent has not filed any particulars of response.  Its substantive response has accordingly only been ascertained during the course of the hearing.  It made no admissions prior to the hearing.  During the hearing its sole pertinent concessions were that Mr Wood and Ms Heiler were authorised representatives pursuant to section 49J of the Act and that they gave notice of their intention to exercise the rights conferred by section 49H of the Act.

57      The Claimant must accordingly prove each of the elements, which remain in issue.  I shall deal firstly with the proof of capacity.

Capacity

58      The Claimant has not adduced evidence in the form of a certificate issued by the Registrar of the WAIRC to prove its existence; nor has it called the Registrar to prove its registration.  There has been no attempt made to formally prove the Claimant’s existence.  Notwithstanding that, its existence can be established in two ways.  Firstly its registration is a matter of public record. Section 105 of the Act provides that the Western Australian Industrial Gazette (WAIG) shall, before all courts and persons acting judicially, be evidence of any of the matter stated therein.  In the WAIG published on 24 October 2001 there appears at page 2724 (81 WAIG 2724) the order of the WAIRC, which establishes the registration of the Claimant.  In any event the registration of the Claimant can be established by inference having regard to exhibits 1 and 2 produced to the Court.  Exhibits 1 and 2 are copies of the identity cards issued to Mr Wood and Ms Heiler.  John Spurling, the Registrar of the WAIRC, issued the cards on 9 October 2002 and 14 August 2004 respectively.  The face of each card shows that the cardholder is approved as an authorised representative of the CFMEU.  Given that pursuant to section 49J(1) of the Act the Registrar can only issue such an authority upon the application of the secretary of an organisation of employees, it follows that at the time of issuance of the authorisation the Claimant must have been registered pursuant to section 58 of the Act.  By virtue of its registration it has the ability to sue pursuant to section 60(2) of the Act.  In the circumstances the registration of the Claimant is proved.  Its continued existence can be inferred by the evidence given by Mr Wood who described himself as the senior vice-president of the Claimant union.

59      The Claimant has not however adduced any evidence that the Respondent is a registered body corporate.  There is consequently no evidentiary foundation to support an inference that the Respondent, as described in the claim, exists or is incorporated and is capable of being sued, whether under the Corporations Act 2001 or its predecessors or otherwise.  Given this fundamental deficiency in the Claimant’s case, the claim cannot succeed.

60      Notwithstanding that finding, I intend for the sake of completeness to address the other matters in issue.

Standing

61      I move to consider the issue of standing to apply.  In the present case the Claimant must come within either paragraph (a) or (b) of section 83E(6) of the Act in order to maintain its claim.  That is to say it must be:

A person directly affected by the contravention or, if that person is a represented person, his or her representative; or

An organisation or association of which a person who comes within paragraph (a) is a member.

62      The Respondent contends that paragraph (a) is not available to the Claimant because the persons directly affected by the contravention of section 49M(1) are those who were refused entry, in this case Mr Wood and Ms Heiler.  The Respondent argues that it cannot be said that the Claimant was directly affected by the contravention.  At best it was only indirectly affected.  Further the expression “represented person” (as defined) has no application in the present circumstances given that the expression is defined to relate to a person with a mental incapacity.  I agree with the Respondent’s submissions.

63      The Claimant’s standing to bring the claim must be under paragraph (b).  The Respondent argues that there is no evidentiary basis for concluding that in August 2004, when the relevant facts arose, or in September 2004, when the claim was made, that the Claimant was a registered organisation.  I reject the Respondent’s contention in that regard for the reasons previously expressed.

64      The Respondent submits further that it cannot be established on the evidence that either Mr Wood or Ms Heiler, the persons directly affected, was a member of the Claimant at either the time of the occurrence or when the claim was made.  The Respondent argues that the authorisation under section 49J is not predicated on membership of the organisation concerned, so no inference of membership is open from the fact of authorisation.  It would have been a simple thing for the Claimant to have adduced evidence that either or both Mr Wood and Ms Heiler was a member of the Claimant in August or September 2004, if that were the case.  The Claimant did not do so.  Mr Wood gave evidence on 2 March 2005 that he was a senior vice-president of the Claimant from which it can be inferred that he was then (2 March 2005) a member.  However there is no presumption or other evidentiary basis for inferring that he was a member in August or September of 2004.

65      I agree with those submissions.  It follows that the Claimant has not adduced evidence to found standing to apply to the Court for the orders sought.  There is no direct or inferential evidence of membership at the material times.  There is no presumption in law, which would otherwise assist the Claimant.  Section 105 of the Act does not assist either because there is nothing within the WAIG which would establish either directly or inferentially that on the material dates Mr Wood and Ms Heiler were members of the Claimant union.  Accordingly the Claimant has failed to prove a fundamental fact which goes to its standing to make the claim.  Accordingly for such reason also the claim cannot succeed.

66      I now move to consider whether there was, by virtue of Ms Franz’s conduct, a refusal of the exercise of rights held by Mr Wood and Ms Heiler to enter the Kwinana site for the purpose of discussion with employees and to investigate breaches.

Powers under sections 49H and 49I

67      It is self evident that both section 49H and section 49I should be interpreted to give full effect to the rights conferred by the Act in the attainment of the objects of the Act.  When that is done the inevitable conclusion, which flows, is that authorised representatives may enter premises occupied by the employer, being the whole of the premises and not just a room or other place therein designated by the occupier.  It is not the case that there is a requirement on the part of the authorised representative to identify each particular place within the site which he or she wants to enter.  Specificity is not required.  In my view the definition of “premises” in section 7 of the Act is an inclusive definition and not one, which ought to be applied in the manner suggested by the Respondent, which results in the restrictive approach adopted.  Their right of entry is one at large, subject of course to the recognition of the fact in some instances having entered the site that representatives cannot wander throughout the same without supervision.  In the present matter supervision was required because of the hazardous nature of the site and the Respondent’s obligation to ensure their safety, and the safety of others, both at common law and pursuant to statutory provisions.  Indeed the right of entry contained in section 49H should be construed in the manner suggested by Kenner C in The Construction, Forestry, Mining and Energy Union of Workers v SNC-Lavalin (SA) Inc and Another (supra).  I agree with the learned Commissioner’s observations therein.  The authorised representative may for the purposes set out in sections 49H and 49I of the Act interview the employees at their workstation or at any other place including the place at which such an employee takes his or her meal break.  There is no restriction.  The occupier may not dictate, subject to legitimate safety considerations, where the authorised representative may speak to members and to those eligible to become members.  In the present instance Ms Franz, by her actions and words, dictated the terms of entry and thereby impeded the ability of the authorised representatives to invoke their powers pursuant to section 49H of the Act.  The authorised representatives were quite entitled to meet with the Claimant’s members and for those eligible to become members in the crib rooms but were denied the opportunity to do so.  There was, in the circumstances, a refusal of entry to the premises by persons entitled to enter pursuant to section 49H of the Act.

68      Moving to a consideration of section 49I of the Act I find as a matter of fact, having preferred the evidence of Mr Wood and Ms Heiler to that of Ms Franz and Mr Ireland, that the authorised representatives were not taken to workplaces that they wanted to see, nor were they permitted to speak to employees at their workstation for the purpose of investigating a breach or breaches of the occupational safety and health laws.

69      The Respondent argues that the authorised person’s rights under section 49I are conditional upon and subject to a suspicion being held by him or her that there has been a breach of the specified legislation, award, order, industrial agreement or employer-employee agreement.  In this matter the Claimant alleges a suspected breach of the OHSA as the basis of the right under section 49I.  The Respondent contends that Ms Heiler did not assert that she suspected that a breach of any legislation had occurred.  With respect I disagree.  It is the case that in discussion with an employee on the material date a complaint was made about the adequacy of manning levels and the ability of the operators to respond in an emergency situation between various areas.  The person spoken to was concerned that there was a risk posed to safety.  Mr Wood had also received complaints prior to his visit on the material date in relation to the risk posed by inadequate manning.  In such circumstances it was the case that each of the authorised representatives suspected a breach of the OSHA.  It was that very reason which caused Ms Heiler, who had expertise in the area of safety, to accompany Mr Wood.  So far as Mr Wood’s reference to the Mines Safety and Inspection Act 1994 during the course of cross-examination is concerned, I take that to be no more than a misnomer on his part.  It is obvious that his suspicions relating to the hazards and risks posed by the alleged lack of manning levels was a matter falling within the provisions of the OSHA.  In the circumstances it cannot be said that the authorised representatives’ rights were not enlivened.

70      The Respondent argues that section 49I does not confer the right to interview relevant employees.  I respectfully disagree.  It is the case that an investigation pursuant to section 49I will almost inevitably and necessarily involve the process of interview.  It is implicit that any investigation will involve an interview.  The Respondent’s contention in that regard is rejected.  The approach taken by the Respondent is too restrictive.  If not explicit, it is implicit within the provision that a right to interview is conferred.  I am fortified in that view given the meaning of “investigate” found in the Shorter Oxford Dictionary, which is:

“To search or inquire into.”

The term “inquire” is also defined therein to mean:

 “2.   To seek knowledge of (a thing) by putting a question; to ask about; to ask (something) of, at (a person); and

5.   To seek information by questioning; to put a question or questions; to ask.”

71      The failure to facilitate interview during an investigation must necessarily be a denial of the rights conferred by section 49I.

Considerations under Section 49M(1)

72      The conduct referred to in section 49M(1) of the Act is the conduct of the “occupier of premises”.  Accordingly only the occupier of the premises is capable of contravening section 49M(1).  For the contravention to be made out there must be evidence before the Court capable of establishing that:

The conduct of Ms Franz was the conduct of, or attributable to, the Respondent; and

The Respondent was on the material date the occupier of the Kwinana site, being the premises in question.

73      In that regard the Respondent contends that the Claimant has failed to adduce evidence capable in law of satisfying either requirement.  It points out that there is simply no evidence as to the identity and tenure of the land comprising the site, be it freehold, leasehold, reserve, unalienated Crown land or otherwise, or who occupied the site at the relevant time.  Land identity and tenure are matters of public record.  It would have been a simple matter for the Claimant to ascertain whether the Respondent had sufficient interest in the land to exercise the level of control, which might afford it the status of occupier, if that were the case, and to adduce evidence to that effect.  The Claimant failed to do so.

74      Further there is no evidence to support an inference that the conduct of Ms Franz must be attributed to the Respondent, so as to be regarded as its conduct.

75      It suffices to say that I agree with those submissions made by the Respondent.  Indeed the relationship between Ms Franz and the Respondent was not explored in evidence.  Consequently I do not know who her employer is.  She was not asked whether the Respondent was her employer at the material time.  Her evidence was that she is employed as the Human Resources Adviser “at” Tiwest.  Whether the Respondent or some other party employs her, I do not know.  All I know is that she works at the Tiwest plant.  Accordingly I cannot find, on the balance of probabilities, that the actions of Ms Franz were the actions of the Respondent.

Determination

The claimant has failed to prove its claim.

G Cicchini

Industrial Magistrate