Proctor : July 2018
30 PROCTOR | July 2018 The Federal Court has rejected the Australian Building and Construction Commission (ABCC) application for breaches of the Fair Work Act 2009 (Cth) (FWA) when two union officials hadacupofteawithafriendata worksite in June 2014.1 Relevant facts Accused union officials Mark Travers and Adam Hall attended a Melbourne building site operated by McConnell Dowell to see their friend and labourer Rod Duggan, who was also the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) shop steward. The trio spoke about recent holidays and four-wheel driving over a cup of tea in the lunchroom for about 20 minutes before the project manager, Luke Naughton, ordered the union officials to leave, threatening police action. Under instruction from the operations manager, David White, Mr Naughton understood that the union officials did not have a right to be on the site as they had not given the 24 hours’ notice required for union visits under s487 of the FWA. The union officials explained they did not have to provide 24 hours’ notice as they were there in a social capacity and advised they would leave in five minutes. Before this particular visit, McDonnell Dowell had not required the union officials to provide formal notice when visiting the site, given the good working relationship between the parties. However, the company had recently failed to comply with right of entry provisions at another site and had implemented new policies to prevent the risk of an exclusion sanction from the Fair Work Building Commission – the ABCC’s predecessor. This was the first visit by union officials without notice since the introduction of the new policies, so the operations manager was admittedly “jumpy about the situation” given the strict new procedures and recent refresher training. When the union officials refused to leave, the project manager left the lunchroom to obtain further instructions from the operations manager, who again advised him to instruct Right of entry dispute just a ‘storm in a teacup’ Is a social visit to a site a breach of entry? the union officials to leave and to call the police if they refused. The project manager returned to the lunchroom, the union officials still refused to leave and the project manager called the police. As per union practice, the union officials remained on site until the police arrived. While waiting, Mr Travers called the operations manager to discuss the situation and allegedly threatened that “if you call the police, you will be starting a war and we will deal with you like we have with Kane Constructions”. 2 About 25 minutes later, the police arrived, took some personal details and left. Section 500—exercising right of entry for the purpose of holding discussions The ABCC alleged contraventions of the FWA’s s500 by both officials. This provides that: “A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.” For the s500 allegations to succeed, the ABCC needed to establish that the union officials were exercising a right of entry “for the purpose of holding discussions” with an employee under s484 of the FWA: “A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF workers: a. who perform work on the premises; and b. whose industrial interests the permit holder’s organisation is entitled to represent; and c. who wish to participate in those discussions.” Following a review of the evidence, Justice North found that because the union officials went on to site to pay a social visit to Mr Duggan over a cup of tea, no inference could be drawn that the union officials were on site for the purpose of discussing work issues. This conclusion stemmed in part from his Honour’s finding that there were no safety or industrial issues at the site either before or after the visit. Regardless of his Honour’s findings, the ABCC submitted that s484 of the FWA was not limited to discussions about work and encompassed an entry by permit holders solely for the purpose of social discussions with workers on site. The ABCC further argued that failure to accept this construction would allow permit holders to avoid the operation of the FWA right of entry provisions and thereby create uncertainty for employers. Following a review of the context of s484 and Part 3-4 of the FWA more generally, Justice North noted that the discussions referred to are those between a permit holder and a person who performs work on the site, and therefore must relate to the work performed and the representational role of the permit holder. In making this conclusion, his Honour noted that the circumstances surrounding an exercise of right of entry powers will commonly identify the purpose of the discussions without much room for debate and that the occupiers of sites are sufficiently protected by the laws of trespass. Section 348—threatening action against another person to engage in industrial activity The ABCC also alleged a breach of s348 by Mr Travers, which provides that: “A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.” The s348 allegation related to Mr Travers’ alleged comments to the operations manager (“police involvement would start a war”). However, following a review of the evidence from Mr Travers and the operations manager, his Honour found there were no circumstances from which an inference could be drawn that supported one version over the other. Consequently, Justice North could not find that the ABCC had established, on the balance of probabilities, that the words had been said.