100314915

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

APPLICANT

 -v-

 WOODSIDE ENERGY LIMITED, C.B.I. CONSTRUCTORS PTY LTD

RESPONDENTS

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 27 NOVEMBER 2002

FILE NO/S M 304 OF 2002

CITATION NO. 2003 WAIRC 07369

_______________________________________________________________________________

Result Application for interim orders adjourned

Representation

Claimant Mr M Bromberg of counsel, and with him Mr T Kucera of counsel

Respondent Mr H Dixon SC, and with him Mr D Parker of counsel, appeared for the first respondent.

Mr R Le Miere QC, and with him Mr S Ellis of counsel, appeared for the second respondent.

Mr M Lundberg of counsel, appeared on behalf of the Honourable Minister for Employment and Workplace Relations of the Commonwealth of Australia.

_______________________________________________________________________________

Background

1         The Claimant, by its claim filed 11 November 2002, alleges that the Respondents have breached section 49M(1) of the Industrial Relations Act 1979 (the Act).  It seeks injunctive relief against the Respondents.  It also seeks, pending final determination, interim orders pursuant to section 83E(5) of the Act preventing further breach.  In essence the Claimant seeks that the Claimant, through its officers, be permitted to carry out its lawful entitlements pursuant to sections 49H and 49I of the Act.

Section 49M(1) provides:

“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.”

  Sections 49H and 49I provide:

 “49H.    Right of entry for discussions with employees

(1) An authorised representative of an organization 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.

(3) 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.

49I.    Right of entry to investigate breaches

(1) An authorised representative of an organization 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, other than workplace agreements, 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.

(3) The authorised representative is not entitled to require an employer to produce an employment record of an employee if the employee —

(a)   is a party to an employer‑employee agreement; and

(b) has made a written request to the employer that the record not be available for inspection by an authorised representative.

(4) A written request under subsection (3)(b) —

(a) may be withdrawn by written notice given by the employee to the employer; and

(b)   has effect until it is so withdrawn.

(5) An authorised representative is not entitled to exercise a power conferred by this section for the purpose of investigating a suspected breach of an employer‑employee agreement to which a relevant employee is a party unless the authorised representative is authorised in writing by that relevant employee to carry out the investigation.

(6) An authorised representative is not entitled to require the production of employment records or other documents unless, before exercising the power, the authorised representative has given the employer concerned —

(a) if the records or other documents are kept on the employer’s premises, at least 24 hours’ written notice; or

(b) if the records or other documents are kept elsewhere, at least 48 hours’ written notice.

(7) The Commission may, on the ex parte application of an authorised representative, waive the requirement to give the employer concerned notice of an intended exercise of a power under subsection (6) if the Commission is satisfied that to give such notice would defeat the purpose for which the power is intended to be exercised.

(8) If the requirement for notice is waived under subsection (7) —

(a) the Commission must give the authorised representative a certificate authorising the exercise of the power without notice; and

(b) the authorised representative must, after entering the premises and before requiring the production of the records or documents, give the person who is apparently in charge of the premises the certificate or a copy of the certificate.”

2         By interlocutory application filed on 13 November 2002 the Claimant sought:

“Interim orders pursuant to s. 83E(5) of the Industrial Relations Act 1979 in the following terms:

(1)   The Respondents by themselves, their servants, representatives, or agents be restrained until the final determination of this proceeding or further order from refusing, hindering, obstructing or preventing the Claimant’s authorised representatives entering the First Respondent’s lease on the Burrup Peninsula for the purposes of investigating suspected breaches or holding discussions with employees as provided for in the Industrial Relations Act 1979;

(2)   The Respondents by themselves, their servants, representatives, or agents be restrained until the final determination of this proceeding or further order from refusing, hindering, obstructing or preventing the Claimant’s authorised representatives:

(a)         interviewing employees including where work is being performed; and

(b)         inspecting or viewing any appliances, machinery, materials or work.

(3)   The Respondents by themselves, their servants, representatives, or agents be restrained until the final determination of this proceeding or further order from requiring or insisting that the Claimant’s authorised representatives disclose to the Respondents themselves, their servants, representatives, or agents:

(a)         the names of any employees who may be interviewed by the Claimant’s authorised representatives; or

(b)         the details or nature of any suspected breaches;

(4)   The Respondents by themselves, their servants, representatives, or agents be restrained until the final determination of this proceeding or further order from requiring or insisting that any person be present while the Claimant’s authorised representatives are exercising their powers pursuant to Part II Division 2G of the Industrial Relations Act 1979; and

(5)   There be liberty to apply.”

3         The Respondents who, at the hearing of the interlocutory application, made application for the adjournment of the same opposed the application seeking interim orders.  The Respondents submitted that, given that there were proceedings on foot in the Federal Court of Australia with respect to substantially the same matter, and given that there were necessary pivotal constitutional issues to be determined with respect to the matter which strikes at the validity of the relevant provisions referred to, that this Court should defer its consideration of the matter pending the determination of the matter by the Federal Court of Australia.  The Claimant opposed the application for an adjournment.

4         Mr Lundberg instructed by the Honourable Minister for Employment and Workplace Relations of the Commonwealth of Australia sought to intervene and be heard with respect to the applications made by the Respondents.

REASONS FOR DECISION

(Given orally during and at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Worship)

(His Worship first dealt with the application for leave to intervene.)

5         The Honourable Minister for Employment and Workplace Relations of the Commonwealth of Australia seeks leave to intervene in this proceeding.

6         There is no legislative basis for such intervention.  Leave is sought based on my inherent powers to regulate my own proceedings.  This Court does not possess inherent jurisdiction, it is a creature of statute. It operates within the statutory framework provided.

7         The Minister brings the intervention application in this instance so that he can be heard on issues that are in controversy between the parties in relation to the matter before me.  To allow the Minister to intervene in this matter would, in my view, be inappropriate given the lack of statutory power.  What the Minister seeks goes beyond my powers of regulating my own proceedings.  Rather it relates to being heard in relation to the matter as a substantive party to the matter before me.

8         If it were Parliament’s intention that the Minister be heard in such a way, then it would have specifically given me power to do so.  I take the view that I have no power to grant leave to intervene and I decline the application.

(His Worship next dealt with the application by the Respondents to adjourn the application by the Claimant for an interim order.)

9         The Respondents seek that this matter, being an application for an interim order, be adjourned pending a determination in the Federal Court of Australia of matter No W311 of 2002 that is before it.  Although the Claimant and the Second Respondent in these proceedings are not parties to that particular action, I am informed in an affidavit sworn on 26 November 2002 by Dean Brajevic on behalf of the First Respondent that an application has been made to the Federal Court of Australia seeking to have the Claimant and the Second Respondent joined as parties to that action.  It appears further that that matter will come on before the Federal Court of Australia this Friday.

10     In its application before the Federal Court of Australia, the First Respondent in these proceedings seeks declaratory orders, including an order that Division 2G of Part II of the Industrial Relations Act 1979 concerning rights of entry are inconsistent with the relevant provisions of the Workplace Relations Act 1966, and that they are accordingly inoperative.  Further, and in the alternative, it seeks a declaration that the State provisions are inconsistent with the certified agreements entered into between the First Respondent and various unions by reason of section 170LZ(l) of the Workplace Relations Act 1996.

11     I am informed that on 15 November 2002, the First Respondent filed a notice of a constitutional matter in which it states, inter alia, that Division 2G of Part II of the Industrial Relations Act 1979 are inconsistent with Part IX Division 11A of the Workplace Relations Act 1996, or alternatively inconsistent with the certified agreements.

12     The Respondents argue that there would be little or no utility in having the same issues ventilated in this jurisdiction, given that they are or will be the subject of consideration by the Federal Court of Australia, which is superior to this Court.

13     The Claimant, on the other hand, says that an adjournment of this matter before me pending the outcome of the Federal Court proceedings is tantamount to a stay that will have the effect of rendering nugatory the Claimant's attempt to obtain interim relief in the form of the injunction in accordance with the application that is before this Court.  The Claimant says that it would be prejudiced by a delay that would inevitably flow and the prejudice to it would be that of not being able to service its members.  That would have deleterious effects, not only on its members, but also upon the Claimant itself in that members would be dissatisfied at the lack of action.

14     It seems to me that there are a number of factors to be noted and considered in respect of the Federal Court proceedings.  They are, firstly, that the action as it now stands is one in which the parties are not the same as the parties in this particular action.  Further, there is no guarantee that the parties will be joined.  Thirdly, the Federal Court of Australia cannot deal with an interim application such as the one that is before me.  Those matters are noted.  Having said that, however, it seems most unlikely that an application to join the Claimant and the Second Respondent would not succeed.

15     Clearly the jurisdictional issue of whether or not the Commonwealth legislation or certified agreements thereunder cover the field or have precedence is of pivotal importance to both the determination of this Court and any determination by the Federal Court.  The Claimant's ability to pursue its claim and, for that matter, the interlocutory relief sought, is totally and wholly contingent upon the State law not being inconsistent with the Commonwealth legislation.  It appears, from what I have heard today, that the argument on the issue is not clear-cut.  It is obviously open to considerable argument between the parties.  The issue is obviously a critical one.  In my view, any determination of this interlocutory application necessarily requires consideration of the constitutional issues, which are the very same issues to be determined by the Federal Court of Australia.

16     Further, it appears to me that it would be highly unlikely that if this interlocutory application were to be proceeded with, that the matter could be dealt with upon the basis outlined in section 78B(5) of the Judiciary Act 1903.  The evidentiary material before me does not dictate urgency.  There is no evidence, for example, that the death of the worker, which was referred to in the supplementary affidavit of Mark Hudston, is linked to a work related factor.  In any event, regulatory bodies protect the interests of the workers in respect to health issues.  There are inspectors to protect them in that regard.

17     Additionally, it is clear from the affidavits filed by the Claimant in this matter that the Claimant has been able to communicate with its members and clearly such communication can continue.

18     If I was to deal with this matter, it is most unlikely that the matter would proceed pursuant to the provisions of section 78B(5) of the Judiciary Act 1903.  If that were so, the position would be that various notices would be required to be sent to the Attorneys General.  In those circumstances, I would simply be embarking upon the very same process that the Federal Court of Australia would be embarking upon.  In effect, there would be two sets of proceedings on foot, which, in each instance, the Court is being asked to determine the very same issue.  The respective Courts would be hearing from the very same parties in relation to the matter, including any interventions from the Attorneys General.  That is clearly undesirable for a number of reasons, including, and most importantly, the possibility of two different outcomes being achieved.  Public interest demands that such not occur.

19     The Federal Court of Australia can determine the pivotal issues before this Court.  Such determination is final and binding upon this Court.  Quite frankly, I see little utility in my dealing with this application in the circumstances.  If I were to determine the matter, it would in reality not be a final determination of the constitutional issues.  However, if the Federal Court deals with the matter and determines it, it would in reality be a final determination of the constitutional issues.

20     For the reasons that I have stated I take the view that I should accede to the application made by the First and Second Respondents in this case and in so doing I accept generally the submissions made by Mr Dixon and Mr Le Miere on their behalf.  I therefore accede to the application made by the Respondents for an adjournment of these proceedings.

 (His Worship then heard the parties in relation to the future conduct of the substantive claim.)

21     Mr Dixon has raised the issue of not only the interlocutory application being adjourned pending the determination of the Federal Court of Australia in matter No W311 of 2002, but also that the claim generally be adjourned pending such determination.  The concern that the Claimant has is that, if the Respondents were to be unsuccessful in respect of their argument before the Federal Court that this matter proceeds as quickly as possible.  It is concerned that if a response is in each instance not filed, and the requisite notices pursuant to section 78B of the Judiciary Act 1903 are not sent, there would be a delay in proceedings.  On the other hand, the Respondents say that the filing of the response together with the issuing of the appropriate notices pursuant to section 78B would entail costs and would require duplication.

22     One of the reasons why I have determined that I should not deal with the matter, as Mr Dixon has quite correctly pointed out, is that duplication would be involved.  To require a response to be filed and for notices to issue, in my view, would be simply causing duplication.

23     In those circumstances I take the view that the matter should be adjourned generally without the requirement for the Respondents to file a response until such time as the Federal Court of Australia makes the determination.  I would have thought that the appropriate way to deal with the matter is that in the event of the Federal Court of Australia determining that there is no invalidity or inconsistency, that within 7 days of that determination, a response should be filed.