FEDERAL COURT OF AUSTRALIA Australasian Meat Industry Employees' Union v Australian Food Corporation Pty Limited [2001] FCA 1709 industrial laW - Entry into employer's premises – Demand for entry by union officers holding permits issued by Industrial Registrar – Demand refused – Proceeding for penalty – Orders made by industrial magistrate set aside on appeal – Further appeal – Whether the respondent was the "occupier" of the premises at the date of the demand – Whether the demand was made "during working hours". Workplace Relations Act 1996 ss 4, 285A, 285B, 285C, 285D, 285E, 285F AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION v AUSTRALIAN FOOD CORPORATION PTY LIMITED Q110 of 2001 WILCOX, HILL & CARR JJ 7 DECEMBER 2001 SYDNEY (HEARD IN BRISBANE) IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 110 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION APPELLANT AND: AUSTRALIAN FOOD CORPORATION PTY LIMITED RESPONDENT JUDGE: WILCOX, HILL and CARR JJ DATE OF ORDER: 7 DECEMBER 2001 WHERE MADE: SYDNEY (HEARD IN BRISBANE) THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 110 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION APPELLANT AND: AUSTRALIAN FOOD CORPORATION PTY LIMITED RESPONDENT JUDGE: WILCOX, HILL and CARR JJ DATE: 7 DECEMBER 2001 PLACE: SYDNEY (HEARD IN BRISBANE) REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal against a decision of a judge of the Court (Dowsett J) setting aside orders made by an industrial magistrate in connection with a complaint of refusal to permit entry into certain premises. Dowsett J ordered that, in lieu of the orders made by the magistrate, the complaint be dismissed. Two issues have been argued on the appeal: whether the respondent was the "occupier" of the premises at the relevant time and whether the evidence established an attempt to inspect the premises "during working hours". The statutory provisions 2 Division 11A of Part IX of the Workplace Relations Act 1996 provides to registered organisations a restricted right of entry into premises. Section 285A empowers the Registrar to issue permits to officers and employees of registered organisations. Permits are valid for three years unless earlier revoked. 3 Section 285B(1) and (2) provides: "(1) This section applies if a person who holds a permit in force under this Division suspects that a breach has occurred, or is occurring, of: (a) this Act; or (b) an award, an order of the Commission, or a certified agreement, that is in force and binds the organisation of which the person is an officer or employee. (2) For the purpose of investigating the suspected breach, the person may enter, during working hours, any premises where employees work who are members of the organisation of which the person is an officer or employee." 4 The section goes on to authorise the person entering the premises to obtain particular information. 5 A second right of entry is conferred on permit holders by s 285C of the Workplace Relations Act. This is a right to enter for the purpose of holding discussions with employees. There are limitations on this right but it is not necessary to set them out. 6 Section 285D controls exercise of the right of entry. In particular, it is a condition of the exercise of the right of entry that the person "has given to the occupier of the premises at least 24 hours' notice of the person's intention to do so". 7 Section 285E(2) provides: "The occupier of premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 285B or 285C." 8 Section 4 of the Act provides that the word "occupier", in relation to premises, "includes a person in charge of the premises". 9 Section 285F of the Workplace Relations Act confers on an "eligible court", a term that includes a magistrates court, jurisdiction to impose a penalty in respect of contravention of a "penalty provision", a term that includes s 285E(2). The penalty is not to exceed $10,000 in the case of a body corporate or $2,000 in other cases. The section also empowers an eligible court to grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision. The proceeding before the magistrate (i) The complaint 10 Australasian Meat Industry Employees' Union ("the union"), the present appellant, is an employee organisation registered under the Workplace Relations Act. On 15 March 2000 it made a complaint to the Industrial Magistrates Court at Ipswich, Queensland against Australian Food Corporation Pty Limited, the present respondent. The complaint alleged: "… that the Defendant through its servants and agents did on 14 March 2000 in the Magistrates Court district of Ipswich refuse entry to Brian Patrick Crawford onto premises it was the occupier of, namely 26 Coominya Connection Road, when the said Brian Patrick Crawford was on 14 March 2000 the holder of a current permit issued by the Registrar of the Australian Industrial Relations Commission pursuant to s 285A of the Workplace Relations Act 1996 (Cth) ['the Act'], and the said Brian Patrick Crawford was an officer of an organisation having members employed by the defendant at 26 Coominya Connection Road on 14 March 2000 and the said Brian Patrick Crawford gave more than 24 hours notice of his intention to enter to investigate bone fide suspected breaches of s 298K of the Act." 11 By its complaint (as amended at the hearing), the union sought an order under s 285F(2) of the Workplace Relations Act imposing upon Australian Food Corporation Pty Limited a penalty for a breach of s 285E(2) of that Act, an order pursuant to s 356(b) of that Act that the penalty, or part of it, be paid to the union and an order restraining Australian Food Corporation Pty Limited from preventing the entry of Mr Crawford into the premises located at 26 Coominya Connection Road for the purpose of investigating suspected breaches of s 298K of the Workplace Relations Act. (ii) The correspondence 12 At the hearing of the complaint, the union was represented by an officer, Mr L Norris. Australian Food Corporation Pty Limited was represented by Mr J E Murdoch SC instructed by Corrs Chambers Westgarth, solicitors. Mr Murdoch raised an objection to the magistrate's jurisdiction but this was overruled. After the objection to jurisdiction was determined, Mr Norris called his only witness, Mr Crawford. Mr Crawford said he was assistant secretary of the Queensland branch of the union. 13 Through Mr Crawford, Mr Norris tendered a series of letters. As the union placed considerable reliance on those letters in relation to the issue about the respondent's occupation of the premises, it is desirable to refer to their content. 14 The earliest letter is dated 2 March 2000. It is typed on a letterhead of Australian Food Corporation Pty Limited. The letterhead gives the following address: "Australian Food Corporation Pty Limited 26 Coominya Connection Road PO Box 401 Coominya QLD 4311" The letterhead bears a circular logo comprising the letters "AFC" surrounded by the words "Australian Food Corporation". 15 The letter was addressed to Mr Crawford at the union's office in East Brisbane. It read: "Further to your telephone call today, we advise that we refuse your request to enter our premises as you have failed to establish the basis for such entry under the Workplace Relation Act 1996." The letter was signed "Peter Fullelove, Group General Manager". 16 In argument before us, counsel for the union, Mr J Nolan, drew attention to the possessive pronoun "our", in connection with the subject premises, in a letter written on the letterhead of Australian Food Corporation Pty Limited. He said this should be treated as an admission that the subject premises were owned or controlled by Australian Food Corporation Pty Limited. 17 Mr Crawford responded, on 3 March 2000, to Mr Fullelove's letter. He enclosed copies of permits under s 285A issued to himself and Ian McLauchlan, another officer of the union. Mr Crawford set out reasons for believing they were entitled to enter the abattoir pursuant to both s 285C and s 285B(1)(a) of the Workplace Relations Act. He said the union is a respondent to the Federal Meat Industry (Processing) Award 1996 and this award "binds AFC in respect of the Coominya abattoir by reason of AFC's membership of the National Meat Association of Australia". 18 Mr Crawford did not specify to whom he referred as "AFC". However, the letter was addressed to "Mr Peter Fullelove, Australian Food Corporation Pty Ltd, Coominya". So it is reasonable to infer he meant that company. 19 Mr Fullelove responded with a letter to Mr Crawford, also dated 3 March 2000, and typed on the letterhead of Australian Food Corporation Pty Limited. This letter canvassed Mr Crawford's reasons. Mr Fullelove said: "We do not believe that there are any employees who wish to participate in discussions with your organisation. If you contend that this is incorrect, please provide a schedule of names so that we may verify your claim." He also asserted the union had no "members working on these premises". 20 Mr Crawford wrote on 6 March identifying two persons (Richard Wigg and Dallas Burow) who, he said, were members of the union and wished "to participate in discussion with their paid representatives". He said he and Mr McLauchlan would attend the premises that day. 21 Mr Fullelove again immediately responded, using the same letterhead. He said: "We were not aware that Richard Wigg and Dallas Burow are members of the AMIEU. Those employees are not due to commence work until 3pm. We intend to confirm with both employees whether they are members of the AMIEU and, if so, wish to have discussions with you. We will advise you further by facsimile after we have done so. Until we are satisfied that you are entitled to enter the premises under Section 285B or 285C of the Workplace Relations Act 1996, you will not be permitted entry." 22 On 8 March Mr Crawford wrote again to Mr Fullelove, this time identifying 22 other "AFC employees" that "we now have as members". He said the union's right of entry was not dependent on the company conducting checks that these people were members of the union and he and Mr McLauchlan would exercise their "right of entry" on 9 March. 23 Once again Mr Fullelove immediately replied; once again on the Australian Food Corporation Pty Limited letterhead. He challenged Mr Crawford's entitlement to enter and his motive for seeking to do so. His letter concluded: "You have not established a basis for exercising a right of entry under the Act. We refuse your request to enter our premises. We object to your continual harassment by means of unreasonable requests for entry." 24 Mr Nolan drew attention to this refusal by Mr Fullelove, on an Australian Food Corporation Pty Limited letterhead, of Mr Crawford's "request to enter our premises". 25 Mr Crawford responded on 9 March 2000, contesting Mr Fullelove's asserted reasons for refusing entry. 26 Later that day Mr Crawford sent a second letter, notifying Mr Fullelove that he and Mr McLauchlan "will enter Coominya Abattoir on 13 March 2000 pursuant to s 285C and s 285B(1)(a) of the Act". On the following day, he faxed a further letter, substituting a reference to 14 March. (iii) Other documentary evidence 27 Evidence tendered to the magistrate by Mr Murdoch included a certificate of registration of Australian Food Corporation Pty Limited. This certificate showed a change of name, from Keystone Meat Processing Pty Limited, on 25 February 1997. There was also an extract of information concerning this company recorded by the Australian Securities and Investments Commission. The extract showed 100 ordinary shares were on issue; 50 were held by Keystone Foods Pty Limited of Sydney and 50 by Spring Creek Investments Pty Ltd of Brisbane. 28 The evidence also included a search of another company, AFC Abattoirs Pty Limited. This company was first registered on 22 January 1997. It had the same four directors as Australian Food Corporation Pty Limited; one of whom was Mr Fullelove. According to the search, AFC Abattoirs Pty Limited was also owned by Keystone Foods Pty Limited and Spring Creek Investments Pty Ltd, but this time in the proportions 60/40. 29 Other evidence included a surveyor's plan dated 23 June 2000, of what it described as "Coominya Abattoir". The plan referred to four allotments. Lot 21 RP 911288 is a corner allotment with an extensive frontage to Brisbane Valley Highway and a smaller frontage to Connection Road. Lot 1 RP 867653 is a large battleaxe allotment with a comparatively small frontage to Connection Road. It opens out behind lot 3 RP 867653, an allotment that has a frontage to Connection Road and extends beyond the limit of the plan. 30 Intruding into lot 21, and without any road frontage of its own, is lot 20 RP 911288. Access to this small island allotment is through the battleaxe handle of lot 1. 31 The plan marks lot 20 with a shading identified as denoting "AFC Pty Ltd (Meat Processing plant)" and lot 1 with a different shading noted as "AFAC Pty Ltd (Abattoir)". On the battleaxe handle, at a point short of the foremost part of lot 20, is a marking noted as "Approximate position of entrance security hut". 32 It was accepted at the magistrate's hearing that the abattoir is situated on lot 1 and that lot 20 contains a factory used in the manufacture of meat patties. 33 Mr Murdoch tendered a search of the title to lot 20 Registered Plan 911288. It showed the registered proprietor as Australian Food Corporation Pty Limited. The evidence does not identify the registered proprietor of any of the other allotments noted on the surveyor's plan. 34 Finally there were documents concerning the provision of security services by Wivenhoe Security of Coominya. They included a letter from Tim Watson of Wivenhoe Security, dated 18 February 1997 and marked for the attention of "Mike Eathorne, Australian Food Corporation (Abattoir Division)". The letter quoted an hourly charge rate for "providing a full security service of the plant and property of the abattoir and the adjacent patty factory". The other document was a "Security Agreement Between AFC Abattoirs Pty Limited, Connection Road Coominya, and Wivenhoe Security, 40 Larsens Road Coominya". The agreement was typed on a letterhead bearing the name "AFC Abattoirs Pty Limited" but which included the same logo ("AFC" surrounded by the words "Australian Food Corporation") as that used on the letterhead of Australian Food Corporation Pty Limited. It was signed by Mr Watson, as proprietor of Wivenhoe Security, and, on behalf of AFC Abattoirs Pty Limited, by Mr Eathorne as General Manager. The agreement included terms requiring Wivenhoe Security to supply "Australian Food Corporation" with names, addresses and qualifications of all Wivenhoe Security employees and weekly rosters of security personnel. There was no requirement for supply of this information to AFC Abattoirs Pty Limited. (iv) The oral evidence 35 Mr Crawford gave oral evidence as to the basis of his assertion of a right to enter the premises and also about the correspondence. He was taken by Mr Norris to the events of 14 March 2000, the date of the alleged breach of s 285E(2). He said this was a Tuesday. Mr Crawford said he and Mr McLauchlan "attended the plant at about 7.20" on the morning of that day. He was asked to describe his observations. Mr Crawford replied: "I attended the plant approximately 7.20. There was activity on the plant. There was trucks coming and going. There was cars in the car park. There was people walking around on the plant." 36 Mr Crawford approached the security gate where he found Mr Watson. Mr Watson refused him entry. Mr Crawford moved his vehicle and tried again, but without success. He was in the vicinity of the gatehouse until about 7.35am. 37 Mr Murdoch did not cross-examine Mr Crawford. However, he called Mr Fullelove and showed him the surveyor's plan. Mr Murdoch asked Mr Fullelove whether he "can identify on that plan where AFC Abattoirs Pty Ltd operates and owns the abattoir". Mr Fullelove replied "Lot 1 of RP 867653". Mr Murdoch then asked Mr Fullelove whether Australian Food Corporation Pty Limited had a business. He said it had the business of processing meat patties. He said this was done at a factory on Lot 20 of RP 911288. Mr Fullelove said the gatehouse was located "on lot 1 of the land owned by AFC Abattoirs". He said the gatehouse was operated pursuant to a contractual arrangement with Wivenhoe Security. Mr Fullelove said there was no contractual arrangement, to his knowledge, between Wivenhoe Security and Australian Food Corporation Pty Limited. He also said that company did not employ labour at the abattoir; even the labour at the patty factory was employed by yet another company, Coominya AFC Pty Ltd. 38 Mr Norris cross-examined Mr Fullelove but did not challenge any of the evidence I have summarised. Mr Norris procured Mr Fullelove's agreement that it would be necessary to pass the gatehouse in order to reach the meat patty factory. Mr Fullelove stated he was a director of both AFC Abattoirs Pty Limited and Australian Food Corporation Pty Limited and that people wishing to enter the premises would normally talk to him. He said unauthorised people were not allowed on the property and Mr Crawford "didn't have an appointment to enter the property". 39 After the completion of Mr Fullelove's evidence, the magistrate heard addresses and reserved his decision. (v) The magistrate's decision 40 On 17 July 2000 the magistrate delivered a decision in which he rejected all points argued by Mr Murdoch and found, on the balance of probabilities, that the respondent, Australian Food Corporation Pty Limited, had contravened s 285E(2) of the Workplace Relations Act. The magistrate found Mr Crawford entertained a reasonable suspicion that a breach of s 298K(1)(b) of the Workplace Relations Act had occurred. 41 In relation to the question whether the request to enter was made within working hours, the magistrate referred to Mr Crawford's evidence, as set out at para 35 above. He said he was "satisfied that work was being performed at the time entry was sought and that such entry was sought during working hours". 42 In relation to the question whether Australian Food Corporation Pty Limited was the occupier of the premises to which access was sought, the magistrate said: "The main thrust of the respondent's case is that Mr Crawford was seeking entry to the abattoirs. With that in mind, the respondent company, through its director, Mr Fullelove, has given evidence to distinguish between those structures upon the land situated at 26 Coominya Connection Road, Coominya. Such evidence has been given orally and by way of production of documents. Mr Murdoch has argued that such evidence establishes that the respondent company was neither the owner nor occupier of those premises, that the respondent company did not employ any persons on those premises. Further, it could not be said that Mr Watson, who refused entry, was the servant or agent of the respondent company. The alleged contravention is the refusal of the occupier to allow entry and not the owner. It does not matter that the respondent company was not the owner. It must be remembered that the premises to which the contravention alleged in the complaint relates, are those premises situated at 26 Coominya Connection Road, Coominya. There is no dispute that there is situated at that location a Paddy [sic: patty] Meat Processing Plant owned by the respondent company and an abattoir owned by AFC Abattoirs Proprietary Limited. There is no evidence before me that these structures are separated by any fence or separately defined in any other way. Entry to both premises is gained by one means only and that is through a gatehouse, which is manned by a security officer. In addition, the directors of each company are the same. The purpose of the legislation is to permit organisations to have access to its members during working hours. That purpose should not be defeated by any technical or fanciful argument of who is or who is not an occupier. Each case, of course, will depend on its own particular facts and the whole of the circumstances must be looked at. In this case, both companies can be said to be occupiers at that location. Whilst the owners of the parcels of land can be identified separately, they remain in joint occupation of the whole complex, sharing one common boundary and one common entry. They are further identified as one in that the directors of each company are the same and on the evidence of Mr Fullelove, he is the director exercising control over that whole complex. Occupier is defined in section 4 of the Act. It is defined as including a person in charge of the premises. It is clear from the correspondence passing between the respondent company and the union that the respondent company was claiming to be in charge of the whole of the complex situation at that location. Further support that the respondent company was in charge is clearly evident from the Wivenhoe Security Agreement, which is Exhibit 20. Whilst that document purports to be an agreement between AFC Abattoirs Proprietary Limited and Wivenhoe Security, it is to be noted at paragraph 6 that Wivenhoe Security is to supply the respondent company in these proceedings with weekly rosters of security personnel. Again, at paragraph 2, it states that ta full list of Wivenhoe Security employees, names, addresses and qualifications, are to be supplied to the respondent company in these proceedings, prior to commencement. The agreement is clear evidence that both plants form and are recognised as a single complex with the respondent company having charge of that complex. The accompanying letter to that agreement is even addressed to the respondent company and in brackets, Abattoir Division. The agreement is further supportive of the fact that Mr Watson, being an employee of Wivenhoe Security, was acting as a servant or agent of the respondent company at the time he refused entry to Mr Crawford." The appeal to the primary judge 43 Section 422(1) of the Workplace Relations Act provides a right of appeal to the Federal Court from a judgment of a State or Territory court in a matter arising under that Act. The jurisdiction of the Court to determine the appeal is conferred by s 412(d) of the Act. The appeal is not limited to an issue of law. However, ordinarily at least, the appeal is determined on the basis of the evidence put before the State or Territory court. 44 On 7 August 2000 Australian Food Corporation Pty Limited filed in this Court a notice of appeal against the magistrate's decision. Although there were six grounds of appeal, they raised only three issues: the magistrate's jurisdiction, whether Mr Crawford's request for entry was made "during working hours" and whether Australian Food Corporation Pty Limited was the "occupier" of the relevant premises. 45 The appeal was argued before Dowsett J on 23 March 2001. On 4 May 2001 his Honour delivered a reserved judgment in which he overruled the objection to the magistrate's jurisdiction but upheld the argument of Australian Food Corporation Pty Limited in respect of the other two points. Dowsett J allowed the appeal, set aside the magistrate's orders and ordered the complaint be dismissed. The present appeal 46 The union appealed against the orders made by Dowsett J. At the hearing of the appeal, Mr Nolan argued that his Honour erred in finding against the union on the issues of occupier and working hours. Counsel said the orders made by Dowsett J should be set aside and the magistrate's orders reinstated. 47 Mr Murdoch, who again appeared for Australian Food Corporation Pty Limited, supported the orders and reasoning of Dowsett J. No notice of contention was filed; accordingly, his Honour's conclusion about the magistrate's jurisdiction is not an issue in this appeal. "Occupier" 48 It will be recalled the magistrate identified the relevant premises as being "those situate at 26 Coominya Connection Road, Coominya" and containing both the patty meat plant and the abattoir. He held both Australian Food Corporation Pty Limited and AFC Abattoirs Pty Limited "can be said to be occupiers at that location". He thought the two companies "remain in joint occupation of the whole complex, sharing one common boundary and one common entry". 49 Dowsett J criticised this approach. He thought Australian Food Corporation Pty Limited "was not in any sense the occupier of the abattoir premises". He thought it "artificial to seek to identify the premises in question for the purposes of s 285E(2) by a street address". His Honour said: "The premises to which Mr Crawford was entitled to have access were those described in subs 285B(2), namely premises where relevant employees worked. It seems clear that the premises to which he sought access were the abattoir premises, which happened to be described for some purposes as situated at 26 Coominya Connection Road. He did not wish to enter the meat patty plant, nor did I understand the case to be conducted on that basis. Thus the magistrate erred in treating as the relevant premises for the purposes of subs 285E(2) those described by the street address. He ought to have been concerned with the abattoir premises." 50 Dowsett J agreed it would be sufficient if Australian Food Corporation Pty Limited was one of two occupiers of relevant premises. However, he thought the evidence did not sustain that conclusion. His Honour said: "There is clear evidence from Mr Fullelove that AFC Abattoirs was the occupier of the abattoir premises which are owned by that company. There is no suggestion that the applicant carried on any business on that parcel other than to the extent that it used the access corridor. Mr Fullelove's evidence was not challenged in these respects. It is said that he asserted control over the whole of the premises, and that is a fair comment. However that he, as a director of both companies, may have supervised the day-to-day operation of both undertakings did not mean that both companies necessarily occupied the whole of both parcels of land. Even if Mr Fullelove were himself an occupier of both parcels, that would not make either company an occupier of both of them. … The correspondence may imply that the applicant could control entry to the abattoir premises. However it seems that Mr Crawford's first oral request was for entrance to 'the plant', a term which might easily apply to either undertaking or to both. Mr Fullelove's response ... must be read in that context. It is certainly on letterhead bearing the words 'Australian Food Corporation Pty Limited' but the letter cannot, for that reason alone, be taken as an assertion that the applicant was occupier of the abattoir premises. As far as the evidence goes, Mr Crawford had not specified those premises as the place which he wished to enter. There is also the possibility that Mr Fullelove used stationery indiscriminately. In exhibit 2 (dated 3 March) Mr Crawford made it clear that entry was being sought to the abattoir premises. The letter was addressed to Mr Fullelove at Australian Food Corporation Pty Ltd. His reply (exhibit 3 dated 3 March) again bears the AFC logo and refers to the applicant in the letterhead. In view of Mr Crawford's earlier letter, the premises in question had, by then, been identified as the abattoir premises. However Mr Fullelove signed as 'Group General Manager', rather than on behalf of the applicant. The word 'group' usually implies the existence within the group of two or more corporations. Similar comments apply to the other letters received from the applicant, including exhibits 5 and 7. Nevertheless, those letters are capable of constituting an appropriate basis for inferring control over admission to the abattoir premises on the part of the applicant. However the magistrate was required to ascertain whether or not the applicant was the occupier, not whether it had held itself out as being the occupier. There are other possible explanations for the letters in question, the most obvious being that Mr Fullelove conducted his business using such letterhead without regard to the niceties of corporate identity. There was also his own evidence as to use of the two parcels." (Original emphasis) 51 Dowsett J referred to the documents concerning Wivenhoe Security. Apparently because of the logo on the letterhead of AFC Abattoirs Pty Limited, he expressed the opinion that this document "clearly demonstrates that AFC Abattoirs was also trading under the name 'Australian Food Corporation'." He said: "The letterhead says as much" and took the "reference to Australian Food Corporation" in the Wivenhoe Security Agreement to be "clearly to the business name under which both companies were trading". 52 Dowsett J concluded on this point: "As I have said, the earlier correspondence offered some evidence from which it may have been inferred that the applicant occupied the abattoir premises. It is also true that there was no fence between the sites so that, as the magistrate put it, they shared common boundaries and a common point of entry. The agreement with Wivenhoe Security concerned both sites, and the two companies were associated by virtue of their having common directors and shareholders. It was probably correct, as the magistrate suggested, that Mr Fullelove personally controlled both sites, but he did so on behalf of each company. His dual position said nothing about the relationship between the applicant and the abattoir premises. There was no apparent reason why it should have been an occupier of that site. Although the circumstantial evidence to which I have referred may have been sufficient to justify an inference that the applicant was occupier of the abattoir premises, that was not the only available inference. That inference could only have been drawn if the magistrate chose to reject Mr Fullelove's evidence. He did not do so. Indeed, he could not properly have done so in the absence of any challenge to it by the respondent. It follows that he should not have drawn such an inference. In any event, it was based upon a misunderstanding of [the surveyor's plan]. The finding cannot stand." 53 With respect to Dowsett J, I cannot agree the logo on the AFC Abattoirs Pty Limited letterhead shows both companies were trading under the business name "Australian Food Corporation". There is no evidence of registration of any business name or, the logo aside, that AFC Abattoirs Pty Limited ever used this name. It is just as likely that the logo was intended to indicate the existence of a close association between AFC Abattoirs Pty Limited and Australian Food Corporation Pty Limited; that they were in the same group, of which Mr Fullelove was apparently "Group General Manager". It seems to me the Wivenhoe Security documents are inconclusive. I would put no weight on them. 54 The situation relating to use of the Australian Food Corporation Pty Limited letterhead is puzzling. The correspondence, on that letterhead, was admitted into evidence before Mr Fullelove entered the witness box. It must have been obvious to Mr Murdoch, an experienced senior counsel, that it might be suggested, from the use of the letterhead, that Australian Food Corporation Pty Limited had admitted its control of the abattoir. Yet he failed to ask Mr Fullelove why he used the letterhead. 55 If the point was not previously obvious, it certainly became so when Mr Norris put to Mr Fullelove "that the correspondence that you forwarded to Mr Crawford actually makes admissions that indeed you are in charge of the premises, the whole of the premises on behalf of Australian Food Corporation Pty Limited". Mr Murdoch objected to that question on the basis that it raised a matter of law, and the magistrate disallowed the question. Nevertheless, it underlined the need to provide an explanation of the use of the letterhead. But none was offered. 56 Particularly under these circumstances, if the letters constituted the only evidence about the matter, I would regard them as sufficient to establish, by admission, that Australian Food Corporation Pty Limited was "in charge of" the abattoir, and therefore an "occupier" within the meaning of s 4 of the Workplace Relations Act. The letters, on the letterhead of Australian Food Corporation Pty Limited, suggest this was the company that controlled the "plant", which was identified at an early stage as the abattoir. 57 However, the letters are not the whole of the relevant evidence. Mr Fullelove gave unchallenged evidence that AFC Abattoirs Pty Limited operated the abattoir. He also gave unchallenged evidence that the business conducted by Australian Food Corporation Pty Limited was the operation of the meat patty factory and, it seems clear, only that business. 58 If Mr Fullelove had had no role in the affairs of AFC Abattoirs Pty Limited, the fact that he involved himself in the issue of access to the abattoir might have been significant. However, Mr Fullelove was also a director of AFC Abattoirs Pty Limited. This is an adequate explanation of his involvement. 59 I agree with Dowsett J that it was not correct to identify the subject premises simply as 26 Coominya Connection Road, Coominya and say both companies operated businesses at that place. Mr Crawford did not seek access to the meat patty factory. He wished to enter the abattoir. The critical question was whether Australian Food Corporation Pty Limited was the "occupier" of those premises. 60 This case demonstrates the critical importance, in exercising rights under s 285B or s 285C of the Workplace Relations Act, of correctly identifying the relevant occupier. I sympathise with the magistrate's comment that the purpose of the legislation "should not be defeated by any technical or fanciful argument of who is or who is not an occupier". And the point taken about company identity in this case is unattractive, given the close relationship between the two companies and the failure of Australian Food Corporation Pty Limited to make good, before the magistrate, Mr Fullelove's reasons for refusing to provide access to Mr Crawford and Mr McLauchlan. Yet it must be remembered that Division 11A of Part IX of the Workplace Relations Act provides a regime authorising permit holders to enter other people's properties against their will. It is important that people who seek to do this take the trouble correctly to ascertain with whom they need to deal. 61 The difficulty, that may sometimes be encountered, of identifying which company occupies particular premises is ameliorated by the extended definition of "occupier" provided by s 4 of the Workplace Relations Act. I reject the submission of Mr Murdoch that a security guard may be regarded as "a person in charge of" premises; a security guard is obviously subject to directions concerning admission of persons to the premises. However, I see no reason to doubt that an officer of a company that occupies premises, whose duties include day-to-day control of the premises on behalf of the company, may properly be regarded as "a person in charge of" those premises. The evidence seems to establish Mr Fullelove was such a person, in respect of the subject abattoir, even if the legal occupier of the premises was AFC Abattoirs Pty Limited. There seems no reason to doubt the complaint could have been made against him personally, in reliance on the extended definition contained in s 4 of the Act. 62 However, this course was not taken. The complaint was made against Australian Food Corporation Pty Limited. The evidence does not establish that company was the "occupier" of the abattoir on 14 March 2000, even having regard to the extended meaning of that word. Consequently, I agree with Dowsett J that the magistrate's orders cannot stand. The appeal to this Court must be dismissed. "During working hours" 63 This conclusion makes it unnecessary for me to determine the second issue argued before us: whether Mr Crawford sought access for himself and Mr McLauchlan "during working hours". However, as I respectfully disagree with an observation of Dowsett J on this issue, that is of general importance, it is desirable for me to say something about it. 64 Dowsett J commenced his discussion of this point by saying: "Subsection 285B(2) permits entry 'during working hours' to 'any premises where employees work who are members of the organization …'. It seems likely that the reference to 'working hours' is to those of the relevant employees. Presumably any investigation is likely to involve discussion with them. Alternatively, the expression might be given a wider meaning so as to include hours during which the place of employment was usually open for business or carrying on its principal functions. However it is very difficult to limit the meaning of the term in any significant way other than by reference to the working hours of particular 'workers'. One would not think it difficult for a trade union official to obtain information of that kind." 65 After referring to Mr Crawford's evidence, Dowsett J observed: "To say that work was being performed is not necessarily to say that such work was being performed during working hours for the purposes of the relevant section. There was certainly activity at the plan, but it is curious that Mr Crawford did not claim to have seen one person whom he could identify as an employee." 66 His Honour concluded that, because "there was no evidence that any relevant employee was working at the time at which Mr Crawford sought entry", this was not done "during working hours". 67 Counsel did not draw our attention to any judicial discussion of the meaning of "during working hours". I have not located any such discussion, in a context similar to that of s 285B. However, with respect to Dowsett J, it seems to me erroneous to construe the phrase as importing a requirement that particular employees be working at the time of attempted entry. Section 285B does not say this and fulfilment of the purposes of entry envisaged by the section does not necessarily require the presence of particular employees. Subsections (3) and (4) specify those purposes as inspection and copying of various documents, inspection of any work, material, machinery or appliance that is relevant to a suspected breach of the Act or an award, as well as the interviewing of members of, or persons eligible to become members of, the organisation concerning the suspected breach. 68 It seems to me likely that, in specifying that entry be "during working hours", Parliament had the occupier's interests in mind. Parliament might have expected that, while premises are being used for work, responsible officers of the occupier will ordinarily be available to supervise access and provide the information to which the permit holder is entitled under s 285B(3) and (4). On the other hand, Parliament might have thought it unreasonable to force officers to come to the premises specially for this purpose. 69 I respectfully disagree with Dowsett J's view that it was a fatal defect in the evidence that it did not demonstrate any "relevant employee" – by which he presumably meant any member or prospective member of the union – was working at 7.20am to 7.35am on 14 March 2000. It seems to me the only relevant question was whether the evidence indicates work activities were occurring in the abattoir at that time. 70 Mr Crawford's evidence about activity at the time when he sought entry to the abattoir was sparse. I appreciate that, as he was denied access beyond the gatehouse, Mr Crawford could not say much about what was going on inside the abattoir. However, it ought to have been possible for Mr Norris to adduce fuller evidence than he did; perhaps by calling one or more abattoir workers to give evidence of the abattoir's working hours, perhaps by issuing a subpoena for production of company records; even by putting appropriate questions to Mr Fullelove during cross-examination. 71 However, the question is not whether the evidence might have been improved, but whether it sufficed. I think it did. First, the visit was at an hour (7.20am to 7.35am) and on a day (Tuesday) when it might be expected an abattoir would be in operation. Second, it appears from the letter of 6 March (para 21 above) that Mr Wigg and Mr Burow were due to commence work that day at 3pm. This suggests the abattoir operates on a shiftwork basis and it would be consistent with an eight hour shift for the morning shift to start at 7am. More importantly, Mr Crawford observed trucks coming to, and going from, the abattoir. It is difficult to believe truck drivers would choose to arrive before abattoir employees were at work, and have to wait to load or unload. It is even more difficult to understand why they would be leaving if they had not succeeded in loading or unloading. Despite Mr Murdoch's suggestion to the contrary, I cannot accept they would load or unload in the absence of abattoir employees. The abattoir management would surely wish to control the receipt of livestock or other commodities or the departure of meat product. Finally, although no onus rested on Australian Food Corporation Pty Limited, I note Mr Fullelove gave no evidence as to working hours. This presumably reflected a deliberate decision by Mr Murdoch. 72 I would not interfere with the magistrate's finding on this issue. Disposition 73 Having regard to my view about the issue of occupier, I agree with Dowsett J that the magistrate's orders should not be allowed to stand. I would dismiss the appeal. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein the Honourable Justice Wilcox. Associate: Dated: 7 December 2001 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 110 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION APPELLANT AND: AUSTRALIAN FOOD CORPORATION PTY LIMITED RESPONDENT JUDGE: WILCOX, HILL AND CARR JJ DATE: 7 DECEMBER 2001 PLACE: SYDNEY (HEARD IN BRISBANE) REASONS FOR JUDGMENT HILL J: 74 I have had the advantage of reading in draft form the reasons for decision of Wilcox J and agree with his Honour that the appeal should be dismissed for the reason that the learned primary judge did not err in finding that the appellant, the Australasian Meat Industry Employees' Union ("the Union"), had not proved that the respondent, Australian Food Corporation Pty Limited ("AFC"), was the occupier in the ordinary or in the defined sense of the term as used in s 285E(2) of the Workplace Relations Act 1996 (Cth) ("the Act"). 75 It is, therefore, not necessary in the present case to decide whether the learned magistrate erred, as his Honour held, in finding that the attempted entry occurred during "working hours". However, since Wilcox J has expressed a view not merely on whether the learned primary judge erred in his construction of the Act, but also on the sufficiency of the evidence adduced in respect of working hours, I wish to add some comments on this issue. 76 First I agree with Wilcox J that the expression "working hours" is not limited to the working hours of relevant employees who are members of the organisation in question (ie the Union) as the learned primary judge held. There are a number of reasons why that cannot be the case. One is that the need for entry might have nothing to do with interviewing employee members of the Union about a suspected breach. It might be for the purpose of inspecting or making copies of records. It might be for the purpose of inspecting or viewing work. Another, perhaps less cogent reason, is that the actual working hours of Union members might differ, so that the situation might arise where entry might be sought to be effected at all hours of the day or night purely because a particular Union member might happen to work at a particular hour. 77 It might be thought that the restriction of access to premises only during "working hours" was designed to protect employers from being required to give access at times which are unreasonable. 78 Nor can I accept the construction urged before us by counsel for the Union that the expression "ordinary hours of work" means or includes any hour when an employee happens to be working on the premises to which entry is sought. The mere fact that an employee happens to have been left in charge of premises at night for purposes of security can hardly be imagined as justifying entry to the premises at that time. 79 The expression "during working hours" when linked to business premises (here the link is to a place of work of an employee) has the meaning it would have in normal speech. It refers to the period of time during which the premises are open for work. This accords with the Act which authorises awards to deal with the ordinary time hours of work and contrasts these with overtime hours: cf s 89A(2). No doubt premises that are used as a place of work may be occupied when workers are on the premises to work overtime, but it does not follow that the hours worked on the premises give content to the expressing "during working hours". 80 The words "during working hours" are used in similar contexts in various parts of the Act, eg s 134 which gives to the Australian Industrial Relations Commission power to enter prescribed premises "during working hours". However, I should point out that Part V of the Act, concerned with inspectors, curiously uses the expression "during ordinary working hours" in a context not greatly dissimilar to the present. I doubt, however, that there is any implication to be drawn as to a distinction between "during working hours" and "during ordinary working hours". So far as I can see, the connotation is the same, namely those hours where the premises are ordinarily occupied for the purposes of work. 81 Where the time entry is sought is an ingredient of the offence it might be thought that the prosecutor would give attention to proving it, at least where the matter is not conceded. In the case of unions who have on the premises members who are employed by the occupier, proof of working hours would not be a difficult matter. For whatever reason no attempt was made by the Union to lead evidence on the question, albeit that evidence would clearly be available to be given by Union members in the Union's case. 82 Instead evidence was given by Mr Crawford, the holder of the permit obtained in connection with seeking entry to the premises in question, of three matters which he called "activity on the plant". These were: " There was trucks coming and going. There was cars in the car park. There was people walking around on the plant." These three matters he observed from the gate entrance where he was denied entry. The time of his observation was "about 7.20 am". The place from which he made the observations was, according to the plan tendered in evidence, some two or so hundred metres away from the abattoir plant. No doubt if these matters were all unambiguous it might be possible to infer that the attempted access took place during working hours, although I have no personal knowledge of what the hours of work of an abattoir are or for that matter whether in the particular abattoir under consideration workers were employed on eight hour shifts, one of which commenced at 3 pm. Nor would I think it appropriate, even if I did, to use that knowledge, if only because the working hours of one abattoir might well differ from those of another. The Magistrate is entitled to be informed by direct evidence what the working hours of the particular abattoir were. 83 The fact that trucks were coming, clearly meant that working hours were at the least shortly to commence. The fact that trucks were leaving might or might not signify the commencement of work. But both in respect of the trucks coming in and the trucks going out there is a question whether these trucks were going to and coming from the abattoir premises, which Mr Crawford wished to enter, or the other premises adjacent to the abattoir which were not the subject of the permit to enter. Either was a possibility open on the evidence. 84 Little is known of the car park. No doubt it can be inferred that the cars in it were workers' cars but it is equally possible that the cars parked there were parked in connection with the meat patty plant as that they were parked in connection with the abattoir business. There seems on the plan to have been only one car park in respect of the two sets of premises. 85 The fact that people were walking around is consistent as much with work being about to begin as with the work having commenced. 86 It is possible to draw an inference from what on any view is the most slender evidence that work might have commenced at the abattoir but it is not evidence upon which I would be comfortably satisfied to base a conclusion that an offence had been committed that warranted the imposition of a pecuniary, albeit civil, penalty. 87 The point I seek to make can be shortly stated. Sections such as s 285B which, on pain of penalty, permit entry infringe the basic common law rights of occupiers of premises to exclude others from the premises. The entry permit together with access during working hours makes legal what otherwise would (absent authority of the occupier) be a trespass. It is because a basic common law right is authorised by the Act to be taken away, so long as the preconditions to entry are complied with, that it is important for the Union to prove its case by unambiguous evidence. This is particularly so when it would have been open for the Union to call evidence specifically directed to the question. I do not think that the respondent should be criticised for failing in its case to deal with the issue. It was not the business of the respondent to prove the Union's case for it. A gap in the evidence for the prosecution cannot be filled by the failure of the defendant to deal with the issue. 88 Accordingly I am not of the opinion that the evidence adduced on this issue was sufficient. Otherwise I agree with the orders which his Honour proposes. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 7 December 2001 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 110 OF 2001 BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION Appellant AND: AUSTRALIAN FOOD CORPORATION PTY LIMITED (ACN 077 256 430) Respondent JUDGES: WILCOX, HILL & CARR JJ DATE: 7 DECEMBER 2001 PLACE: BRISBANE REASONS FOR JUDGMENT CARR J: introduction 89 I have had the advantage of reading in draft form the reasons for decision of Wilcox J. I am grateful to his Honour for saving me from having to recite the factual, statutory and procedural background. whether the respondent was the occupier of the relevant premises 90 I agree with the learned primary judge that the relevant premises were the abattoir premises. 91 Section 4 of the Workplace Relations Act 1996 (Cth) ("the Act") contains a definition of the term "occupier" which includes a person "in charge of the premises". 92 In my view, although there was some substantial evidence that the respondent was in charge of the abattoir premises, in the sense of being able to decide who might or might not have access to those premises (in particular, the exchange of correspondence between the parties), there was also substantial evidence that another company, Australian Food Corporation Abattoirs Pty Ltd ("Abattoirs") was relevantly "in charge". The uncontradicted evidence was that Abattoirs was the occupier of the abattoir premises and had entered into a contract with a firm called Wyvern Security to provide security services, which included controlling access to those premises. Mr Tim Watson was the proprietor of that firm. Mr Watson was on duty at the relevant time and denied Messrs Crawford and McLauchlan access to the abattoir premises. 93 This countervailing evidence strongly suggests that Mr Watson, as agent for Abattoirs, controlled access to the abattoir premises and, in so doing, exercised some of the powers which Abattoirs had by reason of being "in charge" of those premises. 94 In my view, given the seriousness of the complaint, it was not sufficiently established on the evidence that the respondent was "in charge" of the abattoir premises. In my respectful opinion, the learned primary judge was correct in his conclusion on this issue. working hours 95 As the primary judge noted, Mr Crawford, the assistant secretary of the Queensland Branch of the appellant, claimed access pursuant to s 285B of the Act. That section relevantly provides that if a person who holds a permit in force under Division 11A of Part IX of the Act suspects that a breach of an award has occurred or is occurring, that person may enter "… during working hours, any premises where employees work who are members of the organisation of which the person is an officer or employee." 96 The primary judge construed the expression "during working hours" in s 285B(2) by reference to the working hours of those particular employees referred to in that subsection. 97 Strictly speaking, in view of my conclusion in relation to the matter of whether the respondent was the occupier of the relevant premises, it is not necessary for me to decide what is meant by the reference to "working hours". The content of that expression might well be a matter of fact in any particular case. 98 But, I think that I should express my agreement with the view that "during working hours" is not limited to the hours during which the employees described in s 285B(2) are actually working. Neither the expression "working hours" nor the evident purpose of s 285B require or justify, in my opinion, such a restrictive construction. 99 One clear indication of this is, for example, that under s 285B(3)(a) the authorised person may inspect time sheets, pay sheets or other documents. The relevant union members might consistently work night shifts at the premises when the office at which the records are kept is not usually open. The restrictive construction would require the permit holder seeking to inspect the records and those persons having custody of the documents to inspect and provide inspection of those records, respectively, during night shifts – an unusual and somewhat unnecessary burden which, in my view, Parliament did not intend to impose. 100 I agree with Hill J that the evidence does not sufficiently establish that Mr Crawford sought entry to the abattoir premises during working hours. 101 I would dismiss the appeal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. A/g Associate: Dated: 7 December 2001 Counsel for the Appellant: J Nolan Solicitor for the Appellant: Hall Payne Counsel for the Respondent: J Murdoch SC Solicitor for the Respondent: Corrs Chambers Westgarth Date of Hearing: 13 November 2001 Date of Judgment: 7 December 2001