Standen v Feehan [2008] FCA 1009

FEDERAL COURT OF AUSTRALIA

Standen v Feehan [2008] FCA 1009

INDUSTRIAL LAW – application for an order seeking a civil penalty under s 285F(4) of the Workplace Relations Act 1996 (Cth) (the Act) for a breach of s 285E of the Act – whether respondent provided adequate notice regarding his intention to exercise his power under ss 285B or 285C of the Act – whether the respondent in exercise of his power under the Act intentionally hindered or obstructed any employer or employees – application allowed.

Workplace Relations Act 1996 (Cth) ss 285B, 285C, 285D, 285E, 285F Briginshaw v Briginshaw (1938) 60 CLR 336 cited Jones v Dunkel (1959) 101 CLR 298 cited O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 followed Pine v Doyle (2005) 143 IR 98 followed MICHAEL STANDEN v JUSTIN FEEHAN

SAD 74 of 2006

LANDER J

3 July 2008

ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 74 of 2006

BETWEEN: MICHAEL STANDEN

Applicant

AND: JUSTIN FEEHAN

Respondent

JUDGE: LANDER J

DATE OF ORDER: 3 July 2008

WHERE MADE: ADELAIDE

THE COURT DECLARES THAT: 1. On 5 May 2004 the respondent contravened s 285E(1) of the Workplace Relations Act 1996 (Cth).

THE COURT ORDERS THAT: 2. The proceeding be adjourned to hear the parties as to penalty. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 74 of 2006

BETWEEN: MICHAEL STANDEN

Applicant

AND: JUSTIN FEEHAN

Respondent

JUDGE: LANDER J

DATE: 3 July 2008

PLACE: ADELAIDE

REASONS FOR JUDGMENT

Introduction 1 The applicant is an inspector under the Workplace Relations Act 1996 (Cth) (the Act). He is entitled by operation of the Act to bring an application for an order seeking a civil penalty under the Act: s 285F(4). He brought this application on 4 May 2006 seeking the imposition of a penalty in respect of a contravention of s 285E(1) of the Act. 2 The respondent was at the relevant time, and still is, an official (officer) of the Construction, Forestry, Mining and Energy Union (CFMEU) which is an organisation registered under the Act. He is the holder of a permit issued by a Registrar under the Act: s 285A(1). 3 A permit permits the holder to enter, during working hours, any premises where employees work who are members of the organisation of which the person is an officer or employee, for the purpose of investigating a suspected breach or continuing breach of the Act, or an award or order of the Commission or certified agreement that binds the organisation of which the permit holder is an officer: s 285B(1) and (2). 4 If a permit holder enters a premise by virtue of the statutory authority in s 285B(2), the permit holder may exercise the powers in s 285B(3) of the Act. 5 Moreover, a person who is a holder of a permit may enter premises in which work is being carried on to which an award applies that is binding on the organisation of which the permit holder is an officer or employee, or premises in which employees who are members or eligible to become members of the permit holder's organisation work, for the purposes of holding discussions with any of those employees who wish to participate in those discussions: s 285C(1). However, the permit holder may only enter the premises during working hours and may only hold the discussions during the employees' meal times or other breaks: s 285C(2). There are prescribed circumstances in which a permit holder may not enter premises under s 285C(1) but they are not relevant to this application. 6 Section 285D of the Act imposes obligations upon a permit holder. Section 285D(2) requires a permit holder who is entitled to enter premises and exercise powers under ss 285B or 285C to give the occupier of the premises at least 24 hours' notice of the permit holder's intention so to do. 7 Section 285D(1) obliges the permit holder to show his or her permit to the occupier of the premises if so required by the occupier and the permit holder's right to remain on the premises ceases if the permit holder fails to comply with the occupier's request. 8 Section 285E provides that a person exercising powers under ss 285B or 285C must not intentionally hinder or obstruct any employer or employee: s 285E(1). Correspondingly, a person must not intentionally hinder or obstruct a person exercising powers under ss 285B or 285C: s 285E(4). There are also obligations imposed on occupiers (s 285E(2)) and employers (s 285E(3)) which are not relevant to this application. 9 Section 285F provides for civil penalties in the event that there is a contravention of a penalty provision. The penalty provisions are identified as s 285A(5) or s 285E(1), (2), (3) or (4). In this application the relevant penalty provision is s 285E(1). It reads: (1) A person exercising powers under section 285B or 285C must not intentionally hinder or obstruct any employer or employee. 10 The amount of the penalty is not more than $10,000 for a body corporate or $2,000 in other cases. This Court is an eligible court for the purpose of s 285F and therefore has the jurisdiction to impose a civil penalty: s 285F(1) and (2). An application for a civil penalty may be made by any person: s 285F(4). 11 The applicant brought this proceeding for a civil penalty claiming that on the morning of 5 May 2004 the respondent, while exercising powers under s 285B and/or s 285C of the Act, entered a site at Halifax Street in Adelaide (Halifax Street site) where S J Salisbury Constructions Pty Ltd trading as Scott Salisbury Homes (Scott Salisbury Homes) was constructing an apartment complex for domestic dwellings. The application was accompanied by a statement of claim. The applicant claims that whilst on the site and exercising powers under s 285B and/or s 285C of the Act, the respondent intentionally hindered and obstructed: (1) Peter Potter; (2) J & M Zito; and (3) employees of J & M Zito. The applicant claims that the respondent's conduct "intentionally injured or obstructed committing a contravention of the Act for which the applicant now seeks the imposition of a penalty". Clearly, the word "injured" should be read as "hindered". The persons named above should be read as being included after the word "obstructed". 12 The respondent admitted in his amended defence, which was filed after the respondent had given evidence, that the applicant was an inspector and entitled to bring an application for an order seeking a penalty under the Act. He also admitted that he was an officer and/or an employee of the CFMEU and the holder of a permit issued under the Act. 13 He did not admit any other fact and specifically pleaded that: 1. He did not exercise any power under s 285B and/or s 285C of the Act until he was requested to produce his right of entry permit. 2. He ceased exercising his powers pursuant to s 285B and/or s 285C of the Act when he removed himself and his vehicle from the Halifax Street site. 3. He did not exercise any powers pursuant to s 285B and/or s 285C of the Act after he had removed himself and his vehicle from the Halifax Street site. 14 The question for determination in this trial is whether on 5 May 2004 the respondent, whilst exercising powers under either ss 285B or 285C, intentionally hindered or obstructed the persons mentioned above.