Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch [2023] NSWIRComm 1076

Industrial Relations Commission New South Wales Medium Neutral Citation: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch [2023] NSWIRComm 1076 Hearing dates: 3 November 2022, 11 January 2023 Date of orders: 31 July 2023 Decision date: 31 July 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: 1. The Application brought by the AMWU in proceeding no. 119584 of 2022 is dismissed. 2. The Application brought by Primo Foods Pty Ltd in proceeding no. 153402 of 2022 is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — WORK HEALTH AND SAFETY – Rights and conduct of WHS entry permit holders – Jurisdiction of the Commission to grant relief pursuant to s 142(3) of the Work Health and Safety Act 2011 (NSW) in respect of a dispute about the exercise of a WHS entry permit holder of a right of entry – Whether there was a current dispute about the future exercise of the right of entry - Statutory interpretation – Whether WHS entry permit holders have a right, pursuant to s 118(1)(b) of the Work Health and Safety Act 2011 (NSW) to consult with the relevant workers in private or whether that provision permitted or required the relevant person conducting a business or undertaking to be privy to the consultation – Power of the Commission to make declaratory orders pursuant to s 142(3) of the Work Health and Safety Act 2011 (NSW) – Whether WHS entry permit holders reasonably suspected that a contravention of the Work Health and Safety Act 2011 (NSW) had occurred or was occurring - Extent of particulars of contravention required in a Notice of Entry – Identification of 'relevant workers' – Conduct of WHS entry permit holders while conducting inquiry into suspected contravention Legislation Cited: Crimes Act 1990 (NSW), s 357E Fair Work Act 2009 (Cth), ss 481, 487, 518 Industrial Relations Act 1996 (NSW), s 175 Interpretation Act 1987 (NSW), s 33 Occupational Health and Safety Act 2004 (Vic) Work Health and Safety Act 2011 (NSW), ss 3, 4, 19, 28, 29, 46, 68, 70, Part 6, 116 – 147, 160, 166, 171, 255, Sch 2, cl 1 Work Health and Safety Act 2011 (Qld) Work Health and Safety Regulation 2017 (NSW), regs 27 and 28 Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470 Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065; 280 IR 47 AWB Ltd v Cole (No 2) [2006] FCA 913; 253 FCR 288 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CPB Contractors Pty Ltd [2020] FCA 1598 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor [2017] NSWIRComm 1000 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] QIRC 188 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2022] QCA 94 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] ICQ 15 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 Hogan v Hinch (2011) 243 CLR 506 Lyne v Commissioner of Police [2021] NSWIRComm 1001 R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431; 320 IR 198 Texts Cited: Macquarie Dictionary, online edition Category: Principal judgment Parties: Proceedings 2022/119584 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (Applicant) Primo Foods Pty Ltd (Respondent) Proceedings 2022/153402 Primo Food Pty Ltd (Applicant) Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (First Respondent) Jacqueline Carovska (Second Respondent) Nathan Everson (Third Respondent) Representation: Proceedings 2022/119584 K Presdee, solicitor, AMWU (Applicant) B Sakrzewski-Hetherington, solicitor and W Ash (Respondent) Proceedings 2022/153402 B Sakrzewski-Hetherington, solicitor and W Ash (Applicant) K Presdee, AMWU (Respondents) File Number(s): 2022/119584 2022/153402 Publication restriction: Nil