DECISION

Fair Work Act 2009
s.505—Right of entry

Construction, Forestry, Mining and Energy Union
v
Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete
(RE2017/222)

Right of entry dispute – entry to hold discussions during mealtimes or other breaks – orders sought – distinction between arbitral power and judicial power

Introduction

[1] This decision concerns the vexed question of whether the Commission is being asked to exercise judicial power, on the one hand, or arbitral power, on the other hand. The distinction between judicial and arbitral power is easier to state than it is to apply. 1 In part, that is because the judicial power of the Commonwealth has defied precise definition.2

[2] Chapter III of the Constitution 3 prevents the conferral by the Commonwealth Parliament of the judicial power of the Commonwealth other than on a court referred to in s.71 of the Constitution. The Fair Work Commission (Commission) is not such a court. Accordingly, the Commission cannot exercise judicial power.

[3] When considering the question of whether the Commission is being asked to exercise judicial power, it is important to recognise that many industrial disputes such as right of entry disputes may be litigated in either the Commission or a court of competent jurisdiction. The fact that the Commission is involved in making a determination of matters that could have been made by a court in the course of proceedings instituted under the Fair Work Act 2009 (Cth) (Act) does not ipso facto mean that the Commission has usurped judicial power. 4 There are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by another body or tribunal such as the Commission, do not.5

Background

[4] On 8 August 2017, I published a decision concerning a right of entry dispute between the CFMEU and LORAC (Primary Decision), 6 and gave the parties an opportunity to file and serve written submissions in relation to the relief sought by the CFMEU.

[5] The CFMEU seeks the following relief in the arbitration of this dispute:

“Subject to the parties’ other rights and obligations under the Fair Work Act 2009 (Cth) (FW Act), pursuant to s.505(2)(e) of the FW Act, the Commission orders, in relation to the exercise by CFMEU permit holders of rights of entry to have discussions under s. 484 of the FW Act on premises occupied by the Respondent, as they exist from time to time, within the site described as the Pacific Highway between Woolgoolga and Ballina, the following:

[1] The Respondent and its employees, officers and agents allow permit holders of the Applicant to hold discussions, without interference, with members and potential members under s.484 of the FW Act whilst such persons are on an actual meal break or other break, as distinct from at times when meal or other breaks are scheduled to take place or usually take place; and

[2] The Respondent shall place in a prominent position within the site described as the Pacific Highway between Woolgoolga and Ballina, at each crib room and other area where employees usually take their meal or other breaks and are provided for that purpose the annexed Notice.

NOTICE

1. Union officials are entitled under the Fair Work Act to have discussions with employees during their meal or other breaks. Pacific Complete is obliged to allow these discussions to occur and is prohibited by the Fair Work Act from hindering or obstructing union officials whilst they engage in discussions with you during your meal or other breaks.

2. Pacific Complete has directed all its managers and supervisors to ensure that they do not disrupt or interfere with union officials and employees who are involved in legally permitted discussions under the Fair Work Act whilst employees are on meal or other breaks.

3. Pacific Complete recognises employees’ rights to be members or not be members of trade unions and cannot and will not take any action against workers who engage with or become members of trade unions or who do not engage with or become members of trade unions.

4. If you feel that Pacific Complete managers and supervisors are interfering with discussions between yourself and union officials during your meal or other breaks, you should report this to a senior manager or union official.”

[6] Although LORAC has raised a number of issues in relation to the relief sought by the CFMEU, and I deal with each of those matters below, LORAC’s primary contention is that the Commission does not have jurisdiction to make the order sought by the CFMEU because making such an order would involve the exercise of judicial power.

Judicial power or arbitral power?

[7] In Police and Nurses Credit Society, a Full Bench of the Australian Industrial Relations Commission gave detailed consideration to the question of whether an order made by the Commissioner at first instance in relation to a right of entry dispute under the Workplace Relations Act 1996 (Cth) involved the exercise of judicial power. In that case, the relevant principles concerning the distinction between judicial and arbitral power were set out by the Full Bench at paragraphs [40] to [49] (references omitted):

“[40] We propose to make some general observations about the distinction between judicial and arbitral power before turning to consider s.285G.

[41] Judicial power is often characterised by the conclusive determination of existing rights and obligations, rather than the determination of what legal rights and obligations should be created in the future.

[42] In Waterside Workers Federation of Australia Ltd v JW Alexander Ltd (Alexander's case), Isaacs and Rich JJ explained the distinction between judicial and arbitral power in these terms:

"... the essential difference is that the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other."

[43] Similarly in Precision Data Holdings Ltd v Wills, the High Court considered the nature of judicial power and said:

"the making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct is a classical instance of the exercise of judicial power [Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty Ltd (1987) 163 CLR 140, at pp 148-149]"

[44] The Court then went on to say:

"The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. [Re Ranger Uranium Mines Pty Ltd Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656, at pp 665-667; Re Cram, ibid., at p 149.] Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power."

[45] The distinction between arbitral and judicial power is easier to state than it is to apply. As Dixon CJ and McTiernan J observed in R v Davison: "[I]t has never been found possible to frame a definition [of judicial power] that is at once exclusive and exhaustive."

[46] Functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power.

[47] The characterisation of a claim and the form of any order made is often decisive in determining whether the exercise of judicial power is involved.

[48] For example, the Commission cannot give a binding interpretation of an award or agreement where that interpretation is sought for the purpose of enforcing a right said to be created by the award or agreement in question. But arbitral proceedings may involve the formation of views and opinions about matters of interpretation, including the interpretation of laws, awards and other legal instruments, without the usurpation of judicial power. Moreover the arbitral function can involve the determination of a dispute relating to past transactions, events and conduct.

[49] Further, while some powers are `essentially judicial', others `take their character from the tribunal in which they are to be exercised and, thus, may be conferred on courts or other tribunals as the Parliament chooses'.”

[8] The Full Bench in Police and Nurses Credit Society rejected the argument that the Commissioner had exercised judicial power by making the following order:

“A. Further to the decision issued by the Commission on 28 November 2002 (Print PR925163) the Commission orders as follows:

The Police and Nurses Credit Society shall permit officers of the Finance Sector Union, who are Permit Holders, pursuant to s.285A, after giving the required notice pursuant to s.285D(3), to hold discussions during meal or other breaks in the area that such breaks are taken with members or persons eligible to be members, who wish to participate in such discussions.

B. This order shall come into force from 28 November 2002 and shall remain in force for a period of 12 months.”

[9] The reasons given by the Full Bench for rejecting the employer’s argument in Police and Nurses Credit Society were as follows:

“[50] We now turn to the terms of s.285G before considering the proper characterisation of the matter at first instance.

[51] Section 285G of the WR Act, the section under which the order subject to appeal was made, states:

"(1) In spite of section 89A, the Commission may exercise its powers under Part VI of this Act to prevent and settle industrial disputes about the operation of this Division, but must not make an order for that purpose conferring powers that are additional to, or inconsistent with, powers exercisable under this Division.

(2) However the Commission does have power, for the purpose of preventing or settling the industrial dispute, to revoke a permit issued to a person under section 285A. If it does so, it may make any order that it considers appropriate, for the purpose of preventing or settling the industrial dispute, about the issue of any further permit to the person, or of any permit or further permit to any other person, under that section."

[52] Section 285G is the last section in Division 11A, which is headed Entry and inspection of premises etc. by organisations. Division 11A is in Part IX, Registered Organisations, of the WR Act. Division 11A was inserted in the WR Act by the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act) and is comprised of ss.285A to 285G. In brief:

· s.285A provides for the issue by a Registrar of permits to officers or employees of organisations;

· s.285B allows a permit holder to enter premises to investigate a suspected breach of the Act or award and specifies the rights of the permit holder;

· s.285C (which we set out in full later) allows a permit holder to enter premises for the purposes of holding discussions;

· s.285D deals with conduct not authorised under ss.285B and 285C;

· s.285E deals with conduct in relation to ss.285B and 285C attracting civil penalties;

· s.285F deals with civil penalties; and

· s.285G (which we have earlier set out in full) deals with the powers of the Commission.

[53] Section 285G relevantly provides that the Commission may exercise its powers under Part VI of the WR Act `to prevent and settle industrial disputes about the operation of [Division 11A]'.

[54] In Moranbah North Coal (Management) Pty Ltd v CFMEU (Moranbah) a Full Bench of the Commission considered the nature and scope of the Commission's powers under s.285G. The Full Bench observed that:

"When Division 11A is considered with s.127AA (which we have set out earlier), it appears to us that the primary intention of the Parliament was to itself prescribe the circumstances in which entry to premises would be allowed. All award provisions relating to right of entry were rendered unenforceable by s.127AA and a series of prescriptions about entry of premises was introduced into the WR Act in Division 11A. The only role provided for the Commission is that specified in s.285G. And, whether "industrial disputes" in s.285G(1) bears its s.4(1) meaning or not, s.285G(1), in terms, limits the Commission's powers to preventing and settling industrial disputes "about the operation of this Division" (subject to the power allowed by s.285G(2)). It follows that in the exercise of its powers in s.285G(1) the Commission may only make orders about the matters dealt with in ss.285A to 285F."

[55] The Supplementary Explanatory Memorandum to the Workplace Relations and Other Legislation Amendment Bill 1996 contains the following paragraphs:

"Proposed section 285G - Powers of the Commission

Proposed section 285G provides for the powers of the Commission to prevent or settle industrial disputes arising from the operation of the right of entry provisions. By subsection (1) the Commission may exercise its powers notwithstanding that such disputes are not amongst the matters prescribed by proposed section 89A as being within the scope of industrial disputes. The Commission may make appropriate orders but such orders must not confer powers that are additional to, or inconsistent with, powers that are exercisable in respect of right of entry under the Act.

Under proposed subsection (2) the Commission has, for the purpose of preventing and settling an industrial dispute about the operation of the right of entry provisions, power to revoke a permit and to make orders for the issuing of further permits."

[56] The memorandum describes the powers in s.285G(1) as powers “..... to prevent or settle industrial disputes arising from the operation of the right of entry provisions.” [emphasis added]

…

[59] The jurisdictional precondition to the making of an order under s.285G is that there is an industrial dispute about entry and inspection of an employer's premises which is grounded in one or more of the matters dealt with in ss.285A-285E.

[60] In order to determine whether the FSU's application called on the Commission to exercise judicial power, as opposed to arbitral power, it is appropriate to `review the entire factual background to properly characterize the claim and the power sought to be invoked'.

[61] The dispute notification which initiated the proceedings before Commissioner O'Connor is in the following terms:

"Under section 99 of the Workplace Relations Act 1996, The Finance Sector Union of Australia, WA Branch notifies you of the existence of an alleged industrial dispute between:

The Finance Sector Union of Australia at 165 Adelaide Tce East Perth and Police and Nurses Credit Society Limited.

Concerning the following matter:

1. the Finance Sector Union contacted Mr March Smith - Executive Manager Organisation Development on the 17th of September by telephone to try and arrange a suitable time to visit the workplace with the intent of holding discussions with employees under Section 285C of the Act. Mr Smith was not willing allow the union to enter the workplace.

2. The Finance Sector Union wrote to Mr Smith reaffirming our intention to enter the workplace under Section 285C of the Act between 12.00 & 2.00pm on Friday the 20th of September 2002. This letter was hand delivered on the 17th of September ensuring 24 hours notice as given. (copy letter attached)

3. Mr Smith wrote to the FSU on the 19th of September with the letter being delivered the same day refusing to grant the union access to the workplace. (copy letter attached)

4. The FSU is seeking access to the workplace as per the Workplace Relations Act 1996.

Awards binding on the parties to the dispute are

WA Credit Unions Award 2001

No industrial action is threatened.

Dated the 20th of September 2002

Lynnaire Stacey

Branch Secretary"

[62] We think it is clear from the terms of the notification and the exchange of correspondence between the parties which is referred to earlier in this decision, that there is an ‘industrial dispute about the operation of Division 11A'. In particular, there is clearly a dispute about the FSU having access to the appellant's premises pursuant to s.285C of the WR Act.

[63] In our view the appellant's characterisation of the matter before the Commissioner is erroneous. The FSU was not seeking a declaration and enforcement of its right to enter the appellant's premises pursuant to s.285C. It was seeking an order pursuant to s.285G to settle an industrial dispute about the operation of Division 11A.

[64] In substance the dispute between the parties was about the appellant's refusal to allow FSU permit holders to enter its premises for the purpose of holding discussions with members or persons eligible to be members. In resolving this dispute the Commissioner was entitled, as an incidental step in the proper exercise of its jurisdiction, to form an opinion about the legal effect of the 2001 Agreement vis-à-vis the 2001 Award, and the consequent effect on the FSU's rights under s.285C.

[65] It is also relevant to note that the power in s.285G has been conferred on the Commission and may be said to take its character from the tribunal in which it is to be exercised.

[66] Further, we are not persuaded that general considerations of industrial fairness did not form part of the Commissioner's consideration of the matter. In this regard we note that the course of his submissions in the proceedings below Mr Logan, representing the FSU, made reference to considerations relating to ‘freedom of association’ and characterised the appellant's conduct as ‘an attempt to construct a way of keeping unions out ...’. Such policy considerations are not suggestive of the exercise of judicial power.

[67] Nor do we think that the terms of the order made assist the appellant. The fact that the order is largely a restatement of some of the provisions of ss.285A, 285C and 285D is unsurprising when regard is had to the fact that s.285G(1) provides that any order made must not confer powers ‘that are additional to, or inconsistent with, powers exercisable under [the] Division’.

[68] We have also had regard to the consequences of upholding the appellant's contention. In our view it would lead to the emasculation of the powers conferred by s.285G. An employer could avoid the jurisdiction by the simple expedient of only contesting a union's right to enter its premises under Part IX rather than disputing the manner in which such a right is to be exercised.

[69] We consider that the matter before the Commissioner called for the resolution of a dispute, not by the determination of what the existing rights and obligations of the parties are, but the ascertainment of what rights and obligations should exist. Contrary to the appellant's submissions the Commission's order involved the exercise of arbitral not judicial power.”

[10] In CFMEU v BHP Billiton Nickel West Pty Ltd, 7 a Full Bench of the Commission considered whether the remedy sought by the CFMEU in a right of entry dispute involved an exercise of judicial power and was thus beyond the jurisdiction of the Commission. The remedy sought in that case was as follows:

“Mr Douglas Heath and Mr Troy Smart, being permit holders under Part 3-4 of the Act, are entitled to enter the premises at Kwinana which are occupied by BHP Billiton Nickel West Pty Ltd (The Premises) for the purposes of holding discussions with members or potential members of the CFMEU, before and after their shifts so long as work is being conducted on The Premises at the time such discussions occur.”

[11] The Full Bench in CFMEU v BHPB set out the following principles in relation to the question of judicial power (references omitted):

“[18] The background facts in this matter are not in dispute. Nor is there any dispute as to the nature of the relief being sought. It is accepted that an administrative tribunal like the Commission cannot exercise the Commonwealth’s judicial power. The ascertainment, declaration or enforcement of legal rights is the exercise of judicial power. If opinions are formed about such matters in the course of arriving at a conclusion about what rights should exist in the future, the functions can legitimately fall within the arbitral power conferred on the Commission. These concepts have been stated and applied in various High Court decisions.

[19] The Ranger Uranium Case concerned a consideration of the Commission’s predecessor’s powers to order reinstatement of dismissed employees. The High Court said:

“17. It is clear that reinstatement may be claimed as a legal right or as a remedy for breach of a legal obligation. Section 5 of the Act is illustrative of situations in which reinstatement is a curial remedy for the breach of a legal obligation. A dispute as to the existence or enforcement of a legal right to reinstatement or as to the breach of a legal obligation properly remedied by an order for reinstatement is a dispute which necessarily involves the exercise of judicial power. In conformity with s.71 of the Constitution (which reposes the judicial power of the Commonwealth in Chapter III Courts), the Commission is not endowed with judicial power, and hence has no jurisdiction to entertain disputes as to the existence or enforcement of legal rights or obligations: see Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. [1987] HCA 29; (1987) 61 ALJR 407, at pp 408 and 413; [1987] HCA 29; 72 ALR 173, at pp 175 and 183.

18. However, the creation of legal rights and obligations is a function which may be performed in the exercise of arbitral power. This is so even if the function is performed in settlement of a dispute relating to past transactions, events and conduct: Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd., at p 409; p 176 of ALR.

…

22. Ordinarily, in industrial tribunals empowered to order reinstatement, the criterion for the making of an order for reinstatement is that the dismissal was harsh, unjust or unreasonable, although more recently the tendency has been to express the test in terms of unfairness. See In re Loty and Holloway and Australian Workers’ Union (1971) AR.(N.S.W.) 95. In the present case the Union and the Society each claimed that the dismissals which gave rise to their claim were harsh, unjust and unreasonable. Accordingly it was said that the resolution of the dispute necessarily involved the determination of whether the dismissals were harsh, unjust or unreasonable - a determination which, it was argued, required the Commission, in the context of the award, to determine whether the employer was in breach of the obligation contained in cl.7(d)(vi). This, it was contended, necessarily involved an assumption of the judicial power of the Commonwealth, for it involved the Commission in precisely the same task as would be undertaken by a Court in the event that proceedings were taken pursuant to s.119 of the Act alleging breach of cl.7(d)(vi) of the Award.

23. It is well settled that functions ‘may be classified as either judicial or administrative according to the way in which they are to be exercised’: The Queen v. Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617, per Mason J., at p 628. See also Federal Commissioner of Taxation v. Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J., at p 177; The Queen v. Spicer; Ex parte Australian Builders' Labourers' Federation [1957] HCA 81; (1957) 100 CLR 277, per McTiernan J., at p 293 and Kitto J., at p 305; Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd., at p 413; p 184 of ALR. A finding that a dismissal is harsh, unjust or unreasonable involves the finding of relevant facts and the formation and expression of a value judgment in the context of the facts so found. Although findings of fact are a common ingredient in the exercise of judicial power, such findings may also be an element in the exercise of administrative, executive and arbitral powers: see The Queen v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, per McTiernan J., at p 371 and The Queen v. Hegarty; Ex parte City of Salisbury, per Murphy J., at p 631. So too with the formation and expression of value judgments.

24. In our view the fact that the Commission is involved in making a determination of matters that could have been made by a court in the course of proceedings instituted under s.119 of the Act does not ipso facto mean that the Commission has usurped judicial power, for the purpose of inquiry and determination is necessarily different depending on whether the task is undertaken by the Commission or by a court. The purpose of the Commission’s inquiry is to determine whether rights and obligations should be created. The purpose of a court’s inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty should attach to the breach.

25. The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.

26. Inquiry into and determination of facts for the purpose of ascertaining what rights and obligations should be brought into existence in settlement of an industrial dispute does not cease to be an exercise of arbitral power merely because, in the course thereof, the Commission may form an opinion as to the existing legal rights and obligations of the parties. As was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd., at p 409; p 176 of ALR, the formation of an opinion as to legal rights and obligations does not involve the exercise of judicial power, at least if it is ‘a step in arriving at the ultimate conclusions on which (is based) the making of an award intended to regulate the future rights of the parties’. For, as was there made clear, ‘the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.’”

[20] An example of the application of these principles is the case of CPSU v Tenix Solutions Pty Ltd.  In that case the Full Bench said:

“[24] The second ground on which it is contended that the appeal is incompetent is that what the applicants sought from Commissioner Simmonds was an exercise of judicial power. The argument, in essence, is that the Agreement was not made with Tenix but with Tenix’ predecessor in the business. Accordingly Tenix has not consented to the dispute resolution provision in the Agreement. In substance the applicants sought a determination that Tenix was bound by the Agreement as a successor pursuant to s.170MB of the WR Act.

[25] A determination that Tenix is bound by the Agreement as a successor pursuant to s.170MB(2) requires the exercise of the judicial power of the Commonwealth. The judicial power of the Commonwealth can be exercised only by a Court constituted under Chapter III of the Constitution. The Commission is not a Chapter III Court and is precluded from exercising judicial power in the context of this case.

[26] The substance of the applicants’ response to the second ground of objection to competency is that Parliament has power to legislate for the making and certification of agreements and it has done so. Parliament also has power to pass laws directed to maintaining the agreements so made and certified. Section 170MB of the WR Act is a law of that character. It maintains the Agreement by ensuring that the agreement and its benefits and obligations pass to any successor in business. Tenix, the applicants contend, is a successor to the business to which the Agreement applied. The employer obligations under the Agreement, including the obligation to submit unresolved disputes to arbitration, transmitted to Tenix when it succeeded to the business. Consequently, Tenix is bound by the operation of s.170MB and the Agreement to submit to arbitration and no issue of judicial power arises.

[27] We think there may be substance in the second ground upon which Tenix contends that the appeal is incompetent. However, as with the first ground, it is appropriate that we address this ground also in the context of the appeal as a whole. We proceed with that course.

…

[45] It will be recalled that the Commissioner found that he did not have jurisdiction to deal with Ms McCallum's application because what was sought was an exercise of judicial power in the nature of a declaration. It is not strictly necessary that we deal with the correctness of that finding, since we have already concluded that there was no dispute over the application of the Agreement for the purposes of s.170LW and cl.32 of the Agreement. In case it should become important, however, we think it right that we express our conclusion.

[46] Whether an application invites the use of judicial power depends upon the circumstances. As was said in Re Geelong Grammar School:

‘[24] There is no doubt that the Commission may, without exercising judicial power, decide questions which ‘are not necessarily foreign to judicial power.’ [For an analogous case concerning a local coal authority under the Coal Industry Act 1946-1957 (Cth) see R. v Lydon; Ex parte Cumnock Collieries (1960) 103 CLR 15 at 22] Whether the Commission purports to exercise judicial power will depend upon the facts of the case and in particular upon whether the decision which is sought to be impugned is in truth an attempt to ascertain, declare or enforce existing rights [Waterside Workers Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 463] or only a step in the proper exercise of the powers conferred upon the Commission by the Parliament.

“[But] there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power: Cessnock Collieries, at p.22; The Queen v. The Commonwealth Industrial Court; Ex parte The Australian Coal and Shale Employees' Federation (1960) 103 CLR 171, at p 174; Key Meats, at pp 596-597. Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties: Aberdare Collieries, at p.44.” [Re Cram; Ex parte The Newcastle Wallsend Coal Co. Pty Ltd (1987) 163 CLR 140 at 149]

[25] While this passage analyses the issue by reference to statutory powers of arbitration, the principles apply equally to the exercise of statutory powers such as those conferred by dispute resolution provisions in certified agreements pursuant to s.170LW. The Commission may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the conclusions on which it bases a decision resolving a dispute over the application of a certified agreement.

[26] Whether a particular decision should be so described depends to a great extent, if not entirely, upon the circumstances of the particular case.”

[47] Because we agree with the Commissioner that the only real issue before him was whether Tenix was bound by the Agreement, it cannot be said that the decision on that issue was a necessary preliminary step in the process of settling a dispute about the application of the Agreement. On that basis it is clear that what was sought was in truth a bare declaration of rights. Such a declaration would have involved a purported use of judicial power. The Commissioner was correct in that finding also.”

[21] A similar argument was advanced in relation to a right of entry dispute in Police and Nurses Credit Society Ltd v FSU…

[22] The principles in the Ranger Uranium Case apply to the current case. The Police and Nurses Case was found to involve considerations of fairness and the dispute was not characterised by the Commissioner or the Full Bench as a declaration and enforcement of the right of the organisation to enter premises under the Act. Hence the case is distinguishable from the present case. We propose to apply the Ranger Uranium Case to the matter before us.

[23] The Commission is an administrative tribunal not vested with the judicial power of the Commonwealth under the Constitution. Section 505 of the Act provides the Commission with the power to deal with a dispute about the operation of the Right of Entry Part of the Act. It may deal with the dispute by arbitration by making orders it considers appropriate including imposing conditions on right of entry permits, suspending or revoking entry permits and orders about future issue of entry permits. Subject to limited exceptions which are not relevant in this case, the Commission must not confer rights on a permit holder that are additional to, or inconsistent with, the rights under the Right of Entry Part of the Act.”

[12] The Full Bench in CFMEU v BHPB dismissed the appeal, finding that the relief sought by the CFMEU would, if granted, have involved the exercise of judicial power. The essential reasoning adopted by the Full Bench for reaching that conclusion was as follows:

“[27] The Commissioner was correct in dismissing these arguments. The only matter in dispute was whether the reference to “other breaks” in s.490 of the Act includes periods before the employees’ shift starting times and after their shift finishing times. The determination of that question clarifies the scope of rights conferred by s.490. No new rights or obligations are created by such a determination. No further functions or analysis is sought beyond the interpretation of the disputed term “other breaks” in s.490. The determination of the question involves the ascertainment of legal rights and obligations which are created by s.490. This is classically a judicial function.

[28] The attempt to disguise the nature of the power sought to be invoked by distinguishing between the past and the future is an invitation to depart from High Court authority. The distinction is a red herring. It cannot be doubted that the dispute is about future attempts to exercise rights to enter premises. However the rights sought to be exercised are existing rights created by the Act. The nature of those rights is in dispute. The CFMEU seeks an interpretation of those rights in the particular factual scenario of entry before shifts commence and after shifts end. It does not seek the creation of any right beyond those contained in the Act. The dispute involves nothing more than the interpretation of the Act and the ascertainment of existing rights and obligations under the Act. The Commission has no jurisdiction to embark on this exercise.”

[13] Although Police and Nurses Credit Society involved a right of entry dispute under the Workplace Relations Act, I am of the view that the principles articulated by the Full Bench in that case concerning the distinction between judicial power and arbitral power when dealing with a right of entry dispute are equally applicable to a right of entry dispute under Part 3-4 of the Act. 8 Accordingly, I will apply those principles in the context of the present dispute, together with the principles set out in CFMEU v BHPB.

[14] In addition to the principles set out above concerning the distinction between judicial and arbitral power, I would add that if a tribunal does not have the power to enforce its own orders, that is a strong but not conclusive factor weighing against the characterisation of its powers as judicial. 9 This is not an exclusive test of the exercise of judicial power.10

Consideration

[15] The Commission does not have the power to enforce an order made by it under s.505(2) of the Act. The enforcement of such an order would have to take place in a competent court. This weighs against the characterisation of the Commission’s powers under s.505(2) as judicial, 11 although this factor is not conclusive and much will depend on the circumstances of the particular case.12

[16] LORAC relies heavily in its submissions on CFMEU v BHPB to support its contention that the orders sought by the CFMEU in the present proceedings involve the exercise of judicial power. However, CFMEU v BHPB is quite a different case from the present dispute. In CFMEU v BHPB, the only issue in dispute was the interpretation of the expression “other breaks” in s.490(2) of the Act, and in particular whether “other breaks” include periods before and after the employees’ shift starting times. 13 In those circumstances it is not surprising that the Full Bench held (at [27]) that the determination of the question of interpretation involved “the ascertainment of legal rights and obligations which are created by s.490 of the Act. This is classically a judicial function.”

[17] The dispute I have arbitrated is a dispute under Part 3-4 of the Act about whether Mr Rielly was seeking to hold discussions with employees at the Site during their actual mealtimes and other breaks and, if so, whether LORAC was preventing him from doing so. 14 The matters in dispute are factual in nature; LORAC does not contest that a permit holder such as Mr Rielly has the right to enter the Site and hold discussions with employees during their actual mealtimes and other breaks, provided the requirements of s.484 of the Act are satisfied.

[18] For the reasons set out in the Primary Decision, I found that on 9 February 2017, 17 February 2017, 14 March 2017, and 27 April 2017 Mr Rielly was seeking to hold discussions with employees at the Site during their mealtimes or other breaks and LORAC prevented him from doing so. The question for determination now is whether I should exercise my powers under s.505(2) of the Act to deal with the dispute by making the orders sought by the CFMEU.

[19] The CFMEU is not seeking a declaration and/or enforcement of its right to enter the Site and hold discussions with employees during their mealtimes and other breaks; there is no dispute that it has such a right (assuming the requirements of s.484 of the Act are satisfied in respect of each such entry). Nor is the CFMEU seeking that a penalty be imposed on LORAC for past breaches of s.484 of the Act. Accordingly, the dispute I have arbitrated is not a dispute as to the existence or enforcement of legal rights or obligations.

[20] The second order sought by the CFMEU clearly involves the ascertainment of what rights and obligations should exist in relation to the holding of discussions by CFMEU permit holders at the Site. If such an order is made, it would create a new obligation (not otherwise imposed by the Act) on LORAC to place a Notice in each crib room or other area where employees usually take their mealtimes or other breaks. The creation of such an obligation suggests the exercise of arbitral power.

[21] The first order sought by the CFMEU does not to seek to create any new rights or obligations. It is essentially a restatement of the provisions in ss.484, 490(2) and 502(1) of the Act, albeit the first order also explains the distinction between a scheduled break and an actual break. The restatement of a legislative obligation does not, of itself, establish that what is being sought is the exercise of judicial power, 15 nor is it surprising when regard is had to the fact that s.505(5) of the Act provides that any order made must not “confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7” of Part 3-4, unless one of the exceptions set out in s.505(5) of the Act applies. There is no suggestion in this case that such an exception applies.

[22] I must take into account fairness between the parties concerned when dealing with the present dispute and determining what, if any, relief ought be granted. 16 Fairness in the context of the present dispute and the factual findings I have made in the Primary Decision includes seeking to find a way to limit or reduce the prospect of future right of entry disputes at the Site.

[23] LORAC’s repeated conduct in preventing Mr Rielly from holding discussions with employees during their actual mealtimes and other breaks at the Site suggests either a lack of understanding on the part of particular LORAC managers of the rights of permit holders to hold discussions during actual mealtimes and other breaks or a deliberate strategy on their part to limit such discussions to a fixed period of 30 minutes per mealtime or other break, regardless of when employees actually commence and finish their breaks. In either case, given the first order sought by the CFMEU applies to LORAC and “its employees, officers and agents”, making such an order would clarify and/or reinforce to LORAC managers working on the Site the need to ensure permit holders are entitled to hold discussions with employees during their actual mealtimes and other breaks, assuming the other requirements of s.484 of the Act are satisfied. In addition, requiring the placement of relevant Notices in crib rooms around the Site would, in my view, assist to achieve the objective of reducing right of entry disputes at the Site by informing, educating or reminding relevant stakeholders (employees working at the Site; LORAC and its officers, employees and agents; and the CFMEU and its permit holders) of some of their rights and obligations under Part 3-4 of the Act. In the circumstances of this case, I am satisfied that it would be appropriate 17 and fair18 to make such orders (as amended below) to deal with the dispute. In my view, the orders sought are also consistent with the object of Part 3-4 of the Act.19

[24] I agree with LORAC’s submission to the effect that the phrase “without interference” in the CFMEU’s draft orders may be potentially confusing, misleading and/or inconsistent with the Act, given the relevant obligation under the Act is for a person to “not intentionally hinder or obstruct a permit holder”. 20 Accordingly, I have amended the first draft order and the fourth item in the Notice to remove the reference to “interference” and replace it with “not intentionally hinder or obstruct”. I have also amended the first draft order to replace “meal break” with “mealtime”, so as to ensure no inconsistency between the order and the Act.

[25] LORAC submits that in addition to being an exercise of judicial power, the first order sought by the CFMEU is inconsistent with s.484 of the Act because it purports to state the rights of permit holders without any limitation. In particular, LORAC contends that the first order excludes limitations already built into s.484, such as that the exercise of rights of entry must be in respect of employees who perform work on the premises (s.484(a)) and who wish to participate in the discussions (s.484(c)). I do not accept these arguments. The opening words in the chapeau to the draft orders are as follows: “Subject to the parties’ other rights and obligations under the Fair Work Act 2009 (Cth)…” In my view, it is clear from those words that the orders sought do not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable under the Act, nor do they exclude any limitations built into, or obligations imposed by, provisions of the Act. For example, an employee of LORAC would not contravene the first order if they hindered a CFMEU permit holder from holding discussions with an employee who did not wish to participate in such discussions (s.484(c)).

[26] LORAC contends that the first item in the Notice is potentially misleading for employees and others because it does not state the limitations on permit holders holding discussions with employees under s.484 of the Act. I have revised the first item in the Notice to overcome any possibility that it may mislead employees or others in such a way. My amendments to the first item in the Notice set out in paragraph [31] below include the different elements of s.484 of the Act and do not alter the substance of the draft Notice.

[27] I accept LORAC’s submission that the second item of the proposed Notice in the CFMEU’s draft orders does not have an appropriate foundation. The CFMEU has not sought an order or other relief requiring LORAC to direct its managers and supervisors to do, or not do, certain things. Absent such an order (or other relief) or consent by LORAC to give such a direction, it would not be appropriate for the Notice to include a statement that “Pacific Complete has directed all its managers and supervisors to ensure …”

[28] I also accept LORAC’s argument that the third item of the proposed Notice does not have a sufficient connection to, or foundation in, the evidence adduced in the arbitration of the present dispute. There is no evidence to support a finding that LORAC has failed, or may in the future fail, to recognise the right of any employee to be a member of a union or has taken action against an employee in connection with their membership of a union.

[29] I consider it appropriate that the orders remain in force for a fixed period of time. In my preliminary view, 12 months is reasonable in light of the unchallenged evidence that the Project “has many years left till completion”. 21

Conclusion

[30] For the reasons set out above, I am satisfied that making the orders set out in the following paragraph would involve the exercise of arbitral power to deal with a factual dispute about the operation of Part 3-4 of the Act, not judicial power.

[31] My preliminary view is that I consider the following draft orders to be appropriate to deal with the present dispute:

“Subject to the parties’ other rights and obligations under the Fair Work Act 2009 (Cth) (FW Act), pursuant to s.505(2)(e) of the FW Act, the Commission orders, in relation to the exercise by CFMEU permit holders of rights of entry to have discussions under s. 484 of the FW Act on premises occupied by the Respondent, as they exist from time to time, within the site described as the Pacific Highway between Woolgoolga and Ballina, the following:

[1] The Respondent and its employees, officers and agents allow, and not intentionally hinder or obstruct, permit holders of the Applicant to hold discussions with members and potential members under s.484 of the FW Act during mealtimes or other breaks for such persons, as distinct from at times when meal or other breaks are scheduled to take place or usually take place; and

[2] The Respondent shall place in a prominent position within the site described as the Pacific Highway between Woolgoolga and Ballina, at each crib room and other area where employees usually take their meal or other breaks and are provided for that purpose the annexed Notice.

NOTICE

1. Union officials are entitled under the Fair Work Act to have discussions during mealtimes or other breaks with employees who perform work on the premises, whose industrial interests the union is entitled to represent, and who wish to participate in those discussions. Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete (Pacific Complete) is obliged to allow these discussions to occur and is prohibited by the Fair Work Act from intentionally hindering or obstructing union officials whilst they engage in such discussions with you during your mealtimes or other breaks.

2. If you feel that Pacific Complete managers or supervisors are intentionally hindering or obstructing discussions between yourself and union officials during your mealtimes or other breaks, you should report this to a senior manager or union official.”

These orders shall come into force at 6:00am on 4 September 2017 and shall remain in force for a period of 12 months.”

[32] My view is preliminary at this stage because the parties have not yet had an opportunity to make submissions in relation to my proposed time period for the orders (12 months) and the amendments I have made to the orders sought by the CFMEU to address the concerns of LORAC with which I agree (as set out in paragraphs [24], [26], [27], and [28] above).

[33] I direct the parties to file and serve any submissions they wish to make in relation to the matters identified in the previous paragraph by 4pm on 1 September 2017. If I do not receive any further submissions by that time, I will make orders in the terms set out in paragraph [31] above.

COMMISSIONER

Final written submissions:

LORAC, 11 August 2017

CFMEU, 16 August 2017

LORAC in reply, 18 August 2017

 1   Police and Nurses Credit Society Ltd v FSU (2003) 132 IR 13 (Police and Nurses Credit Society) at [45]

 2   TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2014) 251 CLR 533 at [27]

 3   Commonwealth of Australia Constitution Act 1900

 4   Re Ranger Uranium Mines Proprietary Limited and Others; Ex parte Federal Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 at [24]

 5   Brandy v HREOC (1995) 183 CLR 245 at 267 [9]

 6   CFMEU v Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete [2017] FWC 3782. Terms defined in the Primary Decision will have the same meaning in this decision.

 7   [2017] FWCFB 217 (CFMEU v BHPB)

 8   Bechtel Construction (Australia) Pty Ltd v MUA [2013] FWCFB 4250 at [14]

 9   Brandy v HREOC (1995) 183 CLR 245 at 257 and 268

 10   Ibid

 11   Ibid

 12   CFMEU v BHPB at [46] and generally

 13   Ibid at [25]-[27]

 14   Primary Decision at [22]

 15   Police and Nurses Credit Society at [67]-[69]

 16   Section 505(4) of the Act

 17   Section 505(2)(e) of the Act

 18   Section 505(4) of the Act

 19   Section 480 of the Act

 20   Section 502(1) of the Act

 21   Ex A2 at [48]

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