Appeal by Construction, Forestry, Mining and Energy Union (105N) - [2014] FWCFB 2709

1 

Fair Work Act 2009  
s.604 - Appeal of decisions 

Construction, Forestry, Mining and Energy Union 
v 
Fair Work Commission 
(C2014/2631) 

SENIOR DEPUTY PRESIDENT WATSON 
DEPUTY PRESIDENT KOVACIC 
COMMISSIONER WILSON 

 
 

MELBOURNE, 24 APRIL 2014

Appeal against decision [2013] FWC 9860 and [2013] FWC 10168 of Senior Deputy 
President O’Callaghan at Adelaide on 16 and 23 December 2013 in matter number 
RE2013/1710—Permission to appeal granted—decision [2013] FWC 10168 quashed in 
relation to Lend Lease entries—appeal otherwise dismissed—on rehearing, misuse of Part 3–
4 rights found to have occurred in respect of some Lend Lease entries—matter remitted back 
to Senior Deputy President O’Callaghan to determine what action should be taken under 
s.508(2) of the Fair Work Act 2009 as to jurisdiction under s.508(1) and nature and extent of 
misuse of Part 3–4 in relation to Lend Lease entries and complete hearing of matter in 
respect of matters arising out of the Fair Work Building and Construction evidence. 
 
[1] On 11 November 2013, Senior Deputy President O’Callaghan instituted proceedings 
on his own motion, pursuant to s.508 of the Fair Work Act 2009 (the FW Act) (s.508) in 
RE2013/1710. The matter initially concerned entries onto sites controlled by Lend Lease 
Building Contractors Pty Ltd (Lend Lease) on 30 October 2013 by officials of the South 
Australian Branch of the Construction, Forestry, Mining and Energy Union (CFMEU), but 
was later expanded to encompass later entries onto the Lend Lease sites and entry onto sites 
controlled by other companies. 
 
[2] The Senior Deputy President made three decisions arising out of RE2013/1710: 
 

1. [2013] FWC 9343, a decision of 27 November 2013, dismissing an application 
by the CFMEU that he disqualify himself from further pursuing the matter 
because of an apprehension of bias arising from statements made by him in 
s.418 proceedings on 31 October 2013 and 1 November 2013 and subsequent 
statements in a decision1 issued on 1 November 2013 in a s.418 matter; 

 
2. [2013] FWC 9860, a procedural decision of 16 December 2013, dismissing a 

jurisdictional application by the CFMEU that no further action should be taken 
in the matter pursuant to s.508 on the basis that, firstly, there was no 
jurisdiction to undertake what it described as a preliminary investigation into 
whether to initiate action under that section, and second that there was no 
specific proposal to found such an action; and 

[2014] FWCFB 2709 

DECISION 










[2014] FWCFB 2709 

2 

 
3. [2013] FWC 10168, a decision of 23 December 2013, in which the Senior 

Deputy President found that the Lend Lease entries represent serious, 
deliberate and sustained misuse of entry rights by the CFMEU pursuant to 
s.508(1) of the Act and set down further proceedings in respect of action under 
s.508(2) of the Act and relisted the matter in respect of entries to other sites for 
further evidence. 

 
[3] The CFMEU appealed each decision—[2013] FWC 9343 in C2013/7662; [2013] 
FWC 9860 and [2013] FWC 10168 in C2014/2631. Both appeals were heard by a Full Bench 
on 12 February 2014. 
 
[4] A decision determining the appeal against the decision in [2013] FWC 9343 in 
C2013/7662 was published on 28 February 2014 in [2014] FWCFB 1443. 
 
[5] This decision determines the appeals against the decisions in [2013] FWC 9860 and 
[2013] FWC 10168 in C2014/2631. 
 
Background to the appeal 
 
[6] The background to the appeal concerns the initiation of the s.508 proceedings by 
Senior Deputy President O’Callaghan. 
 
[7] That background commences with a 30 October 2013 application by Lend Lease2 for 
the making of an order pursuant to s.418 of the Act (s.418) binding on the CFMEU and 
several of its own and subcontractor employees engaged on four Lend Lease sites. 
 
[8] The Senior Deputy President refused the application for a s.418 order.3 During the 
course of the proceedings and in his decision in the s.418 matter the Senior Deputy President 
referred to evidence in relation to entries onto sites controlled by Lend Lease by CFMEU 
officials on 30 October 2013 and expressed a concern that the material before him “indicated 
various breaches of Part 3–4 of the FW Act”. The Senior Deputy President advised that he 
would consider whether he should inquire into these entries pursuant to s.508.4 
 
[9] On 11 November 2013, Senior Deputy President O’Callaghan wrote to the CFMEU 
and Lend Lease, stating: 
 

“Consistent with the advice I provided to the Construction, Forestry, Mining and 
Energy Union (CFMEU) on 31 October 2013, the information provided to me 
indicates that the CFMEU may have misused its entry rights such that a consideration 
of s.508 of the Act is warranted. 
 
A hearing for this purpose has been listed for 21 November 2013.”5 
 

[10] Directions,6 attached to the letter, indicated that Senior Deputy President O’Callaghan 
was “proposing to review the circumstances of entry practices followed by various officials of 
the Construction, Forestry, Mining and Energy Union (CFMEU) relative to Lend Lease 
Building Contractors Pty Ltd on 30 October 2013, pursuant to s.508 of the Fair Work Act 
2009”. The directions also required “that any party proposing to provide additional evidence 
in this [the s.508] matter to provide witness statements and any document to be relied upon by 
18 November 2013”. 








[2014] FWCFB 2709 

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[11] On 19 November 2013, the Senior Deputy President received a letter dated 
18 November 2013 from the Chief Counsel of the Fair Work Building and Construction 
(FWBC) asserting the right, by virtue of s.72 of the Fair Work (Building Industry) Act 2012 
(FW Building Act), of the Director of the Fair Work Building Industry Inspectorate (the 
Inspectorate) to make submissions (and be heard) in the s.508 matter. 
 
[12] Also on the 19 November 2013, Lend Lease filed submissions and witness statements 
and the FWBC filed an affidavit, with attachments, of Mr J Mathers (a FWBC Inspector) in 
the s.508 matter. 
 
[13] The first hearing in the s.508 matter was on 21 November 2013. At the 
commencement of the hearing, Senior Deputy President O’Callaghan set out the background 
to the s.508 proceedings.7 In doing so, he indicated that, pursuant to his directions of 
11 November 2013: 
 

 Lend Lease had filed additional material in the form of various affidavits made out 
by its Managers. 

 
 He had received a copy of correspondence from the FWBC, to the General 

Manager of the Fair Work Commission (the Commission), dated 18 November 
2013. It advised of the intention of the Director of the Inspectorate to make 
submissions in this matter, by virtue of its right within s.72 of the FW Building 
Act.  

 
 He had received an extensive affidavit, made out by Mr Mathers of FWBC. 

 
[14] The Senior Deputy President noted that the belated receipt of that material may 
disadvantage a party and that the material filed referred to site entries subsequent to 
30 October 2013. He indicated that to the extent that the material raised a question as to the 
expansion of the scope of the s.508 matter beyond Lend Lease sites on 30 October 2013, 
those matters could be raised with him.8 
 
[15] Senior Deputy President O’Callaghan concluded: 
 

“At this stage, I have formed a preliminary view that an inquiry ought to be made 
pursuant to section 508, on the basis of the information which was first of all, provided 
to me on or around 1 November, and which was not disputed by the parties in that 
particular proceeding. At this stage, I have not formed any view about what 
information should or shouldn’t be taken into account, relative to events which 
occurred subsequent to that date, or to events which are referenced in Mr Mathers’s 
affidavit.”9 
 

[16] The Senior Deputy President then heard the CFMEU application that he disqualify 
himself on the basis of apprehended bias. Before adjourning, Senior Deputy President 
O’Callaghan reserved his decision in respect of the apprehended bias application and 
foreshadowed “that in the event that I decided against the CFMEU submissions that I should 
disqualify myself, I would alert the parties to the likelihood that some further directions will 
issue, with a view toward expediting the conduct of the matter from that point on. I make no 
more than forecast that as a possibility”.10 The Senior Deputy President published his decision 
on the bias application on 27 November 2013.11 








[2014] FWCFB 2709 

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[17] On 27 November 2013, the Senior Deputy President also relisted the s.508 matter for 
10 December 2013 and issued further directions: 
 

“[2] I confirm my expectation that this hearing will enable consideration of the 
events of 30 October 2013 in as much as these events related to actions of CFMEU 
Officials’ entry to Lend Lease Pty Ltd sites in Adelaide. I also confirm my expectation 
that the same hearing will provide an opportunity for consideration of other building 
site entries on the part of CFMEU Officials on and after 30 October 2013. This 
expanded consideration of s.508 arises from material filed and served by Lend Lease 
Pty Ltd and Fair Work Building and Construction prior to 21 November 2013. 

 
[3] Any party wishing to express opposition to this expanded consideration of 
circumstances pursuant to s.508 should file and serve on the parties who appeared in 
the proceedings on 21 November 2013, detailed submissions and affidavits in support 
of their position. This material is to be filed and served by close of business 
6 December 2013. Any such material will be considered at the commencement of the 
proceedings on 10 December.”12 
 

[18] No submissions were filed expressing opposition to the expanded scope of the s.508 
matter. 
 
[19] On 9 December 2013, the CFMEU filed submissions seeking an order that the s.508 
proceedings be terminated forthwith on the grounds that: 
 

A. the Commission has no jurisdiction to initiate an action under s.508(1) on its 
own initiative absent the formulation by it of a proposal or application to 
“restrict the rights that are exercisable under this Part by an organization or 
official of an organization”; and 

 
B. in the alternative, if there are proceedings before the Commission within 

jurisdiction, the “proceedings are a denial of natural justice and being 
conducted contrary to the requirements” of the FW Act in that Senior Deputy 
President O’Callaghan had not advised the CFMEU or any officials of the 
nature and extent of any proposed order to be made pursuant to s.508(2). 

 
C. no right under Part 3–4—Right of entry of the FW Act (Part 3–4) (the Part) 

was asserted or relied upon by the CFMEU for the presence of the officials on 
site in respect of the relevant entries and there was also a serious issue about 
whether the presence of CFMEU officials on the sites was consensual. On 
either view the Commission could not be satisfied that rights under Part 3–4 
have been misused as none of those rights, in all the circumstances, have been 
availed of. As a result, there was no jurisdiction to consider actions under 
s.508(2) of the FW Act. 

 
[20] At the commencement of the hearing on 10 December 2013, Senior Deputy President 
O’Callaghan indicated that he was prepared to consider the matters that were raised in the 
CFMEU application in points A and B above as a threshold issue but point C would require a 
consideration of the evidence.13 The CFMEU accepted that the application in respect of point 
C was “slightly premature” and sought that the application be dealt with to conclusion, as 
preliminary issues, in respect of points A and B.14 








[2014] FWCFB 2709 

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[21] Senior Deputy President O’Callaghan proceeded to hear and determine the preliminary 
issues raised by the CFMEU in points A and B, announcing a decision in transcript15 and later 
publishing his decision, edited, in [2013] FWC 9860, the first of the decisions subject to the 
current CFMEU appeal. 
 
[22] The Senior Deputy President proceeded to receive evidence and hear submissions in 
relation to the s.508 matter on 10 December 2013, continuing into 13 and 21 December 2013. 
He published his decision on 23 December 2013 in [2013] FWC 10168. That decision is also 
subject to the current CFMEU appeal. 
 
The statutory context 
 
[23] The appeal concerns the power, under s.508, to restrict the rights of an organisation, or 
officials of an organisation under Part 3–4—Right of entry of the FW Act, if the organisation 
or official has misused those rights and the exercise of that power by the Senior Deputy 
President. 
 
[24] Part 3–4—Right of entry of the FW Act deals with right of entry of organisations and 
permit holders of the organisation – officers or employees of the organisation issued with 
entry permits under s.512 of the FW Act. 
 
[25] Part 3–4 affords organisations and their permit holders a statutory right to enter 
premises for purposes related to their representative role under the FW Act and under State or 
Territory Occupational Health and Safety (OHS) laws. 
 
[26] Section 480—Object of this Part provides: 
 

“The object of this Part is to establish a framework for officials of organisations to enter 
premises that balances: 

 
(a) the right of organisations to represent their members in the workplace, 

hold discussions with potential members and investigate suspected 
contraventions of: 

 
(i) this Act and fair work instruments; and 

 
(ii) State or Territory OHS laws; and 

 
(b) the right of employees and TCF award workers to receive, at work, 

information and representation from officials of organisations; and  
 

(c) the right of occupiers of premises and employers to go about their 
business without undue inconvenience.” 

 
[27] Part 3–4 provides statutory rights of entry, for purposes specified in the Part, which 
encroaches on the legal rights of occupiers of property. As a result, and consistent with the 
objects of the Part, the statutory rights of entry are qualified by conditions attached to it and 
prohibitions in respect of the conduct of permit holders exercising the statutory rights. 
 








[2014] FWCFB 2709 

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[28] Division 2—Entry rights under this Act of Part 3–4 sets out the entry rights afforded to 
organisations and their permit holders, in specified circumstances in Subdivisions A, AA and 
B: 
 

 to investigate suspected contravention of the FW Act, or a term of a fair work 
instrument, that relates to, or affects, a member of the permit holder’s organisation, 
where the permit holder must reasonably suspects the contravention (Subdivision 
A—Entry to investigate suspected contravention); 

 
 to investigate a suspected contravention relating to TCF award workers 

(Subdivision AA—Entry to investigate suspected contravention relating to TCF 
award workers); 

 
 to hold discussions with one or more employees who performs work on the 

premises, whose industrial interests the permit holder’s organisation is entitled to 
represent and who wish to participate in those discussions (Subdivision B—Entry 
to hold discussions). 

 
[29] Subdivision C—Requirement for permit holders of Division 2, sets out requirements 
for permit holders exercising the rights of entry under Subdivisions A, AA and B—conditions 
attached to the statutory rights of entry, including matters such as the giving of entry notice, 
adherence to permit conditions, producing authorities, when the rights may be exercised and 
compliance with OHS requirements.  
 
[30] Division 3—State or Territory OHS rights of Part 3–4 of the FW Act deals with State 
or Territory OHS rights. It is of a different nature to the rights afforded by Subdivisions A, 
AA and B in Division 2 (and conditioned by Division 2) in that it does not provide the OHS 
rights. The rights are provided by State or Territory OHS legislation, with Division 3 placing 
conditions upon and providing the protections associated with the exercise of those rights.16 
The first condition is that an official must be a permit holder under the FW Act to exercise the 
State or Territory OHS right. Other conditions include the giving of notice of entry, the 
production of the entry permit and when the right may be exercised. The right of entry under 
OHS legislation is thus subject to the holding of a federal permit and the conditions, 
limitations and obligations attached to right of entry for OHS purposes under Part 3–4 and the 
protections within Division 4—Prohibitions. Entry by officials of organisations under OHS 
law entails the use of rights conferred by Part 3–4.17 
 
[31] Division 4—Prohibitions sets out prohibitions which apply to permit holders 
exercising, or seeking to exercise the statutory entry right and to other persons in respect of a 
permit holder exercising the entry right. 
 
[32] Division 5—Powers of the FWC sets out powers of the Commission in relation to the 
operation of the Part, including the power, under s.508 of the FW Act, to restrict the rights 
that are exercisable under the Part by an organisation, or officials of an organisation, if the 
Commission is satisfied that the organisation, or an official of the organisation, has misused 
those rights. 
 
[33] Division 5 prescribes powers of the Commission to: 
 








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 Deal with disputes about the operation of Part 3–4 (Subdivision A—Dealing with 
disputes); 

 
 Take action against permit holders in certain circumstances (Subdivision B—

Taking action against permit holder);  
 

 Restrict rights of organisations and officials where there is a misuse of rights 
(Subdivision C—Restricting rights of organisations and officials where misuse of 
rights) – in which s.508 appears. 

 
[34] Subdivision D—When the FWC must revoke or suspend entry permits, prescribes 
circumstances in which the Commission must revoke or suspend entry permits and 
Subdivision E—General rules for suspending entry permits sets down general rules for 
suspending entry permits. 
 
[35] Division 6 of Part 3–4 deals with Entry permits, entry notices and certificates. 
 
[36] Division 7 of Part 3–4 deals with Accommodation and transport arrangements in 
remote areas. 
 
[37] Section 508 of the FW Act, the provision under which the Senior Deputy President 
O’Callaghan acted, provides: 
 

“508 FWC may restrict rights if organisation or official has misused rights 
 

(1) The FWC may restrict the rights that are exercisable under this Part by an 
organisation, or officials of an organisation, if the FWC is satisfied that the 
organisation, or an official of the organisation, has misused those rights. 

 
Note: Only a Vice President, Deputy President or Full Bench may take action under 
this subsection (see subsections 612(2) and 615(1)). 

 
(2) The action that the FWC may take under subsection (1) includes the following: 

 
(a) imposing conditions on entry permits; 

 
(b) suspending entry permits; 

 
(c) revoking entry permits; 

 
(d) requiring some or all of the entry permits that might in future be issued 

in relation to the organisation to be issued subject to specified 
conditions; 

 
(e) banning, for a specified period, the issue of entry permits in relation to 

the organisation, either generally or to specified persons; 
 

(f) making any order it considers appropriate. 
 

(3) The FWC may take action under subsection (1): 








[2014] FWCFB 2709 

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(a) on its own initiative; or 

 
(b) on application by an inspector. 

 
(4) Without limiting subsection (1), an official misuses rights exercisable under 
this Part if: 

 
(a) the official exercises those rights repeatedly with the intention or with 

the effect of hindering, obstructing or otherwise harassing an occupier 
or employer; or 

 
(b) in exercising a right under Subdivision B of Division 2 of this Part, the 

official encourages a person to become a member of an organisation 
and does so in a way that is unduly disruptive: 

 
(i) because the exercise of the right is excessive in the 

circumstances; or 
 

(ii) for some other reason.” 
 
[38] It may be seen that s.508(3)(a) authorises the Commission to take action under 
s.508(1)—restricting rights that are exercisable under Part 3–4 by an organisation, or officials 
of an organisation on its own motion. Section 508(2) sets out a non-exhaustive list of actions 
the Commission may take to restrict the rights that are exercisable under Part 3–4 when 
satisfied that misuse of those rights has occurred. 
 
[39] Section 508(1) contains a jurisdictional prerequisite to the restriction of the rights 
under s.508(1) through an action under s.508(2)—satisfaction by the Commission that the 
organisation, or an official of the organisation, has misused those rights. Those rights are 
rights that are exercisable under Part 3–4 by an organisation, or officials of an organisation. 
The appeal in relation to the decision in [2013] FWC 10168 raises a question as to the 
jurisdiction of Senior Deputy President O’Callaghan to make orders under s.508(2) of the Act 
to restrict the rights that are exercisable under Part 3–4 by the CFMEU or its officials. 
 
[40] The language of s.508(1) indicates that action against the misuse of the statutory rights 
arises in relation to reliance on those rights. The rights under Part 3–4 are the statutory rights 
to enter a premises of an employer for the particular purpose specified. They are conditioned 
by statutory requirements specified in relation to the exercise of the statutory rights to enter. 
This reflects a balance between the right of organisations to represent their members and the 
right of occupiers of premises and employers to go about their business without undue 
inconvenience. 
 
[41] The jurisdiction to restrict rights under s.508 only arises if the Commission is satisfied 
that the organisation, or an official of the organisation, has misused the rights that are 
exercisable by them under Part 3–4. That jurisdictional prerequisite involves two questions 
which must be answered in the circumstances of the specific conduct of an organisation or its 
officials which is said to constitute misuse of the statutory rights of entry under Part 3–4: 
 








[2014] FWCFB 2709 

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 Did the conduct occur in the exercise or purported exercise of the entry rights that 
are available under Part 3–4?18 and 

 
 Did the conduct constitute misuse of those rights? 

 
[42] Reflecting this position, Lend Lease described the two key elements to the exercise of 
jurisdiction to make orders under s.508 as “[t]he first one is that the union has exercised rights 
and the second is that the union has misused those rights”19 in the proceedings before Senior 
Deputy President O’Callaghan. 
 
[43] Part 3–4 does not constitute an exclusive code for the entry to premises for a purpose 
for which statutory rights of entry are afforded by Part 3–4; entry for such a purpose may 
occur on a basis other than upon reliance of Part 3–4 entry rights.20 As noted in the 
Explanatory Memorandum to the Fair Work Bill 2008: 
 

“1919. This Division gives officials of organisations a statutory right to enter premises 
and exercise powers provided they satisfy various conditions. It is not intended to 
codify all of the ways in which entry can occur or provide an exhaustive list of the 
powers exercisable on the premises. The Division does not affect the ability of an 
occupier of premises to invite any person onto that premises, e.g., to meet with the 
employer about a particular matter.”21 

 
[44] Similarly, the Explanatory Memorandum to the Workplace Relations Amendment 
(Work Choices) Act 2005 (Work Choices) makes it clear that the entry rights (and the 
associated conditions) do not apply to entry by consent22 and if so, whether those rights have 
been misused.  
 
[45] Absent satisfaction as to that jurisdictional prerequisite, the Commission is not 
empowered to take actions under s.508(3) of the FW Act in respect of the conduct by officials 
during the course of a site visit, even if unlawful or otherwise deserving of reproach, although 
other legal avenues may be available. 
 
[46] Accordingly, it cannot be presumed that an entry onto a workplace or work site by an 
official of an organisation is undertaken in reliance on the statutory rights of entry afforded by 
Part 3–4. Rather, it is necessary to consider and reach a conclusion as to whether the entry 
involves the use or purported use of Part 3–4 entry rights. 
 
[47] There are, to our knowledge, no authorities which have addressed the question 
concerning the use of Part 3–4 rights in the context of s.508 of the FW Act. The only 
decisions of the Commission concerning s.508, other than those subject to this appeal, are two 
other decisions of Senior Deputy President O’Callaghan in Re Fair Work Australia,23 
concerning Baiada Poultry (Adelaide) Pty Ltd. In that matter, the relevant entries were made, 
and the conduct said to constitute a misuse of Part 3–4 rights occurred, consequent upon an 
order24 under s.483AA of the FW Act, within Part 3–4. The question of whether the entries 
involved the use of Part 3–4 rights was not in issue and not dealt with in those decisions of the 
Senior Deputy President.  
 
[48] A recent decision of the Federal Court of Australia (FCA) in Ramsay v Sunbuilt Pty 
Ltd,25 was determined in the context of Part 3–4. In that decision, Reeves J considered the 
application of the prohibitions in Division 4 in relation to a permit holder exercising, or 








[2014] FWCFB 2709 

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seeking to exercise, rights in accordance with the Part. However, in that matter Reeves J was 
required to determine the specific legal question of whether a permit holder entitled to enter 
premises under OHS legislation was exercising rights in accordance with Part 3–4. There was 
no dispute that the permit holder was a permit holder and was entitled to enter the work site 
under the relevant OHS legislation.26 As a result, the judgment did not examine any broader 
question of whether the entry involved the use or purported use of Part 3–4 entry rights. 
Similarly, in Construction, Forestry, Mining and Energy Union v Gittany27 (Gittany), a 
judgment subsequent to the hearing of the appeal, Cowdroy J was not required to consider 
that broader question. 
 
[49] However, that question has been considered by the Commission (including its 
predecessors) and the Courts in other contexts, namely: 
 

 in the context of appeals against decisions of the Registrar under s.285A(3) of the 
Workplace Relations Act 1996 (WR Act) (prior to Work Choices);  

 
 in the context of applications under the WR Act (prior to Work Choices) in respect 

of a contravention of s.285E(1); 
 

 in the context of applications under s.770 of the WR Act (after Work Choices and 
unaffected by the Workplace Relations Amendment (Transition to Forward with 
Fairness) Act 2008) (WR Transition Act); and 

 
 in the context of applications under the WR Act (after Work Choices and 

unaffected by the WR Transition Act) in respect of a breach of the prohibitions in 
respect of right of entry in s.767. 

 
[50] For convenience, we set out the relevant provisions under the three forms of 
legislation referred to above.  
 
The WR Act (prior to Work Choices) 
 
[51] Section 285A(3) empowered the Registrar to “revoke the permit if he or she is 
satisfied that the person to whom it was issued has, in exercising powers under this Division, 
intentionally hindered or obstructed any employer or employee or otherwise acted in an 
improper manner”. Such a decision was appealable under s.81 of the WR Act (prior to Work 
Choices). 
 
[52] Section 285E set out prohibitions of conduct, attracting civil penalties, in relation to 
conduct by or in relation to a person exercising powers under ss.285B or 285C (the statutory 
rights of entry). 
 
The WR Act (after Work Choices, which were unaffected by the WR Transition Act) 
 
[53] Section 770—Orders by Commission for abuse of System provides in s.770(1) that: 
 

“If the Commission is satisfied that an organisation, or any official of an organisation, 
has abused the rights conferred by this Part, then the Commission may make whatever 
orders it considers appropriate to restrict the rights of the organisation, or officials of 
the organisation, under this Part (Part 15).” [emphasis added]  








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[54] Division 7—Prohibitions of Part 15—Right of entry, sets out prohibitions in relation 
to conduct by or in relation to a permit holder exercising, or seeking to exercise, rights under 
ss.747, 748 or 760; or under an OHS law in accordance with ss.756 or 757 (the statutory 
rights of entry). 
 
The FW Act 
 
[55] The WR Act provisions after Work Choices are comparable to s.508 and Division 4 of 
Part 3–4. 
 
[56] Section 508 of the FW Act authorises the Commission to restrict rights that are 
exercisable under Part 3–4 by an organisation, or officials of an organisation if the 
organisation or official has misused those rights. 
 
[57] Division 4 of Part 3–4—sets out prohibitions in relation to conduct by or in relation to 
a permit holder exercising, or seeking to exercise, rights in accordance with Part 3–4 (the 
statutory rights of entry). 
 
[58] The changed language can be summarised as follows: 
 

 The WR Act (prior to 
Work Choices) 
 
Part IX—Registered 
organisations – 
Division 11A—Entry 
and inspections by 
organisations 
 

The WR Act (after 
Work Choices) 
 
Part 15—Right of 
entry 

The FW Act 
 
 
 
Part 3–4—Right of 
entry 

Abuse/Misuse Section 285A(3): 
 
Power to revoke if 
permit holder in 
exercising powers 
under this Division, 
intentionally hindered 
or obstructed 

Section 770: 
 
Power to make an 
order restricting rights 
if official/organisation 
has abused the rights 
conferred by this Part 

Section 508: 
 
Power to take action 
restricting rights that 
are exercisable under 
this Part if official/ 
organisation misused 
the rights 
 

Penalties for 
breach of 
prohibition 

Section 285E: 
 
In relation to prohibited 
conduct by or in 
relation to a person 
exercising powers 
under a statutory rights 
of entry 

Division 7 of Part 15: 
 
In relation to 
prohibited conduct by 
a permit holder 
exercising, or seeking 
to exercise, rights 
under a statutory 
rights of entry 
 

Division 4 of Part 3–4: 
 
In relation to 
prohibited conduct by 
a permit holder 
exercising, or seeking 
to exercise, rights 
under a statutory rights 
of entry 








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[59] We note that objects of the Part governing right of entry were introduced into s.197 of 
the WR Act by Work Choices. These objects included the object, now in s.480 of the FW Act, 
of balancing the right of organisations to represent their members in the workplace (by the 
authorisation of entry to hold discussions with potential members and investigate suspected 
contraventions) against the right of occupiers of premises and employers to conduct their 
businesses without undue interference or harassment. The objects reflect an approach of 
affording organisations statutory rights of entry for specified purposes, in recognition of the 
rights of organisations to represent their members, but subjecting those rights to conditions 
and prohibitions on specified conduct and a power to restrict rights where abused, in 
recognition of the statutory intrusion on the rights of occupiers associated with the provision 
of entry rights. 
 
[60] We turn to consider the authorities in relation to determining whether an entry is 
reliant on statutory rights of entry, having regard to the specific statutory provisions which 
were considered in each case.  
 
[61] In Maurice Addison v Public Transport Corporation of Victoria28 (Addison), Senior 
Deputy President Polites determined an appeal by Addison against a decision of the Registrar 
revoking Mr M Addison’s permit under s.285A(3) of the WR Act (prior to Work Choices). 
 
[62] Senior Deputy President Polites rejected an argument, for Mr Addison, that if s.285D 
of the WR Act (prior to Work Choices), which required the showing of a permit and 24 hours 
notice, had not been complied with then the entry onto premises was not in accordance with 
Division 11A and the person entering the premises could not be said to be exercising powers 
under Division 11A. His Honour found that s.285A(3) should be construed so that it has 
operation where there is a purported exercise of the power under the Division. 
 
[63] A Full Bench decision in Andrew Ferguson and Martin French and CSR Limited 
trading as CSR Humes29 (Ferguson) also involved an appeal against a decision of the 
Registrar to revoke permits, pursuant to s.285A(3) of the WR Act (prior to Work Choices). 
The appeal concerned the construction in “exercising powers under this Division” in 
s.285A(3) and the findings of the Registrar, on the evidence, as to whether the permit holders 
were exercising such powers. 
 
[64] The decision in Addison was challenged by the appellants, who submitted that in 
“exercising powers under this Division” s.285A(3) should be construed “strictly”. The Full 
Bench found it unnecessary to determine this question, finding error, without ruling on the 
issue, construing s.285A(3) of the WR Act (prior to Work Choices) in the way it was 
construed by Senior Deputy President Polites in Addison.30 
 
[65] That Full Bench set out the relevant conduct of the permit holders during the course of 
their entry onto the premises and found that, unless the conduct was undertaken in the 
exercise of powers under Division 11A, there was no basis for revoking their permits under 
s.285A(3).31 The Full Bench found that the Registrar erred in finding that the appellants 
exercised powers under s.285B or s.285C of the WR Act (prior to Work Choices).32 
 
[66] The Full Bench in Ferguson also found that entry onto premises could occur by means 
other than reliance on statutory rights of entry. That proposition holds true in the context of 
the FW Act, given that Division 2 of Part 3–4, which provides statutory rights of entry “is not 








[2014] FWCFB 2709 

13 

intended to codify all of the ways in which entry can occur”.33 It follows that it cannot be 
assumed that an entry onto a site is reliant on the statutory rights within Part 3–4. 
 
[67] In Pine v Doyle34 (Pine), Merkel J decided an application for an order pursuant to 
s.285F(2) of the WR Act (prior to Work Choices) seeking a penalty against Mr F Doyle for an 
alleged contravention of s.285E(1), a prohibition on intentionally hindering or obstructing any 
employer or employee in exercising powers under s.285B—Investigating suspected breaches 
of Act etc, or s.285C—Discussions with employees. Merkel J identified the issues for 
determination as whether Mr Doyle was “‘exercising powers’ under s 285C during his visit to 
the site” on the relevant date and whether Mr Doyle intentionally hindered or obstructed a 
manager and through him, the employer, during that visit.35  
 
[68] In respect of the first issue, Merkel J found that the evidence that Mr Doyle was 
exercising his power of entry under s.285C of the WR Act (prior to Work Choices) on his 
visit to the site was “compelling”, citing advance notice by the CFMEU that Mr Doyle 
proposed to exercise his statutory rights of entry on the relevant date, Mr Doyle showing his 
permit to the manager when requested and Mr Doyle’s belief that “it was necessary for him to 
assert his right of entry under s 285C in order to enter the site”.36 In so finding, Merkel J 
accepted “that the power of entry was exercised for a purpose for which the power was not 
conferred and was therefore not a lawful exercise of the power”,37 but found: 
 

“[15] . . . it does not follow that, for the purposes of s 285E(1), the power was not 
exercised at all. In my view, s 285E(1) requires that the power of entry be exercised as 
a matter of fact, rather than as a matter of law. That construction of the sub-section 
accords with the plain and ordinary meaning of the words. Also, the words used in s 
285E(1) (‘person exercising powers under section 285B or 285C’) may be contrasted 
with the words used in s 285E(2) (‘a person entitled to enter premises under section 
285B or 285C’). Thus, when the legislature intended to refer to the exercise of the 
statutory power as a matter of law, it did so in s 285E(2) in terms of ‘entitlement’ to 
exercise the relevant power, rather than in terms of ‘exercising’ that power as is set out 
in s 285E(1). 
 

[16] Finally, my construction gives effect to the purpose of s 285E(1), which is to 
ensure that when a person enters and remains upon premises in reliance upon s 285C 
the person does not do so in a manner that intentionally interferes with the activities 
being conducted by an employee or an employer at the premises. The construction 
contended for by the respondent would remove that protection when it is most needed, 
namely in a case of misuse or abuse of the statutory power . . . 

 
. . . 

 
[18] Accordingly, I regard the question mandated by s 285E(1) to be whether the 
person entering the premises in question is exercising the power of entry as a matter of 
fact, rather than as a matter of law. For the reasons given above, I am satisfied that the 
respondent was exercising his power of entry under s 285C during his visit to the site 
on 18 February 2004.” 

 
[69] Between 2007 and 2009, the Australian Industrial Relations Commission (AIRC) dealt 
with applications by inspectors appointed pursuant to s.57 of the Building and Construction 
Industry Improvement Act 2005 (BCII Act) under s.770 of the WR Act (after Work Choices) 








[2014] FWCFB 2709 

14 

for orders to suspend or terminate or impose conditions on entry permits held by CFMEU 
organisers.38 
 
[70] The power granted to the AIRC to make orders was found to be “directed to 
circumstances when an organisation, or official of an organisation, gains entry to a site, or 
purports to gain entry to a site, in reliance on a right of entry under Part 15 and then abuses 
that right”.39 Attention was also directed to whether the permit holder entered the work site 
“in the exercise of his right” under Part 15 “or otherwise in the purported exercise of that 
right”.40 The approach of Merkel J that a determination of whether the permit holder was 
exercising, or purporting to exercise, rights conferred by Part 15 of the WR Act (after Work 
Choices) was a matter of fact was applied.41 Regard was had to the circumstances of each 
relevant entry, including the giving of the requisite notice of intention to enter the premises 
under a relevant statutory rights of entry as a permit holder and the permit holder presenting 
himself at the premises in accordance with the permit42 and the purpose of the visit, disclosed 
by the evidence.43 
 
[71] As noted above, in Pine, Merkel J considered Part IX—Division 11A of the WR Act 
(prior to Work Choices) and the relevant statutory language of s.285E(1): “A person 
exercising powers” under the relevant statutory entry provisions. Later cases in the FCA, 
determined in the context of Part 15 of the WR Act (after Work Choices), considered the 
expression: “[a] permit holder exercising, or seeking to exercise, rights” in s.767(1). 
 
[72] In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New 
South Wales Branch)44 (Holland v CFMEU (NSW)), Moore J dealt with a claimed 
contravention of s.758 of the WR Act (after Work Choices) in Division 5—Entry for OHS 
purposes, considering “whether the section operates only when the person alleged to have 
contravened it had ‘a right under an OHS law to enter premises’ in the sense of a lawful 
right”.45 In doing so he dealt with the contention that it was sufficient for the officials to have 
asserted that they had a lawful right to enter as a matter of fact even if, as a matter of law, they 
had no such right in Pine. Moore J distinguished the statutory provisions applied by Merkel J 
from those he was dealing with: 
 

“[50] In my opinion, there are material differences between the provisions Merkel J 
considered in Pine and those that arise in the present case. Section 756 identifies a 
class of union official upon whom Division 5 operates with the effect of the Division 
being to impose conditions on the exercise of the right of entry and to prohibit certain 
conduct when exercising it. That class of union official is constituted by those who 
hold a permit under Part 15 and have a right to enter under an OHS law. The existence 
of the right to enter under an OHS law confers a legal status on the permit holder 
which engages various provisions in Division 5. It is unlikely that the provisions which 
limit the way in which the right of entry might be exercised were intended to operate in 
relation to a union official who did not have that status because they did not have 
(though they may have mistakenly believed they did) a right to enter under an OHS 
law. In particular, s 758 is not intended to operate on a permit holder who does not 
have a right of entry under an OHS law. The section contemplates that the person on 
whom it operates might enter or might remain on premises ‘under an OHS law’ but 
shall not enter or shall not remain if a reasonable request is made by the occupier. If 
the request is not complied with then the permit holder contravenes the section. In my 
opinion, there was no contravention of s 758 by either respondent. 

 








[2014] FWCFB 2709 

15 

. . . 
 

[52] . . . s 756 operates on a person who has a right under an OHS law and, in that 
sense, identifies a person with a particular status on whom Division 5 operates. In my 
opinion it necessarily follows that the prohibition on, amongst other things, acting in 
an improper manner, concerns only a person with that status. 

 
[53] I accept that this construction of ss 756, 758 and 767 results in the various 
prohibitions or limitations not providing the complete protection of the type discussed 
by Merkel J in Pine (at [16] set out above). However in that matter the critical 
expression was ‘[a] person exercising powers under [various provisions]’. His Honour 
was able to conclude that a person can be exercising those powers even if they were 
mistaken in believing that the power had been lawfully conferred by those other 
provisions. In the present case the language and structure of the various provisions are 
different. A person is given a status by virtue of having a right conferred by state law. 
It is only then that various consequential provisions are engaged. 

 
[54] In my opinion the second and third respondents could not have contravened 
and did not contravene ss 758 and 767 because neither had a right to enter premises 
under an OHS law.” 

 
[73] The changed statutory terminology as between “powers” and “rights” as between the 
two variants of the WR Act was a matter expressly considered, by Dowsett J in Construction, 
Forestry, Mining and Energy Union v John Holland Pty Ltd46 (Holland), in concluding that 
the parties had misconstrued ss.760, 767 and 768 of the WR Act (after Work Choices).  
 
[74] The judgment in Holland concerned an appeal against a judgment of Greenwood J47 
arising from proceedings instituted by John Holland Pty Ltd seeking a penalty in respect of 
alleged contraventions of ss.767(1) and 768(1) within Part 15 of the WR Act (after Work 
Choices).48 The penalty sought related to the alleged hindrance to Mr Ingham, an employee of 
John Holland Pty Ltd. 
 
[75] Dowsett J, in his judgment, found that the parties had misconstrued ss.760, 767 and 
768 of the WR Act (after Work Choices), concluding to remit matter for further consideration, 
with his Honour’s reasons focussing upon the operation of s.760. Noting that s.760 authorises 
entry by a permit holder who enters the premises “for the purposes of holding discussions 
with any eligible employees who wish to participate in those discussions”, Dowsett J found 
that authorisation of entry pursuant to s.760 requires that the permit holder have the required 
purpose.49 His Honour concluded: 
 

“[38] Section 760 authorizes entry by: 
 

 a permit holder; 
 

 who enters the premises ‘for the purposes of holding discussions with any 
eligible employees who wish to participate in those discussions’. 

 
[39] The term ‘eligible employee’ is defined. However authorization of entry 
pursuant to s 760 is not dependent upon satisfying that definition. The permit holder 
must rather satisfy the requirement that he or she have the required purpose. 








[2014] FWCFB 2709 

16 

Establishment of, or challenge to the existence of such purpose may involve 
examination of whether there was an adequate factual basis for having the prescribed 
purpose. If, for example, the permit holder did not have some basis for a belief that 
there were eligible employees on the premises, then it may be difficult to conclude that 
he or she had the purpose of entering into discussions with people fitting that 
description. His or her purpose may rather have been to discover whether there were 
such people on the premises. Of course, a person may have more than one purpose. 
Authorization pursuant to s 760 is not dependent upon the permit holder having 
reasonable grounds for a particular belief. 

 
[40] At [91], the primary Judge dealt with the question of authorization, concluding 
that because of the operation of the Expansion Agreement the permit holders ‘did not 
have a valid right of entry to the X50 work site’. This conclusion was based upon the 
finding that John Holland’s employees at the X50 work site were not eligible 
employees. That finding, in turn, was based upon a finding that they were not carrying 
out work which was covered by an award or collective agreement which was binding 
upon the appellants. Such work was regulated by the Expansion Agreement to which 
those unions were not parties, and pursuant to which the operation of otherwise 
relevant awards was excluded. In my view, that was not the question posed by s 760. 
The relevant question was whether the permit holders had the prescribed purpose, 
which question was not addressed. 

 
[41] In the present case, s 767(1) will be engaged only if a permit holder is 
exercising, or seeking to exercise rights under s. 760. If s. 760 is not engaged (because 
the permit holder lacks the prescribed purpose) then there are no relevant rights for the 
purposes of s.767(1). In other words, s. 767(1) regulates the way in which a person 
exercises his or her right of entry pursuant to s 760. Such an approach may be 
inconsistent with that taken by Merkel J in Pine v Doyle (2005) 143 IR 98 at [14]–
[18]. His Honour concluded that a purported, but unlawful, exercise of a power of 
entry would engage a prohibition on hindering or obstructing in the exercise of a 
statutory power to enter. Although the distinction between a power and a right may be 
a narrow basis for distinguishing that decision, I am unpersuaded that a permit holder 
can be described as exercising, or seeking to exercise a right under s 760 if there is no 
such right because of the absence of the requisite purpose. I would, however, prefer to 
leave that question unresolved, largely because it has not been argued. 

 
. . . 

 
[45] The first difficulty with this approach is that the allegation of hindrance or 
obstruction depends upon the permit holders’ entry to the site being unauthorized. If 
such entry was authorized by s 760, then Mr Ingham’s conduct was simply his 
reaction to lawful conduct, presumably acting in accordance with his duty. Lawful 
entry can hardly constitute hindrance or obstruction for the purposes of s 767(1). Thus, 
whether the decision in Pine v Doyle is correct or not in the respect which I have 
identified above, the alleged hindrance or obstruction depends upon unauthorized 
entry. Assuming that the entry was unauthorized, but that s 767(1) was nonetheless 
engaged as found by Merkel J, it may still be arguable that there was no hindrance or 
obstruction. Merkel J reached that conclusion on facts which were similar to those in 
the present case. In any event the question of whether entry was authorized has not 
been addressed in accordance with s 760.” 








[2014] FWCFB 2709 

17 

 
[76] As was noted by Dowsett J,50 the question of the exercise or purported exercise of 
rights under s.760 (and the apparent inconsistency in his approach with the approach taken by 
Merkel J in Pine based on the distinction between a power and a right) was not argued before 
the Full Court. Dowsett J left that matter unresolved largely on that basis, reaching his 
conclusion in the appeal without determining whether the decision in Pine was correct in 
respect of the apparent inconsistency identified in his decision.51  
 
[77] Spender J agreed with the reasons for judgment of Dowsett J that the parties had 
misconstrued ss.760, 767 and 768 of the WR Act (after Work Choices), stating: 
 

“[7] In my view, if s 760 is not engaged because the relevant permit holder lacks 
the prescribed purpose, then s 767(1) has no operation, because it applies, relevantly, 
only to a permit holder “exercising, or seeking to exercise a right under s 760” of the 
WR Act. In my view, s 767(1) regulates the way in which a person exercises his or her 
right of entry pursuant to s 760. If the entry on 13 February 2009 or 5 March 2009 was 
authorised by s 760, the conduct of Mr Ingham was no more than performing his 
ordinary duties as an employee of John Holland. 

 
[8] For myself, the relevant question under s 760 was whether the permit holder 
had the prescribed purpose. If the permit holder had that purpose, then it is a question 
whether there was an actual intentional hindrance or obstruction of any person; in my 
view, it is highly unlikely that the conduct of the union officials could, in those 
circumstances, constitute a hindrance or obstruction of Mr Ingram, he doing no more 
or less than what his duties as an employee of John Holland required him to do.” 

 
[78] Logan J did not address that question in his judgment, with the challenge made by the 
appellant unions to the contravention findings being confined to a challenge to the conclusion 
that the union officials did not have reasonable grounds for believing that entry was 
“authorised” under s.760 of the WR Act (after Work Choices),52 although his Honour found: 
 

“[135] As to the finding that s 767(1) had been contravened, the right of access which 
each official sought to exercise was one under s 760 of the WR Act. For reasons 
already given, no such right existed. Nor, for reasons already given, did reasonable 
grounds exist to believe that there was any such right.” 

 
[79] The judgments of Spender and Dowsett JJ suggest, in respect of s.760 of the WR Act 
(after Work Choices), that if the permit holder had the specified purpose of holding 
discussions with any eligible employees who wished to participate in those discussions, s.767 
was engaged in that the permit holder was exercising, or seeking to exercise, rights to enter a 
premises. Conversely, if the relevant permit holder lacked the prescribed purpose, s.767 was 
not engaged because the permit holder was not “exercising, or seeking to exercise a right 
under s.760”. As Dowsett J expressed it, if s.760 is not engaged (because the permit holder 
lacks the prescribed purpose) then there are no relevant rights for the purposes of s.767(1). 
The approach is directed to whether the permit holder, in undertaking the entry, held the 
purpose for which the relevant statutory rights of entry is provided. 
 
[80] In his further decision,53 consequent upon remittal by the Full Court, Greenwood J set 
out the passages of the judgments of Spender and Dowsett JJ in the appeal concerning s.760 
of the WR Act (after Work Choices). Greenwood J noted the identification by Dowsett J of 








[2014] FWCFB 2709 

18 

the relevant question as being “whether the permit holders had the prescribed purpose” a 
question Dowsett J found was not addressed in his first decision.54 Greenwood J observed that 
this was a question that needed to be further addressed.55  
 
[81] Greenwood J noted the distinction suggested by Dowsett J between a power and a 
right as a basis for distinguishing Pine and the observation of Dowsett J that he would prefer 
to leave that question unresolved largely because it had not been argued. Greenwood J noted 
that “[s]ubmissions have now been directed to that question”.56 
 
[82] Following his consideration of the judgments of Spender and Dowsett JJ, 
Greenwood J then addressed the question of whether the officials had the required purpose 
when entering the premises, stating: 
 

“[47] That question is to be answered by ascertaining on the evidence whether the 
permit holder has satisfied the requirement that he or she had (that is, subjectively 
held) the required purpose (Dowsett J [39] and [40]; Spender J [3], [7]–[9]). In order to 
answer that question (and all matters remitted for further consideration) I have 
reconsidered the transcript of the proceedings, all of the affidavit material, the 
submissions of the parties, the findings reflected in the principal judgment and the 
second judgment and the written submissions of the parties consequent upon the orders 
described at [16].” 

 
[83] Greenwood J applied that approach to the entries by each official, finding in each case, 
that they had subjectively, the required purpose under s.760 of the WR Act (after Work 
Choices), that is to say, the official entered the premises for the purposes of holding 
discussions with eligible employees of the employer (whether or not those employees met the 
definition of “eligible employees” under s.760) who expressed a wish to participate in 
discussions about the terms of a possible collective agreement concerning the work the 
union’s members (or those employees eligible to be members of the union) were undertaking, 
and thus each entry was authorised57 and lawful.58 
 
[84] Greenwood J concluded that “. . . the question to be determined is whether the Union 
officials entered the premises for the prescribed purpose supported by some basis in the 
evidence for that purpose”. He found that “[T]his subjective assessment of purpose does not 
depend upon whether the purpose was reasonably formed or not but simply whether, in fact, 
the officials entered for the prescribed purpose and genuinely acted upon that purpose”,59 and 
“they did so enter holding the prescribed purpose”.60 He found that the permit holders entered 
the premises under the authority of s.760 of the WR Act (after Work Choices) and thus 
relevant rights were engaged for the purposes of s.767(1).61 
 
[85] In Darlaston v Parker62 (Darlaston), Flick J considered a claimed contravention of 
s.767 of the WR Act (after Work Choices) in respect of an entry said to have occurred 
pursuant to s.758 for OHS purposes. Whilst he found that each of the persons, against whom 
contraventions were alleged, asserted a right of entry upon the premises, he found that unless 
they could be found to have been permit holders they could not be found to have contravened 
the WR Act (after Work Choices) in the manner alleged. 
 








[2014] FWCFB 2709 

19 

“[63] But the contraventions alleged against one or other of them depend upon the 
Applicant establishing that each is a ‘permit holder’ – s 758 makes it an offence for a 
‘permit holder’ to enter and remain on premises in the circumstances there described; 
and s 767 prohibits a ‘permit holder’ from engaging in the conduct there described. 

 
[64] If one or other of the individual Respondents was not a ‘permit holder’, they 
may each have been committing a trespass – but they could not be found to have 
contravened the Workplace Relations Act in the manner alleged.” 

 
[86] The judgment suggests that a person could only be “exercising, or seeking to exercise 
a right” if they were of the class of employees who had such a right. 
 
[87] In Setka v Gregor (No 2)63 (Setka), Lander, Tracey and Yates JJ, decided an appeal 
against a judgment in the Federal Magistrates Court64 in which Mr J Setka was found to have 
contravened s.767 of the WR Act (after Work Choices) in the course of a visit to a building 
site. The appeal grounds relating to the finding of the contravention raised a number of issues 
concerning the construction of s.767(1). 
 
[88] In the appeal, Mr Setka relied on the observations of Spender and Dowsett JJ in 
Holland, concerning the inter-relationship of ss.760 and 767(1) of the WR Act (after Work 
Choices), as cited above, in support of his submission that the Federal Magistrate erred in 
concluding that, at relevant times, he was exercising or seeking to exercise rights under s.756. 
 
[89] The Full Court in Setka noted that the judgment of Dowsett J dealt with s.760 of the 
WR Act (after Work Choices) and distinguished that provision from s.756(1) as follows: 
 

“[21] It may be noted, immediately, that s 756(1) differed from s 760 in that it 
contained no prescribed purpose. Moreover, section 756(1) did not create or confer a 
right but rather, as the Federal Magistrate rightly noted, assumed the existence of a 
right and regulated its exercise. The relevant right was conferred by the OHS Act. The 
right considered in John Holland was conferred by s 760. This distinction was 
reflected in the phrasing of sub-paragraphs (a) and (b) in s 767(1). 

 
[22] The question for the Federal Magistrate was whether, on the evidence, 
Mr Setka was exercising or seeking to exercise rights under the OHS Act. His Honour 
answered that question by finding that Mr Setka ‘was a permit-holder and that he 
entered upon the premises with a view to investigating safety concerns in respect of 
members of his union.’ It followed that s 767(1) was engaged.” 

 
[90] The Full Court noted that: 
 

“[23] Mr Setka was ‘an authorised representative’ of the CFMEU who held an entry 
permit for the purposes of the OHS Act: see ss 81 and 87. An authorised representative 
has the right to enter a workplace during working hours for the purpose of inquiring 
into any suspected contravention of the OHS Act: see s.87(2). By s 88(1) am 
authorised representative must, immediately on entering a workplace under s 87, give a 
notice to the manager of the site and produce his or her entry permit for inspection. 
Once on the site, an authorised representative has powers of inspection and 
consultation with employees and managers: see s.89.”65 

 








[2014] FWCFB 2709 

20 

[91] The Full Court found against Mr Setka on this point in the appeal, finding that the 
evidence supported the Federal Magistrate’s finding that Mr Setka was exercising or seeking 
to exercise rights under the Occupational Health and Safety Act 2004 (Vic) (VOHS Act): 
 

“[25] We are satisfied that there was ample evidence before the Federal Magistrate 
on which he could, consistently with the provisions of s 140 [of the Evidence Act 1995 
(Cth)], conclude that Mr Setka was, when he engaged in the exchange with the 
managers, exercising, or seeking to exercise, rights under the OHS Act. That evidence 
is summarised above at [14]. On this evidence it may readily be inferred that Mr Setka 
was, at the least, seeking to exercise rights under the OHS Act. He was involved in 
consultations with employer representatives about health and safety issues.” 

 
[92] The evidence referred to in Setka at paragraph 14 was said to include: 
 

“ Mr Setka’s complaint, immediately on entering the site, that it was a ‘fucking 
pigsty’. 

 
 The avowed purpose of the officials who attended the site in company with 

Mr Setka which was to deal with health and safety issues.  
 
 The taking of photographs, by one of them, of works on the site which were said 

to present a risk to the health and safety of workers. 
 
 The tenor of Mr Setka’s exchange with the managers. 
 
 The conduct of a meeting (albeit one not attended by Mr Setka) shortly after the 

incident to deal with health and safety issues. 
 
 The parts of the cross-examination of Mr Keeble . . .” 

 
[The cross-examination suggested that the conduct of Mr Setka in his exchange with 
the managers occurred in context of clear risks to health and safety of workers.] 

 
[93] The Full Court also referred to evidence before the Federal Magistrate that “Mr Setka 
told managers, who challenged their right to enter the site, that they had been invited by the 
safety committee and that they had significant safety concerns.”66 
 
[94] The question framed and answered by the Full Court was put in the terms of the 
language of s.767 of the WR Act (after Work Choices)—was Mr Setka exercising, or seeking 
to exercise, rights under the VOHS Act? That question was answered by reference to the 
evidence that Mr Setka was “an authorised representative” of the CFMEU who held an entry 
permit for the purposes of the relevant VOHS Act, had the right to enter a workplace during 
working hours for the purpose of inquiring into any suspected contravention of the VOHS Act 
(s.87(2)) and was involved in consultations with employer representatives about health and 
safety issues and evidence as to the focus on OHS matters by Mr Setka and his colleagues 
during the site visit. That answer went to both the right of Mr Setka to undertake an entry 
authorised by the VOHS Act and the purpose of his entry disclosed by the evidence. 
 








[2014] FWCFB 2709 

21 

[95] In Gittany, Cowdroy J determined an appeal against Cameron FM,67 concerning 
alleged contraventions of ss.501 and 502 of the FW Act in relation to an entry within the 
scope of Division 3—State or Territory OHS rights. 
 
[96] Cowdroy J dealt with a CFMEU submission that the finding of the primary judge that 
the right of entry being exercised by the CFMEU representatives concluded when they left the 
premises was inconsistent with the primary judge’s observation that the CFMEU 
representatives had not completed their inspection before leaving the premises. Cowdroy J 
distinguished between matters of law and fact: 
 

“[38] The primary judge was correct in his findings. As a matter of law, once 
the CFMEU representatives departed the premises, the statutory rights of entry ceased. 
Such consequence resulted from the fact that the right of entry was wholly dependent 
upon the existence of a requisite constitutional foundation. This finding is not 
inconsistent with the observation at [88] which is directed not to a matter of law, 
but to a matter of fact. The issues are distinct, as was explained by the primary judge at 
[96], where he said: 
 

‘… Moreover, ss 501 and 502 are relevantly identical to a predecessor section 
considered in Pine v Doyle [2005] FCA 977 where Merkel J said at [15] that a 
provision which spoke of a person “exercising powers” of entry required that 
the power be exercised as a matter of fact, rather than as a matter of law, 
whereas a provision which spoke of a person being “entitled to enter” was a 
reference to the exercise of the statutory power as a matter of law. That is to 
say, while s 501 concerns the assertion of a right, s 502 concerns its actual 
exercise in the sense of it being put into practical effect.’” 

 
[97] Cowdroy J relied on the proposition of Cameron FM that s.501 of the FW Act was a 
contravention in relation to a permit holder who is entitled to enter the premises (a matter of 
law) whilst s.502 relates to a permit holder exercising rights (a matter of fact) a distinction in 
language drawn by Merkel J in relation to the WR Act (prior to Work Choices) in Pine. 
 
Conclusions on the authorities 
 
[98] Before drawing conclusions from the specific authorities, it may be noted that: 
 

 Decisions of the Commission (and its predecessors) considered above have been 
concerned with decisions of the Registrar revoking permits under s.285A(3) of the 
WR Act (prior to Work Choices) and applications in respect of abuse of statutory 
entry rights under s.770 of the WR Act (after Work Choices); 

 
 Decisions of the FCA considered above have concerned applications for civil 

penalties in respect of alleged breaches of prohibitions in the exercise of the 
statutory rights of entry in the context of the WR Act in its various forms and, to a 
limited degree, the FW Act. Although they do not directly involve s.508 (or the 
equivalent provisions in the WR Act), they do raise similar considerations and have 
been relied upon by the Commission in determining such matters under s.770 of 
the WR Act (after to Work Choices); 

 








[2014] FWCFB 2709 

22 

 Decisions of the FCA dealt largely with entry under OHS legislation and the WR 
Act or FW Act provisions authorising entry for the purpose of holding discussions. 
In this regard, it needs to be recalled that, Division 3—State or Territory OHS 
Rights of Part 3–4 is of a different nature to the entry rights afforded and 
conditioned by Division 2—Entry rights under this Act, in that it does not provide 
the OHS rights. Nonetheless, entry by officials of organisations under OHS law 
entails the use of rights conferred by Part 3–4.68 

 
[99] In Addison, Senior Deputy President Polites found that a permit holder was 
“exercising powers” afforded by statutory rights of entry where there was a purported exercise 
of the power, rejecting the proposition that powers were exercised only when such powers 
were lawfully exercised in compliance with the associated conditions. This proposition was 
challenged in Ferguson but it was unnecessary for that Full Bench to determine that “in 
exercising powers under this Division” should be construed “strictly”. 
 
[100] The decision of Merkel J in Pine,69 concerning the imposition of a penalty in respect 
of contraventions of prohibitions, was also decided under the WR Act (prior to Work 
Choices). Merkel J found that there was no lawful exercise of the power provided by the 
statutory rights of entry but approached the question of whether a person was exercising the 
power of entry as a matter of fact, rather than as a matter of law, finding, on the evidence, that 
Mr Doyle was exercising his power of entry under statutory rights of entry. 
 
[101] Decisions of the AIRC between 2007 and 2009, applied the approach of Merkel J that 
a determination of whether the permit holder was exercising, or purporting to exercise, rights 
conferred by Part 15 of the WR Act (after Work Choices) was a matter of fact.70 The power of 
the Commission to make orders has been found to be “directed to circumstances when an 
organisation, or official of an organisation, gains entry to a site, or purports to gain entry to a 
site, in reliance on a right of entry under Part 15 and then abuses that right”.71 
 
[102] Then followed a series of judgments of the FCA under both the WR Act (after Work 
Choices) and the FW Act, directed to the question of whether the power to order penalties in 
respect of contraventions of prohibitions in statutory rights of entry.  
 
[103] The judgments in Holland v CFMEU (NSW) and Holland departed from the approach 
of Merkel J in Pine on the basis of changed statutory provisions between the WR Act prior to 
and after Work Choices.  
 
[104] In respect of a claimed contravention of s.758 of the WR Act (after Work Choices) in 
Division 5—Entry for OHS purposes, Moore J, in Holland v CFMEU (NSW), found that the 
contravention provision operated on a person, who had a right under an OHS law and, in that 
sense, identified a person with a particular status on whom Division 5 operated. He found that 
it was only when a person was given a status by virtue of having a right conferred by State 
law that various consequential provisions are engaged, rejecting the proposition in Pine that it 
was sufficient for the officials to have asserted they had a lawful right to enter as a matter of 
fact even if, as a matter of law, they had no such right. 
 
[105] The approach arising from the judgments of Spender and Dowsett JJ in Holland, 
which concerned the statutory right to enter for the purpose of holding discussions (s.760 of 
the WR Act (after Work Choices)) was that the jurisdictional requirement in relation to 
s.767(1) that “exercising, or seeking to exercise rights” under s.760 is to be determined by 
reference to whether or not the permit holder had the prescribed purpose of the relevant right. 








[2014] FWCFB 2709 

23 

Dowsett J found that authorisation of entry pursuant to s.760 is not dependent upon satisfying 
the requirement that the permit holders have the required purpose.72 
 
[106] On remittal,73 Greenwood J applied the approach of Spender and Dowsett JJ, 
addressing the question of whether the officials had the required purpose when entering the 
premises by ascertaining on the evidence whether the permit holder had satisfied the 
requirement that he or she had (that is, subjectively held) the required purpose.74 
 
[107] In Darlaston,75 Flick J considered a claimed contravention of s.767 of the WR Act 
(after Work Choices) in respect of an entry said to have occurred pursuant to s.757, finding 
that a person could only be “exercising, or seeking to exercise a right under s.757” if they 
were of the class of employees who had such a right, in that case, concerning OHS entry, 
requiring that they were a permit holder. 
 
[108] In Setka,76 the Full Court found that Mr Setka was exercising, or seeking to exercise, 
rights under the VOHS Act by reference to the evidence that Mr Setka was “an authorised 
representative” of the CFMEU who held an entry permit for the purposes of the relevant 
VOHS Act, had the right to enter a workplace during working hours for the purpose of 
inquiring into any suspected contravention of the VOHS Act (s.87(2)) and was involved in 
consultations with employer representatives about health and safety issues and evidence as to 
the focus on OHS matters by Mr Setka and his colleagues during the site visit. The approach 
of the Full Court went to both the right of Mr Setka to undertake an entry authorised by the 
VOHS Act and the purpose of his entry disclosed by the evidence. 
 
[109] It is necessary to discern the appropriate test for determining whether an organisation 
or its officials were using rights exercisable under Part 3–4 to establish jurisdiction for the 
taking of action to restrict those rights in the event that those rights were misused. 
 
[110] As noted above, previous decisions of the AIRC applied the approach of Merkel J in 
Pine that a determination of whether the permit holder was exercising, or purporting to 
exercise, rights conferred by Part 15 of the WR Act (after Work Choices) was a matter of fact, 
with the power to make orders arising when an organisation, or official of an organisation, 
gains entry to a site, or purports to gain entry to a site, in reliance on a right of entry under 
Part 3–4 and then misuses that right. 
 
[111] However, that approach and the reliance on Pine cannot be sustained in light of 
subsequent authority from the FCA, including two judgments of Full Courts, which have 
distinguished the approach in Pine on the basis of the changed terms of the relevant 
legislation. It is therefore necessary to discern and apply the test evident in the subsequent 
FCA judgments determined in the context of the WR Act (after Work Choices) in relation to 
prohibition provisions within the right of entry Part of that Act, which are materially in the 
same terms as in the FW Act. 
 
[112] As already noted, the FCA authorities do not deal directly with the basis of jurisdiction 
within s.508 of the FW Act. However, the questions which arise are comparable—the 
determination, as a matter of jurisdiction of whether the organisation or official/permit holder 
was using entry rights exercisable under the relevant part of the FW Act. Consistent with the 
past approach of the Commission’s predecessors, we think that the FCA authorities in relation 
to the prohibition provisions provide guidance as to the approach to be applied in relation to 
the misuse question. Each of the authorities of the FCA, subsequent to Pine (other than 








[2014] FWCFB 2709 

24 

Gittany) dealt with the statutory term “a permit holder exercising, or seeking to exercise, 
rights”. Section 508, although referring to “rights that are exercisable”, provides jurisdiction 
when those rights are misused. Since the misuse of rights requires their use, the post Pine 
authorities, concerning the exercise of the rights are relevant. 
 
[113] We note that the terms of s.508—“misuse of rights exercisable under the Part”—are 
slightly different from s.770 of the WR Act (after Work Choices)—“abuse of the rights 
conferred by the Part”. However, we see no material difference in that the rights exercisable 
under the Part 3–4 are those conferred by the Part. 
 
[114] In Holland v CFMEU (NSW) and Darlaston, it was found that consequential 
provisions in the right of entry Part of the WR Act (after Work Choices) would only operate 
in respect of persons upon whom a right has been conferred as statutory rights of entry under 
the relevant OHS law. Neither decision goes beyond that point. In Holland v CFMEU (NSW), 
Moore J found that the persons entering the premises were not an “authorised representative” 
for the purposes of s.76 of the Occupational Health and Safety Act 2000 (NSW) (NSW OHS 
Act) and had no right to enter a work site. A similar proposition was put to Flick J in 
Darlaston but he found that consequent upon amendments to the NSW OHS Act since 
Holland v CFMEU (NSW), the persons entering the premises in the matter before him were 
not an “authorised representative”. The judgments do not otherwise assist in discerning the 
proper approach to determining whether the persons were exercising rights under the Part 15 
of the WR Act (after Work Choices). These judgments assist only to the extent of establishing 
that in order to be exercising, or seeking to exercise rights under the right of entry provisions 
the person has been conferred with statutory rights of entry. 
 
[115] The judgments of Spender and Dowsett JJ in Holland put the question in terms of 
whether or not the permit holder had the prescribed purpose of the relevant right. 
Greenwood J applied that approach by ascertaining on the evidence whether the permit holder 
had satisfied the requirement that he or she had (that is, subjectively held) the required 
purpose. These judgments adopt a test of whether or not the permit holder had the prescribed 
purpose of the relevant right. It may be noted that no issue arose as to whether or not the 
officials in that case were conferred with statutory rights of entry. 
 
[116] In Setka, the approach applied by the Full Court went to both the right of Mr Setka to 
undertake an entry authorised by the VOHS Act and the purpose of his entry disclosed by the 
evidence. 
 
[117] Taken together these authorities suggest the test for determining whether a permit 
holder exercising, or seeking to exercise, rights under statutory rights of entry involves two 
elements: 
 

 Satisfaction that the relevant organisation or official has been conferred with 
statutory rights of entry; and  

 
 Satisfaction that the permit holder had the prescribed purpose of the relevant right. 

 
[118] This approach represents a departure from the approach in Pine of satisfaction, as a 
matter of fact, that an organisation, or official of an organisation, gains entry to a site, or 
purports to gain entry to a site, in reliance on a right of entry under Part 3–4.  
 








[2014] FWCFB 2709 

25 

[119] The words of s.508, read on their face, suggest the exercise of Part 3–4 rights in order 
to misuse them. There are means of entering a site which do not rely on or utilise the statutory 
rights of entry within Part 3–4, and Part 3–4 is not a comprehensive code governing site entry 
for purposes for which it provides a right of entry. In that context the approach in Holland and 
Setka, determined by reference to a permit holder having a purpose of entry prescribed within 
a statutory right of entry, does not sit comfortably with: 
 

 the possibility of entry to premises by means other than in reliance with the 
statutory entry rights, given Part 3–4 it not intended to codify all of the ways in 
which entry can occur; and 

 
 on the other hand, the possibility of purported reliance on a statutory right to gain 

entry to a site for a particular statutory purpose but with no intention, on the 
evidence, to engage in that purpose, with an intention of engaging in some other 
purpose, including a prohibited activity. 

 
[120] In the first instance where, for example, a permit holder is invited to immediately enter 
the workplace by an employer to dissuade members threatening industrial action from doing 
so, by entering without notice and holding discussions with the employees during work time, 
it seems unlikely that because the official has a statutory right of entry available and the 
purpose of the entry is to hold discussions with employees, the permit holder could be held to 
be exercising, or seeking to exercise rights under s.484 of the FW Act and to have misused 
those rights by entering without notice and holding discussions during working time. 
 
[121] On the other hand, it is difficult to envisage that there would be no jurisdiction to take 
action under s.508 against a permit holder purporting to rely on a statutory right to gain entry 
to a site but without a purpose for which a right is available, when assessed against the 
evidence, but with a purpose of hindering, obstructing or harassing an occupier. 
 
[122] Nonetheless, given the authority of two Full Courts of the FCA, we apply the test we 
have discerned from the FCA authorities subsequent to Pine, involving, two elements: 
 

 Satisfaction that the relevant organisation or official has been conferred with 
statutory rights of entry; and  

 
 Satisfaction that the permit holder had the prescribed purpose of the relevant right. 

 
[123] Several decisions of the Commission have dealt with the question of what constitutes 
“misuse” of the statutory entry rights, once the use of the rights had been found. In 
determining whether Part 3–4 have been misused Senior Deputy President O’Callaghan in Re 
Fair Work Australia77 found that “the misuse which must be established on the balance of 
probabilities must refer to the use or purpose of the rights of entry which is contrary to the 
purpose for which they were granted by the Entry Orders or by Part 3–4 itself”.78 
 
[124] This approach is consistent with earlier decisions in relation to the WR Act (after 
Work Choices). In Gregory Charles Alfred v Andrew Quirk, Senior Deputy President Lacy 
said:  
 

“[14] As may be seen from the foregoing summary the rights conferred by Part 15 
consist of a statement of an absolute right tempered and conditioned by a number of 








[2014] FWCFB 2709 

26 

limitations and restrictions on the exercise of the right. In my view the rights conferred 
by Part 15 can be defined as the parcel of rights that are to be exercised in accordance 
with their specified limitations and restrictions. Abuse of the rights may result in 
revocation or suspension of the rights or the imposition of further conditions on the 
exercise of them. What is not defined by Part 15 is the term ‘abuse’. Dictionary 
definitions of the term suggest a meaning of ‘wrong or improper use’. In the context of 
the expression ‘abused the rights conferred’ by Part 15, the right might be said to be 
abused if its exercise cannot reasonably be reconciled with the duty or duties to which 
the holder of the rights is subjected by the several limitations and restrictions in Part 15 
itself. So much is consistent in my view with the views expressed by Senior Deputy 
President Watson in Re Australian Building and Construction Commission.”79 
 

[125] The view expressed regarding Re Australian Building and Construction Commission 
from the above paragraph is as follows:  

 
“In my view, the concept of abuse within s.770 of the Act would clearly encompass a 
collateral intent or an improper purpose when exercising, or purporting to exercise, 
entry rights under Part 15 of the Act. However, it is not clear that abuse requires a 
collateral intent or an improper purpose. It might also extend to the exercise of the 
right of entry in a manner which fails to reflect the conditions or limitations attached 
by the statute to the right. Abuse would arise from some of the issues suggested by Ms 
Martino - the misuse of the right of entry to abuse or intimidate representatives of the 
occupier, to procure unlawful industrial action, to obstruct and frustrate the normal 
operation of the enterprise and to compromise OHS requirements of a site.” 80 

 
THE CFMEU APPEAL AGAINST THE PRELIMINARY DECISION IN [2013] FWC 
9860 
 
The decision of Senior Deputy President O’Callaghan in [2013] FWC 9860 
 
[126] Senior Deputy President O’Callaghan dealt with two bases for the CFMEU 
submission that no further action should be taken in this matter pursuant to s.508: 
 

 “firstly, there is no jurisdiction to undertake what it describes as a preliminary 
investigation into whether to initiate action under that section”, and 

 
 second, “there is no specific proposal to found such an action.”81 

 
[127] The Senior Deputy President was “not persuaded that there are any such jurisdictional 
impediments to the matter proceeding or that the proceedings represent a preliminary 
investigation”: 
 

“[9] I am not satisfied that s.508 limits the FWC’s capacity to initiate actions to 
circumstances which are detailed in a particular application. As I indicated in my 
decision of 27 November 2013, the FWC very rarely invokes the capacity to act of its 
own motion under s.508. I have adopted the position that such an action of this nature 
should only be taken in circumstances where the material before a particular Member 
of the FWC is such that it gives rise to a substantial concern about the possible misuse 
of entry rights.  

 








[2014] FWCFB 2709 

27 

[10] The enquiry that must then ensue must go to establishing whether, on the 
evidence then presented to the Commission, one or more concerns are made out such 
that misuse of entry rights is established. Hence, I consider that it was incumbent on 
the FWC to articulate the concerns that gave rise to the commencement of the s.508 
action so that the parties could be aware of the issues to be addressed. The advice 
provided to the parties must strike a balance between the expression of the concerns 
giving rise to the s.508 proceedings and the invitation to fairly consider evidence about 
those concerns.  

 
[11] The absence of regulations or rules relating to the operation of this section is 
not relevant to the issue of jurisdiction. In procedural terms, it is simply incumbent on 
the FWC to formulate an approach which balances the dictates of speed and efficiency 
with those of fairness and equity. To read s.508 as requiring that the jurisdiction to 
invite submissions and evidence about misuse of entry rights is limited to situations 
where the FWC has formed a concluded view about misuse, would itself represent a 
denial of natural justice.  

 
[12] Section 508 and, indeed, other sections of the FW Act which empower the 
FWC to act on its own initiative may be applied so that they have about them, an 
element of inquiry. It is only if this inquiry, on the evidence put to the FWC, 
establishes misuse of the nature addressed in this section, that the Commission is then 
empowered to take action. To deprive the FWC of that capacity, or the capacity to 
embark on such an inquiry, or to require it to articulate specific assertions would be to 
render this section effectively inoperative. It is simply the case that the evidence which 
may, or may not be put to me, will establish whether the jurisdiction to act under s.508 
exists.  

 
[13] As a consequence, I concluded that there was no jurisdictional barrier to the 
matter proceeding.  

 
[14] Secondly, the CFMEU argued that the proceedings represented a denial of 
natural justice. Again, I do not accept this position. The basis for the proceedings has 
been clearly articulated. In part, this basis was relied upon in the CFMEU’s earlier 
argument that I should exclude myself from further consideration of the matter 
because of an apprehended bias. The directions issued to date have put the parties on 
notice about the proceedings in matters of concern to me. In this respect I am satisfied 
that natural justice requirements have been met.  

 
[15] The material before me to date identifies certain unnamed individuals who are 
asserted to be officials or employees, or representatives of the CFMEU. In some cases, 
this is a matter of public record and I may take note of it accordingly.  

 
[16] The CFMEU advice is that it does not represent those persons and that 
Mr Pearce only represents the CFMEU. Some of the persons referenced in the material 
before me are not identified by name and the material indicates that in some cases they 
have not been prepared to identify themselves. This may, or may not be established on 
the evidence that is put to me.  

 
[17] To the extent that the evidence enables conclusions about individuals in terms 
of the names or their activities is a matter for later consideration in the context of the 








[2014] FWCFB 2709 

28 

obligation on the FWC to ensure procedural fairness. Consequently, to ensure a 
procedurally fair approach to all of the parties, including potentially affected 
individuals, I confirmed my intention to reach conclusions about the extent to which 
the circumstances in s.508(1) are established, before inviting the parties to consider 
what, if any, form of order should then be made. This approach may extend to 
proposed orders about which submissions may later be made. It may also extend to 
specific invitations to individuals to appear and make submissions about the 
appropriate form of orders being countenanced.”82 

 
The CFMEU appeal 
 
[128] The CFMEU appeal was brought on the basis of two broad contentions reflected in six 
appeal grounds directed to the decision of Senior Deputy President O’Callaghan in [2013] 
FWC 9860: 
 

 Failure to formulate a proposal or application [Grounds 1, 5 and 6]; and  
 

 Construing s.508 as authorising proceedings under s.508 where a Member of the 
Commission has only formed the opinion that he/she has “substantial concerns” 
that the possible misuse of rights may have occurred [Grounds 2, 3 and 4]. 

 
Failure to formulate a proposal or application 
 
[129] The CFMEU submitted that Senior Deputy President O’Callaghan failed to provide 
procedural fairness to the CFMEU by failing to order that the proceedings be terminated on 
10 December 2013 for want of jurisdiction/power because the Senior Deputy President had 
failed to formulate a proposal or application to restrict the rights that are exercisable under 
Part 3–4 by the CFMEU when the formulation of such proposal or application was a 
necessary prerequisite to the exercise of jurisdiction/power under s.508 of the FW Act and 
where the failure to formulate such a proposal or application and the continuation of the 
proceedings constituted a denial of procedural fairness to the CFMEU. 
 
[130] The CFMEU also submitted that whilst no mechanism is provided by s.508(3) of the 
FW Act, the Fair Work Regulations 2009 or the Fair Work Commission Rules 2013 regarding 
the initiation of a s.508 matter on its own motion, the Commission must perform the functions 
and exercise the powers exercised in a manner consistent with the general requirements of the 
FW Act as set out in ss.577 and 578. These include the requirements for the Commission in 
exercising the powers under s.508 to act in a manner which is “fair and just” and “open and 
transparent” and which takes into account the objects of Part 3–4 as well as “equity, good 
conscience and the merits of the matter”. In addition the Commission is under a duty to act 
judicially, and to afford procedural fairness to any person likely to be adversely affected by 
the proceedings. 
 
[131] The CFMEU further submitted that neither the 11 November 2013 letter, or the 
11 November 2013 application/notification document or the observations in matter 
RE2013/1710 advised the CFMEU or any of its officials of the nature and extent of any 
proposed order likely to be made pursuant to s.508(2) of the FW Act. It submitted that in the 
absence of such a proposal or application that the proceedings should have been terminated on 
10 December 2013 for want of jurisdiction/power and the continuation of the proceedings 
constituted a denial of procedural fairness to the CFMEU. 








[2014] FWCFB 2709 

29 

 
[132] We see no basis for the CFMEU proposition that a Member initiating s.508 
proceedings on their own motion is obliged to formulate a specific proposal or application. 
What is required, in our view, is that the Member affords natural justice to organisations or 
persons who may be affected by an action, under s.508(3) of the FW Act, arising out of the 
hearing and determination of a s.508 matter.  
 
[133] The initiation of a s.508 matter by a Member on their own motion should reflect a 
reasonably based concern about the possible misuse of entry rights. If a Member is of the 
view that information available to him/her raises such a concern, it would be incumbent upon 
that Member to provide an opportunity for an organisation or person potentially affected by 
the outcome of the matter to bring evidence and submissions as to whether a relevant misuse 
has occurred and, if so, what actions should be taken under s.508(2) of the FW Act, provide 
access to the evidence and submissions made in the matter and, if an outcome not raised in the 
proceedings was in the contemplation of the Member, to alert potentially affected 
organisations or persons of that possibility.  
 
[134] Before the hearing of relevant evidence and submissions in proceedings, initiated by a 
Member on the basis of some reasonably based concern, the formulation of a proposal or 
application, not informed by the evidence and submissions in the matter would not be 
possible and would suggest pre-judgment in relation to relevant evidence and submissions. At 
that early stage, a Member could do no more than to appraise potentially affected 
organisations or persons of the fact of the s.508 matter and the proceedings to occur and 
ensure access to and an opportunity to consider and deal with evidence and submissions in the 
matter. Advice of the initiation of the s.508 matter in itself would alert potentially affected 
organisations or persons of the possibility of findings on misuse against organisations and/or 
officials of the organisations and possible action to restrict the rights that are exercisable 
under Part 3–4 by organisations, or officials of any kind contemplated by s.508(2) of the FW 
Act. At that stage, without having heard the evidence and submissions, it would not be 
possible to closely specify the extent and nature of the misuse by the organisation or an 
official, if any, or the nature of any action under s.508(2) if a finding of misuse was made.  
 
[135] In very rare circumstances, where a misuse was established beyond doubt in the mind 
of a Member, in advance of s.508 proceedings, there may be occasion to set out the nature and 
extent of misuse of rights established, the basis of that conclusion and s.508(2) actions 
contemplated with some specificity, and inviting affected organisations or persons, with an 
opportunity to bring evidence and submissions, to show cause why such a course of action 
should not follow. The circumstances before Senior Deputy President O’Callaghan were not 
of this nature. His concern arose out of limited uncontested evidence in the context of a s.418 
matter, without submissions in respect of the import of that evidence (and other evidence 
which might arise) to s.508 of the FW Act. 
 
[136] In the current circumstances, Senior Deputy President O’Callaghan expressed 
concerns about possible misuse of entry rights on the basis of the limited evidence in the 
s.418 matter and raised the possibility of further enquiry through s.508 proceedings, both in 
the proceedings and in his decision. By letter of 11 November 2013 he advised the CFMEU 
and Lend Lease that he had initiated s.508 proceedings, setting down directions which 
provided an opportunity for the CFMEU and Lend Lease to bring evidence additional to that 
in the s.418 proceedings. He ensured that all materials filed in the s.508 proceedings were 
available to the CFMEU, Lend Lease and the FWBC. 








[2014] FWCFB 2709 

30 

 
[137] On 27 November 2013, the Senior Deputy President expanded the scope of the entries 
under consideration in the s.508 matter, having alerted the CFMEU, Lend Lease and the 
FWBC to that possibility in the proceedings of 21 November 2013 and affording them the 
opportunity to put submissions against such a course.83 No submissions were filed expressing 
opposition to the expanded scope of the s.508 matter. In deciding the preliminary issues in 
[2013] FWC 9860, the Senior Deputy President was conscious of the need to ensure 
procedural fairness for potentially affected individual officials of the CFMEU and for him to 
“reach conclusions about the extent to which the circumstances in s.508(1) are established, 
before inviting the parties to consider what, if any, form of order should then be made”.84  
 
[138] In his decision of 23 December 2013 in respect of misuse of rights in relation to the 
Lend Lease entries, the Senior Deputy President, was concerned about “potential for 
inequitable outcomes” of his findings if directed at individual persons when there was 
uncertainty about the identity of all the persons who conducted the entries. As a result, he 
directed his “attention to the entirety of those entries conducted on behalf of the CFMEU” and 
restricted his findings to the CFMEU as an organisation.85 
 
[139] As we have already found, the initiation of a s.508 by a Member on their own motion 
does not require the formulation of a specific proposal or application by them. Rarely would 
such a specific formulation be possible without pre-judging the matter in advance of receiving 
evidence and submissions in the s.508 proceedings. What is required is the provision of 
natural justice to potentially affected organisations or persons. From our consideration of the 
process adopted and the steps taken by Senior Deputy President O’Callaghan, we are satisfied 
that he afforded the CFMEU natural justice in the conduct of the s.508 matter. 
 
[140] We note that the CFMEU appeal was directed to the impact of the failure of the Senior 
Deputy President to formulate a proposal or application on the provision of natural justice to 
the CFMEU as an organisation.86 We think the natural justice point was properly confined in 
this way by the CFMEU given the reasons of Senior Deputy President O’Callaghan at 
paragraphs 15 to 17 of his decision. 
 
[141] Nonetheless, the CFMEU argued in oral submissions that Senior Deputy President 
O’Callaghan, in failing to identify individuals who might be affected by the s.508 proceeding, 
failed to put individuals on notice that they might be affected by the proceedings87 and denied 
them of procedural fairness.88 We are not satisfied that such a denial of procedural fairness 
has occurred. Part 3–4 balances “the right of organisations to represent their members in the 
workplace, hold discussions with potential members and investigate suspected 
contraventions” with the rights of others89 and sets out rights (and responsibilities) of permit 
holders as officials of those organisations in giving effect to the right of the organisations to 
represent their members in the workplace. An application for a entry permit under the FW Act 
is made by an organisation registered under the Fair Work (Registered Organisations) Act 
2009 in respect of an office holder or employee of the organisation in order that the permit 
holder, can exercise rights of and on behalf of the organisation under the FW Act in their 
capacity as an officer or employee of the organisation.  
 
[142] Further, the possibility of action against the CFMEU as an organisation was such that 
any individual CFMEU permit holder might be affected by action taken under s.508(2) of the 
FW Act. The state of the evidence in the s.418 proceedings and in the s.508 matter was such 
that individuals involved in the entries were not in all cases identified with clarity. For that 








[2014] FWCFB 2709 

31 

reason, Senior Deputy President O’Callaghan refrained from making findings of abuse 
directed at individual permit holders.90 In his decision in [2013] FWC 9860, he said: 
 

“[17] . . . to ensure a procedurally fair approach to all of the parties, including 
potentially affected individuals, I confirmed my intention to reach conclusions about 
the extent to which the circumstances in s.508(1) are established, before inviting the 
parties to consider what, if any, form of order should then be made. This approach may 
extend to proposed orders about which submissions may later be made. It may also 
extend to specific invitations to individuals to appear and make submissions about the 
appropriate form of orders being countenanced.” 

 
[143] It was not suggested by the CFMEU that the identification of specific permit holders 
who may have been affected by the decisions of Senior Deputy President, would have resulted 
in a different outcome in respect of their rights as individuals, as distinct from permit holders 
exercising rights of the CFMEU under Part 3–4. The Senior Deputy President confined his 
finding as to misuse of rights by the CFMEU as an organisation, he has not considered or 
determined actions under s.508 in relation to that misuse of rights at this point and has under 
consideration specific notice to individuals to appear and make submissions about the 
appropriate form of orders being countenanced. Those steps would seem to protect their rights 
as individuals, such as the potential impact on their continuing employment, a different 
consideration to those attaching to action against the CFMEU affecting them as officers or 
employees of the CFMEU exercising rights of the CFMEU as permit holders on behalf of the 
CFMEU under Part 3–4. 
 
Construing s.508 as authorising proceedings under s.508 where a Member of the 
Commission has only formed the opinion that he/she has “substantial concerns” that the 
possible misuse of rights may have occurred 
 
[144] The CFMEU submitted that Senior Deputy President O’Callaghan erred in construing 
s.508 as authorising the commencement and continuation of proceedings in circumstances 
that a Member of the Commission has only formed the opinion that he/she has “substantial 
concerns” that the possible misuse of the rights exercisable under Part 3–4 may have 
occurred. The CFMEU submitted that as a consequence, the Senior Deputy President erred in 
failing to order that the proceedings be terminated on 10 December 2013 for want of 
jurisdiction/power. 
 
[145] We see no basis for this submission by the CFMEU in the appeal. As we have already 
noted, it would be open to a Member to initiate a s.508 matter on their own motion on the 
basis of a reasonably based concern about the possible misuse of entry rights. A reasonably 
based concern about the possible misuse of Part 3–4 rights warranting further investigation 
would be necessary before embarking on a process to elucidate further evidence and 
submissions given the impact on the resources of the Commission and interested parties in 
doing so. However, there is no basis for the proposition that satisfaction that a misuse of 
rights has occurred would be necessary in order for a Member of the Commission to initiate 
s.508 proceedings on their own motion. 
 








[2014] FWCFB 2709 

32 

THE CFMEU APPEAL AGAINST THE DECISION IN [2013] FWC 10168 
 
[146] Most of the appeal grounds brought by the CFMEU were directed to the decision of 
Senior Deputy President O’Callaghan of 23 December 2013 in [2013] FWC 10168. They fell 
into two broad categories: 
 

A. Grounds directed to the Lend Lease entries, in respect of which Senior Deputy 
President O’Callaghan ultimately found “that the circumstances of the Lend 
Lease entries represent serious, deliberate and sustained misuse of entry rights 
by the CFMEU pursuant to S508(1)”,91 although directed only to the “CFMEU 
as an organisation”;92 and 

 
B. Grounds directed to entries not involving Lend Lease sites raised by the 

evidence of the FWBC, which the Senior Deputy President found “establishes 
a prima facie case to the effect that misuse of Part 3–4 entry rights has 
occurred”, but in respect of which he was not “prepared to reach a conclusion” 
in relation to s.508(1). Instead he provided a further opportunity to the 
companies concerned, the FWBC and the CFMEU to “provide submissions 
and evidence relevant to the events referenced in that evidence”.93 

 
[147] His Honour’s decision in relation to the two classes of entries, and the different stages 
of his decision making process in relation to them, raises different considerations in the appeal 
and we will deal with them separately in this decision. 
 
A. Lend Lease  
 
The CFMEU contentions of appeal 
 
[148] In its written submissions94 in the appeal, the CFMEU grouped its appeal grounds 
concerning the Lend Lease entries as follows: 
 

1. Grounds 7–12: which related to the broad contention “there was no 
jurisdiction/power for the Senior Deputy President to exercise the 
jurisdiction/power under s.508 of the Act in the proceedings because as a 
matter of fact and law no rights that are exercisable under Part 3–4 of the Act 
have been used or misused by the CFMEU or an official of the CFMEU”, with 
the “existence of such matter of fact and law” being a “prerequisite to the 
exercise of jurisdiction under s.508 purportedly being engaged in by the Senior 
Deputy President”. 

 
2. Grounds 13 and 14: in respect of which the CFMEU broadly asserted “that, the 

Senior Deputy President has failed to provide procedural fairness to the 
CFMEU by failing to provide adequate reasons for concluding that as a matter 
of fact and law rights that are exercisable under Part 3–4 of the Act have been 
used by the CFMEU or an official of the CFMEU”. 

 
3. Grounds 15 and 16: in which the CFMEU submitted “that the Senior Deputy 

President has failed to provide procedural fairness to the CFMEU by failing to 
consider, and/or have regard to, and/or give any weight to, and/or give 
sufficient weight to, submissions for the CFMEU that, as a matter of fact and 








[2014] FWCFB 2709 

33 

law, rights that are exercisable under Part 3–4 of the Act, were not used by the 
CFMEU or an official of the CFMEU”.  

 
4. Grounds 21 and 22: The CFMEU submitted “that the Senior Deputy President 

erred as a matter of fact and law . . . in finding that the requirement of sections 
486 and 487 were contravened with respect to the Lend Lease purported 
entries” and in so doing failed to provide procedural fairness to the CFMEU 
and the permit holders.  

 
5. Grounds 23 and 24: in which the CFMEU contended “that the Senior Deputy 

President erred as a matter of fact and law . . . in finding that the permit 
holders . . . contravened s.490(3) of the FW Act . . . and in so doing failed to 
provide procedural fairness to the CFMEU and the permit holders”. 

 
6. Grounds 25 and 26: “These grounds assert that the Senior Deputy President 

erred as a matter of fact and law . . . in finding that the numerous of the permit 
holders . . . contravened s.491 of the Act and in so doing failed to provide 
procedural fairness to the CFMEU and the permit holders”. 

 
7. Grounds 28 and 29: “These grounds assert that the Senior Deputy President 

erred as a matter of fact and law . . . in finding that various of the 
officials . . . contravened s.495 and s.499 of the Act and in so doing failed to 
provide procedural fairness to the CFMEU and the permit holders”. 

 
8. Grounds 30 and 31: in which the CFMEU asserted “that the Senior Deputy 

President erred as a matter of fact and law . . . in finding that the Lend Lease 
Entries . . . contravened s.500 of the Act and in so doing failed to provide 
procedural fairness to the CFMEU and the permit holders and in so doing 
failed to provide procedural fairness to the CFMEU and the permit holders”. 

 
9. Grounds 32 and 33: “These grounds assert that the Senior Deputy President 

erred as a matter of fact and law . . . in finding that the Lend Lease 
Entries . . . contravened s.503 of the FW Act and in so doing failed to provide 
procedural fairness to the CFMEU and the permit holders”. 

 
10. Grounds 34 and 35: in which the CFMEU submitted “that the Senior Deputy 

President erred as a matter of fact and law . . . in finding that there were 
numerous, deliberate and sustained contraventions of the rights under Part 3–4 
of the Act involved in the purported Lend Lease Entries . . . and to the extent 
that the Senior Deputy President’s finding . . . is based on other undisclosed 
findings not set out at above the Senior Deputy President has failed to provide 
procedural fairness to the CFMEU by failing to provide adequate reasons for 
decision”. 

 
[149] In their oral submissions, the CFMEU identified the jurisdictional prerequisites for 
actions under s.508(2) of the FW Act, arising out of s.508(1) as, “[f]irstly, it requires 
identification of rights that are exercisable under Part 3–4 and associated with that, the use of 
those rights; and secondly, you need to find that those rights were misused”.95 
 
[150] On that basis, the CFMEU focussed on three “important” issues96 in the appeal. 
 








[2014] FWCFB 2709 

34 

[151] Firstly, the finding of Senior Deputy President O’Callaghan “that rights exercisable 
under the Act were used; that is rights under Part 3–4 were being used on the days in 
question”, described by the CFMEU as the centrepiece of its case below.97 
 
[152] In this regard, the CFMEU submitted that: 
 

 the officials “positively disavowed any reliance on the Act”.98 The CFMEU 
conceded that the officials did not expressly state during any site visit that they 
were not using rights under Part 3–4, but submitted that “if someone was to go onto 
a building site and everything they said or did was contrary to any indication that 
they were using those rights, then likewise one would not suggest that they were 
using rights exercisable under 3–4; they were doing something else . . . All of these 
indicia point against an exercise of rights under Part 3–4”;99 and 

 
 “in relation to the incidents each individually considered was that there was not a 

designated purpose identified.”100 
 
[153] In short, the CFMEU submitted that the Senior Deputy President erred in his finding 
because the evidence as a whole did not support a finding that the permit holders were relying 
on Part 3–4 rights in relation to the Lend Lease entries. 
 
[154] Second, the making of only global findings by Senior Deputy President O’Callaghan 
in relation to the use of Part 3–4 and his failure to dissect the purpose of the visits in each 
case.101 
 
[155] Third, the failure of Senior Deputy President O’Callaghan to provide adequate reasons 
in relation to his satisfaction that the officials were relying on Part 3–4. The CFMEU 
submitted that in the part of his decision dealing with the question of whether the entries 
involved the use of Part 3–4—paragraphs 70 to 75—no mention was made of the question of 
giving of notice and what weight, if any, should be provided to that and no assessment was 
made of the full circumstances disclosed by the evidence of the individual entries. It 
submitted that “it was incumbent upon the Senior Deputy President to resolve the issue” about 
reliance on Part 3–4 by reference to the “purpose of each and every visit”.102 
 
[156] In this regard, the CFMEU submitted that there are “two fundamental failings in terms 
of the reasoning” 103 in relation to the question of reliance on Part 3–4 rights: 
 

 His decision discloses only conclusions, without any analysis of the individual 
entries, so that there is no indication for the reasons for the conclusion that Part 3–4 
rights were being exercised; and 

 
 There is no indication of what test Senior Deputy President O’Callaghan applied in 

reaching his conclusion. 
 
[157] The 23 December 2013 decision of Senior Deputy President O’Callaghan in respect of 
the Lend Lease entries dealt only with the jurisdictional prerequisite to restricting the Part 3–4 
–satisfaction by the Commission that the organisation, or an official of the organisation, has 
misused those rights. He did not proceed so far as to determine what actions, if any, under 
s.508(2) of the FW Act should be taken to restrict the rights. 
 








[2014] FWCFB 2709 

35 

[158] The jurisdiction to restrict rights under s.508 only arises if the Commission is satisfied 
that the organisation, or an official of the organisation, has misused the rights that are 
exercisable by them under Part 3–4, involving two questions:  
 

 Did the conduct occur in the exercise or purported exercise of the entry rights that 
are available under Part 3–4?;104 and 

 
 Did the conduct constitute misuse of those rights? 

 
[159] It is evident from the CFMEU grounds in relation to the entries involving properties 
controlled by Lend Lease, and from its case before Senior Deputy President O’Callaghan that 
the primary focus of the appeal in respect of the Lend Lease entries goes to the question as to 
whether those entries involved use of the Part 3–4 rights by the relevant CFMEU officials, 
although some appeal grounds challenge findings of the Senior Deputy President in relation to 
the misuse of the rights. 
 
[160] It is convenient to commence our consideration of the CFMEU appeal against the 
23 December 2013 decision in respect of Lend Lease in relation to the appeal grounds going 
to the use of the rights—the first element of the jurisdictional requirement and the CFMEU 
contentions that the Senior Deputy President failed to provide adequate reasons, misapplied 
the relevant test and erred in his conclusions on the evidence in respect of the use of the 
rights.  
 
[161] The relevant entries by CFMEU officials about which there was evidence before 
Senior Deputy President O’Callaghan involved several properties controlled by Lend Lease: 
 

 The Adelaide Oval project, with entries on 30 and 31 October 2013, and 5, 6, 12, 
13, 14 and 15 of November 2013; 

 
 The Adelaide Convention Centre project, with an entry on 30 October 2013; 

 
 The TAFE Tonsley Park project, with entries on 30 October 2013 and 8 November 

2013; and 
 

 The Tonsley Park Flinders University project, with entries on 30 October 2013 and 
8 November 2013. 

 
[162] In his decision of 23 December 2013, Senior Deputy President O’Callaghan ultimately 
found that the Lend Lease entries (other than the entries of 14 and 15 November 2013)105 
involved “serious, deliberate and sustained misuse of entry rights by the CFMEU pursuant to 
s.508(1)”106 of the Act “with respect to the CFMEU as an organisation”.107 In coming to that 
conclusion, the Senior Deputy President was satisfied as to the jurisdictional requirement for 
the taking of action under s.508(2) to restrict the rights that are exercisable under Part 3–4 by 
an organisation, or officials of an organisation, in this case the CFMEU as an organisation. 
 
[163] We note that in considering the various entries onto the Lend Lease sites, Senior 
Deputy President O’Callaghan said: 
 

“[71] I have referred to the entries to those sites of 30 and 31 October and 5, 6, 12 
and 13 of November 2013 as the ‘Lend Lease entries’. I have excluded from this 








[2014] FWCFB 2709 

36 

category, entries to the Adelaide Oval site on 14 and 15 November 2013 on the basis 
that the evidence establishes these entries occurred following the provision of notices 
consistent with s.518.” 

 
[164] He neither includes nor excludes an entry at the Tonsley Park Flinders University site 
on 8 November 2013, which is the subject of evidence of Mr G Fisher,108 Project Manager 
and at the Tonsley Park TAFE site in relation to which a record of events of Mr J Burgess, 
Site Manager, was attached to the evidence of Mr M Gooding, Project Manager.109 It is 
unclear whether those entries were included in the Senior Deputy President’s consideration of 
and conclusions as to the use and misuse of Part 3–4 rights in respect of sites controlled by 
Lend Lease. 
 
[165] In considering the appeal ground concerning the failure to provide adequate reasons, it 
is necessary to consider more closely the terms of the decision of the Senior Deputy President 
in respect of Lend Lease. 
 
[166] In this respect, Senior Deputy President O’Callaghan recorded: 
 

 the terms of s.508;110 
 

 the background to the matter;111 
 

 the context of the right of entry provisions of Part 3–4, by reference to ss.478 and 
480 of the FW Act, in which he considered the evidence;112 

 
 the evidence which informed his deliberations;113 and 

 
 a summary of the parties’ submissions.114 This included CFMEU reliance on 

Ferguson115 and Setka116 in support of its position that the evidence did not 
establish that the entries were for purposes associated with Part 3–4.  

 
 Findings117 that: 

 
 the persons who conducted the various entries were CFMEU officials;  

 
 on a number of occasions, the evidence was that the officials advised that 

they were acting on the direction of the Secretary of the CFMEU in terms of 
the manner of the entries; and  

 
 the failure of the persons who conducted the various entries to give evidence 

in support of the CFMEU submissions leaves open the capacity for 
inferences about the behaviours which occurred. 

 
[167] The Senior Deputy President reached what appears to be a conclusion in relation to the 
issues concerning whether the Part 3–4 entry rights were used: 
 

“[71] I have referred to the entries to those sites of 30 and 31 October and 5, 6, 12 
and 13 of November 2013 as the ‘Lend Lease entries’. I have excluded from this 
category, entries to the Adelaide Oval site on 14 and 15 November 2013 on the basis 








[2014] FWCFB 2709 

37 

that the evidence establishes these entries occurred following the provision of notices 
consistent with s.518.  

 
[72] I have considered whether the application of the approach in Setka or Ferguson 
or, for that matter, the various authorities asserted by the CFMEU support its 
contention that the evidence does not establish that the entries were for a purpose 
relevant to Part 3-4.  

 
[73] Even if the purposive test succinctly summarised in Setka is applied, it seems 
very clear that the Lend Lease entries included the purposes of holding discussions 
with employees or investigating safety issues. That the CFMEU officials may have 
had other intentions is not supported by the evidence before me, but even if it was the 
case that the officials did have other intentions such as, for example, the intention of 
simple trespass, it appears to me that any such intentions were combined to a 
significant extent with the discussions with the employees such that this purpose must 
be taken into account.  

 
[74] There were numerous occasions when the CFMEU officials stated that the 
purpose of their visits was to have discussions. Further, and irrespective of any stated 
purposes, the behaviour of the officials in engaging in discussions with employees 
categorically establishes this as a purpose of the visits.  

 
[75] Finally, the CFMEU has not provided any evidence that confirms that the 
purposes of the visits did not include discussions with employees.  

 
[76] The CFMEU contention that, as notices had not been given consistent with 
s.518, the Part 3-4 entry rights had not been activated is inconsistent with the concept 
of a balance referred to in s.480 between the right to represent employees and the 
rights of businesses to operate without undue inconvenience.  

 
[77] The Lend Lease entries were made by persons who were CFMEU officials. 
That has been agreed by the CFMEU. At least one of the officials engaged in each 
entry is a current permit holder pursuant to s.512 of the FW Act.” 

 
[168] Thereafter, Senior Deputy President O’Callaghan considered whether the rights had 
been misused,118 the officials refused to leave the site when requested on numerous 
occasions,119 the requirements of: 
 

 sections 486, 487, 490(3), 491, 499 and 500 were contravened; 
 

 the “CFMEU approach was planned and reflected a clear strategy”;120 
 

 some entries involved “discussions between the CFMEU officials and employees 
whom the CFMEU was not entitled to represent”;121 

 
 “a number of the entries involved discussions between CFMEU officials during 

work time”;122 
 

 “notice requirements in s.495 were not complied with”;123 and 
 








[2014] FWCFB 2709 

38 

 the “entries represented a clear hindrance of Lend Lease operations”.124  
 
[169] The Senior Deputy President ultimately concluded that:  
 

“[113] . . . there were numerous, deliberate and sustained contraventions of the rights 
and associated obligations on the CFMEU permit holders involved in the Lend Lease 
entries. I have concluded that these contraventions occurred as part of a general 
CFMEU instruction relative to the actions of its permit holders. On that plain reading, 
the absence of notice pursuant to s.518, or assertions by the officials that they were 
trespassing, does not change the character of the entries. Leaving aside the 
contraventions, the entries were of a nature inherently similar to past entries conducted 
in accordance with Part 3–4 and the normal Lend Lease practices. 

 
. . . 

 
[117] I am satisfied that the circumstances of the Lend Lease entries represent 
serious, deliberate and sustained misuse of entry rights by the CFMEU pursuant to 
S508(1). These misuses are directly contrary to the objects of this part of the FW Act.” 

 
[170] We deal first with the complaint by the CFMEU that Senior Deputy President 
O’Callaghan committed a jurisdictional error in that he failed to provide adequate reasons for 
his decision that the CFMEU and its officials had used Part 3–4 rights and misused those 
rights in the Lend Lease entries.  
 
[171] It is necessary for a Member to “provide adequate reasons for reaching conclusions on 
matters that fall for determination”.125 Considerable authority exists, both from the Courts and 
the Commission, for the proposition that it is required to provide adequate reasons for its 
decisions, consequent upon the obligation upon it to provide procedural fairness, rather than 
by an express statutory requirement. Such authorities, in relation to the AIRC, were 
considered by Moore and Marshall JJ in the FCA in Edwards v Giudice and Others.126 In his 
judgment, Marshall J noted various authorities of the Courts and the AIRC, stating:  
 

“[43] The Commission, although an administrative tribunal, does arbitrate on the 
claims of competing parties in a quasi-judicial setting. It is obliged to act judicially and 
afford procedural fairness to persons with business before it. See, for example, 
Re Australian Railways Union; Ex parte Public Transport Corporation also Re Media, 
Entertainment and Arts Alliance; Ex parte Arnel where Mason CJ, Brennan, Dawson 
and Gaudron JJ referred to the requirements of procedural fairness as being an 
essential feature of the arbitral power . . . 
 
[44] In a seriously contested case before a tribunal which is required to afford 
procedural fairness and act judicially, an arbitrator is obliged to disclose the steps 
involved in the reasoning which leads to a particular result. There does not appear to 
be any obligation expressed in the Act to require a member of the Commission to give 
adequate reasons for a decision. It does not thereby follow however that in some cases 
such as strongly contested ones where a final order of significant consequence may be 
made that full reasons should not be given.  
 
[45] As Deane J said in Australian Broadcasting Tribunal v Bond: 
 








[2014] FWCFB 2709 

39 

‘A duty to act judicially (or to accord procedural fairness or natural justice) 
extends to the actual decision-making procedure or process, that is to say, to 
the manner in which and the steps by which the decision is made.’ 

 
[46] The obligation to give adequate reasons may more readily arise when a right of 
appeal lies from the order which gives effect to the decision at first instance, as is the 
case in the instant circumstances . . . 
 
[47] It should be noted that Full Benches of the Commission have thoroughly 
reviewed the obligation of Commission members to provide adequate reasons for 
decision on previous occasions and that their decisions accord with the views 
expressed above. See, for example, Re Astec Pty Ltd and Confectionery Workers 
Union of Australia v Australian Chamber of Manufactures . . .” [References omitted] 
 

[172] These observations have been considered and adopted in subsequent decisions of the 
Commission on appeal Jones and Britax Rainsfords Pty Ltd,127 Tiver v University of South 
Australia128 and Tabro Meat Pty Ltd v Heffernan.129  
 
[173] Whilst the discharge of a Member’s “obligation to give reasons for a decision . . . does 
not require lengthy or elaborate reasons . . . it is necessary that the essential ground or grounds 
upon which the decision rests should be articulated”.130 
 
[174] It is apparent given paragraph 71 of his decision and his other findings, that Senior 
Deputy President O’Callaghan was satisfied that the CFMEU and its officials entered the 
premises in reliance on statutory rights of entry and misused the rights in respect of each of 
the Lend Lease entries of 30 and 31 October 2013 and 5, 6, 12 and 13 November 2013 and 
that the right was exercised but not misused in respect of the entries to the Adelaide Oval site 
on 14 and 15 November 2013. It is unclear what conclusions his Honour reached as to the 
Tonsley Park entry of 8 November 2013. The decision at paragraph 71 indicates that the 
Senior Deputy President reached a conclusion that each of the other entries identified as the 
Lend Lease entries did involve the use and misuse of Part 3–4 rights. 
 
[175] However, the decision of Senior Deputy President O’Callaghan does not reflect 
reasoning as to why he reached such a view in relation to the particular circumstances of each 
entry. It is unclear from the reasoning of Senior Deputy President O’Callaghan on the basis 
upon which he made the finding that each of the Lend Lease entries of 30 and 31 October 
2013 and 5, 6, 12 and 13 November 2013 involved reliance on statutory rights of entry. 
 
[176] The Senior Deputy President finds at paragraph 73 that “[e]ven if the purposive test 
succinctly summarised in Setka is applied, it seems very clear that the Lend Lease entries 
included the purposes of holding discussions with employees or investigating safety issues” 
[emphasis added]. It appears that his Honour did apply the approach in Setka from his 
subsequent finding131 that there were numerous occasions when the CFMEU officials stated 
that the purpose of their visits was to have discussions, referenced by way of example to the 
entry to the Adelaide Oval site on 5 November 2013, the Adelaide Convention Centre site on 
30 October 2013 and the Tonsley Park TAFE site on 30 October 2013 and irrespective of any 
stated purposes, the behaviour of the officials in engaging in discussions with employees 
categorically established this as a purpose of the visits. He also found that on various 
(unspecified) Lend Lease entries to the Adelaide Oval and Tonsley Park sites, the “officials 
raised alleged safety issues . . . finding that a purpose of those visits was to identify safety 








[2014] FWCFB 2709 

40 

issues”.132 The Senior Deputy President also found that the “officials of the CFMEU held 
entry permits and had rights as permit holders under Part 3–4”.133 
 
[177] Apart from the three entries referred to by the Senior Deputy President in the footnote 
in paragraph 74, there is no reference to any other entry in relation to the global finding that 
the Lend Lease entries, as described in paragraph 71, constituted a use of statutory rights of 
entry. The global conclusion of the Senior Deputy President that the misuse and therefore the 
use of Part 3–4 rights related to each of the entries other than those of 14 and 15 November 
2013 seems to be premised on his later findings that the Lend Lease entries “occurred as part 
of a general CFMEU instruction relative to the actions of its permit holders”134 and the 
CFMEU consistently failed to use those rights consistent with the requirements of Part 3–4 in 
relation to the Lend Lease entries.135 
 
[178] Whilst it appears that the Senior Deputy President’s findings as to the use of Part 3–4 
rights relied on his later findings that the CFMEU was engaged in some form of strategy as to 
entry onto premises at the time (and there is a proper basis in the evidence to support such a 
finding), the Senior Deputy President was, in our view, obliged to assess each of the entries, 
albeit with regard to the evidence as to a CFMEU strategy at the time, to satisfy himself that 
each entry, in the context of that strategy, involved the use of statutory rights of entry, 
applying the approach evident in Holland and Setka. 
 
[179] The need to assess the circumstances of each entry and make a finding as to the use of 
Part 3–4 rights is evident in the decision of the Senior Deputy President that some of the 
entries subject to the evidence—the 14 and 15 November 2013 entries—were not reflective of 
the CFMEU strategy at the time. It is clear from that finding that the fact of a CFMEU 
strategy in relation to site entry around that time does not, in itself, support a finding that a 
particular entry was undertaken in accordance with that strategy. The need to consider and 
reach conclusions in relation to the circumstances of each entry was also recognised by Senior 
Deputy President O’Callaghan in relation to the FWBC evidence, which he found did not 
establish “the extent or the effect of that misuse” found to exist on a prima facie basis, such 
that he was not “prepared to reach a conclusion”136 in relation to s.508(1) of the FW Act in 
relation to those entries. 
 
[180] Further, the identification of the specific uses and misuses of statutory rights of entry 
was necessary to assess the nature and extent of the misuse for the purposes of allowing the 
parties to put submissions and for Senior Deputy President O’Callaghan to make a decision 
about actions under s.508(2) of the FW Act which should follow as a consequence of the 
misuse.  
 
[181] In formulating an action under s.508(2) (or penalty in relation to decisions of the FCA 
in relation to a breach of prohibition provisions), it is necessary to have regard to the nature of 
the misuse.137 The Full Bench in Office of Australian Building and Construction 
Commissioner v Construction, Forestry, Mining and Energy Union,138 found that “attempts 
were then made to speak with employees . . . on the safety walk there would have been an 
abuse of Part 15 rights” and the fact “that any conversations were of minimal duration, but 
this goes to remedy rather than to breach”, again indicating the necessity to have regard to the 
nature of a misuse in determining what action should follow. 
 
[182] We find that in failing to explain the rationale for his global finding that the CFMEU 
and its officials used Part 3–4 rights in relation to each of the Lend Lease entries of 30 and 








[2014] FWCFB 2709 

41 

31 October 2013 and 5, 6, 12 and 13 November 2013, Senior Deputy President O’Callaghan 
failed to identify the manner and steps by which the decision was made. He failed to disclose 
the steps involved in the reasoning which lead to that finding. As a result, the Senior Deputy 
President failed to afford the CFMEU procedural fairness. This is a jurisdictional error which 
warrants permission to appeal and the quashing of his decision in respect of the use of Part 3–
4 rights. 
 
[183] The Full Bench notes that similar issues arise in the findings of misuse of the Part 3–4 
rights. Senior Deputy President O’Callaghan set out findings of misuse of the Part 3–4 rights 
arising from the Lend Lease entries, noting that “[m]isuse, in that context must include a 
failure to comply with a condition or obligation associated with, or integral to those exercise 
rights”.139 
 
[184] In this regard, he found: 
 

 The requirements of ss.486 and 487 of the FW Act were clearly contravened with 
respect to the Lend Lease entries [[2013] FWC 10168, at para 90]. Section 487 is a 
requirement to give an entry notice or exemption certificate in exercising entry 
rights under Subdivisions A, AA and B of Division 2 of Part 3–4. In fact s.486 does 
not provide for conditions but provides that a permit holder is not authorised by the 
entry rights in Division 2 to enter or remain on premises if he or she contravenes 
the requirements attached to such entry under Subdivision C (ss.486–493 of the 
FW Act).  

 
 The Adelaide Oval entry of “12 November 2013 involved discussions between the 

CFMEU officials and employees whom the CFMEU was not entitled to represent” 
(discussions not authorised by s.480, having regard to s.484(b)).140 

 
 “A number of the Lend Lease entries involved discussions between CFMEU 

officials during work time which was in contravention” of s.490 (when right may 
be exercised). In this regard, Senior Deputy President O’Callaghan referred by way 
of example to “the entries to the Adelaide Oval site of 30 October 2013 and 
13 November 2013 and the entries to the Tonsley Park Flinders University site on 
30 October 2013”.141 

 
 There were several failures to meet reasonable occupational health and safety 

requirements, as required by s.491 of the FW Act, evidenced by disregard of “clear 
signage instructions regarding site entry on numerous [unspecified] occasions” at 
the Adelaide Oval site, instances (unspecified) of “proceeded around the site 
unescorted” and, on 6 November 2013 non-compliance with the “site clothing 
requirements” and, in relation to the Tonsley Park site non-compliance “with the 
signage instructions with respect to entry on numerous [unspecified] occasions” 
and, on 30 October 2013 two officials remained on the site in “contrary to long 
sleeved clothing instructions”.142 

 
 In respect of the exercise of rights under State Work Health and Safety legislation, 

and the requirements set out in Division 3 of Part 3–4 in respect of such entry, “the 
notice requirements in s.495 were not complied with” and, at least in respect of the 
Adelaide Oval site on 13 November 2013, “the official engaged in discussions with 








[2014] FWCFB 2709 

42 

persons who I am not satisfied that the CFMEU could represent [and] the officials’ 
behaviour contravened the requirements of s.499”.143 

 
 “The Lend Lease entries [unspecified] represented a clear hindrance of Lend Lease 

operations”, such that they contravened s.500.144 
 

 “To the extent that the CFMEU officials involved in the Lend Lease entries 
[unspecified] insisted on exercising normal entry rights when they had not 
complied with the entry notice requirements”, they contravened s.503.145 

 
[185] Senior Deputy President O’Callaghan concluded, on this basis, that “there were 
numerous, deliberate and sustained contraventions of the rights and associated obligations on 
the CFMEU permit holders involved in the Lend Lease entries”.146 
 
[186] Although, Senior Deputy President O’Callaghan identified particular misuses of Part 
3–4 rights, in relation to some categories of misuse, he failed to identify all the particular 
misuses. His finding of a contravention of s.490 of the FW Act was illustrated by some 
examples. The finding of failures to meet reasonable occupational health and safety 
requirements, as required by s.491 of the FW Act, was evidenced by disregard of signage on 
numerous (unspecified) occasions at the Adelaide Oval and Tonsley Park sites, instances 
(unspecified) of proceeding around the site unescorted, although some of the failures were 
particularised. His findings in relation to hindrance and misrepresentation did not identify the 
basis of the findings. His findings in relation to s.487 of the FW Act appear to go to all Lend 
Lease entries (other than on 14 and 15 November 2013) under Subdivisions A, AA and B of 
Division 2 of Part 3–4. To the extent that the nature and extent of the misuses is not specified, 
we also find that Senior Deputy President O’Callaghan failed to provide adequate reasons. 
This is also a jurisdictional error which warrants permission to appeal and the quashing of 
those aspects of his decision in respect of the use of Part 3–4 rights. 
 
[187] The Full Bench notes in respect of both the use and misuse of Part 3–4, the inadequacy 
of reasons provided by Senior Deputy President would have denied the CFMEU (and Lend 
Lease and the FWBC) a proper opportunity to address the actions which should follow in 
relation to the inadequately specified misuse of Part 3–4 rights identified in his decision. 
 
Rehearing in relation to the entries to Lend Lease sites 
 
[188] Given the largely uncontested nature of the evidence before Senior Deputy President 
O’Callaghan and the absence of questions of credibility of witnesses, we have decided that we 
will determine, by way of rehearing, the jurisdictional question in relation to the Lend Lease 
entries. The failure to give reasons in relation to use of the Part 3–4 rights in relation to each 
Lend Lease entry is such that his Honour’s findings as to misuse, where adequately specified, 
can be maintained only if the evidence as to the misuse arose in respect of the entries in which 
the Part 3–4 rights were used. Given the limited specification of the misuses within the 
decision and the error in relation to the use of Part 3–4 rights which goes to the question of 
jurisdiction under s.508(1) of the FW Act in relation to all of the Lend Lease entries, we will 
determine the jurisdictional question—going to both the use and misuse of Part 3–4 rights, 
ourselves in respect of all entries, other than the Adelaide Oval entries of 14 and 
15 November 2013, where His Honour specifically found that Part 3–4 rights were used but 
not misused, a conclusion which is not challenged by any party in the appeal. 
 








[2014] FWCFB 2709 

43 

[189] We deal first with the question of whether the CFMEU and its officials were using 
Part 3–4 rights in relation to the various Lend Lease entries, applying the approach we have 
discerned from authorities of the FCA and set out at paragraph 122 of this decision. 
 
[190] The relevant entries are those set out in paragraph 161 of this decision. We will 
consider whether the entries involved a use of Part 3–4 rights, having regard to the approach 
set out in paragraph 122 of this decision. 
 
[191] We are satisfied that, in each case the entries were undertaken by officials of the 
CFMEU conferred with statutory rights of entry. Each entry involved an official of the 
CFMEU, SA Branch holding a current right of entry permit issued by the Commission and 
entitled to access the statutory entry rights under Part 3–4 of the Act. Other persons who on 
the evidence, were officers of an interstate Branch of the union, accompanied these officials 
on some site entries.147 To the extent to which they were identified,148 the records of the 
Commission indicate that they were permit holders in relation to Branches of the CFMEU 
other than the SA Branch. 
 
[192] We now consider the evidence in relation to the Lend Lease entries in relation to 
whether the permit holder had the prescribed purpose of the relevant statutory entry right. 
Before doing so, it is necessary to consider some general evidence, which provides context to 
the specific entries. 
 
[193] Firstly, Lend Lease managers at each of the four sites gave evidence that prior to 
30 October 2013, the CFMEU undertook regular site visits and gave effect to them in 
compliance with the conditions associated with the relevant entry right—the giving of notice 
and adherence to mandatory safety requirements. This evidence was not challenged. 
 
[194] Second, there was evidence of a strategy of some kind directed by the Secretary of the 
CFMEU SA Branch, Mr A Cartledge, affecting the manner in which entry was undertaken in 
relation to at least some of the Lend Lease entries between 30 October 2013 and 
30 November 2013: 
 

 During the Adelaide Oval entry of 30 October 2013, Mr D Roberts, when asked the 
purpose of the visit replied “This is the way of the world until your managers talk 
to our managers”;149 

 
 During the Adelaide Oval entry of 31 October 2013, Mr Roberts, in relation to not 

providing entry notices, said “this is the new way of the world”;150 
 

 During the Adelaide Oval entry of 12 November 2013, Mr Roberts, when asked to 
produce his permit, stated “This is being dealt with higher up the line”;151 

 
 During the Tonsley Park TAFE site entry of 30 October 2013, Mr M Gava, in the 

context of officials attending the site without giving notice, said “that’s the way its 
going to be from now on”152 and commented that “it was their intention to not 
provide entry notices and this was a directive from the secretary”;153 

 
 During the Adelaide Convention Centre site entry of 30 October 2013, 

Mr B Beattie, a Victorian union official responded to a request to identify the 
purpose of the visit by stating “We want to talk with Lend Lease/Baulderstone 








[2014] FWCFB 2709 

44 

members. This is part of a national drive that is focussed on Lend Lease 
employees”;154 

 
 During the Tonsley Park Flinders University entry of 30 October 2013, when told 

he could not enter the site without an entry permit in place (clarified to be a 
reference to notice)155 Mr Gava said “[w]e are not leaving. This is the way it is 
done now. We are going for a walk on site”; and156 

 
 During the Tonsley Park Flinders University entry of 8 November 2013, when 

asked if he had submitted a notice, Mr B Pitt replied “No, we are not here under a 
right of entry notice”.157 

 
[195] The evidence established that each of these entries (seven of the 12 entries) was 
undertaken subject to a CFMEU strategy as to the undertaking of Lend Lease site visits at the 
time, under the direction of the State Secretary, although it is not clear from the evidence 
exactly what that strategy was. There were vague references to “this” being the new way of 
the world, issues being dealt with between Lend Lease and the CFMEU at a higher level, and 
a practice of not providing entry notices at the direction of the State Secretary. Mr Beattie’s 
comments suggest that the strategy was part of a national campaign in relation to Lend Lease 
employees. It is clear that the strategy involved not providing notice of the entries in 
accordance with Part 3–4 of the FW Act. Consideration of the evidence in relation to the other 
five entries will need to have regard to the existence of such a strategy.  
 
[196] We also note that the written records of site entries by the CFMEU at sites other than 
the Lend Lease sites attached to Mr Mathers’s affidavit,158 although carrying limited weight in 
the absence of the adoption of the record as evidence by their authors and an opportunity for 
cross-examination, are consistent with the existence of a CFMEU strategy around the time of 
the Lend Lease entries, although not necessarily the same strategy applying in relation to 
Lend Lease: 
 

 In relation to a 4 November 2013 entry at a Hindmarsh Constructions site, the notes 
of its Site Manager indicate that there was some rationale for the undertaking of a 
site entry in an unauthorised manner, which would be explained to the Site 
Manager by Mr Gava over coffee the following week;159 

 
 In relation to a prospective entry on 11 November 2013 at another Hindmarsh 

Construction site, an email from the Senior Project Manager to the Master Builders 
Association of South Australia Incorporated160 records that he rang Mr Cartledge to 
enquire as to the reasons for the visit and the absence of an entry notice. He records 
the response from Mr Cartledge as “Luke would be attending and that they 
wouldn’t be providing a notice. He advised they would follow any reasonable 
safety direction issued to them but that was all”; 

 
 In relation to a 30 October 2013 entry at a Hansen Yunken site, the notes of the 

Project Manager161 record that one official (Dave), when asked if the CFMEU had 
issued a notice advised “that they are not doing that” and “we should contact Aaron 
Cartlidge (sic) if we had a problem with it”; and 

 
 In relation to a 5 November 2013 entry at another Hansen Yunken site, the notes of 

the Site Manager162 record that when told that they could not enter the site without 








[2014] FWCFB 2709 

45 

an entry notice, the officials responded that “we do not need one in Victoria so 
same here and we are going to walk the site anyway” and when they left they 
advised “that they would be back again without a ‘right of entry’”. 

 
[197] Although we place limited weight on that documentary evidence, it is consistent with 
the evidence of CFMEU strategy, under the direction of Mr Cartledge, which arises from the 
evidence in relation to the Lend Lease entries. 
 
[198] No evidence was given by Mr Cartledge or any other CFMEU official, including those 
who undertook one of the specific entries subject to his direction. Whilst the evidence 
indicates that managers on some sites were advised to contact Mr Cartledge or discuss the 
circumstances of the entry with the relevant official at some later time, there was no evidence 
that any of them did so or, if they did, what was said by Mr Cartledge or the relevant CFMEU 
official.  
 
[199] Against that background, we turn to consider each of the Lend Lease entries, 
considering, first, whether Part 3–4 rights were used, where they were and, whether they were 
misused. 
 
The Adelaide Oval project 
 
30 October 2103 
 
[200] The evidence of Mr D Ising,163 Site Manager, was that six persons entered the site at 
around 8.30 a.m., all wearing CFMEU clothing. Four were local CFMEU officials known to 
him. He understood the others to be interstate officials because they were not known to 
him.164 Mr Ising asked Mr M McDermott what was the purpose of the visit. Mr McDermott 
replied “We’re taking a look around your site” Mr Ising replied “You nor any of the other 
visitors have an entry permit”. The six officials proceeded onto the site and split up, with 
Mr Ising and two other managers escorting three of the officials, while three proceeded 
around the site unescorted. Mr Ising’s evidence was that in the course of walking around, 
Mr Roberts,165 who he accompanied, engaged in conversations with workers he encountered. 
Mr S Jackson,166 another manager, gave evidence that Mr McDermott spoke to a contractor 
from Samaras, but he did not know what the conversation was about.167 
 
[201] Mr Ising’s evidence was that workers began gathering in a lunchroom at 9.20 a.m., a 
meeting commenced at 9.40 a.m. and concluded at 10.00 a.m. Mr Ising was not aware of what 
was said at the meeting.168 After the meeting Mr Roberts raised three issues (waters coolers, 
dust and toilets)169 that were raised by the workforce in the meeting and advised Mr Ising that 
another meeting would occur at 12.30 p.m. Lend Lease offered improvements in relation to 
the issues raised and Mr Roberts advised that this response would be put to the workers at the 
12.30 p.m. meeting. The further meeting occurred between 12.30 p.m. and 1.00 p.m. After the 
meeting Mr Ising spoke to the officials. Mr Roberts stated that “these issues would not be an 
issue if there was a working steward” and a conversation ensued around working stewards. 
 
[202] We are satisfied that the evidence establishes that the purpose of the entry was to 
inspect work and consult with/hold discussions with employees. Such discussions occurred in 
two meetings and the subject matter of the discussions disclosed by Mr Roberts to Mr Ising, if 
characterised as health and safety issues, reflected a purpose in the entry rights of the Work 
Health and Safety Act 2012 (SA) (WHS (SA) Act) or, if not, discussions about employment 








[2014] FWCFB 2709 

46 

conditions, within the purpose reflected in s.484 of the FW Act. The evidence of Mr Ising that 
after proceeding around the site and holding a meeting of members, Mr Roberts raised with 
him issues arising out of the meeting and undertook to put the Lend Lease response to 
workers at a further scheduled meeting supports such a finding. Mr Roberts and 
Mr McDermott, at least, held federal entry permits and WHS permits and were conferred with 
statutory rights of entry for either purpose.170 
 
[203] We are satisfied that the 30 October 2103 Adelaide Oval entry involved the use of 
Part 3–4 entry rights. 
 
[204] We are satisfied that these rights were misused in that: 
 

 No notice of entry was given as required by the FW Act or the WHS (SA) Act; 
 

 To the extent that entry occurred without notice, the entry hindered the employer’s 
managers by distracting them from their planned activities and hindrance which 
magnified given the number of officials entering the site (s.500 of the FW Act); 
and 

 
 The officials utilised the entry for the purpose of asserting a demand in relation to a 

permanent delegate being a purpose for which the right of entry does not extend. 
 
[205] We understand the meetings which were referred to in the evidence of Mr Ising 
occurred during breaks and were not discussions during working times (s.490 of the FW Act). 
We are not satisfied that the vague and limited evidence of incidental conversations between 
the officials and workers during their movement through the site provides a sufficient basis 
for a finding that entry rights were misused by the holding of discussions during working 
times. 
 
[206] There is no evidence of a request of the officials to produce their permits, nor of any 
request that they be escorted on the site. 
 
[207] The evidence does not suggest that, other than in arriving without the required notice, 
the entry involved intentional hindering or obstruction, or otherwise acting in an improper 
manner (s.500). The evidence as to Mr Roberts, as being heated during a conversation with 
Mr Ising, the content of which Mr Ising could not exactly recall171 is insufficient to 
substantiate such a finding. 
 
[208] We are not satisfied that the evidence supports a finding that the officials entered and 
walked through the site without authority. Although there is no evidence of an express 
authority having been given by Mr Ising and he observed that the officials did not have an 
entry permit, there is similarly no evidence of a request made by him for the officials to leave 
the site.  
 
31 October 2013  
 
[209] The evidence of Mr Jackson172 was that four officials entered the site without notice 
and proceeded on site without authorisation. Upon confirming that no notice had been given 
by the officials, Mr Jackson told the officials that they were not permitted to enter the site. 
Mr McDermott advised that the officials were there to follow up the issues of 30 October 
2013. Mr McDermott then wandered away from the group. Between 12.35 p.m. and 








[2014] FWCFB 2709 

47 

12.48 p.m., the officials held a meeting with workers in the amenities area. Mr Jackson did 
not hear the conversation. Mr McDermott requested more eye washing stations and left the 
site. 
 
[210] Given the evidence as to the holding of the meeting, the statement by Mr McDermott 
that the visit was to follow up the issues from the previous day and the evidence as to issues 
being put to managers following that meeting, we are satisfied that the purpose of entry was 
one for which a statutory right was conferred.173 The 30 October 2103 Adelaide Oval entry 
involved the use of Part 3–4 entry rights. 
 
[211] We are satisfied that these rights were misused in that: 
 

 No notice of entry was given as required by the FW Act or the WHS (SA) Act; 
 

 To the extent that entry occurred without notice, the entry hindered the employer’s 
managers by distracting them from their planned activities (s.500 of the FW Act); 
and 

 
 In proceeding on site, after signing in, without authority, the officials failed to give 

effect to a reasonable request, conveyed by signage at entry gates, that 
unauthorised entry should not occur. 

 
5 November 2013 
 
[212] The evidence of Mr Ising174 was that Mr Cartledge arrived on site and signed the 
visitor book on arrival. No notice of the entry had been given. Mr Ising asked Mr Cartledge if 
he had a permit. He replied, “I don’t have a permit. I’m going to see the Laser Lining’s 
employees at the 10.30 break to discuss pay rates”, providing a copy of the wages sheets he 
was going to discuss with the workers. Another manager escorted Mr Cartledge to the 
basement room. Mr Cartledge left the meeting and the site unescorted. 
 
[213] The purpose of the entry is clear—Mr Cartledge entered for the purpose of holding 
discussions with employees. Mr Cartledge had statutory rights of entry for that purpose.175 
We find that he was using Part 3–4 rights in undertaking the entry. 
 
[214] We are satisfied that these rights were misused in that: 
 

 No notice of entry was given as required by the FW Act; and 
 

 To the extent that entry occurred without notice, the entry hindered the employer’s 
managers by distracting them from their planned activities (s.500), although on the 
evidence, the extent of any hindrance was minor, a matter relevant to remedy. 

 
6 November 2013 
 
[215] The evidence of Mr Jackson176 was that he received advice that officials of the 
CFMEU had entered the site. They had signed the entry book and proceeded on site without 
authorisation. When asked what they were doing on site, the officials responded “We’re here 
to look at the job”.177 Mr Jackson had no knowledge what they did on that day when he was 
not with them and his evidence disclosed no purpose effected for a statutory right which is 
available under Part 3–4. There is no statutory right to enter a site to look at the site. The 








[2014] FWCFB 2709 

48 

evidence does not support a finding that the purpose of the entry was to exercise rights under 
the WHS (SA) Act or Part 3–4. We are not satisfied that the 6 November 2013 entry at the 
Adelaide Oval involved the use of Part 3–4 rights. 
 
12 November 2013 
 
[216] The evidence of Mr Jackson178 was that two CFMEU officials entered the site, signed 
in and proceeded on site without authority. No notice of entry had been provided. Mr Jackson 
requested the production of permits: Mr L Stephenson produced his and Mr McDermott did 
not, saying “no, you’ve seen it before”. Mr Jackson requested the officials to leave the site. 
Mr Stephenson moved to a lunch room and spoke to some employees. Mr McDermott placed 
union paraphernalia around two lunchrooms. Mr Jackson did not hear any conversation other 
than Mr McDermott asking the employees “how they were and they replied, Well.”179 
 
[217] Mr McDermott then asked what arrangements were in place in relation to “cricket 
balls tomorrow” (the first day of a test match) and then returned to a lunchroom where he told 
workers that he would be back tomorrow using a WHS permit to “follow up on the cricket 
balls over the fence”. 
 
[218] The evidence indicates that the purpose of the entry was for Mr McDermott to post 
union materials in the lunchrooms. The evidence of Mr Jackson was that conversations 
occurred between each official and some workers but there was no evidence which would 
support a finding that the purpose of the visit was to hold discussions with employees or to 
consult with them about WHS matters. There were no meetings for the purpose of 
discussions. The only evidence of the conversation was that a conversation involving 
Mr McDermott exchanging usual pleasantries with workers he came across whilst posting his 
materials. We find that the purpose of the entry was to post union materials in the 
lunchrooms. There is no statutory right to enter a site for that purpose. We are not satisfied 
that the 12 November 2013 entry at the Adelaide Oval involved the use of Part 3–4 rights. 
 
13 November 2013 
 
[219] Two entries were made onto the site by Mr McDermott on the 13 November 2013. 
 
[220] The evidence of Mr Jackson in relation to the 12 November 2013 entry is that, when 
leaving, Mr McDermott told workers that he would “be back here tomorrow using a WHS 
permit to follow up on the cricket balls over the fence”.180 Mr Jackson’s evidence in relation 
to the first 13 November 2013 entry181 is that prior to arriving, Mr McDermott rang 
Mr Jackson to advise that he would be coming on site. He signed in and provided a permit, 
purporting to exercise a right of entry under s.117 of the WHS (SA) Act “to inspect the site 
for workers’ safety while cricket match is being played”.182 Although described as a permit, 
the form then included an identification of the specific purpose of the visit, indicated that it 
was a notice rather than a permit. Whilst on site, Mr McDermott spoke to workers about the 
safety of cricket balls and approached ball retrievers engaged by the South Australia Cricket 
Association (SACA). 
 
[221] The evidence is clear. We are satisfied that the evidence establishes that the purpose of 
the entry was to exercise a right of entry under s.117 of the WHS (SA) Act. Mr McDermott 
held federal entry permits and WHS permits and was conferred with statutory rights of entry 








[2014] FWCFB 2709 

49 

for the purpose of a WHS entry.183 We are satisfied that the first 12 November 2013 entry at 
the Adelaide Oval involved the use of Part 3–4 rights. 
 
[222] As to the misuse of the rights exercised by Mr McDermott in relation to the first entry 
on 13 November 2013, the evidence is that Mr McDermott spoke to workers about their 
safety in relation to work undertaken in the course of a cricket match at the site, the matter 
identified in his entry notice and a legitimate incident of his inquiring about that issue.  
 
[223] Lend Lease contended that in speaking to workers engaged as “ball retrievers” by a 
firm contracted by the SACA constituted a misuse of his entry rights in that an official may 
only inspect breaches in respect of relevant workers under the WHS (SA) Act. The evidence 
of Mr Jackson is that Mr McDermott spoke to two ball retrievers and to their employer, by 
telephone, during the course of the entry. There is no evidence as to the content of the 
conversation, save for a question by Mr McDermott to one ball retriever concerning the 
provision of seating, shade and water. On the basis of the limited evidence we cannot be 
satisfied that the substantive conversations—with the second ball retriever and the 
employer—were not concerned with an inquiry directed to their role as it affected the safety 
of union members, the matter for which the notice of entry was given. Such an inquiry would 
concern health and safety issues concerning relevant employees under the WHS (SA) Act. 
There is an insufficient basis in the evidence for the Full Bench to be satisfied that the 
discussions with the ball retrievers and their employer constituted a misuse of the entry rights. 
 
[224] We do, however, accept that the unchallenged evidence of Mr Jackson184 that 
Mr McDermott interfered with bunting marking in an exclusion zone. We are satisfied that 
such action constitutes a misuse of his rights. 
 
[225] The second entry on 13 November 2013 by Mr McDermott occurred in the evening. 
The evidence of Mr Jackson185 is that Mr Ising advised him that Mr McDermott had rung him 
and advised that he and Mr T Jarrett would be attending the site using WHS permits and 
would be reviewing access, egress, emergency procedures and working at height. Mr Jackson 
returned to the site and called Mr McDermott asking where he was. He responded “on site”. 
Mr Jackson requested that “he return to the site office and sign in”.186 Mr McDermott and 
Mr Jarrett did so and provided their entry notices. Mr McDermott then asked “how many 
people are on site”, Mr Jackson advised that “there are four electricians and four abseilers”187 
on site. The officials then walked to see the abseilers accompanied by Mr Jackson and 
questioned their supervisor about Job Safety Analyses and Material Safety Data Sheets for the 
work. They then moved to another area to visit electricians who were on a break. There is no 
evidence of any interaction between the officials and the electricians. The party then returned 
to the office where Mr McDermott requested, was provided with, and reviewed the Job Safety 
Analyses and Material Safety Data Sheets for the abseilers’ work. 
 
[226] We are satisfied that the second entry involved the use of Part 3–4 rights. We are not 
satisfied that any abuse is established by the evidence. The activities of the officials on site 
were consistent with the purpose disclosed by their entry notices.  
 
14 and 15 November 2013 
 
[227] We find that Part 3–4 rights were used but not misused in relation to these entries.  
 








[2014] FWCFB 2709 

50 

The Adelaide Convention Centre project 
 
30 October 2013 
 
[228] The evidence of Mr A Hay,188 Site Supervisor at the site, was that he was advised by 
Mr E McMahon, the Site Manager, that officials of the CFMEU had presented at the site 
office at 8.40 a.m. No entry notices had been provided and no purpose of the visit was 
disclosed. Mr Hay attended the site office and found that the officials had already signed in.  
 
[229] Mr Hay could give no direct evidence as to the interaction between Mr McMahon and 
the officials.189 Mr McMahon told Mr Hay that he had told the officials “that they did not 
have a right to enter the premises and they were not allowed to enter the site”.190 In cross-
examination Mr Hay’s conversation with Mr McMahon is recorded as Mr Hay saying the 
officials “haven’t got a right-of-entry permit” and Mr McMahon responding “Yes, that’s 
right. They’re going whether they like it or not”.191 
 
[230] The officials entered the site nonetheless and were escorted by managers. Mr Hay 
observed the officials speaking to employees,192 including two dogmen,193 although Mr Hay 
was not aware of the contents of that conversation.194 The only evidence as to the content of 
the conversations was Mr Hay’s evidence that the officials were just walking through and just 
saying, “Hello”.195 The officials then held a meeting with employees in the lunchrooms at the 
designated lunch break for 10 to 15 minutes,196 the content of which is not disclosed by the 
evidence. 
 
[231] The Full Bench is satisfied that the evidence establishes that the purpose of the entry 
was to hold discussions with employees, evidenced by the lunch time meeting. One official, 
Mr J O’Connor held a federal entry permit as an official of the South Australian Branch and 
was conferred with statutory rights of entry for the purpose within s.484 of the FW Act.197 
 
[232] We are satisfied that the 30 October 2103 Adelaide Convention Centre entry involved 
the use of Part 3–4 entry rights. 
 
[233] We are satisfied that these rights were misused in that: 
 

 No notice of entry was given as required by the FW Act; and 
 

 To the extent that entry occurred without notice, the entry hindered the employer’s 
managers by distracting them from their planned activities (s.500 of the FW Act). 

 
[234] The Full Bench is not otherwise satisfied that a misuse of the rights under s.484 of the 
FW Act has been established. There is no direct evidence as to the discussions between 
Mr McMahon and the officials as to authority to enter the site. The evidence of Mr Hay as to 
what Mr McMahon told him about that conversation is not consistent as between his witness 
statement and his vive voce evidence. There is no satisfactory evidentiary basis to find that 
Mr McMahon denied the officials entry and that the entry was made without authority. The 
evidence as to the incidental conversations between the officials and workers encountered 
during the traversing of the site by the officials, goes no further than to evidence to the 
exchange of greetings and does not in our view support any finding of misuse of rights. 
 








[2014] FWCFB 2709 

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The Tonsley Park TAFE project 
 
30 October 2013 
 
[235] There were two entries to the Tonsley Park TAFE site on 30 October 2013. 
 
[236] The evidence in relation to both entries was given by Mr Gooding, the Project 
Manager.198 His evidence was that Mr Gava rang him in the morning and asked, as a favour, 
to allow him and a “few of my interstate colleagues come to the job”. Being aware that no 
entry notice had been provided Mr Gooding said “I’m out of favours. What’s the problem? 
Why do they need to come to site today?” Mr Gava responded “We need to see the site 
today”. Mr Gooding advised “If you want to come to site you can complete relevant notice 
and I will be more than happy to facilitate a visit tomorrow. I’ll make a couple of calls to 
other sites to see what’s happening”. Mr Gava responded by saying “Don’t bother making any 
calls. We’re coming on to your site today”. Mr Gooding advised that if Mr Gava and his 
colleagues came it would be an “illegal entry”. Mr Gava concluded by saying “I’ll see you 
soon”.199 
 
[237] Around three hours later, Mr Gava and four others (later advised to be an ACT official 
and three Victorian officials) attended the site and proceeded to the site shed and met with 
employees of a contractor. Mr Gooding approached and asked the “purpose of your visit?” 
Mr Gava replied “We are just here to talk to the boys and show the guys the project”.200 
 
[238] Mr Gooding told Mr Gava that since no entry notices had been provided and no 
suitable reason to be on site had been provided, the officials were not allowed on site. 
 
[239] Mr Gava then chatted to a few employees and advised Mr Gooding that he and the 
other officials were going to walk around the site. Mr Gooding advised Mr Gava that he was 
not permitted to do so. Mr Gooding then noticed two of the officials had short sleeves, 
contrary to the “two longs” policy (requiring the wearing of long sleeves and trouser legs on 
site) and asked that they respect the policy. The officials proceeded on site. The officials 
dispersed and walked around the site and returned, raising minor safety issues. Mr Gooding 
observed the officials talking with various workers and the workers ceasing work during the 
conversations.  
 
[240] The officials left the site but returned later making “it clear that it was their wish that 
Lend Lease would employ a full-time CFMEU delegate at the site”.201  
 
[241] We are satisfied the purpose of the first visit included discussions with the employees, 
evidenced by Mr Gava’s statement that the officials wished to “to talk to the boys” and the 
evidence as to discussions occurring between the officials and workers on site. Alternatively, 
the evidence that the officials raised safety issues with the employer indicates that the purpose 
of the entry reflected a purpose under the WHS (SA) Act. Mr Gava, held a federal entry 
permit and was conferred with statutory rights of entry for that purpose under s.484 of the FW 
Act.202 We are satisfied that the first 30 October 2013 Tonsley Park TAFE entry involved the 
use of Part 3–4 entry rights. 
 
[242] We are satisfied that these rights were misused in that: 
 

 No notice of entry was given as required by the FW Act; 








[2014] FWCFB 2709 

52 

 
 To the extent that entry occurred without notice, the entry hindered the employer’s 

managers by distracting them from their planned activities (s.500 of the FW Act); 
 

 The officials entered and walked through the site without authority, in the face of 
specific advice by Mr Gooding that they were not permitted on site and in 
contravention of the requirement for authorisation for entry evident on site signage; 
and 

 
 Two officials failed to comply with an express and reasonable request to respect 

the “two longs” policy.  
 

[243] In our view, the later entry was a separate entry. On the evidence, it was effected for 
the purpose of making clear the union’s view that Lend Lease should employ a full-time 
CFMEU delegate at the site. It is not a purpose for which a Part 3–4 right exists and no 
official was conferred with a statutory right to enter for that purpose. We are not satisfied that 
the second 30 October 2103 Tonsley Park TAFE entry involved the use of Part 3–4 entry 
rights. 
 
8 November 2013 
 
[244] A further entry to the Tonsley Park TAFE site occurred on 8 November 2013. The 
evidence in respect of this entry was in the form of notes of the visit of Mr Burgess.203 
Mr Gooding was not on site at the time.204 The evidence, in the form of a documentation of 
the events by Mr Burgess, carries limited weight since it was not adopted as sworn evidence 
nor subjected to cross-examination. To the extent that the activities of the officials recorded 
was consistent with similar visits to Lend Lease sites around that time it suggests that the 
entry was made for the purpose of discussions with employees and was an entry using rights 
under s.484 of the FW Act. 
 
[245] We are prepared, on that basis, to find that entry involved the use of Part 3–4 rights205 
and they were abused in that the officials failed to provide the required entry notice. To the 
extent that entry occurred without notice, the entry hindered the employer’s managers by 
distracting them from their planned activities (s.500 of the FW Act). Beyond that, given the 
limited weight which can be attached to the evidence, we are not satisfied as to any other 
misuse of the rights. 
 
The Tonsley Park Flinders University project 
 
30 October 2013 
 
[246] Evidence in relation to the entry on 30 October 2013 at this site was given by 
Mr B Crabb, the Site Manager.206 Two site entries occurred on that day. The evidence as to 
the first entry was that four officials attended the site, Mr Gava and three others who Mr Gava 
advised were from Melbourne and Canberra.207 None of the officials “made any reference to 
their rights under the Fair Work Act when they came on the site”.208 The officials were 
halfway between the site office and the far end of the site when Mr Crabb caught up with 
them. Mr Crabb engaged in a conversation with Mr Gava, whilst the other officials continued 
to walk around the site. During the conversation, Mr Crabb said “There is no entry permit in 
place, you cannot enter the site. Please leave”,209 to which Mr Gava replied “We are not 








[2014] FWCFB 2709 

53 

leaving. This is the way it is done now. We are going for a walk on site”.210 Mr Crabb 
observed the officials talking to employees and the conduct of a meeting between the officials 
and workers during the smoko. Mr Crabb was unaware as to what occurred during the 
meeting.211 
 
[247] Following the meeting, the officials met with Mr Crabb, discussing the employment of 
a permanent CFMEU delegate by Lend Lease and the positioning of a CFMEU flag on the 
crane, with the CFMEU seeking that it be placed on the hook. The four officials left the site, 
with a fifth official who had arrived on site shortly before. 
 
[248] In relation to the second entry, Mr Crabb’s evidence was that the five officials 
returned to the site, three and a half hours later. Mr Gava called Mr Crabb from his office and 
asked why the flag was not on the hook and if it was not placed on the hook “we will stop the 
job” and approached the dogman. After a discussion, which Mr Crabb did not hear, the flag 
was placed in the position on the crane favoured by the CFMEU. The dogman later told 
Mr Crabb that the officials had insisted that this occur and “work could not continue” until 
this was done.212 
 
[249] In our view, the two entries were separate entries for different purposes. 
 
[250] In respect of the first entry, no purpose for the visit was expressed by the officials. 
However, we are satisfied by the evidence of discussions between the officials and employees 
and the conduct of a meeting during the smoko that the entry was made for the purpose of 
discussions with employees, Mr Gava was conferred with a statutory right for that purpose. It 
was an entry using rights under s.484 of the FW Act.213 
 
[251] We are satisfied that these rights were misused in that: 
 

 No notice of entry was given as required by the FW Act;  
 

 To the extent that entry occurred without notice, the entry hindered the employer’s 
managers by distracting them from their planned activities (s.500 of the FW Act); 

 
 The officials entered and walked through the site without authority, in the face of 

specific advice by Mr Crabb that they could not enter the site and in contravention 
of the requirement for authorisation for entry evident on site signage; and 

 
 The officials utilised the entry for the purpose of asserting demand in relation to a 

permanent delegate and the position of a CFMEU flag on the crane, being purposes 
for which the right of entry does not extend. 

 
[252] The second entry was effected for the purpose of making a demand in relation to the 
positioning of the flag and to cause the dogman to reposition the flag into the position 
preferred by the CFMEU. It is not a purpose for which a Part 3–4 right exists and no official 
was conferred with a statutory right to enter for that purpose. We are not satisfied that the 
second 30 October 2103 Tonsley Park Flinders University entry involved the use of Part 3–4 
entry rights. 
 








[2014] FWCFB 2709 

54 

8 November 2013 
 
[253] Evidence in relation to the 8 November 2013 entry to the Tonsley Park Flinders 
University site was given by Mr Fisher, the Project Manager.214 No notice of entry had been 
given. His evidence was that around noon, he was advised that three CFMEU officials were 
on the site. Mr Fisher went on site and observed the officials in conversation with two 
employees. He did not hear the conversation.215 Mr Fisher engaged in a conversation with two 
of the officials, who introduced themselves as Brendon (Pitt) and David (Bolton). The third 
official, Mr Gava, continued the conversation with the two employees. Mr Fisher asked 
Mr Pitt and Mr Bolton if they had submitted a notice of entry. Mr Pitt replied “No, we are not 
here under a right of entry notice”.216 Mr Fisher asked them to leave the site. They did not 
leave. Mr Fisher then asked the officials to sign the visitors’ book, which they did. After 
signing the visitors book the officials stayed, with Mr Fisher, in the general area of the site 
office and engaged in conversation. Mr Fisher advised the officials of the presence of a 
FWBC inspector on site and suggested that the inspector would like to meet them. Mr Bolton 
then turned the conversation to the flag on the crane, suggesting that it would be safer with a 
flag. The officials left the site at 12.30 p.m., indicating they intended to return to speak to 
Mr Crabb. 
 
[254] On the evidence, we are not satisfied that the entry was for a purpose for which Part 3–
4 entry rights were available to the officials. The evidence as to a conversation between the 
official and two workers is not sufficient to support a finding that the purpose of the visit was 
to undertake discussions with employees. There is no evidence of any stated purpose of the 
visit. We find that the entry on site by the officials was for the purpose of raising a demand as 
to the flying of the flag on the crane. It is not a purpose for which a Part 3–4 right exists and 
no official was conferred with a statutory right to enter for that purpose. The purpose of the 
entry is consistent with that reflected in the second visit to the site on 30 October 2013. We 
are not satisfied that the 8 November 2013 Tonsley Park Flinders University entry involved 
the use of Part 3–4 entry rights. 
 
Conclusion 
 
[255] In relation to the specific entries to Lend Lease sites, we have found that some of them 
involved a misuse (involving the use and misuse) of Part 3–4 rights, which provides the 
jurisdiction under s.508(1) of the FW Act for the taking of action the Commission considers 
appropriate under s.508(2) of the FW Act to restrict the rights exercisable under Part 3–4 by 
the CFMEU, or its officials. 
 
[256] Specifically we have found the following misuse of Part 3–4 rights: 
 

1. The Adelaide Oval project 
 

30 October 2013: 
 
 No notice of entry was given as required by the FW Act or the WHS (SA) 

Act;  
 








[2014] FWCFB 2709 

55 

 To the extent that entry occurred without notice, the entry hindered the 
employer’s managers by distracting them from their planned activities and 
hindrance which magnified given the number of officials entering the site 
(s.500 of the FW Act); and 

 
 The officials utilised the entry for the purpose of asserting a demand in 

relation to a permanent delegate being a purpose for which the right of entry 
does not extend. 

 
31 October 2013:  

 
 No notice of entry was given as required by the FW Act or the WHS (SA) 

Act; 
 

 To the extent that entry occurred without notice, the entry hindered the 
employer’s managers by distracting them from their planned activities (s.500 
of the FW Act); and 

 
 In proceeding on site, after signing in, without authority, the officials failed 

to give effect to a reasonable request, conveyed by signage at entry gates, that 
unauthorised entry should not occur. 

 
5 November 2013: 

 
 No notice of entry was given as required by the FW Act; and 

 
 To the extent that entry occurred without notice, the entry hindered the 

employer’s managers by distracting them from their planned activities (s.500 
of the FW Act), although on the evidence, the extent of any hindrance was 
extremely minor, a matter relevant to remedy. 

 
13 November 2013 (first entry): 

  
 Interference with bunting marking in an exclusion zone. 

 
2. The Adelaide Convention Centre project 

 
30 October 2013: 

 
 No notice of entry was given as required by the FW Act; and 

 
 To the extent that entry occurred without notice, the entry hindered the 

employer’s managers by distracting them from their planned activities (s.500 
of the FW Act). 

 
3. The Tonsley Park TAFE project 

 
30 October 2013 (first entry): 

 
 No notice of entry was given as required by the FW Act; 








[2014] FWCFB 2709 

56 

 
 To the extent that entry occurred without notice, the entry hindered the 

employer’s managers by distracting them from their planned activities (s.500 
of the FW Act); 

 
 The officials entered and walked through the site without authority, in the 

face of specific advice that they were not permitted on site and in 
contravention of the requirement for authorisation for entry evident on site 
signage; and 

 
 Two officials failed to comply with an express and reasonable request to 

respect the “two longs” policy. 
 

8 November 2013: 
 

 No notice of entry was given as required by the FW Act. 
 

 To the extent that entry occurred without notice, the entry hindered the 
employer’s managers by distracting them from their planned activities (s.500 
of the FW Act). 

 
4. The Tonsley Park Flinders University project 

 
30 October 2103: 

 
 No notice of entry was given as required by the FW Act;  

 
 To the extent that entry occurred without notice, the entry hindered the 

employer’s managers by distracting them from their planned activities (s.500 
of the FW Act); 

 
 The officials entered and walked through the site without authority, in the 

face of specific advice that they could not enter the site and in contravention 
of the requirement for authorisation for entry evident on site signage; and 

 
 The officials utilised the entry for the purpose of asserting demand in relation 

to a permanent delegate and the position of a CFMEU flag on the crane, 
being purposes for which the right of entry does not extend. 

 
[257] We note in respect of each of the entries in which we have found misuse of Part 3–4, 
other than the Adelaide Oval site on 5 and 13 November 2013 and the Tonsley Park TAFE 
site on 8 November 2013, there was evidence that the conduct formed part of a general 
strategy of the CFMEU directed by its State Secretary, Mr Cartledge. The misuse of the rights 
in respect of the Adelaide Oval site on 5 November 2013 and the Tonsley Park TAFE site on 
8 November 2013 were of a nature which was consistent with the misuses found in relation to 
the entries for which there was evidence of such a strategy. In those circumstances, we think 
the Adelaide Oval site on 5 November 2013 and the Tonsley Park TAFE site on 8 November 
2013 reflected that general CFMEU strategy. 
 








[2014] FWCFB 2709 

57 

[258] The exception is the Adelaide Oval entry of 13 November 2013. The misuse of Part 3–
4 rights—interference with bunting marking in an exclusion zone—does not fit comfortably 
within the broader strategy, but reflects a misuse of rights by Mr McDermott. 
 
[259] Having regard to the evidence in paragraph 194 of this decision and the other evidence 
in relation to the specific entries involving a misuse of Part 3–4 rights, we find that the misuse 
of rights arose out of a CFMEU strategy in relation to entry to the Lend Lease sites at the 
time, under the direction of the State Secretary. As a result, we find that the CFMEU, as an 
organisation has misused rights under Part 3–4. 
 
[260] In relation to the Lend Lease entries the Full Bench grants permission to appeal, 
quashes the decision of Senior Deputy President O’Callaghan in relation to these entries and 
determined by ourselves, that a misuse of Part 3–4 rights has occurred to the extent and in the 
manner set out immediately above. 
 
[261] We remit the matter back to Senior Deputy President O’Callaghan to determine what, 
if any, action should be taken under s.508(2) of the FW Act, consequent upon our finding as 
to jurisdiction under s.508(1) and the nature and the extent of the misuse of Part 3–4 rights 
identified by this Full Bench. 
 
B. The FWBC  
 
[262] In its appeal Grounds 17–19, the CFMEU submitted that Senior Deputy President 
O’Callaghan erred in finding that the FWBC was entitled to call evidence in the proceedings 
by virtue of its rights under s.72 of the FW Building Act. The CFMEU submitted that the role 
of the FWBC is relevantly limited in Commission proceedings to making submissions.  
 
[263] These appeal grounds were directed to a decision in transcript by Senior Deputy 
President O’Callaghan when he dismissed an objection by the CFMEU to the acceptance of 
evidence of the FWBC on the basis that the Director of the Inspectorate had no right under the 
FW Building Act to call evidence in the proceedings, or indeed in any proceedings in the 
Commission. 
 
[264] Senior Deputy President O’Callaghan decided that, subject to weight attached to it, he 
was prepared to accept and admit into evidence a statement made by Mr Mathers (the FWBC 
evidence) on the basis that “to deprive the Fair Work Building and Construction of the 
capacity to provide material in support of its submissions would be inconsistent with the 
provisions of the Act”.217 
 
[265] The CFMEU submitted to Senior Deputy President O’Callaghan and in the appeal that 
the right afforded by s.72 to the Director of the Inspectorate under the FW Building Act is 
limited to the making of submissions, as naturally understood and does not extend to the 
bringing of evidence. 
 
[266] Section 72 of the FW Building Act provides: 
 








[2014] FWCFB 2709 

58 

“72 Director may make submissions in FWC proceedings 
 

The Director may, by giving written notice to the General Manager of the FWC, make 
a submission in a matter before the FWC that arises under the FW Act or the Fair 
Work (Transitional Provisions and Consequential Amendments) Act 2009 and 
involves:  

 
(a) a building industry participant; or  

 
(b) building work.” 

 
[267] The CFMEU contrasted this right to: 
 

 First, the fuller rights afforded to the Director in s.71 of the FW Building Act: 
 

“71 Director may intervene in court proceedings 
 

(1) The Director may intervene in the public interest in a civil proceeding 
before a court in a matter that:  

 
(a) arises under this Act; or  

 
(b) arises under the Independent Contractors Act 2006, the FW Act 

or the Fair Work (Transitional Provisions and Consequential 
Amendments) Act 2009 and involves:  

 
(i) a building industry participant; or 

 
(ii) building work. 

 
(2) If the Director intervenes in a proceeding under subsection (1), the 

Director is taken to be a party to the proceeding and has all the rights, 
duties and liabilities of such a party.” 

 
 Secondly, the rights afforded to the Director in s.72 of the BCII Act (which 

preceded the FW Building Act): 
 

“72 ABC Commissioner intervention in AIRC proceedings 
 

The ABC Commissioner may, by giving written notice to the Industrial 
Registrar, intervene in a matter before the AIRC that arises under the 
Workplace Relations Act and involves: 

 
(a) building industry participant; or  

 
(b) building work.” 

 
[268] We are not persuaded that the comparative legislative provisions support the 
contention advanced by the CFMEU when more closely examined. 
 








[2014] FWCFB 2709 

59 

[269] The changed terms of s.72 as between the FW Building Act and the BCII Act has two 
elements:  
 

1. the reference to Director rather than ABC Commissioner, which arose out of 
the amendment of the BCII Act by the Building and Construction Industry 
Improvement Amendment (Transition to Fair Work) Act 2012, giving effect to 
the FW Building Act. It was directed to changed nomenclature of the officer of 
the now FWBC and has no bearing on the extent of the rights provided by s.72 
of the FW Building Act. Section 71 of that Act was similarly amended. 

 
2. The change in s.72 from “intervene in a matter” to “make a submission in a 

matter” was effected by Schedule 8, Part 1, Item 68 of the Fair Work (State 
Referral and Consequential and Other Amendments) Act 2009 (State Referral 
Act). 

 
[270] The Explanatory Memorandum which attended the State Referral Act noted generally 
in relation to consequential amendments of other legislation: 
 

“Schedules 4 to 19 to the Bill make transitional and consequential amendments to 
67 Commonwealth Acts which refer to parts of the WR Act that will be repealed by 
the T&C Bill. The Schedules replace those references with references to corresponding 
concepts in the FW Act. The Schedules also make more significant amendments to 
certain other Commonwealth legislation to provide clarity and consistency with respect 
to the operation of that legislation in the new federal workplace relations system 
established by the FW Act.” 

 
[271] In relation to the consequential amendments to the BCII Act specifically, the 
Explanatory Memorandum said: 
 

“241. The BCII Act adopts many concepts used by the WR Act. That Act, with the 
exception of the provisions relating to registered organisations, will be 
repealed by the T&C Bill and replaced by the FW Act. This Part makes 
consequential amendments to the BCII Act to reflect this change.  

 
242. These items replace terms used in the WR Act with corresponding terms used 

in the FW Act. For example, references to a workplace inspector are replaced 
with references to a Fair Work Inspector, and references to the Industrial 
Registrar are replaced with references to the General Manager of FWA. These 
items also amend, insert or repeal definitions as necessary to bring the BCII 
Act into line with the FW Act.” 

 
[272] The Explanatory Memorandum makes no reference to a substantive restriction of the 
rights of the FWBC under s.72 of the FW Building Act of the type suggested by the CFMEU. 
 
[273] It is clear that the changes within s.72 from “intervene in a matter” to “make a 
submission in a matter” was directed to replace terms used in the WR Act (after Work 
Choices) with corresponding terms used in the FW Act, providing clarity and consistency 
with respect to the operation of the BCII Act in the new federal workplace relations system 
established by the FW Act. One significant element of the changes in the new federal 
workplace relations system established by the FW Act was the removal of an explicit 
statutory power to allow intervention of the type reflected in s.101 of the WR Act (after Work 
Choices): 








[2014] FWCFB 2709 

60 

 
“Where the Commission is of the opinion that an organisation, a person (including the 
Minister) or a body should be heard in a matter before the Commission, the 
Commission may grant leave to the organisation, person or body to intervene in the 
matter.” 

 
[274] A provision of that kind is not found in the FW Act, reflecting a move away from 
formal, adversarial processes, with legal representation and intervening parties.218 Instead the 
FW Act provides a general power in s.590 for the Commission to inform itself in such manner 
as it considers appropriate, providing flexibility and discretion as to how it is able to inform 
itself in relation to any matter before it.219 
 
[275] For the same reasons, similar changes were made in respect of the rights of the 
Minister to intervene (s.102 of the WR Act (after Work Choices)) and to make submissions 
(s.597 of the FW Act). 
 
[276] No similar changes occurred to Acts governing the Courts, so that s.71 is in the same form 
in the BCII Act and the FW Building Act (save for the amendment changing Commissioner to 
Director and changed reference from proceedings under the WR Act to proceedings under the 
FW Act). 
 
[277] The Full Bench is not persuaded that the right of the FWBC to make a submission before 
the Commission in a relevant matter is restricted to prevent the bringing of evidence in 
support of the submission. The only restriction, in relation to submissions and related 
evidence arising from s.72 of the FW Building Act is that they relevantly relate to the matter 
and the matter arises under the FW Act in relation to a building industry party or building 
work. Senior Deputy President O’Callaghan was right to find that there was no basis to 
deprive the FWBC of the capacity to provide material in support of its submissions and to 
accept that evidence. 
 
[278] We note, in any case, that even if the right under s.72 of the FW Building Act was 
limited in the way contended for by the CFMEU, Senior Deputy President O’Callaghan could 
have accepted the evidence, as a matter of discretion pursuant to the general power to inform 
himself under s.590 of the FW Act. 
 
[279] We see no basis for this appeal ground. It provides no basis on appeal for interfering in 
the decision of Senior Deputy President O’Callaghan in relation to the entries arising from the 
FWBC evidence or the continuing process in relation to those entries set out in his decision. 
 
Conclusion 
 
[280] For the reasons indicated, we grant permission to appeal and quash the decision of 
Senior Deputy President O’Callaghan in relation to the Lend Lease entries in relation to these 
entries. We find that a misuse of Part 3–4 rights has occurred in respect of some of those 
entries to the extent and in the manner set out in paragraph 256 of this decision. 
 
[281] We otherwise dismiss the Appeal. 
 
[282] We remit the matter back to Senior Deputy President O’Callaghan: 
 








[2014] FWCFB 2709 

61 

 to determine what, if any, action should be taken under s.508(2) of the FW Act, 
consequent upon our finding as to jurisdiction under s.508(1) and the nature and 
the extent of the misuse of Part 3–4 rights identified by us; and 

 
 to continue and complete his hearing of the matter in respect of the matters arising 

out of the FWBC evidence. 
 
 
 
 
SENIOR DEPUTY PRESIDENT 
 
Appearances: 
 
R Reitano of Counsel for the Construction, Forestry, Mining and Energy Union. 
 
J Forbes of Counsel for Lend Lease Building Contractors Pty Ltd. 
 
M Roder Senior Counsel for Fair Work Building and Construction. 
 
Hearing details: 
 
2014. 
Melbourne: 
February 12. 
 
 
Printed by authority of the Commonwealth Government Printer 
 
Price code J, PR549957 
 
                                                 
1 [2013] FWC 8659. 
2 C2013/6599. 
3 [2013] FWC 8659. 
4 ibid. at para 16. 
5 Letter issued in RE2013/1710 on 11 November 2013. 
6 Directions issued in RE2013/1710 on 11 November 2013. 
7 Transcript in RE2013/1710 of 21 November 2013 at paras 15–16, 20 and 24–25. 
8 ibid. at para 24. 
9 ibid. at para 25. 
10 ibid. at para 222. 
11 [2013] FWC 9343. 
12 Directions issued in RE2013/1710 on 27 November 2013 at paras 2–3. 
13 Transcript in RE2013/1710 of 10 December 2013 at paras 251–253. 
14 ibid. at paras 253 and 257. 
15 ibid. at paras 529–539. 
16 Setka v Gregor (No 2), [2011] FCAFC 90 at para 21; Ramsay v Sunbuilt Pty Ltd, [2014] FCA 54 at para 51; and Darlaston 

v Parker, [2010] FCA 771 at para 39. 








[2014] FWCFB 2709 

62 

                                                                                                                                                         
17 Ramsay v Sunbuilt Pty Ltd, [2014] FCA 54 at para 87 and Office of Australian Building and Construction Commissioner v 

Construction, Forestry, Mining and Energy Union, (Lane) [2008] AIRCFB 898 at para 16, decided in the context of Part 
15 of the Workplace Relations Act 1996. 

18 Andrew Ferguson and Martin French and CSR Limited trading as CSR Humes, PR910502 at para 17; Pine v Doyle, [2005] 
FCA 977 at para 6; Gregor v Setka, [2010] FMCA 690 at para 54; and Setka v Gregor (No 2), [2011] FCAFC 90 at para 
26. 

19 Transcript in RE2013/1710 of 13 December 2013 at para 1793. 
20 See Andrew Ferguson and Martin French and CSR Limited trading as CSR Humes, PR910502 at para 21. 
21 As cited by O’Callaghan SDP in [2013] FWC 10168 at para 79. 
22 Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Act 2005 at paras 2449 and 2494. 
23 [2011] FWA 384 and [2011] FWA 4096. 
24 PR502694. 
25 [2014] FCA 54. 
26 ibid. at para 101. 
27 [2014] FCA 164. 
28 Print Q5997. 
29 PR910502. 
30 ibid. at paras 16–17. 
31 ibid. at para 22. 
32 ibid. at paras 26–29. 
33 As cited by O’Callaghan SDP in [2013] FWC 10168 at para 79. 
34 [2005] FCA 977. 
35 ibid. at para 6. 
36 ibid. at para 13. 
37 ibid. at para 14. 
38 Australian Building and Construction Commission, (McLoughlin) [2007] AIRC 717; Australian Building and Construction 

Commissioner, (Lane) [2008] AIRC 1140; Office of Australian Building and Construction Commissioner v Construction, 
Forestry, Mining and Energy Union, (Lane) [2008] AIRCFB 898 and Gregory Charles Alfred v Andrew Quirk, [2008] 
AIRC 781. 

39 Australian Building and Construction Commission, (McLoughlin) [2007] AIRC 717 at para 51. 
40 Gregory Charles Alfred v Andrew Quirk, [2008] AIRC 781 at para 26. 
41 Australian Building and Construction Commissioner, (Lane) [2008] AIRC 1140 at para 15 and Charles Alfred v Andrew 

Quirk, [2008] AIRC 781 at para 26. Different conclusions as to the application of the facts to that question were reached. 
See Australian Building and Construction Commissioner, (Lane) [2008] AIRC 1140; Office of Australian Building and 
Construction Commissioner v Construction, Forestry, Mining and Energy Union, (Lane) [2008] AIRCFB 898 and 
Gregory Charles Alfred v Andrew Quirk, [2008] AIRC 781. 

42 Office of Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union, (Lane) 
[2008] AIRCFB 898 at para 23 and Gregory Charles Alfred v Andrew Quirk, [2008] AIRC 781 at para 47. 

43 Gregory Charles Alfred v Andrew Quirk, [2008] AIRC 781 at para 27. 
44 [2009] FCA 645. 
45 John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union, [2009] FCA 645 at para 45. 
46 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd, [2010] FCAFC 90. 
47 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd, [2009] FCA 786. 
48 The Workplace Relations Act 1996 (after Work Choices amendments) continued to apply, notwithstanding its repeal, to 

conduct which occurred prior to that repeal by reason of the operation of the Fair Work (Transitional Provisions and 
Consequential Amendments) Act 2009 (Cth). 

49 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd, [2010] FCAFC 90 at para 39. 
50 ibid. at paras 40–41. 
51 ibid. at para 45 
52 ibid. at para 108. 








[2014] FWCFB 2709 

63 

                                                                                                                                                         
53 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd, [2011] FCA 770. 
54 ibid. at para 31. 
55 ibid. at para 32. 
56 ibid. at para 36. 
57 ibid. at paras 82, 97, 106 and 121. 
58 ibid. at para 171. 
59 ibid. at para 130. 
60 ibid. at para 131. 
61 ibid. at para 132. 
62 [2010] FCA 771. 
63 [2011] FCAFC 90. 
64 Gregor v Setka, [2010] FMCA 690. 
65 Setka v Gregor (No 2), [2011] FCAFC 90 at para 23. 
66 ibid. at para 6. 
67 Construction, Forestry, Mining & Energy Union v Hume Highway Constructions Pty Ltd & Anor, [2013] FMCA 154. 
68 Ramsay v Sunbuilt Pty Ltd, [2014] FCA 54 at para 87 and Office of Australian Building and Construction Commissioner v 

Construction, Forestry, Mining and Energy Union, (Lane) [2008] AIRCFB 898 at para 16 decided in the context of Part 
15 of the Workplace Relations Act 1996. 

69 [2005] FCA 977. 
70 Australian Building and Construction Commissioner, (Lane) [2008] AIRC 1140 at para 15 and Charles Alfred v Andrew 

Quirk, [2008] AIRC 781 at para 26. Different conclusions as to the application of the facts to that question were reached. 
See Australian Building and Construction Commissioner, (Lane) [2008] AIRC 1140; Office of Australian Building and 
Construction Commissioner v Construction, Forestry, Mining and Energy Union, (Lane) [2008] AIRCFB 898 and 
Gregory Charles Alfred v Andrew Quirk, [2008] AIRC 781. 

71 Australian Building and Construction Commission, (McLoughlin) [2007] AIRC 717 at para 51. 
72 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd, [2010] FCAFC 90 at para 39. 
73 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd, [2011] FCA 770. 
74 ibid. at para 41. 
75 [2010] FCA 771. 
76 [2011] FCAFC 90. 
77 [2011] FWA 384 and [2011] FWA 4096. 
78 [2011] FWA 4096 at para 56. 
79 [2008] AIRC 781. 
80 [2007] AIRC 717 at para 74. 
81 [2013] FWC 9860 at para 6. 
82 ibid. at paras 7 and 9–17. 
83 Transcript in RE2013/1710 of 21 November 2013 at para 24. 
84 [2013] FWC 9860 at para 17. 
85 [2013] FWC 10168 at para 69. 
86 Written submissions of the CFMEU in the appeal at para 2 and in footnote 3. 
87 Transcript in Appeal at paras 14 and 19. 
88 ibid. at para 14. 
89 Section 480(a) of the Fair Work Act 2009. 
90 [2013] FWC 10168 at para 69. 
91 ibid. at para 117. 
92 ibid. at para 69. 
93 ibid. at paras 122–124. 
94 CFMEU written submissions in Appeal C2014/2631. 








[2014] FWCFB 2709 

64 

                                                                                                                                                         
95 Transcript in Appeal at para 268. 
96 ibid. at para 120. 
97 ibid. at para 120. 
98 ibid. at para 121. 
99 ibid. at para 377. 
100 ibid. at para 158. 
101 ibid. at para 153. 
102 ibid. at para 189. 
103 ibid. at para 375. 
104 Andrew Ferguson and Martin French and CSR Limited trading as CSR Humes, PR910502 at para 17; Pine v Doyle, 

[2005] FCA 977 at para 6; Gregor v Setka, [2010] FMCA 690 at para 54 and Setka v Gregor (No 2), [2010] FMCA 690 
at para 26. 

105 [2013] FWC 10168 at para 71. 
106 ibid. at para 117. 
107 ibid. at para 69. 
108 Exhibit L5 at paras 9–24 in RE2013/1710. 
109 Exhibit L7 at attachment MG2 in RE2013/1710. 
110 [2013] FWC 10168 at para 4. 
111 ibid. at paras 1–11. 
112 ibid. at paras 12–13. 
113 ibid. at paras 14–36. 
114 ibid. at paras 48–61. 
115 PR910502. 
116 [2011] FCAFC 90. 
117 [2013] FWC 10168 at paras 62–69. 
118 ibid. at paras 77–116. 
119 ibid. at para 89. 
120 ibid. at paras 91 and 93. 
121 ibid. at paras 92 and 105. 
122 ibid. at para 95. 
123 ibid. at para 105. 
124 ibid. at para 108. 
125 John Pinawin T/A Rose Vi Hair Face Body v Mr Edwin Domingo, [2012] FWAFB 1359 at para 21. 
126 [1999] FCA 1836. 
127 PR908112. 
128 [2010] FWAFB 3544. 
129 [2011] FWAFB 1080. 
130 Soulemezis v Dudley (Holdings) Pty Ltd, (1987) 10 NSWLR 247, per McHugh JA at p. 280. 
131 [2013] FWC 10168 at para 74. 
132 ibid. at para 104. 
133 ibid. at para 115. 
134 ibid. at para 113. 
135 ibid. at para 115. See also paras 91 and 93. 
136 ibid. at para 123. 
137 Australian Building and Construction Commission, (McLoughlin) [2007] AIRC 717 at para 221 and Australian Building 

and Construction Commissioner, (Lane) [2009] AIRC 868 at para 27. 
138 [2008] AIRCFB 898 at para 27. 








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139 [2013] FWC 10168 at para 78. 
140 ibid. at para 92. 
141 ibid. at para 95. 
142 ibid. at paras 99–101. 
143 ibid. at paras 105–106. 
144 ibid. at paras 108–110. 
145 ibid. at paras 111–112. 
146 ibid. at para 113. 
147 Adelaide Oval site on 30 October 2013 and 6 November 2013, Adelaide Convention Centre site on 30 October 2013, 

TAFE Tonsley Park site on 30 October 2013 and 8 November 2013 and Flinders University Tonsley Park site on 
30 October 2013 and 8 November 2013. 

148 Long, Harrison, Beattie, Buchan, Nicholls, Pitt and O’Connor. Others were identified as Moe, John, Vern and Brenton. 
149 Exhibit L3 in RE2013/1710, attachment DI1 at para 10. 
150 Exhibit L1 in RE2013/1710 at para 13. 
151 ibid. at para 43. 
152 Exhibit L7 in RE2013/1710, attachment MG1 at para 6. 
153 ibid. at para 10. 
154 Exhibit L4 in RE2013/1710 at para 10. 
155 Transcript in RE2013/1710 of 13 December 2013 at paras 1449–1453. 
156 Exhibit L6 in RE2013/1710 at para 7. 
157 Exhibit L5 in RE2013/1710 at para 13. 
158 Exhibit FWBC1 in RE2013/1710. 
159 ibid. at Attachment JDM2. 
160 ibid. at Attachment JDM8. 
161 ibid. at Attachment JDM3. 
162 ibid. at Attachment JDM7. 
163 Exhibit L3 in RE2013/1710, at Attachment DI1. 
164 Transcript in RE2013/1710 of 10 December 2013 at para 1001. 
165 He was not aware of what the other officials were doing, Transcript in RE2013/1710 of 10 December 2013 at para 1026. 
166 Exhibit L1 at para 11 in RE2013/1710. 
167 Transcript in RE2013/1710 of 10 December 2013 at paras 733, 741–742 and 746. 
168 ibid. at para 1042. 
169 ibid. at para 915. 
170 The FWC https://beta.fwc.gov.au/registered-organisations/entry-permits/check-entry-permit?MTR_SERIES_CD=RE and 

Industrial Court of South Australia http://www.industrialcourt.sa.gov.au/index.cfm?objectID=835A5E52-9EC3-2015-
9C56156E1A17DA9A search facilities disclose for those recorded as entering the site on the visitors book: 
Mr McDermott holds a Federal entry permit (RE) and WHS permit (FWHS) and a SA WHS permit, Mr Long holds a RE 
and SA WHS permit, Mr Stephenson holds a RE and SA WHS permit, Mr Roberts holds a RE and WHS permit and 
Mr Kirner holds a RE and SA WHS permit. 

171 Transcript in RE2013/1710 of 10 December 2013 at para 1110. 
172 Exhibit L1 in RE2013/1710. 
173 The FWC https://beta.fwc.gov.au/registered-organisations/entry-permits/check-entry-permit?MTR_SERIES_CD=RE and 

Industrial Court of South Australia http://www.industrialcourt.sa.gov.au/index.cfm?objectID=835A5E52-9EC3-2015-
9C56156E1A17DA9A search facilities disclose for those recorded as entering the site on the visitors book: 
Mr McDermott holds a RE and FWHS permit and a SA WHS permit, Mr Long holds a RE and SA WHS permit and 
Mr Beattie holds a RE permit. 

174 Exhibit L3 in RE2013/1710. 








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66 

                                                                                                                                                         
175 The FWC https://beta.fwc.gov.au/registered-organisations/entry-permits/check-entry-permit?MTR_SERIES_CD=RE and 

Industrial Court of South Australia http://www.industrialcourt.sa.gov.au/index.cfm?objectID=835A5E52-9EC3-2015-
9C56156E1A17DA9A search facilities discloses that Mr Cartledge holds a RE and FWHS permit and a SA WHS permit. 

176 Exhibit L1 in RE2013/1710. 
177 Exhibit L1 in RE2013/1710 at para 36. 
178 Exhibit L1 in RE2013/1710. 
179 Transcript in RE2013/1710 of 10 December 2013 at para 822. 
180 Exhibit L1 in RE2013/1710 at para 50. 
181 Exhibit L1 in RE2013/1710. 
182 Exhibit L1 in RE2013/1710 at para 53. 
183 The FWC https://beta.fwc.gov.au/registered-organisations/entry-permits/check-entry-permit?MTR_SERIES_CD=RE and 

Industrial Court of South Australia http://www.industrialcourt.sa.gov.au/index.cfm?objectID=835A5E52-9EC3-2015-
9C56156E1A17DA9A search facilities discloses that Mr McDermott holds a RE and FWHS permit and a SA WHS 
permit. 

184 Exhibit L1 in RE2013/1710 at para 60. 
185 Exhibit L1 in RE2013/1710. 
186 Exhibit L1 in RE2013/1710 at para 67. 
187 ibid. at para 69. 
188 Exhibit L4 in RE2013/1710. 
189 Transcript in RE2013/1710 of 10 December 2013 at para 1188. 
190 Exhibit L4 in RE2013/1710 at para 6. 
191 Transcript in RE2013/1710 of 10 December 2013 at para 1190. 
192 ibid. at para 1165. 
193 ibid. at para 1166. 
194 ibid. at paras 1169 and 1195. 
195 ibid. 1167 and 1196. 
196 ibid. 2013 at paras 1197–1198. 
197 The FWC https://beta.fwc.gov.au/registered-organisations/entry-permits/check-entry-permit?MTR_SERIES_CD=RE and 

Industrial Court of South Australia http://www.industrialcourt.sa.gov.au/index.cfm?objectID=835A5E52-9EC3-2015-
9C56156E1A17DA9A search facilities disclose for those recorded as entering the site on the visitors book: Mr O’Connor 
holds a RE permit and SA WHS permit, Mr Beattie and Mr Nicholls hold a RE permit.  

198 Exhibit L7 in RE2013/1710, at Attachment MG1. 
199 ibid. at para 3. 
200 ibid. at para 5. 
201 ibid. at para 10. 
202 Only one official, Mr Gava, was identified in the evidence. The others were described as an official from ACT and three 

from Melbourne. The FWC https://beta.fwc.gov.au/registered-organisations/entry-permits/check-entry-
permit?MTR_SERIES_CD=RE and Industrial Court of South Australia 
http://www.industrialcourt.sa.gov.au/index.cfm?objectID=835A5E52-9EC3-2015-9C56156E1A17DA9A search facilities 
discloses that Mr Gava holds a RE and a SA WHS permit. 

203 Exhibit L7, attachment MG2 in RE2013/1710.  
204 Exhibit L7 at para 2 in RE2013/1710. 
205 The FWC https://beta.fwc.gov.au/registered-organisations/entry-permits/check-entry-permit?MTR_SERIES_CD=RE and 

Industrial Court of South Australia http://www.industrialcourt.sa.gov.au/index.cfm?objectID=835A5E52-9EC3-2015-
9C56156E1A17DA9A search facilities discloses that Mr Gava holds a RE and a SA WHS permit and Mr Bolton holds a 
RE and FWHS permit and a SA WHS permit and Mr Pitt holds a RE permit and a SA WHS permit. 

206 Exhibit L6 in RE2013/1710. 
207 Transcript in RE2013/1710 of 13 December 2013 at para 1457. 
208 Transcript in RE2013/1710 of 13 December 2013 at para 1463. 
209 Exhibit L6 at para 7 in RE2013/1710. 








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210 Exhibit L6 at para 7 in RE2013/1710. 
211 Transcript in RE2013/1710 of 13 December 2013 at paras 1464–1469. 
212 Exhibit L6 at para 16 in RE2013/1710 and Transcript in RE2013/1710 of 13 December 2013 at para 1486. 
213 The only identification of the officials is of Mr Gava and persons called Moe, Vern and John. The FWC 

https://beta.fwc.gov.au/registered-organisations/entry-permits/check-entry-permit?MTR_SERIES_CD=RE and Industrial 
Court of South Australia http://www.industrialcourt.sa.gov.au/index.cfm?objectID=835A5E52-9EC3-2015-
9C56156E1A17DA9A search facilities discloses that Mr Gava holds a RE and a SA WHS permit. 

214 Exhibit L5 in RE2013/1710. 
215 Transcript in RE2013/1710 of 13 December 2013 at para 1309. 
216 Exhibit L5 in RE2013/1710 at para 13. 
217 Transcript in RE2013/1710 of 13 December 2013 at para 1690. 
218 Explanatory Memorandum, Fair Work Bill 2008, Regulatory Analysis at r.335. 
219 Explanatory Memorandum, Fair Work Bill 2008 at 2276. 

Cases cited by this decision: