This was an application to revoke the entry permit of NSW CFMEU branch officials Martin Wyer and David Glass. The application was lodged by Markus Lutz an inspector with the Building Industry Taskforce. In 15 November 2004, DIR Barry Jenkins accepted the Taskforce’s application to replace Markus Lutz with Guiltetta Siciliano as the applicant. In March 2005 VP Ross rejected the Unions appeal against DIR Jenkin’s decision to allow the replacement.
Wyer and Glass were issued with permits pursuant to section 285A(1) of the Workplace Relations Act 1996 as an officer and employee respectively of the CFMEU NSW Divisional Branch.
The applicant contended that on 1 December 2003 the respondents had entered a building site at Bondi in NSW for the purpose of shutting it down because it was union picnic day. Whilst on site the respondents had intentionally hindered and/or obstructed each of the employers and/or their employees on site and otherwise acted in an improper manner and that their actions occurred in the exercise of their powers under Part IX the WR Act.
The respondents argued that they were not exercising right of entry under the Part IX of the WR Act. Key points in the respondents case included the following:
• They did not attempt to assert a right of entry under the WR Act;
• They did not provide 24 hours notice;
• They did not attempt to hold discussions with employees during breaks; and
• They did not identify any Award or other Federal Instrument applying for the purpose of sections 285B or 285C.
The respondents argued their conduct most closely related to an attempt to exercise rights under the Occupational Health and Safety Act 2000 (NSW).
Decision
DIR Jenkins discussed the case of Addison v Public Transport Corporation of Victoria [1998] and the case of Pine v Doyle [2005]. He said that determining whether or not a permit holder was “exercising powers” should not be interpreted “strictly” or “as a matter of law” but by having regard to the facts to determine on what basis the permit holder justified or attempted to justify their presence on the employer’s premises. In both Addison and Pine v Doyle the permit holder was found to have been exercising their powers as a matter of fact and both were justifying their presence on the site by reference to the permit despite not having complied strictly with the legal requirements for the exercise of power.
DIR Jenkins was not satisfied that Wyer and Glass were exercising as a matter of fact their right of entry under Part IX of the WR Act. Although the union picnic day is a federal award entitlement it is also an entitlement under the state award. DIR Jenkins found nothing in the evidence to justify the conclusion that by raising the issue of the union picnic day the respondents were in fact exercising powers under Part IX. Since the conduct did not occur in exercising powers under Part IX of the WR Act DIR Jenkins concluded there was no jurisdiction to revoke their permits pursuant to s285A(3) of the WR Act and dismissed the application.