Re Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd [1991] FCA 61; 28 FCR 379; (1991) 36 IR 212 (4 March 1991)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN FEDERATION OF AIR PILOTS
And: ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LTD.
No. V I31 of 1990
FED No. 81
Industrial Law
[1991] FCA 61; 28 FCR 379
(1991) 36 IR 212

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - power of entry, inspection and interview by authorised officer of organisation - right to inspect documents - whether hindered or obstructed - whether indefinite deferment beyond end of day of decision whether to allow inspection amounted to refusal of inspection.

Industrial Relations Act 1988 s. 306, s. 286.

Income Tax Assessment Act 1936 s. 263.

Acts Interpretation Act 1901 s. 25, s. 25A.

Ansett Airlines of Australia (Pilots) Award 1989.

Ansett Air Freight (Pilots) Award 1989.

HEARING

MELBOURNE
4:3:1991

Counsel for the applicant: H. Borenstein

Solicitors for the applicant: Mahony and Galvin

Counsel for the respondent: J. Fajgenbaum QC, F. Parry

Solicitors for the respondent: Freehill, Hollingdale and Page

DECISION

On 9th November 1990, the defendant pleaded not guilty to two charges laid against it pursuant to s.306(a) of the Industrial Relations Act 1988 ("the Act"). The hearing of the charges took place following the hearing of charges under the same provision of the Act, brought by the same prosecutor, against Australian Airlines Ltd. (matter no. VI 26 of 1990). Judgment in relation to those charges was delivered on the same day as judgment in this proceeding. Some similar issues were raised in both proceedings, and it will be necessary for me to make reference to the reasons for judgment in matter no. VI 26 of 1990 with respect to some of those issues.

2. The prosecutor is an organisation, registered pursuant to the Act. The defendant is a company, duly incorporated, and is named as a respondent to and bound by two awards made under the Act, the Ansett Airlines of Australia (Pilots) Award 1989 and the Ansett Air Freight (Pilots) Award 1989. These facts were the subject of formal admissions by Mr Fajgenbaum QC and Mr Parry of counsel, who appeared for the defendant.

3. Section 306(a) of the Act provides as follows:
"A person shall not:

(a) hinder or obstruct a person in the
exercise of a power under subsection
134(1) or 286(1);".

It is also necessary to set out the relevant provisions of s.286:

"(1) An officer of an organisation authorised
in writing by the secretary of the organisation
or of a branch of the organisation to act under
this subsection may, for the purpose of ensuring
the observance of an award or an order of the
Commission binding the organisation:
(a) at any time during working hours,
but subject to any conditions
provided by the award or order,
enter prescribed premises that are
specified in the authority or
occupied by an employer specified in
the authority;
(b) inspect or view any work, material,
machinery, appliance, article,
document or other thing on the
prescribed premises; and
(c) interview, on the prescribed
premises, an employee who is a
member, or is eligible to be a
member of the organisation;
but an officer acting under this subsection
shall not hinder or obstruct an employee in the
performance of work during working time.
(2) ......
(3) In this section:
"officer", in relation to an organisation, means
a person holding an office in, or employed by,
the organisation or a branch of the organisation;
"prescribed premises", in relation to an
organisation bound by an award or an order of
the Commission, means:
(a) premises in which work to which the
award or order applies is being
carried on; or
(b) premises occupied by an employer
bound by the award or order."

4. The defendant is charged that on 28th September 1990 it did commit a breach of s.306(a) of the Act in that it did hinder and obstruct two duly authorised officers of the prosecutor from carrying out an inspection, in accordance with s.286(1) of the Act, of rosters flown from 13th October 1989 to 28th September 1989 by pilots employed by the defendant. The two officers concerned were Lawrence Alfred Cox, an industrial officer employed by the prosecutor, and Erin Felicity Tucker, a research/industrial officer also employed by the prosecutor. The two charges relate to alleged hindrance and obstruction of Mr Cox and Ms. Tucker respectively.

5. On 28th September 1990, Mr Cox and Ms Tucker went to premises at 501 Swanston Street, Melbourne, occupied by the defendant. Each was in possession of a document, signed by the secretary/treasurer of the prosecutor, authorising him or her to act for the purposes of s.286 of the Act. The two authorities were in similar form, and it is only necessary to set out the text of one of them:

" AUTHORIZATION PURSUANT TO SECTION
286 OF THE INDUSTRIAL RELATIONS ACT 1988
I, Phillip Fabian McConnell, Secretary/Treasurer
of the Australian Federation of Air Pilots
hereby authorise, in writing, Ms. Erin Tucker,
an office holder/employee of the Australian
Federation of Air Pilots to enter the premises
specified below to inspect or view any work,
material, machinery, appliance, article,
document or other thing on the said premises for
the purposes of ensuring the observances of the
Award specified below.
1. Specified Premises and Employer
Premises Occupied by: Ansett
Transport Industries (Operations) Pty Ltd
an Employer bound by the Ansett
Airlines of Australia (Pilots)
Ansett Air Freight (Pilots) Award
at Ansett Transport Industries, 501
Swanston Street, Melbourne
2. Specified Award
Ansett Airlines of Australia
(Pilots) Award 1989
Ansett Air Freight (Pilots) Award 1989
Dated: 28th September 1990
Signed:
Phillip Fabian McConnell
Secretary/Treasurer
Australian Federation of Air Pilots".

6. On arrival at 501 Swanston Street, which is a multi-storey building, Mr Cox and Ms Tucker consulted a directory board on the ground floor, and proceeded to the fifteenth floor, where the defendant's flight operations department is located. They alighted from the lift into an informal reception area and asked a secretary if they could speak to Mr Stafford. Graham Leslie Perkins Stafford was the Superintendent, Employee Relations-Flight Crew of the defendant, responsible for day to day industrial relations with flight crew, as well as for pilot recruitment.

7. On 28th September, Mr Stafford, together with a Captain Duff and a Mr Tully, was engaged in interviewing applicants for employment as pilots. The interviews had been scheduled for that day, and were being conducted in the office of a Captain Dorward. When Mr Cox and Ms. Tucker asked to see Mr Stafford, the secretary indicated that Mr Stafford was in the office (where he could be seen through a curtained glass partition from the reception area) and stated that he was conducting interviews. She asked whether Mr Cox was there for an interview. Mr Cox stated his name and said that he was from the Australian Federation of Air Pilots. The secretary went into Captain Dorwood's office and spoke to Mr Stafford. She returned and asked Mr Cox and Ms. Tucker to wait.

8. At that time, which was shortly before 11.00 a.m., an interview had just been completed and another was about to begin. The three interviewers were in the process of writing down their assessments of the last interviewee. When Mr Stafford completed this task, he went to the reception area, where a conversation took place between him and Mr Cox and Ms. Tucker.

9. There are some differences in the evidence as to the content of the conversation. In particular, in a couple of important respects, Mr Stafford's version differs from those of Ms. Tucker and Mr Cox. For the purposes of making findings, I have chosen to adopt the version of the conversation given by Mr Stafford, not because I necessarily prefer it, but because this is a criminal proceeding and it is necessary for me to be satisfied of the existence of every element beyond reasonable doubt if the defendant is to be convicted.

10. Mr Stafford asked Mr Cox and Ms. Tucker how he could help them. Mr Cox said, "We are here to look at your records", or words to that effect. He handed to Mr Stafford the two authorities, which I have already set out, and a letter addressed to Mr Stafford, dated 28th September, on the letterhead of the prosecutor and signed by Mr Cox as industrial officer. The text of the letter was as follows:

"The Federation has attended your premises this
morning for the purpose of inspection of records
under Section 286 of the Industrial Relations
Act 1988. The Australian Federation of Air
Pilots as employee respondent to the Airlines
Awards known hereunder as -
Ansett Airlines of Australia
(Pilots) Award 1989, and
Ansett Air Freight (Pilots) Award
1989.
We seek access to rosters flown by pilots
employed from the 13th October to date as the
Federation is concerned there may be breaches of
the Award relating to Clauses 14, 15, 17 and 17
(sic.)."

Mr Stafford then asked whether Mr Cox and Ms Tucker were making application for access to the records. Mr Cox answered in the affirmative. Mr Stafford then said that he was busy doing interviews. There was discussion about how Mr Cox and Ms Tucker had come to see Mr Stafford, in which Mr Cox said that they had been referred to him by Captain Gloucester. This was a reference to a visit made by Mr Cox and Ms. Tucker to premises occupied by the defendant at the airport at Tullamarine, and to a conversation they had with Captain Gloucester at that place, as to where the relevant records were kept. Mr Stafford then asked again whether Mr Cox and Ms Tucker were making application and the answer was again in the affirmative. Mr Stafford then said the application would be considered, and, "We'll have to get back to you". Mr Cox then said, "We will wait". Mr Stafford said that there was no point in waiting because he would not be in a position to give an answer that day. Mr Cox asked whether he and Ms. Tucker were being denied access to the records. Mr Stafford replied, "No, I didn't say that. I said that we will consider your application and get back to you". Mr Cox then asked whether access to the records would be denied on that day and Mr Stafford said if that meant that he wouldn't be in a position to give an answer today, that was correct.

11. Mr Cox and Ms. Tucker both gave evidence that Mr Cox asked Mr Stafford to nominate some other member of the defendant's staff to assist them if he was unavailable. Mr Stafford's evidence was that he could not recollect this question being asked. He was not cross-examined about that matter. I do not therefore make a finding that such a request was made.

12. Mr Stafford gave three reasons for wanting to consider what he described as the "application" for inspection of records. The first was the interviews, which were scheduled to take place for the rest of that day. The second was his uncertainty as to precisely where the records relating to rosters were; this uncertainty arose because the records had recently been moved from the Tullamarine premises to the Swanston Street premises, then from one floor to another within the Swanston Street premises, and not all were properly stored by 28th September. The third reason was that Mr Stafford said he was unsure of the legal standing of documents presented to him and needed to refer them to his superiors and to seek legal advice.

13. It is as well, at this stage, to refer to the elements of the offence created by the combined effect of s.286 and s.306(a) of the Act. I am satisfied beyond reasonable doubt that each of Mr Cox and Ms. Tucker was an "officer" of the prosecutor for the purposes of s.286, that each was authorised in writing by the secretary of the prosecutor to act under s.286 and that the premises at 501 Swanston Street Melbourne were prescribed premises for the purposes of s.286, they being premises occupied by the defendant, which was an employer bound by the two relevant awards. As to the question of the purpose for which Mr Cox and Ms. Tucker sought inspection of the roster records, I adhere to what I said in Curran v. Thomas Borthwick and Sons (Pacific) Ltd. (199 0) 94 ALR 575, at p 586 and in Australian Federation of Air Pilots v. Australian Airlines Ltd. (matter no. VI 26 of 1990), at pp 24-27, that the purpose required is an objective one. There can be no doubt that the documents of which inspection was sought were relevant to the clauses of the two awards specified in the letter handed by Mr Cox to Mr Stafford. If it should be necessary to make a finding as to the subjective purpose of Mr Cox and Ms. Tucker, I am satisfied beyond reasonable doubt that each had the purpose of ensuring the observance of the awards. Both had participated in a discussion with Mr O'Connell, the executive officer of the prosecutor, on the previous day. Mr O'Connell had in his possession what purported to be a copy of one of the defendant's planning rosters for pilots. It was said that the planning roster, if it had been adhered to, would have led to breaches of the awards. Mr Cox and Ms. Tucker were interested in seeing the historical rosters (i.e. records of rosters actually flown) in order to see whether these breaches took place.

14. There can be no doubt that the relevant documents were present on the premises at 501 Swanston Street on 28th September. Mr Stafford's evidence was to this effect. To the extent to which the records may have been in computerised, rather than in printed, form, I refer to what I said in Australian Federation of Air Pilots v. Australian Airlines Ltd. (matter no. VI 26 of 1990) at pp 16-19, with respect to ss. 25 and 25A of the Acts Interpretation Act 1901.

15. Counsel for the defendant repeated the argument which they had put on behalf of Australian Airlines Ltd. in matter no. VI 26 of 1990, that there can be no hindrance or obstruction without a positive act. The argument was based on O'Reilly v. Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1. The factual basis for the argument was laid by obtaining from Ms. Tucker and Mr Cox in cross-examination admissions that they did not intend to search the premises for the relevant documents, if no indication of the location of the documents was given to them. The argument was not developed at length in the present case, as it had been in the earlier proceedings, and it is sufficient for me to refer to what I said in the judgment in matter no. VI 26 of 1990, at pp 15-16 of the reasons for judgment.

16. The issue in the present case was therefore whether what Mr Stafford said on 28th September in his conversation with Mr Cox and Ms. Tucker amounted to hindering or obstructing their right to inspect. The hindering or obstructing alleged by the prosecutor was particularised in the summons as being a refusal of inspection. Counsel for the defendant argued that what Mr Stafford said did not amount to a refusal to permit inspection.

17. Reliance was placed on R. v. The Proprietors of the Wilts and Berks Canal Navigation (1835) 3 AD and E 477, to support an argument that to defer a right of inspection for the purpose of obtaining legal advice is not to refuse the exercise of the right. In that case, a writ of mandamus was sought against a company which was required by statute to permit inspection and copying of its books by its proprietors. One proprietor first requested a clerk of the company and then requested the committee for inspection. The chairman of the committee stated that the committee would require time to consider such an application. After a couple more attempts, the proprietor caused the proceeding for mandamus to be instituted. The court took the view that the need to consider the application was reasonable and did not amount to a refusal, and that the proprietor should have applied to them again so as to obtain an answer. There were suggestions in the case that the particular proprietor was acting in a vexatious manner seeking to inspect the books, and the court seems to have taken the view that he should have made his purpose known when asking for inspection. Whatever the true reasons underlying the decision were, it cannot be taken as support for the proposition that a delay in order to consider a request, and to take legal advice, can never amount to a refusal. As subsequent cases show, whether there has been a refusal in a particular case depends on the circumstances of that case. In Commissioner of Taxation v. Citibank Ltd. (1989) 20 FCR 403, the Full Court of the Federal Court of Australia dealt with an application for review of various decisions to conduct a search under s.263 of the Income Tax Assessment Act 1936. It was alleged that legal professional privilege existed in respect of documents on the premises the subject of the search. It was held, amongst other things, that the search had not been conducted reasonably in circumstances in which insufficient allowance was made for the occupier of the premises to have a reasonable opportunity to safeguard the interests of the owners of the documents by making claims for legal professional privilege in respect of particular documents. In Curran v. Thomas Borthwick and Sons (Pacific) Ltd. (1990) 94 ALR 575, at pp 590-591, there is a discussion concerning what amounts to hindering or obstructing for the purposes of ss. 286 and 306 of the Act. At p 591, I said:

"Where inspection is demanded of a number of
items, it may be reasonable for an employer to
determine the order in which the items might be
inspected, without being guilty of hindering or
obstructing. There may come a point at which delay, or
fobbing off, amounts to hindering or obstructing. Each
case must be determined in the light of the evidence."

Counsel for the defendant also referred to a helpful judgment of the Queensland District Court in Scanlan v. Swan (1982) 61 FLR 468. That case also concerned the Income Tax Assessment Act 1936. It involved charges of obstructing officers of the Commissioner of Taxation in the exercise of their powers under s.263 of that Act. The court held that there could not be a conviction on the facts, where the person charged had sought to delay the inspection while he took legal advice. At p 472, the court said:

"...I am not satisfied beyond a reasonable doubt
that the appellant acted otherwise than from a
genuine desire to be advised as to his legal
rights and duties before a further step was
taken by the officers. The delay sought was of
course merely a temporary respite and the
request was, as I think, a reasonable one at a
time when statutes are frequently amended and
are complicated and officialdom pervades many
areas of everyday life. ... There could be a
thousand and one reasons - professional,
commercial or personal - why someone could deny
access for a short time. Must the surgeon lay
down his scalpel, the farmer stop milking his
cow, the shopkeeper turn away a customer in the
middle of a transaction, the mother stop feeding
her child less he or she be found guilty of
obstructing taxation officials? Must
professional duty, commercial exigency and any
other reasonable excuse, bow down before the
stern inflexibility of this interpretation...?".

At p 473, the court held that "a temporary denial of access on reasonable grounds falls short of being an obstruction".

18. In determining whether there was a refusal in the present case, it is also necessary for me to bear in mind the words of Campbell J. in Boon v. Maher (1986) 7 NSWLR 232, at p 237, that, "The word (refuse) conveys more than a mere failure or inability to do something...". His Honour followed earlier authority to the effect that to refuse involves the idea of some exercise of discretion or of will.

19. Mr Stafford had no prior warning of the visit of Ms. Tucker and Mr Cox on 28th September. As a person involved in industrial relations, he had knowledge of the existence of s.286 of the Act. He also had some knowledge of a prior proceeding, in which the defendant was acquitted of hindering or obstructing the present prosecutor in the exercise of a power to inspect. He was faced with a programme of interviews scheduled to last for the rest of the day. For these reasons, as well as for the reasons connected with Mr Stafford's lack of precise knowledge as to the presence of the relevant documents and his desire to obtain the views of his superiors and legal advice, counsel for the defendant argued that what was characterised as his deferral of a decision did not amount to a refusal to allow inspection.

20. More than one difficulty stands in the way of acceptance of this argument. The first is the attitude taken by Mr Stafford. In his response to Ms. Tucker and Mr Cox, he used the word "application". Clearly, he seems to have treated Ms. Tucker and Mr Cox as making an application to the defendant, in response to which the defendant had some power to make a decision whether or not to allow inspection. This was not the case. The officers were exercising a right which s.286 of the Act gives to them to inspect the records of the defendant. They were entitled to assert that right. If it had been necessary for Mr Stafford to obtain the advice of his superiors, or of the defendant's legal advisers, it might have been reasonable to delay the inspection for a short time while the existence of the right was confirmed. Mr Stafford took no step to set in train the necessary enquiries. He says that he was busy conducting interviews. The choice did not lay, however, between conducting the rest of the interviews or not participating in them. It cannot be suggested that the enquiries necessary to obtain the advice of superiors or of lawyers would have taken the entire day. There would not have been any real difficulty in delaying the interviews for a short period while Mr Stafford made the necessary enquiries by telephone or otherwise. This disposes of the first and third of Mr Stafford's reasons as to why he sought delay. The remaining reason was the situation of the documents. That was disposed of in cross-examination, when it became clear on Mr Stafford's own evidence that there were on the premises in the ordinary course people other than Mr Stafford well able to find any documents answering the description of which inspection was sought. Even though Mr Stafford was not asked to obtain the assistance of such other persons, he was well able to do so, or at least to attempt to do so. He did not therefore advance any sound reason why the inspection needed to be delayed any longer than a relatively short period.

21. It must also be remembered that Mr Stafford did not advance to Ms. Tucker and Mr Cox the reasons which he advanced in the witness box. On his own evidence, he declined to permit them to wait until he had cleared up any difficulties in his mind about their entitlement to conduct the inspection they sought. On being pressed, he made it clear that they would not obtain inspection at all on that day. He did not suggest any time at which a "decision" on the "application" might be forthcoming.

22. In the circumstances, I am perfectly satisfied that what Mr Stafford said amounted to a refusal to permit inspection, and therefore to a hindering or obstructing of the right given to Ms. Tucker and Mr Cox to inspect the relevant records. For these reasons, I find that the defendant committed each of the offences with which it is charged. It will be necessary to adjourn the proceedings to a date to be fixed, in order to hear submissions as to consequential questions.