6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland

[2014] FWCFB 7154

[2014] FWCFB 7154

DECISION

Fair Work Act 2009

s.604 – appeal against decision

Director of the Fair Work Building Industry Inspectorate

v

Construction, Forestry, Mining and Energy Industrial Union of Employees,

Queensland (Temoho)

(C2014/5486)

Director of the Fair Work Building Industry Inspectorate

v

Construction, Forestry, Mining and Energy Union (Temoho)

(C2014/5487)

JUSTICE ROSS, PRESIDENT

DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 21 OCTOBER 2014
COMMISSIONER WILSON

Appeal against decisions [2014] FWCD 694 and [2014] FWCD 695 of Mr Enright granting
right of entry permits - Fair Work Act 2009 (Cth) - ‘person aggrieved’ - s.604 - Part 3-4 of
Chapter 3 - error in decision making process - appeal upheld.

[1] On 30 June 2014 Mr Enright (the Delegate), acting on delegation under s.625(2)(g) of the Fair Work Act 2009 (Cth) (the FW Act), issued two decisions[1]in which he granted right of entry permits, with a condition, to Mr Andrew Temoho. Mr Temoho is an official of both the Construction, Forestry, Mining and Energy Union (the CFMEU) and the Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland[2](the CFMEIUEQ).

[1][2014] FWCD 694 and [2014] FWCD 695

[2]The CFMEIQ is a transitionally recognised association pursuant to Item 627 of Schedule 22 of the Fair Work (Transitional

The first of the Delegate’s decisions concerned an application by the CFMEU under s.512 of the FW Act for an entry permit to be issued to Mr Temoho. The Delegate determined he was satisfied that Mr Temoho was a fit and proper person to hold an entry permit and decided to issue him with an entry permit subject to one condition. In the second of the decisions the Delegate dealt with a similar application by the CFMEIUQ. The outcome determined by the Delegate was the same as that in the first decision. Both decisions are in relevantly identical terms. The Director of the Fair Work Building Industry Inspectorate (the Director) has sought permission to appeal the Delegate’s decisions and this decision deals with those appeals.

[2] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (FWC) powers on appeal are only exercisable if there is error on the part

of the primary decision maker.[3]There is no right to appeal and an appeal may only be made

[3]This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC

with the permission of the FWC. Section 604 provides:

(1) A person who is aggrieved by a decision:

[2014] FWCFB 7154

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager)

under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if
the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.

[3] Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4]The public interest is not satisfied simply by the identification of error, or a preference for a different result.[5]In

[4]O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Alllied v Lawler [2011] FCAFC 54 at [44]-[46].

[5]GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services

GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified

some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[6]

[6](2010) 197 IR 266 at [27]

[4] Other than the special case in s.604(2), the grounds for granting permission to appeal

are not specified. The Explanatory Memorandum to what is now s.604 states, at paragraph
2328:

“Subject to the appellant demonstrating an arguable case of appealable error, it is intended that FWA should have a broad discretion as to the circumstances in which it can grant permission to appeal. Some examples of considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include:

● that the decision is attended with sufficient doubt to warrant its reconsideration; and

● that substantial injustice may result if leave is refused.”[7]

[7]Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481

[5] An appeal may only be made by a ‘person who is aggrieved by a decision’. In the

present matter the Director contends that he is a ‘person aggrieved’ by the Delegate’s
decisions, within the meaning of that expression in s.604(1).

[6] The Director is a statutory office holder whose functions are set out in s.10 of the Fair Work (Building Industry) Act 2012 (the FW (BI) Act), and include:

“(a) to promote:

(i) harmonious, productive and cooperative workplace relations in the building

industry; and

(ii) compliance with designated building laws and the Building Code by building
industry participants;

Including by providing education, assistance and advice to building industry participants;

[2014] FWCFB 7154

(b) to monitor compliance with designated building laws and the Building Code by building industry participants;

(c) to inquire into, and investigate, any act or practice by a building industry participant that

may be contrary to a designated building law, a safety net contractual entitlement or the
Building Code;

(d) to commence proceedings in a court, or to make applications to the FWC, to enforce designated building laws and safety net contractual entitlements as they relate to building industry participants;

(e) to refer matters to relevant authorities ...”

[7] The Director is also a Fair Work Building Industry Inspector (FWBI Inspector)8 and as such has the same functions and powers as a Fair Work Inspector9 however those functions

and powers may only be performed or exercised in relation to a ‘building matter’10. A matter

is a ‘building matter’ if it relates to a ‘building industry participant’.11

[8] Section 72 of the FW (BI) Act is also relevant, it provides:

“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 Amendment Act 2009 and involves:

(a)	a building industry participant; or
(b)	building work.” (emphasis added)

[9] Section 74 of the FW (BI) Act facilitates the exercise of the Director’s right to make submissions by requiring the General Manager of the FWC to notify the Director of applications lodged with the FWC or the General Manager where the application relates to a matter that involves:

(i)    a building industry participant; or

(ii) building work.

[10] A ‘building industry participant’ is defined to include a ‘building association’, an officer, delegate or other representative of a building association and an employee of a building association.12 It is common ground that the CFMEU and CFMEIUEQ are building associations within the meaning of the FW (BI) Act. It follows that the Director had a right (pursuant to s.72 of the FW (BI) Act) to make submissions in the proceedings before the Delegate at first instance.

[11] The Respondents submit that the Director is not a ‘person aggrieved’ within the meaning of s.604(1) of the FW Act. There are two limbs to this submission. First, it is argued that the Director’s powers to make submissions and to make applications (pursuant to ss.10 and 72 of the FW (BI) Act) are to be read expressio unius est exclusion alterius, that is, the express mention of one thing is the exclusion of another. In this context it is submitted that the Director’s function ‘to make applications to the FWC’ (see s.10(d), FW (BI) Act), ‘must be read conformably with the provisions of the FW Act which make specific provision for the type of applications which the Director or an inspector might make’.

[2014] FWCFB 7154

[12] The essence of the first limb of the Respondents’ argument is that having regard to the statutory limitations on the powers granted to the Director, and the specific powers given to the Director and FWBI Inspectors, the legislature did not intend to confer a power to institute an appeal on the Director and accordingly the Director ‘cannot be a person aggrieved’ within the meaning of s.604(1) of the FW Act.

[13] We do not find this submission persuasive. At the outset we would observe that courts have repeatedly called for care and caution in the application of the maxim relied upon by the Respondents. In Houssein v Under Secretary, Department of Industrial Relations and

Technology the High Court observed:

“That maxim must always be applied with care, for it is not of universal application and

applies only where the intention it expresses is discoverable on the fact of the instrument ... It

is ‘a valuable servant but a dangerous master’.”13

[14]      Subsequently, in Rich v Australian Securities and Investments Commission, Kirby J

observed:

“[T]his Court has warned many times that care must be exercised in the use of the expressio

unius rule of construction ... [e]specially in an Act as large and cumbersome as that under

consideration [with its history of patchwork accretions].”

[15] The Respondents’ submission would have us read down the scope of the expression ‘person aggrieved’ in s.604(1) to exclude the Director based on the proposition that the Director is a statutory office holder whose powers and functions are prescribed by statute and do not expressly include the institution of an appeal. It may be observed at the outset that the adoption of this submission would give rise to some perverse outcomes - the Director would have the statutory right to make submissions at first instance in relation to an application for a permit but would be precluded from instituting an appeal from a decision which rejected such submissions. Further, the Director would have the right to make submissions in an appeal filed by someone else from a decision to issue or refuse to issue a permit to a building industry participant, but would be precluded from instituting such an appeal.

[16] We see no warrant for the approach advocated by the Respondents. First, the FW Act and the FW (BI) Act do not manifest such an intention and, second, the Director’s functions under s.10 of the FW (BI) Act should not be narrowly construed and are broad enough to encompass instituting an appeal under s.604 (subject to the Director being a person aggrieved). Section 10(a) confers the function of promoting ‘harmonious productive and cooperative workplace relations in the building industry [and] compliance with designated building laws ... by building industry participants’. Section 10(d) provides that one of the functions of the Director is to ‘make applications to the FWC, to enforce designated building laws ... as they relate to building industry participants’. The FW Act is a ‘designated building law’ and the Respondents and Mr Temoho are ‘building industry participants’.14 We are satisfied that the present appeals fall within the scope of the Director’s statutory functions.

[17] The second limb of the Respondents’ submission is that the Director does not fall

within the accepted definition of a ‘person aggrieved’. For the reasons which follow we do
not find this submission persuasive.

[18] The ‘person aggrieved’ test for standing to institute an appeal has been interpreted to

have a wide field of operation. In Tweed Valley Fruit Processors Pty Ltd v Ross15 (‘Tweed
[2014] FWCFB 7154

Valley’) the Full Court of the Industrial Relations Court of Australia dealt with the meaning

of ‘a person aggrieved’ in s.45(3)(d) of the Industrial Relations Act 1988 (a legislative predecessor to s.604 of the FW Act). In that matter the Court held that a union was a ‘person aggrieved’ because it had an interest in the decision sought to be appealed beyond that of an

ordinary member of the public, despite the fact that the relevant decision did not affect the

union’s legal interests,:16

“The decision ... did not affect [the union] legal interests. But the union had an interest in the decision beyond that of an ordinary member of the public ... it was concerned with the maintenance of members’ conditions of employment, it had participated in the decision

complained of by making submissions (pursuant to a statutory right ...) and the decision was

one containing potential for industrial disputation.”17

[19] While Tweed Valley was decided in a different statutory context it has been applied to the expression ‘person aggrieved’ in s.604(1) of the FW Act.

[20] We are satisfied that the Director has a sufficient interest to be characterised as a person aggrieved by the Delegate’s decision, having regard to the Director’s statutory functions and the fact that the Director had a right (and exercised that right) to make submissions in the proceedings at first instance. We find that the Director is a ‘person aggrieved’ within the meaning of s.604(1) of the FW Act and hence has standing to appeal the Delegate’s decision.

[21] We now turn to the legislative provisions relevant to the issue of right of entry permits before considering the submissions advanced in the appeals.

[22] Provisions governing right of entry for officials of organisations are contained in Part 3-4 of Chapter 3 of the Act. The object of that Part is as follows:

“480 Object of this Part

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.”

[23] In order to exercise the rights of entry to premises conferred by Division 2 of Part 3-4 of the FW Act, an official of a registered organisation must hold a current entry permit issued by the Commission. Subdivision A of Division 6 of Part 3-4 concerns the issue, expiry and return of such entry permits. The provisions of the Subdivision relevant to the determination of these appeals are as follows:

[2014] FWCFB 7154

512 FWC may issue entry permits

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account

the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and

responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial

law;

(c) whether the official has ever been convicted of an offence against a law of the

Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage
or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law

or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for
industrial or occupational health and safety purposes that the official had

under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry

for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act
applies in relation to the disclosure of information to or by, or the taking into account of
information by, the FWC for the purpose of making a decision under this Part.

[2014] FWCFB 7154

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

514 When the FWC must not issue permit

The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official's exercise of; or

(b) prevents the official from exercising or applying for;

a right of entry for industrial or occupational health and safety purposes under a State or

Territory industrial law or a State or Territory OHS law.

515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into

account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use

(whether under subsection (1) or any other provision of this Part).

(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit
ceases to be in force until the FWC records the condition on the permit.

(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).

[24] The use of the permissive word ‘may’ in s.512 suggests that the power to grant a permit is discretionary,18 and no party before us contended otherwise. The discretion to issue a permit is only exercisable ‘on application by an organisation’ and only if the Commission is satisfied that the official is ‘a fit and proper person to hold the entry permit’. A permit cannot be issued in the circumstances set out in s.514.

[25] The descriptor ‘a fit and proper person’ in s.512 is not defined but takes its meaning from its context, as explained by Toohey and Gaudron JJ in Australian Broadcasting

Tribunal v Bond19:

“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.”

[26] Taking into account context, the terms of s.512 and the activities to be engaged in by a person if an entry permit is issued, the descriptor ‘a fit and proper person’ is to be applied by reference to the suitability of the official of the applicant organisation to hold the entry permit.20. Further, the question of whether a person is a fit and proper person to hold an entry

permit necessarily requires a consideration of the rights which may be exercised by the holder
[2014] FWCFB 7154

of such a permit, the limitations on the exercise of those rights and the responsibilities to be discharged in the exercise of those rights, as was explained by the Full Bench in The Maritime

Union of Australia,:

“[25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities

that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of

the Act.”21

[27] Subsection s.513(1) of the FW Act provides that the Commission ‘must take into account’ a number of matters (described as “permit qualification matters”) specified in paragraphs (a)-(g) of the subsection in considering whether an official is a fit and proper person to hold an entry permit. To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko Wallsend22 sense, that is matters which the decision

maker is bound to take into account.23 Further as Wilcox J observed in Nestle Australia Ltd v

Federal Commission of Taxation (Cth);

“To take a matter into account means to evaluate it and give it due weight, having regard to all

other relevant factors. A matter is not taken into account by being noticed and erroneously

discarded as irrelevant.”24

[28] While each of the permit qualification matters are to be evaluated and given ‘due weight’ there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.512(1).25

[29] While the weight to be attributed to a particular permit qualification matter will generally be a matter for the first instance decision maker an Appeal Bench may, of course, intervene if the resultant decision is unreasonable or plainly unjust in the House v Kingsense,26 that is:

“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” [citations omitted]

The Delegate’s Decision

[30] In the proceedings at first instance the Director submitted that the Delegate should refuse to issue an entry permit to Mr Temoho on the basis that he has failed to demonstrate that he possesses the requisite fitness and propriety to hold an entry permit. In the alternative the Director submitted that if the Delegate determined that a permit should be issued then

[2014] FWCFB 7154

certain conditions should be imposed on the permit. In support of its primary submission the
Director advanced the following points:

(i)    the CFMEU’s history of contravening provisions of various industrial legislation;

(ii)   the penalties imposed on Mr Temoho and the CFMEU in Hogan v Jarvis;

(iii) the penalty imposed on the CFMEU in FWBC v CFMEU as a result of actions taken in part by Mr Temoho and other officials in contravention of s.43(1)(b) of the

Building and Construction Industry Improvement Act 2005 (the BCII Act, a legislative

predecessor to the FW (BI) Act);

(iv) the failure of the applicant and Mr Temoho to make a full and frank disclosure of penalties ordered against Mr Temoho in Hogan v Jarvis and penalties ordered against the CFMEU in FFWBC v CFMEU; and

(v)   Mr Temoho has not undertaken any recent and adequate training.

[31] The Delegate considered each of the permit qualification matters at paragraphs [38] to

[91] of his decisions. In summary terms the Delegate’s findings in respect of each the permit
qualification matters are as follows:

 s.513(1)(a): Mr Temoho has received the ‘appropriate training’.27

 s.513(1)(b): The Delegate’s decision states: ‘The declarations do not disclose any

such convictions against Mr Temoho. There is no other evidence before me that

suggests otherwise’.28

 s.513(1)(c): The Delegate’s decision states: ‘The declarations do not disclose any

such convictions against Mr Temoho. There is no other evidence before me that

suggests otherwise’. 29

 s.513(1)(d): The Delegate noted that Mr Temoho and the CFMEU were ordered to

pay penalties in Hogan v Jarvis, for contravening the BCII Act, in relation to action taken by Mr Temoho and others. He also noted that the CFMEU was ordered to pay

a penalty for contravening the BCII Act in FWBC v CFMEU, in relation to action

taken by Mr Temoho and others.30

 s.513(1)(e): The Delegate’s decision states: ‘The declarations do not disclose that

any such permits issued to Mr Temoho having ever been revoked, suspended or

made subject to convictions. There is no other evidence before me that suggests

otherwise’.31

 s.513(1)(f): The declarations did not disclose any material relevant to this permit

qualification matter and there was no other evidence before the Delegate suggesting

otherwise.32

 s.513(1)(g): The Delegate accepted that the initial non-disclosure of the matters in

Hogan v Jarvis and FWBC v CFMEU was a relevant consideration.33

[32] The Delegate also considered, and rejected, the Director’s submission that the CFMEU’s history of contravening industrial laws was a relevant consideration to be taken into account pursuant to s.513(1)(g). In view of the recent Full Bench decision in Director of

[2014] FWCFB 7154

the Fair Work Building Industry Inspectorate v CFMEU34 there is no challenge to that aspect
of the Delegate’s decision.

[33] In relation to the permit qualification in matter at paragraph 513(1)(d) the Delegate concluded that the BCII Act was an ‘industrial law’ for the purposes of that qualification

matter.35 The Delegate gave detailed consideration to the facts and circumstances in Hogan v

Jarvis and FWBC v CFMEU at paragraphs [4], [5], [48] to [73] of his decision.

[34] The Delegate deals with the non-disclosure issue at [4] to [6] and [80] to [87] of his decision. In particular the Delegate states:

“[80] In its submissions, the FWBC correctly argued that the [initial] declarations did not disclose the matters in Hogan v Jarvis and in FWBC v CFMEU. I also note the FWBC stated in its submissions that it was not suggested that the CFMEU and Mr Temoho had made false declarations.

[81] The CFMEU submitted that Mr Temoho’s failure to disclose these matters was due to ‘inadvertence’ which was later corrected in a further declaration. The CFMEU also submitted that it was required to disclose this matter but that Mr Temoho was not required to disclose this matter as he had denied the allegations and that the proceedings against Mr Temoho were discontinued. ...

[84] As the level of disclosure provided in an application bears upon both the character and the level of due diligence demonstrated by and can be expected of a proposed permit holder, I accept the submission of the FWBC that this is a relevant matter to take into account for the purposes of subsection 513(1)(g) of the Act.

[85] It its submission, the FWBC suggested that the Commission may properly ask Mr Temoho and the CFMEU for an explanation regarding the failure to disclose Hogan v Jarvis and FWBC v CFMEU in the initial application. It is clear from the material before me that the Commission wrote to the CFMEU on 11 February 2014 requesting such an explanation and that an amended application was lodged on 5 March 2014. The amended application contained, among other things, a statutory declaration from Mr Temoho in which he provided his explanation and an apology for the non disclosure. In summary and according to Mr Temoho, the failure to disclose was related to what he described as an ‘administrative oversight resulting from the extensive time elapsed since the contraventions and was not intentional’

[86] In my view, it is clear that Mr Temoho and the CFMEU failed to adequately disclose the matters in Hogan v Jarvis and in FWBC v CFMEU in the initial declarations and I am concerned about that failure. As the CFMEU had agreed to the penalties in FWBC v CFMEU the CFMEU ought to have disclosed that fact. I do not accept the submission of the CFMEU that Mr Temoho was not required to disclose the matter of FWBC v CFMEU.

[87] In my view, Mr Temoho and the CFMEU should have disclosed the matters in Hogan v Jarvis and in FWBC v CFMEU and the reasons given by the CFMEU and Mr Temoho reflect poorly both upon Mr Temoho’s willingness to adhere to his duty of full and frank disclosure and the efficiency of the management in the respective Branch.”

[35] The Delegate’s consideration of the permit qualification matters is set out at paragraph [93] to [108] of his decision,:

[2014] FWCFB 7154

“[93] I have carefully considered all of the available circumstances of this matter and have had
particular regard to the permit qualification matters for the purposes of s.512 of the Act.

[94] I have taken into account the penalties imposed upon both Mr Temoho and the CFMEU in Hogan v Jarvis. I have also taken into account the penalty imposed upon the CFMEU in FWBC v CFMEU. I have also taken into account the conduct of Mr Temoho that was found to have occurred in those matters and which led to the imposition of those penalties.

[95] The FWBC has submitted that a permit holder who has engaged in unlawful industrial action should give the Commission significant cause for concern as to whether such a person is ‘fit and proper’ to enjoy the privileges and powers that are entrusted to such a position. The FWBC further submitted that the fact that Mr Temoho has engaged in unlawful industrial action himself and engaged in conduct that was designed to negate the choice of employers, resulting in the CFMEU being found to have engaged in coercion are “serious matters’ that must be taken into account.

[96] I accept these submissions and concede that the facts and circumstances to which I have referred in this decision, and the substantial nature of the penalties imposed as a consequence, have raised serious concerns regarding Mr Temoho’s demonstrable lack of regard for provisions of industrial legislation

[97] I have considered the comments of Federal Magistrate Burnett in Hogan v Jarvis regarding Mr Temoho’s failure to provide an entry notice in accordance with the Act. I have also considered Federal Magistrate Burnett’s comments and the comments of Justice Collier in FWBC v CFMEU regarding concern that previous penalties imposed upon the CFMEU have not appeared to have been sufficient to deter the CFMEU from continuing to undertake similar conduct.

[98] The penalty imposed upon Mr Temoho under the BCII Act in Hogan v Jarvis totals $3,300. The total quantum of penalties imposed upon the CFMEU in Hogan v Jarvis and in FWBC v CFMEU totals $135,300. Whilst I acknowledge, as noted above, that the penalties imposed upon the CFMEU did not arise as a consequence of actions taken solely by Mr Temoho, nevertheless it is evident that the conduct of Mr Temoho in the matters mentioned above has contributed to the imposition of that penalty.

[99] I have taken into account the failure by the CFMEU and Mr Temoho to make relevant disclosures in the initial application balanced against the subsequent disclosures made, the apology by Mr Temoho and the explanations provided by way of statutory declarations.

[100] I have also taken into account the fact that the conduct engaged in by Mr Temoho in Hogan v Jarvis and FWBC v CFMEU occurred in November 2009 (determined in 2012), and November 2010 (determined in 2013), respectively. Periods of four and a half years and three and a half years respectively have elapsed since such conduct.

[101] Another relevant consideration includes the role Mr Temoho performs as an Organiser of the CFMEU including the provision of advice, support and assistance to its members. This is relevant to the objects set out in s.480(a)–(b) of the Act in relation to the rights of registered organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions and the rights of employees to receive information and representation from officials of such organisations.

[102] The CFMEU have consistently put to the Commission that it is essential for Mr Temoho to possess a current permit in his role as an organiser and that the absence of an entry permit would effectively curtail his ability to perform his duties. I note that Mr Temoho has been without an entry permit since January 2014 awaiting the outcome of this application. Prior to the expiration of Mr Temoho’s permit in January 2014, the CFMEU had not taken the

[2014] FWCFB 7154

opportunity to seek an extension under s. 516(2) of the Act although I acknowledge that since that time, the CFMEU have continued to correspond with the Commission in relation to the urgency of the matter.

[103] I have also taken into account the fact that Mr Temoho has been a permit holder under the Act and its predecessor legislation, and an organiser of the CFMEU and the CFMEUIQ since 20 March 2008.

Conclusion

[104] Having regard to Mr Temoho’s training and experience as an organiser, the facts, conduct and issues in Hogan v Jarvis and in FWBC v CFMEU lead me to the conclusion that Mr Temoho has made conscious and calculated decisions to engage in unlawful industrial action while disregarding lawful alternatives and in so doing has failed to give proper regard to the rights and responsibilities of a permit holder.

[105] The FWBC includes in its submission regarding FWBC v CFMEU that the Court

specifically noted that it was “satisfied” that:

“…the conduct of both respondents was deliberate, and that both respondents were

aware of the potential legal consequences of their conduct’ (emphasis added).

[106] In my view, Mr Temoho must accept that in making conscious and calculated decisions to engage in unlawful industrial action, he consequentially puts at grave risk the right to enjoy the privileges and powers that are entrusted by the Parliament to permit holders.

[107] However, the fact that the relevant contraventions occurred approximately three and a half and four and a half years ago respectively and that there is no evidence before me of subsequent relevant findings or penalties such as those set out in the permit qualification matters in paragraphs (a) to (g) of section 513(1) of the Act in a period during which Mr Temoho (save since January 2014) continually held an entry permit, tip the balance in favour of finding Mr Temoho to be currently a fit and proper person to hold an entry permit.

[108] In summary, having carefully considered all of the available circumstances of this matter and having particular regard to the permit qualification matters for the purposes of s.512 of the Act, I have concluded that I am satisfied that Mr Temoho is currently a “fit and proper person” to hold an entry permit.”

[36] The Delegate then turned to deal with whether any specified conditions should be

imposed on the permit to be issued and decided to impose a specified condition. We deal
later with the condition imposed.

The Appeal

[37]      The decision to issue a permit is, as we have mentioned, a discretionary decision. In

Coal and Allied v AIRC the High Court addressed the concept of error in the context of an

appeal from a discretionary decision, in these terms:

“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

[2014] FWCFB 7154

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate

court may exercise its own discretion in substitution for his if it has the materials for

doing so.”36

[38] The grounds of appeal are expressed in general terms. The Delegate’s submissions

identify the relevant issues in terms of three alleged errors in the decisions subject to appeal,
as follows:

(i) The Delegate erred in the House v The King37 sense in that his finding that Mr
Temoho was a “fit and proper” person for the purposes of s.512 of the Act:

(a) despite the acceptance of substantial evidence of deliberate contraventions of the Building and Construction Industry Improvement Act 2005 (“BCII Act”)38 and the imposition by Courts of significant penalties for such conduct39 and in the absence of any expression of remorse or contrition, each of which were considerable obstacles to such a finding, and

(b) by resort to purportedly countervailing considerations that were wholly
unsubstantiated, was unreasonable or plainly unjust.

(ii) Further, actual error in the exercise of discretion by the Delegate is confirmed by the resulting decision as to the imposition of conditions, and the reasons for doing so, which plainly demonstrates that the Delegate had applied an incorrect test to the question of whether Mr Temoho was a “fit and proper person”. The conditions were imposed because of the conclusion by the Delegate that there was an ongoing concern as to “the potential repetition of such (offending) conduct”.40 A finding to that effect

cannot be readily reconciled with the “fit and proper person” finding, and indicates a

significant error in the exercise of his discretion under s. 512.

(iii) The Delegate was in error in taking into consideration, in a way that tipped the

balance in favour of Mr Temoho, the mere fact of the time that had passed since his

last contravention.41

[39]      For reasons which will become apparent we need only deal with the second of the

alleged errors.

[40] The second alleged error is said to be manifest from the Delegate’s decision to impose a condition on Mr Temoho’s permit.

[41] After expressing his satisfaction that Mr Temoho was a ‘fit and proper person’ to hold

an entry permit (at [108]) the Delegate went on to consider whether any specified conditions
should be imposed on the permit to be issued,:

“[111] While I am satisfied on balance that Mr Temoho is currently a fit and proper person to hold an entry permit, his conduct in the cases referred to throughout the decision gives rise to an ongoing concern about the potential repetition of such conduct and I propose to impose a condition upon the permit. ...

[2014] FWCFB 7154

[113] The Explanatory Memorandum to the Act states that the decision to impose conditions on a permit is “entirely at the discretion of [the FWC]”. Having carefully considered and taken into account the permit qualification matters and since my concern relates to whether similar conduct may occur in the future I have decided to apply a condition in the following terms:

If any findings are made or penalties imposed that are relevant to the permit qualification matters at s.513(a)–(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s.513(a)–(f) of the Fair Work Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding commenced.”

[42] The Appellant submits that the Delegate’s view that he is not confident that Mr Temoho will properly exercise the obligations and duties of a permit holder in the future should have dictated a finding that he was not a fit and proper person to be granted the permit in the first place.

[43] The exercise of discretion under s.515 is governed by the same permit qualification matters as control the decision under s. 512, albeit against a background in which there exists

a prior determination of fitness.42 The Director submits that to purport to decide that Mr

Temoho was a “fit and proper person” to hold a permit while the Delegate held and expressed the opinion that a reporting condition must be imposed upon him, demonstrates a flawed understanding of the process and the relationship between ss.512 and 515. It is also submitted that if the Delegate held the views that he expressed in paragraphs [111] and [113] of his decisions, then he was in error in failing to take those views into account in deciding that Mr Temoho was a fit and proper person.

[44] The Respondents submit that unless the conduct urged upon the Delegate to consider by the Director is of a disentitling nature, there is nothing inconsistent or contradictory in finding that a person is fit and proper to hold a permit regardless of the established fact. In those circumstances, and given the power reposed in the Commission by s.515, the imposition of conditions on an entry permit purportedly directed to the matters which have generated the concern cannot be said to be ‘internally inconsistent and contradictory’.

[45] Contrary to the Respondents’ submissions we have concluded that the reasons given

for the imposition of the condition are in conflict with the Delegate’s anterior decision to issue
a permit to Mr Temoho based on a finding that he was a fit and proper person.

[46] Sections 512 and 515 have been interpreted as operating sequentially, so that considerations of whether conditions should be attached to an entry permit under s.515 do not arise unless and until a determination has been made under s.512 that the relevant person was a fit and proper person to hold an entry permit.43 An alternate construction whereby the

consideration under s.512 of whether a person is fit and proper to hold an entry permit might include an assessment of fitness to hold an entry permit with conditions, as well as fitness to hold an unconditional entry permit, was considered and rejected by a recent Full Bench decision in CEPU v The Director of the Fair Work Building Industry Inspectorate44. No party

in the proceedings sought to challenge the Full Bench decisions to which we have referred.

[47] In the decisions subject to appeal the Delegate first concluded that Mr Temoho ‘is currently a fit and proper person to hold an entry permit’ (at [108]) before turning to whether any specified conditions should be imposed on an entry permit issued to Mr Temoho (at [109]

[2014] FWCFB 7154

to [113]). The adoption of such a sequential approach was consistent with authority, but it is the reasons given by the Delegate for the two sequential decisions which give rise to difficulty.

[48] The reason given by the Delegate for imposing the specified condition on the permit is apparent from paragraphs [111] and [113] of the decisions subject to appeal, that is:

“[111] [Mr Temoho’s] conduct in the cases referred to throughout the decision gives rise to

an ongoing concern about the potential repetition of such conduct ...

[113] ... my concern relates to whether similar conduct may occur in the future ...”

[49] The cases to which the Delegate was referring are Hogan v Jarvis and FWBC v CFMEU. It is clear from the above extract that the Delegate had an ‘ongoing concern’ that

Mr Temoho would engage in similar conduct in the future. Such a consideration is plainly relevant to the anterior question of whether Mr Temoho is a fit and proper person to hold a permit at all. Indeed having formed such a view it became a consideration which the Delegate was bound to take into account in determining the anterior question. Yet there is no reference to this consideration in that part of the Delegate’s decision which deals with the issue of whether Mr Temoho was a fit and proper person to hold a permit.

[50] The circumstances in Hogan v Jarvis and FWBC v CFMEU are dealt with at paragraphs [61] to [66] and [67] to [73] respectively, of the decisions subject to appeal. The Delegate’s consideration of these matters is set out at paragraphs [93] to [108] of the decision subject to appeal (set out at [35] of this decision). Relevantly, the decisions subject to appeal state:

“[96] ... the facts and circumstances to which I have referred in this decision and the substantial nature of the penalties imposed as a consequence, have raised serious concerns regarding Mr Temoho’s demonstrable lack of regard for provision of industrial legislation.”

[51] Notably no mention is made of the fact that the Delegate had an ongoing concern that Mr Temoho would engage in similar conduct in the future. While the failure to mention a matter does not necessarily mean that a decision maker has failed to take that matter into account we have concluded that such an inference should be drawn in this case. The mention of a relevant consideration in one context and its omission in another gives rise to the inference that when it was not mentioned it was not considered.

[52] It is apparent from the Delegate’s reasons that the decision to issue a permit to Mr Temoho was finely balanced. At paragraph [107] of the decisions the Delegate refers to the fact that the relevant contraventions occurred about three and a half years ago and that there have been no subsequent relevant findings or penalties as being considerations which ‘tip the balance in favour of finding Mr Temoho to be currently a fit and proper person to hold an entry permit’.

[53] Where the decision subject to appeal was finely balanced the failure to take into

account a relevant consideration may well have had a significant effect upon the outcome of
the matter. In such circumstances appellate intervention is appropriate.

[2014] FWCFB 7154

[54] We have concluded that the decisions subject to appeal are attended by sufficient doubt to warrant their reconsideration and on that basis we grant permission to appeal.

[55] In determining that Mr Temoho was a fit and proper person the Delegate failed to take into account a relevant consideration, namely the Delegate’s ‘ongoing concern’ about whether Mr Temoho would engage in similar conduct (to that in Hogan v Jarvis and FWBC v

CFMEU) in the future. On the basis of this error in the decision making process we have

decided to uphold the appeal and quash the decisions to issue a permit to Mr Temoho. The applications by the CFMEU and CFMEIUQ for a permit to be issued to Mr Temoho will be referred to Deputy President Gostencnik for rehearing and determination.

[56] It must also follow that the entry permits issued to Mr Temoho are revoked. An order

to that effect is issued separately in PR556584. Mr Temoho is required pursuant to s.517(1)
to return the entry permits to the Commission within 7 days of the date of the order.

PRESIDENT

Appearances:

Mr. A. Herbert of counsel with Mr. B. Vallence; for the Director of Fair Work Building

Industry Inspectorate

Mr. E. White of counsel with Mr. C. Massey (Hall Payne Lawyers); for CFMEU

Hearing details:

2014.
9 October.

Melbourne

Printed by authority of the Commonwealth Government Printer
<Price code C PR556453 >

8 See s.59A of the FW (BI) Act)

9 See s.59C(1) FW (BI) Act

10 See s.59(2) FW (BI) Act

11 See s.59C(3) FW (BI) Act

12 Fair Work (Building Industry) Act 2012 (Cth) s.4.

13 (1982) 148 CLR 88 at [10]

14 Fair Work (Building Industry) Act 2012 (Cth) s.4.

15 (1996) 137 ALR 70

16 Ibid at 91 per Wilcox CJ and Marshall J and at 96-97 per Moore J)

17 Ibid at 91 per Wilcox CJ and Marshall J, with whom Moore J agreed, at 96-97

18 See Ex parte Gleeson [1907] VR 368 at 373; Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shake Employees’

Federation (1917) 24 CLR 85 at 96-97; Ward v Williams (1955) 92 CLR 496 at 505. Also see s.33(2A) of the Acts Interpretation Act 1901 (Cth), which was in operation at the time the FW Act commenced, see s.40A of the FW Act.

19 (1990) 170 CLR 321 at 380

20 The Maritime Union of Australia [2014] FWCFB 1973 at [23]

21 Ibid at paragraph [25]

22 (1985-1986) 162 CLR 24.

23 See Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206 at [15], applied in CFMEU v Queensland Bulk Handling Pty Ltd

[2012] FWAFB 7551.

24 (1987) 16 FCR 167 at 184. See also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [103]-[112], referred to with

approval in Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23 at [267], and

Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497 at [25])

25 Peko Wallsend, op at 41 per Mason J, with whom Gibbs CL and Dawson J agreed. Also see Sean Investments Pty Ltd v

Mac Kellar (1981) 31 ALR 3 at 375.

26 (1936) 55 CLR 499

27 [2014] FWCD 694 & [2014] FWCD 695 at [91]

28 Ibid at [40]

29 Ibid at [41]

30 Ibid at [42]

31 Ibid at [43]

32 Ibid at [44]

33 Ibid at [45]

34 [2014] FWCFB 5947

35 Ibid at [58]

36 Coal and Allied v AIRC (2000) 203 CLR 194 at [21]

37 (1936) 55 CLR 499.

38 [2014] FWCD 694 & [2014] FWCD 695 at [104] to [106]

39 Ibid at [98]

40 Ibid at [111] & [113]

41 Ibid at [107]

42 The Maritime Union of Australia [2014] FWCFB 1973 at [43] and [44].

43 See The Maritime Union of Australia [2014] FWCFB 1973

44 [2014] FWCFB 4397

Provisions and Consequential Amendments) Act 2009.

(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal &

Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013]

FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian

Taxation Office [2014] FWCFB 1663