[2019] FWC 4087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Application by Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Australian Capital Territory Divisional Branch
(RE2019/101)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 13 JUNE 2019

Application by CFMMEU for issue of right of entry permit for Jason O’Mara – satisfied that fit and proper person – permit issued.

[1] On 7 February 2019, the Construction, Forestry, Mining and Energy Union – Construction and General Division, Australian Capital Territory Divisional Branch (CFMMEU) made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Jason Lawrence O’Mara, who holds the position of ACT Divisional Branch Secretary of the CFMMEU.

[2] The previous right of entry permit held by Mr O’Mara 1 expired on 1 April 2019. On 26 February 2019, I made an order, pursuant to s 516(2) of the Act, that the time for the expiry of the entry permit held by Mr O’Mara is extended until the Commission has determined the CFMMEU’s application for a new permit for Mr O’Mara.2

[3] The Australian Building and Construction Commissioner (ABCC) intervened in these proceedings and made submissions against the CFMMEU’s application for a right of entry permit for Mr O’Mara.

[4] The application for a new right of entry permit for Mr O’Mara was determined on the ‘papers’ following a decision by the ABCC that it did not require Mr O’Mara for cross examination.

[5] The ABCC did not object to the declaration made by Mr O’Mara on 7 February 2019 being relied on by the CFMMEU in support of its application. I have had regard to that declaration, together with the declaration made by Mr Zachary Smith, Assistant Secretary of the CFMMEU, Construction and General Division, Australian Capital Territory Divisional Branch, on 7 February 2019, as part of the application for a right of entry permit for Mr O’Mara. I have also had regard to the written submissions filed by the CFMMEU and ABCC. 3

Statutory Framework

[6] Part 3-4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

[7] The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. 4

[8] Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 5 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.6 Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.7

[9] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold the entry permit. The Commission’s discretion whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the “permit qualification matters” set out in s.513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose. 8

[10] Section 513 of the Act sets out the permit qualification matters as follows:

“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 Commonwealth (no matter when in force), has been revoked or suspended or made 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.

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.”

[11] Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:

“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).”

[12] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 9 Vice President Hatcher set out the following principles relevant to the interpretation and application of sections 512 and 513(1) of the Act as follows:

“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:

• A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

• The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.

• The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.

• The question of whether an official 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.

• The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

• The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

• 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.513(1).

• Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.”

[13] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 10, a Full Court of the Federal Court of Australia observed the following in relation to the phrase “a fit and proper person”:

“[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

‘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. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’” 11

[14] In MUA v FWC, the Full Court ultimately concluded as follows:

“[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged ‘unreasonableness’.” 12

Consideration

[15] I will now take into account all of the permit qualification matters specified in s 513(1) of the Act in relation to the application for an entry permit for Mr O’Mara.

Permit qualification matters – ss 513(1)(a), (b), (d), (e) and (f)

[16] According to the declarations filed by the CFMMEU in support of the application for the grant of an entry permit to Mr O’Mara:

(a) Mr O’Mara has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act). Mr O’Mara completed an approved right of entry training course with the ACTU on 6 February 2019;

(b) Mr O’Mara has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);

(c) Mr O’Mara has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, or fraud or dishonesty, or intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c) of the Act);

(d) neither Mr O’Mara nor any other person has been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Mr O’Mara (s 513(1)(d) of the Act);

(e) Mr O’Mara has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked or suspended. His current entry permit is subject to a condition to the effect that Mr O’Mara is to notify the Commission if any finding is made or a penalty is imposed or proceeding commenced in relation to a permit qualification matter. (s 513(1)(e) of the Act); and

(f) Mr O’Mara has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit (s 513(1)(f) of the Act).

[17] I accept that the information set out in the previous paragraph, as disclosed in the declarations made by Mr O’Mara and Mr Smith concerning these matters, is true and correct. The permit qualification matters set out in s 513(1)(a) to (d) and (f) of the Act weigh in favour of a conclusion that Mr O’Mara is a fit and proper person to hold an entry permit. In relation to the condition to which Mr O’Mara’s current entry permit is subject, I accept the CFMMEU’s submission that this condition merely provides for a procedural requirement, as opposed to imposing a condition or limitation which restricts Mr O’Mara’s entry rights. The existence of this condition does not, of itself, indicate or suggest that Mr O’Mara is not a fit and proper person to hold an entry permit. I consider the existence of the condition to be a neutral matter. Given that the existence of the current condition is a neutral matter and Mr O’Mara has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked or suspended, the permit qualification matter set out in s 513(1)(e) weighs in favour of a conclusion that Mr O’Mara is a fit and proper person to hold an entry permit.

Permit qualification matter – s 513(1)(g)

[18] Pursuant to s 513(1)(g) of the Act, in deciding whether Mr O’Mara is a fit and proper person I must take into account any other matters that the Commission considers relevant. Any such matters must be relevant to whether Mr O’Mara is a fit and proper person to hold a right of entry permit.

[19] In Commissioner of the Australian Building and Construction Commission v Hall & Ors (ABCC v Hall), 13 Judge Neville of the Federal Circuit Court made findings that Mr O’Mara contravened ss 497, 499 and 503 of the Act. The particular findings made by Judge Neville are set out in the following paragraphs of his Honour’s reasons for judgment:

“Summary of Contraventions

38. It was alleged that the First (Hall) and Fourth (O’Mara) Respondents failed to produce an entry permit at the Nexus site on 21^st August 2013, in contravention of s.497. By virtue of this conduct, and by operation of s.793 of the FW Act, it was pleaded that the Seventh Respondent Union contravened the FW Act also.

39. Section 497 of the Fair Work Act 2009 provides as follows:

A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.

Note: This section is a civil remedy provision (see Part 41).

…

Consideration and Disposition

78. For the following reasons, the contraventions as alleged in count 1 against Mr Hall and Mr O’Mara have relevantly been made out with respect to a breach of s.497 of the FW Act:

(a) The evidence of Mr Azzopardi and Mr Northey regarding their requests to Mr Hall and Mr O’Mara to produce or to show their “permits”, both in their affidavits and in their oral evidence, was consistent. Not only, but primarily, I accept the evidence of Mr Azzopardi and Mr Northey that each, or at least one, of them, acting on behalf of Village, asked both Mr Hall and Mr O’Mara for their “permits”, which thereby required those Union representatives to produce not just, or only, the WHS permit that each held but also their Federal permit that each of them held;

(b) In the evidence of Mr Vitler (a witness for the Respondents), he confirmed that (i) Village was insisting on compliance with the requirements of the FW Act regarding entry to the site, and (ii) he was asked by both Mr Azzopardi and Mr Northey to produce for inspection his WHS permit and his federal permit. It is highly unlikely that Mr Azzopardi and Mr Northey would have asked one Union official to inspect both permits and not similarly requested rather more senior Union officials to see their permits;

(c) In contrast, the evidence of Mr Hall and Mr O’Mara was not consistent. In the case of Mr Hall, fairly he conceded that he could not recall certain aspects of what he had, or had not, been asked to produce regarding “permits.” Such equivocal evidence did not assist or satisfy the Court that his statutory obligations under s.497 of the FW Act had been properly complied with following the requests made to him by Mr Azzopardi and Mr Northey to provide his “permits” for inspection. It is not to the point, or satisfactory, for him to have given evidence on what his usual practice was, or what he would have done, had he been requested to provide his “permits.” The evidence, quite solidly in my view, points to the Union officials being asked to provide their “permits” which required them to provide for inspection the WHS permit and the Federal entry permit in accordance with s.497 of the FW Act;

(d) Further to this, given the extensive experience of these Union officials, they would have known (and each of them confirmed that they did know) that they were required to provide for inspection their Federal entry permits. Not to have done so was, at least, negligent. It was, further, a needless obstacle that did not need to occur;

(e) Further, Mr O’Mara (and others, e.g. Mr Vitler) confirmed that Village at this time was taking a strict approach in relation to the Union’s right of entry powers, making sure that the Union “crossed its Ts and dotted its Is”. In such circumstances, it is even less likely that (i) Village managers would not have asked to see the “permits” of the Union officials, and (ii) on the evidence of the Union officials, if asked, they would have produced both their WHS and federal entry permits;

(f) In the alternative, I also find that if, as suggested, [only] a shrunken version of the Federal entry permit was produced for inspection (see the evidence of Mr O’Mara, for example), by one or other of the Union officials, such a course did not relevantly satisfy the terms of s.497 of the FW Act;

(g) In my view, it must necessarily be inferred as part of the operation of s.497 of the FW Act that when produced for inspection, the permit must be in a manner and form which enables the person requesting to inspect it to be reasonably able to do so, without the need for special reading or other aids to determine the validity of it, and other relevant detail on the permit inspected. So much is consistent with what Flick J said in Darlaston (see below). The shrunken permits, by definition, but particularly those before the Court (see the copies annexed to Mr Hall’s affidavit and in Exhibits DH – A 1-3 and DH 4) are extremely difficult to read. The Court may reasonably assume that amidst the hubbub and general busyness of a construction site, checking a shrunken permit would have been extremely difficult;

(h) Further, should it be necessary to comment, in my view, and in conformity with the comments of Flick J in Darlaston (below), a permit holder should take all reasonable steps to provide the person on site who is asking to view the permit with an opportunity to do so. This would usually and reasonably mean handing over for inspection the permit requested. There was no suggestion in any of the events before the Court in the current matter that any person of management on any site sought to, or was likely to, remove or (so to speak) “make off with” any permit provided for inspection. Not to hand over a permit for inspection, so as to enable proper checking of the validity of a permit, simply provided needless grief and grounds for contest...

80. Indeed, on the evidence, and in the light of Flick J’s comments in Darlaston, the actions of Mr Hall and Mr O’Mara in not producing their Federal permits, which was both known to them as a requirement under the FW Act, and required of them by requests from those on site on behalf of Village, was a relevant breach of the FW Act. Likewise, to provide (a) only a shrunken version of a permit, and (b) not to provide it for inspection by holding on to it, thereby not allowing it to be reasonably and properly inspected, also breached what Flick J said in Darlaston was required, namely to provide a “reasonable opportunity” to inspect such documents. This did not occur on this occasion.

81. Finally, I prefer and accept the submissions of the Applicant to those of the Respondents in relation to (a) the facts, (b) the elements of the contraventions and (c) the breaches alleged, which I have found, as a matter of fact and of law, to have occurred.

82. Accordingly, the declarations and Orders sought by the Applicant should be made in relation to the contraventions pleaded here regarding Mr Hall and Mr O’Mara. The consideration and determination of matters arising from these “personal contraventions” with respect to the Seventh Respondent Union are dealt with later in these reasons.

…

The Harrison Site on 11th March 2014

Factual Summary

542. Noting that Mr Miller and Mr Kivalu have both admitted the contraventions alleged against them on this day, the remaining contraventions are solely in relation to Mr O’Mara.

543. The matters in dispute here centre on a disagreement, primarily between Mr O’Mara and Messrs. Azzopardi and Hajdar. This disagreement stemmed from the refusal by Azzopardi and Hajdar to allow Mr O’Mara on site in the light of the fact that two Union officials (Kivalu and Miller) were already on site. The Applicants allege that Mr O’Mara proceeded on to the site unescorted regardless, and in the course of doing so, breached ss. 499 and 503. The Respondents deny this claim.

Summary of Contraventions

544. This incident relates to the following alleged contraventions:

…

c. Contravention 17: that the Fourth Respondent (O’Mara) failed to comply with a reasonable OHS request in breach of s.499; and

d. Contravention 18: that the Fourth Respondent (O’Mara) made misrepresentations about the Fair Work Act or things authorised under the Act in breach of s.503.

…

546. Section 499 of the FW Act provides:

(1) A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

Note 1: This section is a civil remedy provision (see Part 41).

Note 2: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

547. Section 503 of the FW Act provides:

(1) A person must not take action:

(a) with the intention of giving the impression; or

(b) reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

Note: This subsection is a civil remedy provision (see Part 41).

(2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

…

613. Mr O’Mara was a forceful, determined witness, with decided views on what should (and what should not) be permitted to happen on building sites. He gave the strong impression that “he knew best” in almost all circumstances and that he would be unlikely to deal comfortably or relaxedly with any opposition to his views. His determined and forceful views tended, in my view, to colour his evidence somewhat as to his partiality. Respectfully, some checking of detail about (a) relevant legislation, and (b) the rights conferred on all sides of a discussion, would be beneficial.

…

Consideration and Disposition

…

639. In relation to the two contraventions pleaded against Mr O’Mara – s.499 and s.500 of the FW Act – arising from events on the Harrison site on this occasion, I note the following.

640. First, again I record (for ease of reference) the comments by Flick J in Darlaston v Parker, at [101], where his Honour said:

The form and content of any particular “occupational health and safety requirement” must, however, be necessarily dictated by the conditions on site on any particular day and by reference to conduct as and when it occurs. An “occupational health and safety requirement”, it is concluded, need not be reduced to writing.

641. Secondly, regarding the alleged breach of s.499, all witnesses, including Mr O’Mara, acknowledged that as part of the Village Site Safety Rules that operated on this site there was a requirement that (a) a person could not go on to the site “unaccompanied”, and (b) there was a “2 person/visitor” limit or requirement. At the time of Mr O’Mara seeking to go on to the site there was already two CFMEU officials undertaking a site safety inspection with Mr Fox.

642. The Applicant’s witnesses (Mr Hadjar, Mr Fox and Mr Azzopardi) all confirmed the existence of these site safety rules. Mr Hadjar’s and Mr Azzopardi’s evidence was that each of them directed Mr O’Mara not to go on to the site unaccompanied. I accept their evidence.

643. In cross-examination, Mr O’Mara accepted that he had been told by Mr Azzopardi that he could not go on site unaccompanied, and that such a requirement was appropriate because of the inherent dangers on construction sites. Specific dangers on a particular site known to construction officials, who can accompany visitors, necessarily aid in the safety of visitors.

644. It was not disputed by any witness that there were a number (perhaps 5 or 6 persons, but certainly and clearly more than 2) Union officials on site on this occasion. Mr Hadjar’s evidence, which I accept, was that there were “a lot of Union officials running around on the site and we just tried to control the situation.”

645. Mr O’Mara’s evidence was that he considered the “two person site rule” as “unreasonable” and contrary to “the Work Safety Act” [sic].

646. In relation to the earlier contravention pleaded against Mr Smith regarding events on the Nexus site on 30^th October 2013, I stated that, in my view, a site rule of the kind in place here – to be accompanied – was, by its nature, a preventative measure and protective of permit holders (and others) on site. It was a more than reasonable occupational health and safety measure. The same comment applies here, and similarly so regarding the “2 person/visitor” limit. Both measures, in my view, for the purposes of s.499 were reasonable “OHS requirements” on this site.

647. My acceptance of the evidence of the Applicant’s witnesses includes their evidence that Mr O’Mara walked off, unaccompanied, on site. In Mr Azzopardi’s words, Mr O’Mara, Mr Vitler and Mr McCann, did “their own thing” by progressing on site without being accompanied.

648. Moreover, Mr O’Mara made the point quite strongly in cross-examination that he wanted or intended to “make a point” of showing or proving to Village that the Company was wrong in its adherence to the 2 visitor limit or requirement. In his view, it was a “point of principle” at stake that he wanted to “sort out” and to make regarding his “right” to go on site, and that more than two Union officials could do so: “as many permit holders as ... I require to do it”.

649. I find that Mr O’Mara, by his actions, relevantly breached s.499 of the FW Act. I accept the Applicant’s submissions in this regard. The relief sought by the Applicant should be granted in relation to this breach.

650. Regarding the contravention against Mr O’Mara regarding a breach of s.503 of the FW Act, I find that on the evidence (summarised below) there was such a breach on the Harrison site on this occasion.

651. On the evidence available to the Court, I cannot be satisfied that any requisite intention prevailed to enable there to be any finding regarding Mr O’Mara’s intention arising from his various claims and assertions about his “rights” and entitlements, and claims more generally about the Site Safety Rules on this site.

652. However, in relation to s.503(1)(b) of the FW Act regarding those same claims and statements by Mr O’Mara, I find that he was “reckless” in making them...

653. The comments by Mr O’Mara that (a) the requirement (in his view) that Village needed to “learn the rules and legislation on the rights of a permit holder because [they] have got it all wrong”, (b) he could go on site and “not be accompanied”, and (c) the “2 person visitor rule” was not reasonable and did not comply with legislation regarding the rights of permit holders, were each (and all) mis-leading statements for the purposes of s.503(1)(b) of the FW Act.

654. To the degree that it is relevant, I observe that there was no evidence from Mr O’Mara (or on his behalf) that he knew, sought legal advice, or was otherwise instructed about what he claimed the law allowed with respect to the 2 person/visitor rule. Nor did he articulate or identify what the basis was for him seeking to enforce, or to make as a “point of principle”, other than that he was, in his words, a “safety practitioner.”

655. I accept the Applicant’s submissions in relation to this contravention. The relief sought by the Applicant should be granted.”

CFMMEU submissions re ABCC v Hall

[20] The CFMMEU submits that the findings made by Judge Neville in ABCC v Hall against Mr O’Mara are an irrelevant consideration in the House v King 14 sense and therefore should not be given any weight. In support of this contention, the CFMMEU submits, first, that the proceedings in ABCC v Hall are sub judice and not finally determined and, secondly, to take into account the findings made by Judge Neville in ABCC v Hall would risk inconsistent findings being made by the Commission and the Federal Circuit Court.

[21] As to the contention that the proceedings in ABCC v Hall are not finally determined, the CFMMEU that points to the fact that Judge Neville delivered his reasons on 7 December 2018, but has not to date issued any declarations or final orders or made any orders imposing civil penalties. On 22 January 2019, the ABCC applied to the Federal Circuit Court to amend the reasons delivered on 7 December 2018 in order to correct errors in those reasons. In addition, the CFMMEU and Mr O’Mara, together with other individual respondents, have made an application to the Federal Circuit Court that it should decline to make any declarations in the circumstances of the case. Neither of those applications has been determined by Judge Neville. The CFMMEU submits that the proceedings in ABCC v Hall are sub judice and not final, which necessarily means that the final state of litigation is unknown and the significance of the contraventions is yet to be determined by the Federal Circuit Court. By way of example, the CFMMEU contends it is possible that the Federal Circuit Court may decline to record the contraventions by way of declarations or order the imposition of any penalty against Mr O’Mara. Indeed, Mr O’Mara intends to submit to the Federal Circuit Court that it should not make any declarations in relation to his conduct and no penalties should be imposed on him. Further, the CFMMEU has informed the Commission that Mr O’Mara intends to appeal the contraventions which have been found against him by Judge Neville (but has to date been unable to do so as final orders have not been made). 15

[22] The CFMMEU submits that if the Commission was to accept that at present it cannot take into account the contraventions the subject of the ABCC v Hall proceeding, due to those proceedings being sub judice or not finally determined, then this would not mean that the Commission would never be able to take into account that contravention. The CFMMEU points to the fact that once the ABCC v Hall proceeding is concluded, it will be taken into account by the Commission in proceedings which have already been commenced in the Commission under section 510 of the Act, seeking to suspend or revoke Mr O’Mara’s entry permit. 16 Those proceedings were adjourned by Deputy President Gostencnik on 1 February 2019 until a date to be fixed after final orders are made by Judge Neville in ABCC v Hall.

[23] As to the contention that taking into account the findings made by Judge Neville in ABCC v Hall would risk inconsistent findings between the Commission and the Federal Circuit Court, the CFMMEU submits that any findings made in these proceedings about the significance of the contraventions found against Mr O’Mara in ABCC v Hall may be inconsistent with findings ultimately made by the Federal Circuit Court as to the significance of those contraventions. It is well accepted that where possible, courts and tribunal should take steps to try and avoid inconsistent findings.

[24] Further and in the alternative to the contention that the findings made by Judge Neville in ABCC v Hall against Mr O’Mara are an irrelevant consideration, the CFMMEU submits that:

(a) given the uncertain nature of the ABCC v Hall proceeding and the fact that the litigation is not yet concluded (including the exercise of any right of appeal), the Commission should place limited weight on the findings made by Judge Neville against Mr O’Mara in those proceedings. To do otherwise would be unfair to Mr O’Mara and the CFMMEU; and

(b) given the findings made by Judge Neville against Mr O’Mara in the ABCC v Hall proceeding relate to events in 2013 and 2014, and the absence of any other relevant adverse conduct and any other adverse matters under s 513(1)(a) to (g), the Commission should be satisfied that Mr O’Mara is a fit and proper person.

ABCC submissions re ABCC v Hall

[25] The ABCC submits that the findings made against Mr O’Mara by Judge Neville in ABCC v Hall are highly relevant to the Commission’s determination of whether Mr O’Mara is a fit and proper person to hold an entry permit. The findings made in those proceedings relate specifically to the personal characteristics of Mr O’Mara which, so the ABCC contends, are pertinent to the discharge of his functions and the exercise of rights and privileges associated with the holding of an entry permit. The ABCC say that this is particularly so in circumstances where Mr O’Mara’s conduct the subject of the ABCC v Hall proceeding involved him acting in his capacity as an entry permit holder, during which time his rights and obligations were regulated by Part 3-4 of the Act.

[26] The ABCC submits that its request to Judge Neville to reconsider aspects of his Honour’s reasons delivered on 8 December 2018 is only concerned with issues in relation to the liability of the CFMMEU.

[27] The ABCC contends that, whilst final relief in the form of declarations and penalties is yet to be determined by the Federal Circuit Court, evidence has been heard, witnesses have been examined and cross-examined, oral and written submissions have been received and judicial findings of liability have been made, including that Mr O’Mara contravened sections 497, 499 and 503 of the Act.

[28] The ABCC submits that the findings made against Mr O’Mara in ABCC v Hall demonstrate that Mr O’Mara has shown an unwillingness to comply with industrial laws. The ABCC also contends that, in the absence of any evidence by Mr O’Mara of contrition or acceptance that his conduct was wrong and any undertaking that he will not engage in similar conduct whilst entering a workplace in the future, the Commission cannot be satisfied that Mr O’Mara is a fit and proper person to hold an entry permit.

[29] The ABCC also points to the fact that Mr O’Mara did not take up the opportunity afforded to him in these proceedings to file and serve a witness statement to supplement the declaration made by him on 7 February 2019. The ABCC submits that this amounts to an unexplained failure on Mr O’Mara’s part to give evidence in support of his application, which entitles the Commission to draw a Jones v Dunkel 17 inference to the effect that his uncalled evidence would not have assisted the CFMMEU’s application.

Consideration re ABCC v Hall

[30] There is no doubt that the ABCC v Hall proceeding is sub judice and not final, in the sense that the judgment delivered by Judge Neville on 7 December 2018 does not finally determine the rights of the parties because no declarations have been made and no decision has been made concerning the imposition of any penalties on Mr O’Mara. 18 I accept that Judge Neville has not yet determined the significance of the findings made against Mr O’Mara. In particular, his Honour has not yet determined whether those findings warrant any declaration being made or any penalty (and if so the size of that penalty) being imposed on Mr O’Mara. However, in my view, it is appropriate that I take into account and give due weight to Judge Neville’s findings of contraventions of the Act by Mr O’Mara, for the following reasons.

[31] First, Judge Neville made findings that Mr O’Mara contravened sections 497, 499 and 503 of the Act following a contested hearing in which Mr O’Mara, who was represented by senior and junior counsel, was cross examined.

[32] Secondly, the findings made by Judge Neville against Mr O’Mara relate to his conduct in his capacity as an entry permit holder, exercising rights under Part 3-4 of the Act. Mr O’Mara’s conduct in that regard calls into question whether he will behave in a similar way in the future, if he is granted a right of entry permit. Considerations of that kind are relevant to the overall question of whether Mr O’Mara is a fit and proper person to hold a right of entry permit.

[33] Thirdly, although Judge Neville has not yet dealt with Mr O’Mara’s application that he should not make any declarations or impose any penalties on Mr O’Mara, Judge Neville did indicate in his judgment delivered on 7 December 2018 that:

• as to the s 497 contravention, “the declarations and Orders sought by the Applicant should be made in relation to the contraventions pleaded here regarding Mr Hall”; 19

• as to the s 499 contravention, “I find that Mr O’Mara, by his actions, relevantly breached s.499 of the FW Act. I accept the Applicant’s submissions in this regard. The relief sought by the Applicant should be granted in relation to this breach”; 20 and

• as to the s 503 contravention, “I accept the Applicant’s submissions in relation to this contravention. The relief sought by the Applicant should be granted.” 21

[34] Fourthly, I accept the uncontested submission made by the ABCC that its request to Judge Neville to reconsider aspects of his Honour’s reasons delivered on 8 December 2018 is only concerned with issues in relation to the liability of the CFMMEU.

[35] Fifthly, I do not accept the CFMMEU’s submission that there is a risk of inconsistent findings being made. The Commission and Federal Circuit Court are engaged in two different processes, for different purposes. I am tasked with determining whether Mr O’Mara is a fit and proper person to hold a right of entry permit under the Act. I will consider Mr O’Mara’s conduct which resulted in findings of contraventions of the Act in ABCC v Hall for the purpose of assessing Mr O’Mara’s fitness and propriety to enter premises in accordance with the regime established by Part 3-4 of the Act. In contrast, Judge Neville will consider Mr O’Mara’s conduct, and the findings of contraventions of the Act, for the purpose of determining what, if any, relief should be granted by way of declarations and orders.

[36] Sixthly, in the event that my reliance on the findings made by Judge Neville in ABCC v Hall resulted in, or contributed to, a finding that Mr O’Mara is not a fit and proper person to hold a right of entry permit, and Mr O’Mara was later successful in overturning Judge Neville’s findings on appeal, then the CFMMEU would be able to make a fresh application for an entry permit for Mr O’Mara after the conclusion of the appeal. There would be some unfairness to Mr O’Mara, the CFMMEU and its members in such an outcome, because Mr O’Mara would be without an entry permit under the Act for some period of time before his appeal was heard and determined. However, this must be balanced against the interests of employers and occupiers of premises, who are entitled to go about their business without undue inconvenience. 22 Absent some reason to take a different approach, I consider that in circumstances where a court such as the Federal Circuit Court has made findings against a permit holder in contested proceedings, employers and occupiers of premises are entitled to have the Commission rely on such findings in determining whether the permit holder is a fit and proper person. The corollary of this proposition is that if a court such as the Federal Circuit Court has made findings in contested proceedings that a permit holder did not engage in particular conduct and those findings were subject to an appeal, then absent some reason to take a different approach, the relevant union, its members and the permit holder are entitled to have the Commission rely on such findings in determining whether the permit holder is a fit and proper person. The premise underlying such an approach is that interested parties and the public at large are entitled to have confidence in findings made by a court following a contested hearing in which parties are represented, unless and until such findings are overturned on appeal or there is some other proper basis to depart from them, such as a concession that a finding was made in error or a persuasive argument that an appeal has good prospects of success.23

[37] I decline to exercise my discretion to draw a Jones v Dunkel inference from the fact that there is no evidence before the Commission in relation to whether Mr O’Mara is contrite or remorseful for his unlawful conduct. I am satisfied that Mr O’Mara has a reasonable explanation for not expressing contrition or remorse for his conduct the subject of findings made by Judge Neville in ABCC v Hall. Namely, he disputes the contraventions found against him by Judge Neville and intends to appeal them.

[38] Mr O’Mara has not given evidence in these proceedings to the effect that, regardless of the findings made by Judge Neville in ABCC v Hall and Mr O’Mara’s challenge to those findings, he understands the need to comply with industrial laws and undertakes to comply with his obligations under Part 3-4 of the Act in the future. Nor has he given evidence in these proceedings to the effect that he will (a) produce his entry permit for inspection when requested to do so by the occupier of the premises or an affected employer (s 497), (b) comply with any reasonable request by the occupier of premises to comply with an occupational health and safety requirement that applies to the premises (s 499), and (c) not take action with the intention of giving the impression or reckless as to whether the impression is given that the doing of a thing is authorised by Part 3-4 if it is not so authorised (s 503). The absence of such evidence causes me to have some concern about whether Mr O’Mara will comply with his obligations under Part 3-4 of the Act if he is granted a right of entry permit. However, the fact that Mr O’Mara’s conduct the subject of the findings of contraventions of the Act by Judge Neville in ABCC v Hall took place in 2013 and 2014 is of significance. This is not a case where there has merely been an effluxion of time since prior contraventions or wrongdoing occurred. Mr O’Mara, who has had 20 or more years of experience on building sites, 24 has held a right of entry permit since 2013. A period of 5-6 years since 2013-14 without any finding of contravention against Mr O’Mara is a significant period and this is a relevant matter which weighs in Mr O’Mara’s favour.25 As a Full Bench of the Commission observed in CEPU v Director of the Fair Work Building Industry Inspectorate:26

“[28] The CEPU’s submission that the Delegate erred by not taking into account the period of time that had passed since the occurrence of the last conduct for which Mr Mooney was penalised has some force. As at the date of the Decision, that period was in excess of five years. If an official has for a significant period of time not engaged in any conduct required to be taken into account under s.513(1)(b)-(f), that will usually be an important if not critical consideration in an assessment of the official’s fitness to hold an entry permit, since it provides a sound basis upon which to have confidence that the official understands the need to comply with industrial and other relevant laws and will therefore diminish the weight to be given to any earlier permit qualification matters. Beyond identifying the dates of the occurrence of the conduct involved in each permit qualification matter, the Delegate did not disclose in the Decision that he gave any consideration or weight to the fact that there had been no offending conduct on the part of Mr Mooney for over five years. This would appear to involve House v The King error.”

Other relevant matters?

[39] The ABCC contends it is relevant for the Commission to note that Mr O’Mara is a senior official of a “recidivist organisation” 27 that appears to have manifested a continuing disobedience of the law28 and one in which the penalties for its actions can be tolerated as the price of doing its industrial business.29 In view of the CFMMEU’s “propensity”30 both to transgress and have penalty orders imposed against it, the ABCC contends that the Commission may reasonably have reservations about the sufficiency of the incentives and training which has been provided to Mr O’Mara to date. It is contended by the ABCC that the Commission is permitted to have regard to Mr O’Mara’s status and attributes as a senior official of the CFMMEU and his susceptibility to comply with the CFMMEU’s directions to engage in unlawful conduct.

[40] In Director of the Fair Work Building Industry Inspectorate v CFMMEU, 31 a Full Bench of the Commission considered the relevance of past contraventions of industrial or other relevant laws by an organisation to the consideration of an official’s fitness or proprietary to hold a right of entry permit (references omitted):

“[26]We do not consider that the Director has demonstrated any error in the process by which the Delegate determined that the CMFEU’s history of contraventions was not relevant to his determination as to whether Mr Kong was a fit and proper person to hold an entry permit. It was reasonably open to the Delegate to conclude, as he did, that there was nothing in the annexure to the Director’s General Submissions which bore upon Mr Kong’s “status and attributes”. There was no suggestion that any of the identified contraventions involved any act or omission on the part of Mr Kong. While it may be accepted that the susceptibility of an official to comply with a direction from his or her employing organisation to engage in unlawful conduct might well be considered to be a relevant matter under s.513(1)(g), there was nothing put to the Delegate at first instance or to us on appeal that suggested that the industrial history set out in the annexure demonstrated anything with respect to any personal susceptibility on Mr Kong’s part in that respect.

[27]That is not to say that past contraventions of industrial or other relevant laws by an organisation can never be relevant to the consideration of an official’s fitness or propriety to hold an entry permit where those contraventions did not involve any direct contravening conduct on the part of that official. If, for example, the facts of a particular contravention or contraventions supported an inference that an official with management responsibility in an organisation omitted to take reasonable steps to ensure that others under his or her control complied with the law, or encouraged or tolerated a general culture of non-compliance with the law, then conceivably that might be considered to be a relevant matter under s.513(1)(g). However in this case it was simply not made apparent that the CFMMEU’s history of contraventions said anything about Mr Kong’s personal conduct, character or reputation either as relevant to the exercise of rights of entry under the Act or at all.”

[41] Another Full Bench of the Commission considered a similar argument in Director of the Fair Work Building Industry Inspectorate v CFMMEU (Queensland Northern Territory Divisional Branch) (references omitted): 32

“[35]In granting a permit to a person who is fit and proper, the Commission is required to have a certain level of satisfaction as to the evidence about an individual and their level of general integrity. Forensically, bearing in mind the seriousness of taking away a right of entry permit, the Commission needs to be satisfied that it is done appropriately in all of the circumstances. The Appellant has argued that the Respondent did not, at any point in the proceedings at first instance, attempt by evidence of any kind, to seek to rebut the allegedly clear inferences that were being suggested about Mr Ravbar’s involvement in the contraventions. We note that this issue was picked up at paragraph [70] of the Decision where it was squarely examined by the Deputy President:

[70] The Applicant was criticised for not providing a more detailed witness statement from Mr Ravbar which could have been the subject of cross-examination. I do not think that this criticism is justified. There was no specific allegation in relation to Mr Ravbar’s personal conduct to be answered. The courts’ decisions in the seven matters which the FWBC relied on was tendered and dealt with extensively in submissions. There was no evidence that Mr Ravbar was “a ring-master in a union office in a managerial position who was sending his organisers out to breach the law” (Transcript PN394). Rather, the general picture which emerges is of the union determinedly pursuing its industrial and health and safety agendas and its activity coming into collision with the industrial legislation. There are remedies under that legislation to deal with that conduct if breaches are found to occur.”

[36] We consider that there were no facts in evidence before the Deputy President or on appeal that supported an inference that Mr Ravbar omitted to take any reasonable steps to ensure that others under his control failed to comply with the law, or encouraged or directed or tolerated a general culture of non-compliance with the law.

[37] We accept the submissions of the Respondent that the Appellant misread Kong. Applying Kong to the circumstances of the matter before us, our inevitable conclusion is that there was no evidence before the Deputy President to support a finding that the CFMMEU’s history of contraventions said anything about Mr Ravbar’s personal conduct, character or reputation, either as relevant to the exercise of rights of entry under the Act, or at all.”

[42] In CFMMEU v Director of the Fair Work Building Industry Inspectorate, 33 the majority of the Full Bench rejected the notion that the CFMMEU’s culture of disobedience of industrial laws establishes a higher bar than normal for considering whether an official of the CFMMEU is a fit and proper person to hold a right of entry permit (references omitted):

“[86] We agree that it is highly relevant to consider an applicant’s attitude and track record relating to compliance with the relevant legal obligations, however, we consider it erroneous to elevate a context of past contraventions of industrial or other relevant laws by an organisation so that it automatically operates to impose a ‘higher bar than normal’ for an individual to clear in order to satisfy the Commission that he or she is a fit and proper person to hold an entry permit, regardless of his or her past behaviour.

[87] We believe that there was error in the decision-making process of the Vice President because he framed the task of considering whether Mr Tadic was a fit and proper person to hold an entry permit with the opening statement “In my view this context establishes a higher bar than normal for considering whether Mr Tadic is a fit and proper person to hold the right of entry permit in question.” On our reading of s.513(1) of the Act and our consideration of the authorities referred to above, we do not consider this approach was open to him and we have concluded he acted on a wrong principle in doing so. On the basis of this error in the decision making process, we have decided to uphold the appeal and quash the Vice President’s decision to reject the grant of an entry permit to Mr Tadic.”

[43] Mr O’Mara’s “track record” relating to compliance with relevant legal obligations is plainly relevant to my assessment as to whether he is a fit and proper person to hold a right of entry permit. However, there is no evidence to support a finding that Mr O’Mara has omitted to take reasonable steps to ensure that others under his control comply with the law, or that he has encouraged or tolerated a general culture of non-compliance with the law. Nor is there evidence to support a finding that the CFMMEU’s history of contraventions, or culture of disobedience, of industrial laws:

(a) demonstrates anything with respect to any personal susceptibility on Mr O’Mara’s part in that respect; or

(b) says anything about Mr O’Mara’s personal conduct, character or reputation either as relevant to the exercise of rights of entry under the Act or at all.

[44] Accordingly, I do not consider it relevant to take into account the CFMMEU’s record or culture of disobedience of industrial laws in determining whether Mr O’Mara is a fit and proper person to hold a right of entry permit.

[45] Mr O’Mara’s current entry permit is subject to the following condition:

“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 Mr O’Mara is to notify the Fair Work Commission within 72 hours of the finding being made, the penalty imposed or the proceeding commenced, along with a copy of any applicable and relevant documentation, or decision or judgment, as the case may be.”

[46] Pursuant to this condition, Mr O’Mara has notified the Commission that proceedings were commenced in the Federal Court on 12 April 2019 against him and others by the ABCC in relation to events which allegedly took place in 2018 in connection with a project known as “Constitution Place” (Constitution Place Proceedings). The first case management hearing in the Constitution Place Proceedings is scheduled to take place on 18 June 2019. There is no suggestion that any findings or admissions have been made in Constitution Place Proceedings, nor has any evidence been adduced in these proceedings concerning the events the subject of the Constitution Place Proceedings. Accordingly, I will not take into account in these proceedings the fact that the Constitution Place Proceedings have been commenced against Mr O’Mara or the allegations on which the Constitution Place Proceedings are based.

[47] The ABCC submits that Mr O’Mara’s failure to comply with the condition on his current entry permit is a relevant consideration under s 513(1)(g) of the Act and weighs against the application for an entry permit for Mr O’Mara.

[48] The Constitution Place Proceedings were commenced on 12 April 2019. On 24 April 2019, Ms Rosalind Read, Senior Legal Officer of the CFMMEU, on behalf of Mr O’Mara, notified the Commission of the commencement of the Constitution Place Proceedings. Ms Read concluded her correspondence to the Commission dated 24 April 2019 with the following paragraph:

“Please note that this notification is being provided late. We apologise for the inadvertent delay and will provide an explanation as a matter of urgency.”

[49] The explanation for the delay was provided in a letter from Mr O’Mara to the Commission dated 7 May 2019:

“I write to provide an explanation for the inadvertent delay in the notification email being sent to the Fair Work Commission (the Commission).

1. The notification email was provided to the Commission on 24 April 2019. Under my permit such notification is required within 72 hours.

2. On 15 April 2019, Ms Read (the Branch’s Legal Officer) was informed by the Australian Building and Construction Commissioner (ABCC) that it had commenced a case against me and others in the Federal Court which related to the Constitution Place project (the Constitution Place case). On 15 April 2019, the ABCC informally provided to Ms Read (via email) a copy of the statement of claim and originating application for the Constitution Place case.

3. On 15 April 2019, Ms Read and I had a conversation in which Ms Read informed me that the ABCC had commenced the Constitution Place case against me and others in the Federal Court.

4. One of Ms Read’s main areas of responsibility is in relation to entry permit related matters. Ms Read had that responsibility during my time as Branch Assistant Secretary (from 2010) and has continued to have it since I have become Branch Secretary (from 27 March 2018). The branch relies on Ms Read to assist the Branch’s officials to apply to the Commission for entry permits, comply with the right of entry scheme under the Fair Work Act 2009 (Cth), return expired entry permits the Commission, and assist Branch officials prepared right of entry notices. The Branch also relies on Ms Read to oversee any right of entry related disputes or legal proceedings.

5. After my discussion with Ms Read on 15 April 2019 I had expected and understood that she would take the necessary steps to notify the Commission of the Constitution Place case in accordance with the condition on my entry permit. That is because, as I say above, notifying the Commission of any matters arising under the condition on my entry permit is one of Ms Read’s responsibilities as the Legal Officer of the Branch.

6. On 16 April 2019, the ABCC formally served the statement of claim and originating application for the Constitution Place case on the Branch office after Ms Read accepted service on my behalf and on behalf of the other respondents.

7. On 16 and 17 April 2019, I was away in Adelaide for an executive meeting of the Construction & General Division. I don’t recall speaking to Ms Read on these days.

8. I was in Canberra on 18 April 2019 and spent some time in the Branch office. I don’t recall seeing Ms Reid on 18 April 2019 or speaking to her.

9. The Branch office was closed from shortly after midday on 18 April 2019 and did not reopen until 29 April 2019. My first day back in the office on 29 April 2019 [sic] when the office re-opened.

10. Some time during the afternoon of 24 April 2019, I received a phone call from Ms Read while I was on annual leave. Ms Reid was also on annual leave. This was the first time that we had spoken since 15 April 2019. She told me that she had forgotten to notify the Fair Work Commission that the ABCC had started the Constitution Place case until earlier that day when the matter had been raised with her by the ABCC. She apologised to me.

11. Whilst I expected that Ms Reid had notified the Fair Work Commission of the above matter on time, I accept that the buck stops with me. It is my responsibility to notify the Commission of relevant events under the condition and to do so on time. I apologise to the Commission for the late provision of the notification.

12. As Branch Secretary, I have decided to put in place a more formal protocol to avoid any further late notifications under the condition. This protocol will apply whilst the condition continues to apply to my entry permit (or if a condition to the same effect applies to any future entry permit that I am issued with) the protocol is as follows…”

[50] The ABCC submits that, given the importance of complying with a permit condition, Mr O’Mara’s explanation given to the Commission on 7 May 2019 begs the question of why such a formal protocol was not put in place earlier. The ABCC contends that this failure to comply with the condition on his existing permit is a factor that weighs against Mr O’Mara’s application for a permit pursuant to s 513(1)(g) of the Act.

[51] I accept that Mr O’Mara has provided a detailed and candid explanation of the mistake that was made which resulted in his failure to notify the Commission of the commencement of the Constitution Place Proceedings within the time period allowed for under the condition on Mr O’Mara’s current entry permit. I also accept that Mr O’Mara has acknowledged his mistake and put in place a mechanism to prevent the mistake happening again. In all the circumstances, I do not consider that Mr O’Mara’s delay in notifying the Commission of the commencement of the Constitution Place Proceedings weighs against his fitness and propriety to hold an entry permit.

[52] On 29 May 2019, Ms Rosalind Read sent the following email to the Commission:

“The ABCC has requested that we inform the Commission that charges have been laid against Mr O’Mara by the ACCC in relation to alleged cartel conduct.

The ABCC has advised us that it considers that these charges are a relevant matter to the application for Mr O’Mara’s entry permit under s.513(1)(g) of the Fair Work Act 2019 (Cth) and have asked us to inform the Commission of the existence of the charges.

Whilst we disagree with the ABCC we have decided to inform the Commission of this matter as requested by the ABCC.

It is our position that the charges are not a relevant matter under s.513(1)(g) of the Fair Work Act 2019 (Cth). This is because the charges being laid are nothing more than untested allegations again Mr O’Mara. Untested allegations which are denied by Mr O’Mara and allegations to which he has entered a plea of not guilty.

We rely on Re Parker [2018] FWC 379 in which the Commission (applying VP Hatcher’s decision in CFMEU [2016] FWC 161 at [34]) determined at [59] that untested allegations made in another proceeding should not be taken into account when determining whether the applicant was a fit and proper person to hold an entry permit. It is our view that the same approach must be taken in relation to the ACCC charges and the charges must not be taken into account.”

[53] No evidence has been adduced in these proceedings in relation to the alleged conduct on Mr O’Mara’s part that has resulted in charges being laid against him for engaging in cartel conduct. Mr O’Mara denies those allegations. They have not been tested in a court. I will not take such untested allegations into account in these proceedings in determining whether Mr O’Mara is a fit and proper person to hold a right of entry permit. 34

Should any conditions be imposed?

[54] In MUA v FWC, the Full Court of the Federal Court explained the correct approach to the imposition of conditions on entry permits pursuant to section 515 of the Act and the Commission’s power to impose such conditions. The Full Court held that the consideration of whether conditions ought to be imposed is to be undertaken conjointly with consideration of whether the official who is seeking an entry permit is a fit and proper person to hold the entry permit under section 513. The Full Court concluded (at [43]):

“Both the delegate and the Full Bench have, with respect, misconstrued s 515 of the Fair Work Act. Conditions may be imposed pursuant to that section to remedy or address deficiencies or reservations in respect to an officer of an applicant, which deficiencies or reservations could otherwise lead to the conclusion that the person was not ‘fit and proper’.”

[55] Accordingly, the CFMMEU contends that a condition may be imposed on an entry permit where the Commission considers that the condition will remedy or address some deficiency or reservation in the proposed permit holder’s fitness and/or propriety to hold an entry permit.

[56] The ABCC submits that the passage set out above of the Full Court’s reasons in MUA v FWC does not stand for the proposition that a condition may only be imposed in circumstances where the Commission considers that the condition will remedy or address some deficiency or a reservation in the proposed permit holder’s fitness and propriety to hold the entry permit. Rather, the ABCC contends the Full Court simply concluded that a consideration of whether conditions ought to be imposed on a permit holder is to be undertaken at the same time as the consideration of whether the official who is seeking an entry permit is a fit and proper person to hold that permit. In this context, the Full Court stated that a condition may be imposed to remedy or address deficiencies or reservations in respect to a person applying for the permit, which would otherwise lead to the conclusion that the person was not “fit and proper”. The Full Court did not, so the ABCC submits, say that this was the only circumstance in which a condition can be imposed.

[57] The ABCC contends that, in circumstances where:

(a) findings were made in the ABCC v Hall proceeding that Mr O’Mara contravened ss 497, 499 and 503 of the Act;

(b) the Constitution Place Proceedings have now been instituted against Mr O’Mara that he contravened various provisions of industrial laws; and

(c) Mr O’Mara neglected to properly notify the Commission of the Constitution Place Proceedings in accordance with the condition of his existing permit,

if the Commission determines to issue a permit to Mr O’Mara, it should impose the same condition as is attached to his existing permit, with one addition. That addition is that Mr O’Mara needs to notify both the Commission and the ABCC when proceedings are commenced against him that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s 513(1)(a)-(f) of the Act.

[58] The ultimate question in this application is whether I am satisfied that Mr O’Mara is a fit and proper person to hold an entry permit. In deciding whether or not I am so satisfied, I must take into account the permit qualifications matters, together with “all of the applicable conditions upon the exercise of rights conferred by the grant of a particular permit, including any imposed under s 515”. 35 Consistent with that approach, “s 515(1) contemplates consideration of whether conditions should be imposed conjointly with consideration of whether the official for whom the permit is sought is a ‘fit and proper person to hold the entry permit’.”36 The purpose in contemplating the imposition of conditions on a permit holder under s 515(1) is to determine whether the Commission can reach the necessary state of satisfaction that the proposed permit holder is a fit and proper person to hold such a permit. In a particular case, it may be that the necessary state of satisfaction (a) can be reached without imposing any conditions, (b) can only be reached by imposing conditions, or (c) cannot be reached, regardless of any conditions which may be imposed. If the necessary state of satisfaction can only be reached by imposing conditions, it must be the case that the Commission Member determining the application has identified some deficiencies or reservations “in respect to an officer of an applicant, which deficiencies or reservations could otherwise lead to the conclusion that the person was not ‘fit and proper’.”37

[59] I am therefore of the opinion that conditions must not be imposed under s 515 of the Act unless they are relevant to, and assist, the Commission in being satisfied that the proposed permit holder is a fit and proper person to hold a right of entry permit.

[60] In the facts and circumstances of a particular case, the imposition of a condition on a permit holder of the type suggested by the ABCC in this case may assist the Commission Member deciding the application to be satisfied that the proposed permit holder is a fit and proper person to hold an entry permit. For example, it would be open for the Commission to find in a particular case that requiring a permit holder to notify the Commission in the event that particular findings were made, penalties imposed or proceedings commenced would be likely to result in the permit holder making proper and lawful use of their right of entry permit during its term. It follows that the condition sought by the ABCC will not always be beyond power. Whether or not such a condition should be imposed will depend on the facts and circumstances of a particular case.

[61] In the present case, I am satisfied, for the reasons set out elsewhere in this decision, that Mr O’Mara is a fit and proper person to hold an entry permit without any conditions being imposed on his permit. In the alternative, even if I had unresolved reservations about Mr O’Mara’s fitness or propriety to hold an entry permit, the imposition of a condition of the type suggested by the ABCC would not assist me to reach the necessary state of satisfaction. That is, I do not believe, in the circumstances of this case, that requiring Mr O’Mara to notify the Commission and/or the ABCC after particular findings are made, penalties imposed or proceedings commenced, would increase the likelihood of Mr O’Mara making proper and lawful use of a right of entry permit or otherwise assist me to reach the necessary state of satisfaction.

[62] Further as to the utility of the condition sought by the ABCC, I note that the Commission has internal processes in place to ensure that it is made aware of judgments of various courts in which contraventions of Part 3-4 of the Act are found against permit holders. I accept that this does not extend to any contravention of the Act by a permit holder.

Conclusion

[63] I am satisfied that Mr O’Mara is a fit and proper person to hold a right of entry permit. I have reached this overall conclusion after taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act.

[64] The findings made by Judge Neville of contraventions of the Act by Mr O’Mara in ABCC v Hall are matters which, in my view, ought be given appropriate weight because of the questions they raise in relation to whether there is a basis for confidence that Mr O’Mara would make proper and lawful use of a right of entry permit if he were issued with one. Balanced against these matters are the factors in s 513(1)(a) to (f) of the Act, together with the fact that Mr O’Mara has been a permit holder since 2013 and, aside from the findings made against him in ABCC v Hall, no other findings of contraventions of any industrial law have been made against Mr O’Mara. These matters weigh in favour of a finding that Mr O’Mara is a fit and proper person to hold an entry permit. In my view, they outweigh the findings of contraventions of the Act by Mr O’Mara in ABCC v Hall. I have considered whether any conditions should be imposed on any entry permit issued to Mr O’Mara conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. My conclusion on that score is that no conditions should be imposed.

[65] I therefore exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr O’Mara with an entry permit.

DEPUTY PRESIDENT

Representation:

Mr C Dowling SC and Mr Y Bakri of counsel forthe CFMMEU.

Mr M Felman, of counsel, and Mr B Vallence, Legal Manager – Southern Region, on behalf of the ABCC.

Submissions:

Final submissions received from the CFMMEU on 15 May 2019.

Final submission received from the ABCC on 10 May 2019.

Printed by authority of the Commonwealth Government Printer

1 RE 016/318

2 PR705311

3 CFMMEU’s submissions dated 15 March 2019, 23 April 2019, 7 May 2019, and 15 May 2019. ABCC’s submissions dated 31 March 2019 and 10 May 2019

4 Section 480 of the Act

5 Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

6 Ibid at 405 [56] per Flick J

7 Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

8 Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141

9 [2015] FWC 1522

10 [2015] FCAFC 56

11 Ibid at [17]

12 Ibid at [42]

13 [2018] FCCA 3532

14 (1936) 55 CLR 488

15 CFMMEU’s supplementary written submissions dated 7 May 2019 at [23]

16 RE2018/1438

17 (1959) 101 CLR 312

18 Computer Edge (1984) 54 ALR 767; Citigroup Pty Ltd v Mason (2008) 167 FCR 217 at [31]; Burrell v The Queen (2008) 238 CLR 218 at [20]

19 ABCC v Hall at [82]

20 ABCC v Hall at [649]

21 ABCC v Hall at [655]

22 Section 480(c) of the Act

23 See, by analogy, in relation to final judgments rather than findings, Mahony JA in Re Middle Harbour Investment Ltd (in liquidation), New South Wales Court of Appeal, unreported, 15 December 1976: “Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct”; Kazal v Thunder Studios Inc (California) [2017] FCA 238 at [54]

24 ABCC v Hall at [20]

25 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 per Hatcher VP at [37]; Director of the Fair Work Building Industry Inspectorate v CEPU[2015] FWCFB 3358 at [44]-[45]

26 [2014] FWCFB 4397

27 CFMMEU v ABCC [2018] FCAFC 126 at [14]

28 Williams v CFMMEU (No 2) (2009) 182 IR 327 at [29]

29 Director of the Fair Work Building Industry Inspectorate v CFMEU (No 2) [2016] FCA 436 at [142]

30 Draffin v CFMEU [2009] FCAFC 120 at [92]

31 [2014] FWCFB 5947

32 [2015] FWCFB 6035. An application for judicial review of the decision of the Full Bench and the first instance decision was dismissed by the Full Court of the Federal Court: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169

33 [2016] FWCFB 6058

34 CFMEU [2016] FWC 161 at [34] per Hatcher VP

35 MUA v FWC at [35]

36 Ibid at [32]

37 Ibid at [43]