Application by Construction, Forestry, Maritime, Mining and Energy Union - Construction and General Division, New South Wales Divisional Branch

[2023] FWC 1863

[2023] FWC 1863

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, New South Wales Divisional Branch

(RE2023/432)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 27 JULY 2023

Application by CFMMEU for issue of right of entry permit for Justin Hobson – satisfied that fit and proper person – permit issued.

1. On 15 May 2023 the Construction, Forestry, Mining and Energy Union, New South Wales 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 Justin Brendon Lee Hobson, who is employed by the CFMMEU as an official.

1. Mr Hobson has been employed by the CFMMEU since 5 July 2017. Save for a three month period of suspension, Mr Hobson has held an entry permit under the Act since 4 August 2017.

1. I have read and considered the following material filed by the CFMMEU in support of its application for a new right of entry permit for Mr Hobson:

(a)Declaration of Darren Greenfield dated 12 May 2023;

(b)Declaration of Justin Brendon Lee Hobson dated 12 May 2023;

(c)CFMMEU submissions dated 17 July 2023; and

(d)a report by Mr Brian Lacy AO dated 10 February 2022 in relation to right of entry training he provided to Mr Hobson in January 2022.

Statutory Framework

1. 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.

1. 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.[1]

1. 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.[2] The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.[3] 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.[4]

1. 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.[5]

1. 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.”

1. 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).”

1. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,[6] Vice President Hatcher (as his Honour then was) 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.”

1. In Maritime Union of Australia v Fair Work Commission (MUA v FWC)[7], 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.’”[8]

1. 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’.”[9]

Consideration

1. 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 Hobson.

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

1. According to the evidence filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Hobson:

(a)Mr Hobson has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act). In particular, Mr Hobson completed a structured right of entry course, approved by the Commission, and delivered face-to-face by a Senior Legal Officer of the CFMMEU on 3 May 2023. Mr Hobson scored 19 out of 20 in a test at the conclusion of his right of entry training. In addition, on 3 May 2023, Mr Hobson undertook a second structured training course about the rights and responsibilities of a permit holder in relation to TCF award workers under the Act in a face-to-face session with a Senior Legal Officer of the CFMMEU. Mr Hobson scored 10 out of 10 in his test at the completion of this training. Mr Hobson also underwent a course of specific training with Mr Brian Lacy AO, on 19 January 2022, in relation to his rights and obligations as a permit holder under relevant workplace laws. I am satisfied that Mr Hobson has received appropriate training about the rights and responsibilities of a permit holder.

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

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

(d)Mr Hobson 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).

1. I accept that the information set out in the previous paragraph, as disclosed in the evidence filed by the CFMMEU concerning these matters, is true and correct. The permit qualification matters set out in s 513(1)(a),(b), (c) and (f) of the Act weigh in favour of a conclusion that Mr Hobson is a fit and proper person to hold an entry permit.

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

1. On 30 November 2021, in ABCC v Holl,[10] Justice Abraham declared that Mr Hobson had contravened:

(a)s 500 of the Act on 19 and 22 October 2018 by reason of being an accessory to contraventions by Mr Holl, then an employee of the CFMMEU, for the purposes of s 550 of the Act; and

(b)s 52(b) of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) on 19 October 2018 by being directly, indirectly, or knowingly concerned in Mr Holl’s contravention of the BCIIP Act.

1. The Federal Court of Australia ordered Mr Hobson to pay a penalty of $21,000 for his contravention of s 52(b) of the BCIIP Act, and a penalty of $6,000 for each of his contraventions of s 500 of the Act. The Court also declared that, by the conduct of Mr Hobson and Mr Holl, the CFMMEU contravened s 52(b) of the BCIIP Act on 19 October 2018 and s 500 of the Act on 19 and 22 October 2018, and ordered the CFMMEU to pay a penalty of $260,000 for the contravention of s 52(b) of the BCIIP Act and a penalty of $50,000 for each contravention of s 500 of the Act.

1. The facts, matters and circumstances which gave rise to these declarations and orders made by the Court are set out in the judgment of Justice Abraham[11] and the decision of Deputy President Gostencnik,[12] which I have read and considered.

1. The conduct on the part of Mr Hobson which resulted in the declarations and orders being made by the Federal Court involved his entry on to work sites, at which time he engaged in unlawful conduct and caused significant disturbances including stopping workers performing work on cranes. Mr Hobson’s conduct was assessed by the Court as being mid-range.[13]

1. These matters are plainly relevant to my assessment of Mr Hobson’s fitness and propriety to hold a right of entry permit. They weigh against a conclusion that he is a fit and proper person to hold such a permit. However, I accept that the weight to be attributed to these matters is less than might otherwise have been the case in light of the fact that (a) the contravening conduct occurred almost five years ago and there is no evidence to suggest that Mr Hobson has engaged in any similar or other contravening conduct since or before that time, (b) at the time of the contraventions Mr Hobson was a junior official who had been employed by the CFMMEU for about one year, (c) Mr Hobson was an accessory to Mr Holl’s conduct; he was not a principal protagonist or “primary mover”,[14] (d) Mr Hobson has undertaken specific training with Mr Lacy in relation to his contravening conduct. I am satisfied by Mr Lacy’s report that Mr Hobson has insight as to why his conduct was unlawful, has expressed regret for engaging in the contravening conduct, and is committed to ensuring he complies with his obligations as a permit holder.

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

1. As a consequence of the imposition of penalties on Mr Hobson and the CFMMEU in the Federal Court proceedings to which I have referred, Deputy President Gostencnik suspended the entry permit held by Mr Hobson for a period of three months from 16 May 2022 and banned the issue of a further entry permit to Mr Hobson during the suspension period.[15]

1. The suspension of Mr Hobson’s entry permit for a period of three months clearly weighs against a finding that he is a fit and proper person to hold an entry permit. The weight to be attributed to this factor is, however, diminished to some extent by reason of the matters explained in paragraph [20] above.

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

1. Apart from the matters I have already addressed, there are no other matters that I consider to be relevant to my assessment as to whether Mr Hobson is a fit and proper person to hold a right of entry permit.

Conclusion

1. After taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act, I am satisfied, on balance, that Mr Hobson is a fit and proper person to hold a right of entry permit. The matters which weigh in favour of a finding that Mr Hobson is a fit and proper person to hold a right of entry permit outweigh those that weigh against such a conclusion.

1. The evidence establishes to my satisfaction that Mr Hobson has learned from the error of his ways in connection with the Federal Court proceedings in which penalties were imposed on him in respect of his conduct in 2018. However, if Mr Hobson were in the future to engage in conduct in breach of any relevant industrial law, he would find it very difficult to satisfy me that he remained a fit and proper person to hold an entry permit.

1. I have considered whether any conditions should be imposed on any entry permit issued to Mr Hobson 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.

1. In the circumstances, I am satisfied that it is appropriate to exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Hobson with an entry permit.

DEPUTY PRESIDENT

[1] Section 480 of the Act

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

[3] Ibid at 405 [56] per Flick J

[4] 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]

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

[6]  [2015] FWC 1522

[7] [2015] FCAFC 56

[8] Ibid at [17]

[9] Ibid at [42]

[10] [2021] FCA 1480

[11] Ibid

[12] [2022] FWC 1146

[13] [2021] FCA 1480 at [183]-[185]

[14] Ibid

[15] [2022] FWC 1146

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