Application by Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Jason Francis Ian Deans

[2018] FWC 7180

[2018] FWC 7180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Application by Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Jason Francis Ian Deans
(RE2018/1190)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 29 NOVEMBER 2018

Application for issue of right of entry permit to Mr Jason Francis Ian Deans; satisfied that Mr Deans is a fit and proper person to hold an entry permit; application granted; permit to issue.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Jason Francis Ian Deans. Mr Deans is an Organiser for the Victoria/Tasmania Construction and General Division of the CFMEU.

[2] On 13 November 2018, the Australian Building and Construction Commissioner (Commissioner) advised that he does not wish to be heard on the application. I have decided to determine the application on the papers without a hearing.

Relevant statutory provisions and application

[3] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing relevantly with issuing entry permits to officials of registered organisations. Section 512 of the Act provides that the Commission may, on application, issue a right of entry permit to an official of an organisation if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the Act contains a number of matters described as permit qualification matters that the Commission must take into account in deciding whether an official is a fit and proper person to hold an entry permit. The matters are:

•  Whether the official has received appropriate training about the rights and responsibilities of a permit holder;

•  Whether the official has ever been convicted of an offence against an industrial law;

•  Whether the official has ever been convicted of an offence against a Federal, State/Territory or foreign law involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property;

•  Whether the official or any other person has even been ordered to pay a penalty under the Act or other industrial law in relation to the action taken by the official;

•  Whether a permit issued to the official under the Act or similar law of the Commonwealth has been revoked, suspended or made subject to conditions;

•  Whether a court or other person or body under State/Territory law or OHS law has cancelled, suspended or imposed conditions on a permit for industrial or OHS purposes or disqualified the official from exercising or applying for a right of entry for industrial or OHS and purposes; and

•  Any other matters that the Commission considers relevant.

[4] Section 514 of the Act restricts the Commission’s power to issue a right of entry permit at a time when a suspension or disqualification imposed by a court or other person or body applies to the official’s exercise of or prevents the official from exercising or applying for a right of entry for industrial or OHS purposes under a State/Territory industrial or OHS law.

[5] Section 515 of the Act gives the Commission power to impose a condition on a right of entry permit when it is issued and in deciding whether to do so, the Commission must take into account the permit qualification matters to which earlier reference has been made.

[6]  The operation of these provisions and their application is now well settled. In previous decisions I summarised the relevant principles and without repetition I adopt what is therein said. 1 In short compass however, the assessment of whether an official of an organisation is a fit and proper person to hold an entry permit requires taking into account the permit qualification matters set out in s.513 of the Act considered in the context of the rights the holder of an entry permit may exercise under the Act, the limitations on and conditions attaching to the exercise of those rights and the responsibilities that must be exercised in respect of those rights.

[7] A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend), 2  that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision making process.3 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:4

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 5

[8] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend: 6 

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". 7

[9] Having regard to the structure and content of s.513, in deciding whether an official of a registered organisation is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.

[10] I turn to consider the application.

Consideration

[11] Mr Deans has not held a previous right of entry permit.

Permit qualification matters – s.513(1)(a), (b), (c), (e) and (f)

[12] According to the declarations filed by the CFMMEU in support of the application for the grant of a permit to Mr Deans (the Declarations):

•  Mr Deans has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 19 October 2018 (s.513(1)(a) of the Act); 8

•  Mr Deans has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 9

•  Mr Deans has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act; 10

•  Mr Deans has not had any entry permit issued under Part 3 – 4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act); 11

•  Mr Deans has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Deans held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act); 12 and

•  Mr Deans has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act). 13

[13] None of the above matters are disputed. I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. These matters all weigh in favour of a conclusion that Mr Deans is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(d)

[14] In his declaration lodged in support of the application for a permit, Mr Deans has disclosed that in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union and Anor (No 2) 14he and the CFMEU were found to have contravened ss.789, 790 and 797 of the Workplace Relations Act 1996 (WR Act) when he made false statements about union membership and coerced a worker to join the CFMEU in order to work on the CSL Parkville site in Victoria on 12 September 2006.

[15] On 27 October 2008, the Court ordered that the CFMEU pay a penalty of $49,550 15 and Mr Deans pay a penalty of $12,00016 for their contraventions of the WR Act in relation to Mr Gauci and Mr Galea. Mr Deans was ordered to pay $6,000 and the remainder was suspended for 12 months from the date of the orders.

[16] The CFMEU and Mr Deans appealed the judgment and orders of the Court. 17 On 8 February 2011, Justice Ryan varied the orders of 27 October 2008.18 The Court set aside the orders imposing a penalty on the CFMEU and Mr Deans in relation to Mr Galea. The penalties imposed on the CFMEU and Mr Deans in relation to Mr Gauci remained the same.

[17] Mr Deans discloses that he has not been found to have breached any further provisions of the BCCI Act, WR Act or the Act.

[18] Mr Ralph Edwards (Divisional Branch President) declares that there has been a ‘significant passage of time’ between the contravening conduct and this application and that he is satisfied that the Mr Deans meets the permit qualification matters in s.513(1)(b) to (f) of the Act. 19

[19] That a pecuniary penalty was imposed on Mr Deans for the contravening conduct is relevant to this application. However, the matter disclosed is not assessed at large but in context. The question is not whether Mr Deans is a fit and proper person per se, but rather the assessment of the matter in deciding whether Mr Deans is a fit and proper person to hold a right of entry permit occurs having regard to the attendant rights and obligations that flow from the issue of such a permit. In relation to what this says about Mr Deans’ fitness and proprietary to hold an entry permit, it says that some time ago Mr Deans engaged in conduct in serious disregard for the WR Act by making false statements and coercing a worker to join the union. Entry rights may be exercised for discussion and effectively recruitment purposes. The imposition of a penalty in the circumstances raises issues about Mr Deans’ understanding of the rights of and regard for employees who may not wish or who may not be interested in joining the CFMMEU. Against this is to balance the fact the Mr Deans has undertaken appropriate training about the rights and obligations of a permit holder under the Act and there is no evident repetition of the conduct which led, some 12 years ago, a court to impose a penalty. In these circumstances, in combination with the above, I consider having regard to the period of time that has passed since Mr Deans’ contravening conduct and since the imposition of a penalty, that the matter does not weigh heavily against a conclusion that Mr Deans is a fit and proper person to hold an entry permit.

Conclusion

[20] I have already noted the permit qualification matters which weigh in favour of a conclusion that Mr Deans is a fit and proper person to hold a right of entry permit under the Act. I note that there has not been any further instances of wrongdoing or contravening conduct of which I am aware. In these circumstances, although not insignificant I do not consider the contravening conduct is of such magnitude as to weigh so heavily against a conclusion that Mr Deans is a fit and proper person to hold an entry permit.

[21] Taking into account the permit qualification matters and for the reasons stated, I am satisfied that Mr Deans is a fit and proper person to hold a permit. This is not to condone any of the contravening conduct in which Mr Deans has previously engaged.

[22] A permit will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR702580>

 1   See for example [2017] FWC 666 at [4] – [8]

 2 (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 3   See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 4 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]

 5 (1987) 16 FCR 167 at 184

 6 [1986] HCA 40; (1986) 162 CLR 24

 7   Ibid at [15], pp. 39-41

 8   Form F42, Declaration by proposed permit holder dated 19 October 2018 at (a) and Attachment ‘ACTU Statement of Completion’

 9   Ibid at (b)

 10   Ibid at (c)

 11   Ibid at (e)

 12   Ibid at (f)

 13   Ibid at (g)

 14 [2008] FMCA 1015

 15   Stuart-Mahoney v Construction, Forestry, Mining and Energy Union and Anor (No 3) [2008] FMCA 1435 at Orders (1) and (2)

 16   Ibid at Orders (4) and (5)

 17   Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56

 18   Ibid at [99]

 19   Form F42, Declaration by Ralph Edwards dated 19 October 2018