Application by Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Peter Joseph D’Arcy
[2018] FWC 7283
•14 DECEMBER 2018
| [2018] FWC 7283 |
| FAIR WORK COMMISSION |
| REASONS FOR 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 Peter Joseph D’Arcy
(RE2018/1075)
| Deputy President Gostencnik | MELBOURNE, 14 DECEMBER 2018 |
Application by Construction, Forestry, Maritime, Mining and Energy Union for an Entry Permit for D’Arcy; satisfied that Mr D’Arcy is a fit and proper person to hold an entry permit; application granted; permit issued.
On 14 November 2018, I determined that I was satisfied that Mr Peter Joseph D’Arcy was, taking into account the permit qualification matters, a fit and proper person to hold an entry permit under the Act and I directed that a permit be issued to Mr D’Arcy with a condition. These are my reasons for that decision.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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 D’Arcy. Mr D’Arcy is an Organiser for the Construction and General Division of the Queensland Northern Territory Divisional Branch of the CFMMEU.
On 3 October 2018, the Australian Building and Construction Commissioner (Commissioner) advised of his intention to make submissions in respect of the application and did so. The application was listed for hearing on 14 November 2018.
Relevant statutory provisions and application
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.
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.
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.
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.
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]
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]
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. Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. 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.
Consideration
Mr D’Arcy is an organiser for the CFMMEU and has not previously held a right of entry permit under the Act.[8]
Permit qualification matters – s.513(1)(a), (b), (c), (e) and (f)
According to the declarations filed by the CFMMEU in support of the application for the grant of a permit to Mr D’Arcy (the Declarations):
· Mr D’Arcy 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 by CFMEU on 6 September 2018 (s.513(1)(a) of the Act);[9]
· He has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[10]
· He 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;[11]
· He 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);[12]
· He has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr D’Arcy 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);[13] and
· He 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).[14]
None of the above was disputed by the Commissioner and 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 D’Arcy is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s.513(1)(d) and (g)
In his declaration lodged in support of the application for a permit, Mr D’Arcy disclosed that in the Federal Circuit Court proceeding Australian Building and Construction Commissioner v Peter Joseph D’Arcy and Anor[15] it is alleged that he has contravened ss.346, 348 and 349 of the Act. Mr D’Arcy says that he has agreed to admit to contravening s.349 on the basis that the other alleged contraventions are withdrawn.
The conduct contravening s.349 of the Act was that Mr D’Arcy recklessly made statements to the effect that a worker was required to join the CFMMEU in order to work at a particular construction site.[16] It is to be noted that the Court has not made any findings in relation to the conduct. The matter is listed for a penalty hearing on 21 January 2019.[17]
As a penalty has yet to be imposed on Mr D’Arcy, the admitted contravention is not to be considered under s.513(1)(d). It may be appropriately taken into account under s.513(1)(g).
The CFMMEU contends that since the contravening conduct on 27 March 2017, Mr D’Arcy has not been alleged to have nor has contravened an industrial law and there are no other relevant matters arising under s.513.[18] Further, the CFMMEU contends that there is no pattern of the conduct and the conduct did not involve threats or violence.[19] As such, the CFMMEU says that when the contravening conduct is weighed against the positive factors in support of Mr D’Arcy’s application, that he is a fit and proper person for the purpose of holding a permit.[20]
The Commissioner contends that having regard to the admissions by Mr D’Arcy and the permit qualification matters, the Commission cannot be satisfied that Mr D’Arcy is a fit and proper person to hold an entry permit and therefore the application should be refused.[21]
The Commissioner contends that pursuant to s.513(1)(g), the Commission should have regard to the following matters:
· the admissions made by Mr D’Arcy and the CFMMEU that his conduct constituted a misrepresentation in contravention of the Act;
· Mr D’Arcy’s failure to provide any explanation for his contravening conduct;
· the adequacy of Mr D’Arcy’s regard for employees’ rights in respect of freedom of association; and
· the prospects of Mr D’Arcy re-offending including the failure of Mr D’Arcy and the CFMMEU to express any remorse for their conduct.[22]
In addition, the Commissioner contends that it should be noted that the admissions by Mr D’Arcy were not made until approximately six months after the proceedings commenced and Mr D’Arcy has not provided any explanation for his conduct.[23]
The Commissioner also contends the following:
· the duration of the conduct is not a circumstance of mitigation;[24]
· Mr D’Arcy making it clear to the employee that an induction and work would not proceed if he did not join the union can properly be regarded as a threat;[25]
· a contravener should not be applauded on the basis that the conduct occurred without violence;[26] and
· the attempt to down-play the seriousness of the contravening conduct shows a lack of understanding of the importance of compliance with the Act.[27]
The Commissioner contends that little weight should be afforded to the fact that Mr D’Arcy has not engaged in further contravening conduct given that it should be considered ‘relatively recent conduct’.[28]
The Applicant also submits that the imposition of a condition in the following terms would alleviate any concerns in relation to Mr D’Arcy’s fitness to hold a permit and the likelihood of him further contravening the Act:
“Mr D’Arcy undertake further training in the rights and obligations conferred by Part 3-1 of the Act by former Deputy President Mr Jeffery Lawrence.”[29]
At the hearing, the Commissioner contended that he would not be opposed to the imposition of such a condition if there is a time period attached within which the further training would be undertaken. The CFMMEU suggested three months whereas the Commissioner suggested 28 days. Ultimately, the CFMMEU did not object to the issuing of a permit attaching the condition with training to be undertaken within 28 days of the issuing of the permit.
The matter disclosed in relation to contravening conduct is not assessed at large but in context. The question is not whether Mr D’Arcy is a fit and proper person per se, but rather the assessment of the matter in deciding whether Mr D’Arcy 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 D’Arcys’ fitness and proprietary to hold an entry permit, it says that he engaged in conduct in serious disregard for the Act by making misrepresentations and coercing a worker to join the union. Entry rights may be exercised for discussion and effectively recruitment purposes. The admission of the contravening conduct in the circumstances raises issues about Mr D’Arcys’ 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 D’Arcy has undertaken appropriate training about the rights and obligations of a permit holder under the Act, he will undertake further training and there is no evident repetition of the conduct which occurred in March 2017. In these circumstances, having regard to Mr D’Arcy’s admission of the contravening conduct, the matter does not weigh heavily against a conclusion that Mr D’Arcy is a fit and proper person to hold an entry permit.
Conclusion
Taking into account the permit qualification matters and having regard to the condition that will attach to the permit, I am satisfied for the reasons stated that Mr D’Arcy is a fit and proper person to hold a right of entry permit.
Accordingly, pursuant to s.515(1) of the Act, I directed that an entry permit be issued to Mr D’Arcy on 14 November 2018 with the following condition attached:
“Mr D’Arcy is to undertake further training in the rights and obligations conferred by Part 3-1 of the Act by former Deputy President Mr Jeffery Lawrence to be undertaken within 28 days of the entry permit being issued.”
DEPUTY PRESIDENT
Appearances:
C Massy of Counsel for the Applicant.
S Prain for the Australian Building and Construction Commissioner.
Hearing details:
2018.
Brisbane:
November 14.
<PR702718>
[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] Submissions of the CFMMEU and Peter D’Arcy dated 25 October 2018 at [2]
[9] Form F42 – Application for an entry permit, Declaration by Peter Joseph D’Arcy dated 10 September 2018 at (a)
[10] Ibid at (b)
[11] Ibid at (c)
[12] Ibid at (e)
[13] Ibid at (f)
[14] Ibid at (g)
[15] BRG305/2018
[16] Submissions of the CFMMEU and Peter D’Arcy dated 25 October 2018 at [5]; Exhibit 1 at Attachment AB-1; Submissions of the Australian Building and Construction Commissioner dated 8 November 2018 at [31]
[17] Exhibit 1 at [8]; Submissions of the Australian Building and Construction Commissioner dated 8 November 2018 at [5]
[18] Submissions of the CFMMEU and Peter D’Arcy dated 25 October 2018 at [8] and [22]
[19] Ibid at [20]-[21]
[20] Ibid at [24]-[25]
[21] Submissions of the Australian Building and Construction Commissioner dated 8 November 2018 at [8]-[9]
[22] Ibid at [21]
[23] Ibid at [32]
[24] Ibid at [36]
[25] Ibid at [37]
[26] Ibid at [38]
[27] Ibid at [39]
[28] Ibid at [43] and [47]
[29] Applicant’s submissions in reply dated 13 November 2018 at [15]-[16]
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