Application by the Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch

[2019] FWC 4165

[2019] FWC 4165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Application by the Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2018/881)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 14 JUNE 2019

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

[1] On 1 August 2018, the Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Northern 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 Shaun James Desmond, who holds the position of Organiser of the CFMMEU.

[2] The previous right of entry permit held by Mr Desmond 1 expired on 4 September 2018. On 15 August 2018, Senior Deputy President Hamberger made an order pursuant to s 516(2) of the Act that the time for the expiry of the entry permit held by Mr Desmond is extended until the Commission has determined the CFMMEU’s application for a new permit for Mr Desmond.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 Desmond.

[4] On 31 May 2019, a hearing was held in relation to the application for a new right of entry permit for Mr Desmond (together with the application for a new right of entry permit for Mr Parfitt). 3. Mr Reitano, of counsel, appeared with permission for the CFMMEU. Mr Prain, in-house solicitor, appeared for the ABCC. The CFMMEU relied on declarations made by Mr Desmond and Mr Ravbar in support of the application, together with written and oral submissions. The ABCC did not adduce any evidence, but made written and oral submissions.

Statutory Framework

[5] 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.

[6] 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

[7] 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

[8] 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

[9] 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.”

[10] 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).”

[11] 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.”

[12] 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

[13] 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

[14] 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 Desmond.

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

[15] According to the declarations filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Desmond, he:

(a) has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act). Mr Desmond completed an approved right of entry training course on 23 July 2018;

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

(c) 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) has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions (s 513(1)(e) of the Act); and

(e) 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).

[16] I accept that the information set out in the previous paragraph, as disclosed in the declarations made by Mr Desmond and Mr Ravbar concerning these matters, is true and correct. Each of these permit qualification matters weighs in favour of a conclusion that Mr Desmond is a fit and proper person to hold an entry permit.

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

[17] On 24 February 2017, the Federal Court found that Mr Desmond contravened s 343 of the Act by calling and conducting a number of two hour union meetings between 9 May 2016 and 1 June 2016, with intent to coerce Hansen Yuncken Pty Ltd (Hansen) to exercise a workplace right, or to exercise a workplace right in a particular way, namely to enter into an enterprise agreement with the CFMMEU or enter into an enterprise agreement with the CFMMEU on terms required by the CFMMEU (Carrara Project Case). 13 The Federal Court also found that Mr Desmond contravened s 348 of the Act by calling and conducting a number of two hour union meetings between 9 May 2016 and 1 June 2016, with intent to coerce Hansen to engage in industrial activity, namely to comply with a lawful request or requirement of the CFMMEU to enter into an enterprise agreement with the CFMMEU or enter into an enterprise agreement with the CFMMEU on terms required by the CFMMEU. Mr Desmond was fined $5,00014 and the CFMMEU was fined a total of $54,000 in relation to the conduct of Mr Desmond and another official of the CFMMEU. I have read and considered the Liability Judgment and the Penalty Judgment delivered by Justice Reeves in connection with the Carrara Project Case.

[18] There was no allegation in the Carrara Project Case that Mr Desmond had misused his right to enter premises, nor was it alleged that his conduct was occasioned by aggravating factors such as threatened or actual violence or damage to property. However, Mr Desmond’s conduct which constituted contraventions of sections 343 and 348 of the Act was serious. Justice Reeves made the following observations in the Penalty Judgment in relation to the seriousness of the CFMMEU’s contravening conduct:

“[3] In assessing the seriousness of its contravening conduct, the CFMEU submitted that I should take account of the fact that the union meetings which its officials called and conducted at the Carrara project site were lawful in the sense that they were provided for in the union meeting clauses in the various structural subcontractor enterprise agreements (see the liability judgment at [7]–[9]). I do not accept this contention. In my view, it fails to appreciate the true nature of the CFMEU’s contravening conduct as outlined in the liability judgment. The essence of that conduct was not the act of calling and conducting the union meetings per se, but rather the manner in which those union meetings were employed to coerce Hansen Yuncken to exercise a workplace right and to engage in industrial activity in contravention of ss 343 and 348 of the FWA. Specifically, by calling and conducting two such meetings twice daily, each of a two hours duration; by staging those meetings during the working day at times that ensured that effectively no work was performed on the Carrara project site; and by continuing that pattern of calling and conducting those meetings for 17 work days. As I found in the liability judgment, it was that pattern of use of the union meeting clauses that constituted the tort of intentionally procuring breaches of contract and, therefore, the unlawful conduct element of coercion under ss 343 and 348. That pattern of use also underpinned my findings on the illegitimate conduct element (see the liability judgment at [121]–[123] and [153] respectively). The undisputed lawfulness of the union meeting clauses, themselves, did not, therefore, detract from the seriousness of the CFMEU’s contravening conduct. In reaching this conclusion, I have had regard to the whole of the contravening conduct of the CFMEU and its two officials, as discussed further below.”

[19] In imposing a penalty of $5,000 on Mr Desmond, Justice Reeves found that the role of Mr Desmond in the contraventions was less significant than that of the CFMMEU and took account of the fact that Mr Desmond did not have a history of prior contraventions of industrial laws. 15

[20] Mr Desmond’s conduct which resulted in a penalty of $5,000 being imposed on him and contributed to a penalty of $54,000 being imposed on the CFMMEU by the Federal Court in the Carrara Project Case weighs against his fitness and propriety to hold a right of entry permit.

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

[21] Pursuant to s 513(1)(g) of the Act, in deciding whether Mr Desmond 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 Desmond is a fit and proper person to hold a right of entry permit.

[22] Mr Desmond is a respondent to two sets of proceedings currently before the Federal Court. In the first proceeding, the ABCC alleges that Mr Desmond has contravened s 497 (failing to produce an entry permit) and s 500(hindering or obstructing a person while holding a permit and exercising or seeking to exercise entry rights) of the Act. 16 In the second proceeding, the ABCC alleges that Mr Desmond has contravened s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (unlawful industrial action) and sections 346 (adverse action) and 348 (coercion) of the Act.17 The ABCC submits that those proceedings should be considered and assigned appropriate weight. I disagree. No findings or admissions have been made in either of these Federal Court proceedings, nor has any evidence been adduced in these proceedings concerning the events the subject of them. For those reasons, I do not consider these Federal Court proceedings and the allegations on which they are based, to be relevant considerations under s 513(1)(g) of the Act.

[23] The ABCC contends that I should give weight to the fact that Mr Desmond has not expressed any genuine contrition or remorse for his past conduct or its impact on occupiers or others. I agree with and adopt the following observations made by Deputy President Gostencnik in relation to the significance of a failure to show remorse or contrition for past conduct: 18

“[36] The Commissioner contends that it should be a concern to the Commission that Mr Robinson has failed to show any remorse for the conduct that has been earlier outlined. It says that the Commission cannot be satisfied that Mr Robinson understands the non-compliant nature of the conduct and that if he did so, he would have indicated such to the Commission through evidence. I accept that an indication of remorse is a factor that in many cases is to be weighed in the balance, but the absence of such an indication needs to be assessed in context of a given application. First, the need to show contrition in respect of past wrongdoing by proposed permit holders in entry permit applications is not a decision rule. Both the need for and the context of any expression of contrition is to be assessed in the context of the circumstances that pertain to each application. Secondly, there has been no contravening conduct found by a Court involving Mr Robinson since FWBI v Robinson. Thirdly and perhaps related to the second, the Court in FWBI v Robinson took into account the need for specific deference vis-à-vis Mr Robinson in determining the question of the quantum of the penalty that should be imposed. That there has been no further acts of contravening conduct suggests that the specific deference may have had the desired effect. Fourthly, that Mr Robinson and the CFMMEU consented to the imposition of a condition of Mr Robinson’s permit in the proceedings before Vice President Watson shows an acceptance of wrongdoing. Fifthly, that no contravention of the condition imposed occurred also needs to be weighed in assessing whether an expression of contrition is necessary. Sixthly, so far as contrition for the conduct in respect of the other proceedings to which reference has been made, for the reasons earlier given, I can well understand why contrition is not expressed and do not propose to give the absence of contrition in respect of that conduct any weight. On the whole, I do not consider that the absence of any express contrition by Mr Robinson in the circumstances of this case warrants weight attaching to it.”

[24] In the present case, I intend to give some weight to the fact that Mr Desmond has not expressed any genuine contrition or remorse for his past conduct in breach of the Act or its impact on others because the absence of any expression of contrition or remorse, in the context of the present case, gives rise to a concern that Mr Desmond may not have learned the lesson from his past contraventions of the Act. However, the weight to which I attach to Mr Parfitt’s lack of contrition or remorse is limited for the following reasons:

(a) Mr Desmond has held a right of entry permit at all times since September 2015. The only time he has been found to have contravened his obligations under the Act is in the Carrara Project Case. Mr Desmond’s contravening conduct in connection with that case took place in May and June 2016. The Liability Judgment was handed down on 24 February 2017 and the Penalty Judgment was handed down on 27 October 2017. A period of about three years since the relevant conduct in May and June 2016 without any finding of contravention against Mr Desmond is a reasonable period and this is a relevant matter which weighs in Mr Desmond’s favour; 19 and

(b) the fact that there has not been any finding of contravening conduct by Mr Desmond since the Carrara Project Case was commenced and the penalty imposed on Mr Desmond suggests that those proceedings may have had a deterrent effect on Mr Desmond, although the answer to that question will not be able be determined until after the Federal Court proceedings to which Mr Desmond is a party 20 have been heard and determined.

[25] The ABCC contends it is relevant for the Commission to note that Mr Desmond is an official of an organisation that appears to have manifested a continuing disobedience of the law. The ABCC submits that given the CFMMEU’s “propensity” 21 both to transgress and have penalty orders imposed against it, the Commission may reasonably have reservations about the sufficiency of the incentives and training which has been provided to Mr Desmond to date.

[26] In Director of the Fair Work Building Industry Inspectorate v CFMMEU, 22 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.”

[27] 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): 23

“[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.”

[28] In CFMMEU v Director of the Fair Work Building Industry Inspectorate, 24 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.”

[29] Mr Desmond’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 Desmond 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 Desmond’s part in that respect;

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

(c) gives rise to a concern about the sufficiency of the incentives and training which has been provided to Mr Desmond.

[30] 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 Desmond is a fit and proper person to hold a right of entry permit.

Conclusion

[31] I am satisfied that Mr Desmond 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.

[32] The contraventions of the Act by Mr Desmond in the Carrara Project Case 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 Desmond 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), (b), (c), (e) and (f) of the Act, together with the fact that Mr Desmond has been a permit holder since 2015 and, aside from his conduct which led to penalties being imposed on him and the CFMMEU in the Carrara Project Case, no other findings of contraventions of any industrial law have been made against Mr Desmond. These matters weigh in favour of a finding that Mr Desmond is a fit and proper person to hold an entry permit. In my view, they outweigh the matters which weigh in the opposite direction.

[33] I have considered whether any conditions should be imposed on any entry permit issued to Mr Desmond conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. 25 My conclusion on that score is that no conditions should be imposed, because I have reached the necessary state of satisfaction that Mr Desmond is a fit and proper person to hold an entry permit without any conditions being imposed on it.

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

DEPUTY PRESIDENT

Appearances:

R Reitano, of counsel, on behalf of Mr Desmond.

S Prain, solicitor, on behalf of the ABCC.

Hearing details:

2019.

Sydney:

31 May.

Printed by authority of the Commonwealth Government Printer

<PR709394>

 1   RE 2015/1206

 2   PR609986

 3   RE2018/885

 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   ABCC v CFMEU [2017] FCA 157 (Liability Judgment)

 14   ABCC v CFMEU [2017] FCA 1269 (Penalty Judgment)

 15   Penalty Judgment at [47]

 16   QUD 785/2018

 17   QUD 138/2019

 18   CFMEU Re Robinson [2018] FWC 1777

 19   Director of the Fair Work Building Industry Inspectorate v CEPU[2015] FWCFB 3358 at [44]-[45]

 20   See paragraph [22] above

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

 22   [2014] FWCFB 5947

 23   [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

 24   [2016] FWCFB 6058

 25   MUA v FWC at [32] & [43]