Application by the Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit for Mr Michael John Ravbar

[2021] FWC 2956

[2021] FWC 2956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Application by the Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit for Mr Michael John Ravbar
(RE2021/312)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 21 MAY 2021

Order for the production of documents.

Introduction and background

[1] The CFMMEU has applied for a new right of entry permit for Mr Michael John Ravbar, a Divisional Branch Secretary of the CFMMEU.

[2] The Australian Building and Construction Commissioner (ABCC) has intervened in the proceedings.

[3] On 19 April 2021 I made an order extending Mr Ravbar’s current right of entry permit until the application for a new permit is determined by the Fair Work Commission (Commission).

[4] On 7 May 2021 I acceded to requests made by the ABCC for separate orders for the production of documents to be issued to the CFMMEU and Mr Ravbar. The categories of documents sought from each of the CFMMEU and Mr Ravbar are identical.

[5] The CFMMEU and Mr Ravbar have applied to have the orders for the production of documents varied. In particular, while they do not object to categories 1, 2, 3, 6 and 7 in the schedule to the orders, they seek to have (a) categories 4 and 5 varied by confining those categories to steps taken by Mr Ravbar and (b) category 8 deleted.

[6] On 20 May 2021 I conducted a hearing, by telephone, in relation to the application by the CFMMEU and Mr Ravbar to have the orders varied. The CFMMEU and Mr Ravbar relied on their written submissions dated 10 May 2021 and 19 May 2021, an affidavit made by Mr Joseph Kennedy (who was not required for cross examination) on 19 May 2021, together with oral submissions made by Mr C.W. Dowling SC. The ABCC relied on its written submissions dated 14 May 2021, together with oral submissions made by Mr A.J. Smith of counsel.

Relevant principles

[7] In Esso Australia Pty Ltd v AWU & Ors, 1 the Full Bench made the following observations in relation to the approach that ought be taken to an application for an order for the production of documents under s 590 of the Fair Work Act 2009 (Cth) (Act):

“The principles to be applied in determining whether and if so what form of order should be made are not seriously in contention, and as the Unions point out, these principles were summarised in Australian Nursing Federation v Victorian Hospitals’ Industrial Association, which we adopt without repeating them. It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.”

[8] The summary of principles to which the Full Bench referred in Australian Nursing Federation v Victorian Hospitals’ Industrial Association 2is as follows (references omitted):

“[10] The power to require the provision of documents, records or other things is a broad discretionary power to be exercised in accordance with the principles applied by the Courts.

[11] In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation, Justice Mason, as he then was, discussed the use of the discretion to issue a summons and said:

“When application is made for the issue of a summons the Commission has discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”

[12] The principles applied by the Courts in the exercise of the discretionary power to issue a summons were identified by: Munro J in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985:

“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the `Proper Officer'. It is not legitimate to use a subpoena for what, in effect, would bediscovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a ‘fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carryout an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”

[13] An exposition of the principles with particular focus on issues of confidentiality is contained in the decision of His Honour Vice President Lawler in Association of Professional Engineers, Scientists and Managers and Airly Coal Pty. In McIlwain v Ramsey Food Packaging Pty Ltd and others, Justice Greenwood summarised the principles which govern the courts in relation to discovery and subpoena to produce documents. I have had regard to this summary, so far as it concerns subpoena to produce documents in considering this Application. Removing those aspects of the summary dealing with discovery, the relevant principles identified by Greenwood J relevant to these proceedings are:

a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: The Adelaide Steamship Company v Spalvins.

...

d) The documents for production must be identified with reasonable particularity. The category of documents must not be so wide as to be oppressive.

e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case or to investigate the character of the opposing party’s evidence.

f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition & Consumer Commission, French J summarised the matters which are relevant to the grant of leave:

“It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.”

g) The same notion was expressed in Small (575) and Dorajay Pty Limited v Aristocratic Leisure Limited, [34] in requiring the existence of a legitimate forensic purpose for the production of documents.

h) In Trade Practices Commission v Arnotts Limited (No. 2), Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?

i) Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.

j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by section 55 of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.

k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent.

l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings.

m) The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be ‘seriously unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’.

n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage.

o) In Dorajay Pty Limited v. Aristocrat Leisure Limited, Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v. LNC Industries, summarising the views of Moffitt P in National Employers’ Mutual General Association Ltd v. Waind & Hill to the effect that whether subpoenas are oppressive or an abusive process depends on whether "it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". Her Honour said at paragraph [18]:

“These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised in the comments quoted by Beaumont J [in Trade Practices Commission v. Arnotts Limited], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive.”

[9] Failure to comply with an order for the production of documents constitutes an offence, the punishment for which may be significant, including imprisonment. 3 This reinforces the need to ensure orders for the production of documents are drafted with sufficient clarity and particularity so the person to whom the order is addressed can understand what they are required to search for and produce.

[10] I will apply these principles in determining the present application.

Statutory framework pertaining to application for a right of entry permit

[11] 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.

[12] 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

[13] 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

[14] 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

[15] 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.”

[16] 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).”

[17] 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.”

[18] 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

[19] 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

[20] In Director of the Fair Work Building Industry Inspectorate v CFMMEU, 13 the Full Bench made the following observations (at [27]) about the conduct of an official with management responsibility when assessing the fitness and propriety of that official to hold an entry permit:

“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 failed to comply 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 CFMEU’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.”

Contested categories of documents

[21] I will now address each of the contested categories of documents. The amendments sought by the CFMMEU and Mr Ravbar to categories 4 and 5 are shown in mark up in the text below.

Categories 4 and 5

4. A copy of any records of the Divisional Branch Management Committee (including any agenda, minutes, tabled documents, and memoranda) since 1 January 2007 that relate to:

• measures taken by Mr Ravbar to prevent non-compliance with the CFMMEU Division Rules by officers and members;

• measures taken by Mr Ravbar to improve the CFMMEU’s and its officers’ and members’ compliance with the Fair Work Act 2009 (Cth) (Act) and the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act); or

• action taken by Mr Ravbar against officers or members who have contravened the Act or the BCIIP Act,

(Compliance Measures).

5. A copy of any records of the Divisional Branch Council (including any agenda, minutes, tabled documents, motions (whether passed or not) and memoranda) since 1 January 2007 that relate to any Compliance Measures taken by Mr Ravbar.

[22] The CFMMEU and Mr Ravbar contend that categories 4 and 5, as presently drafted, require them to produce documents in relation to measures taken by anyone within the CFMMEU in relation to non-compliance with the law. They contend that the categories ought to be varied such that they only capture measures or actions taken by Mr Ravbar personally. It is submitted that any broader application of the category will potentially lead to coverage of documents that are not relevant to the issues in dispute, which is objectionable on the grounds of relevance and oppression.

[23] The CFMMEU and Mr Ravbar also submit that the union, and its divisional branches, are controlled and regulated by the governing bodies established by its rules. If a decision is made by a governing body of a branch of the CFMMEU, that is not a decision of Mr Ravbar and is not a matter personal to Mr Ravbar. It is contended that such decisions do not establish whether Mr Ravbar is a fit and proper person.

[24] The ABCC submits that the document sought are relevant to an assessment of Mr Ravbar’s conduct in his role, when understood in its proper context. The ABCC contends that it is relevant to consider Mr Ravbar’s conduct in his official capacity as, inter alia, a Divisional Branch State Secretary. That conduct does not occur in a vacuum, and it cannot be properly understood without understanding the circumstances in which it occurred and the governance structure of the CFMMEU. By way of example, the ABCC submits that:

•  if no documents were produced in answer to categories 4 and 5, it may lead to a finding that neither Mr Ravbar nor anyone else in the Divisional Branch has been doing anything about repeated non-compliance with the law. Unfavourable inferences could be drawn from that; and

•  if documents were produced showing that a series of best practice actions were taken by Mr Ravbar or other officials of the Divisional Branch (with Mr Ravbar’s support), it may lead to a finding that Mr Ravbar could not have done anything further.

[25] The ABCC submits that unless the Commission can inform itself of these matters, it will not be in a position to properly assess Mr Ravbar’s attitude to ensuring that the organisation of which he is a senior official complies with the law.

[26] I am satisfied that the measures, if any, taken by a senior official such as Mr Ravbar in response to non-compliance of others within the CFMMEU to their legal obligations is of apparent relevance to the question of whether Mr Ravbar is a fit and proper person to hold a right of entry permit. 14 I accept Mr Dowling’s submission that the amended categories proposed by his clients would capture the steps taken by Mr Ravbar to propose, support or oppose measures and actions taken concerning the relevant instances of non-compliance. However, I also accept Mr Smith’s submission that Mr Ravbar’s conduct must be considered in context, including having regard to the union’s governance structures. For example, the CFMMEU may have introduced some policy, process, or system to address the relevant instances of non-compliance and Mr Ravbar may have had no involvement in the introduction of the measure. The amended categories proposed by the CFMMEU and Mr Ravbar would not capture such documents. But such documents would be important to gaining a proper understanding and making an informed assessment of the steps, if any, taken by Mr Ravbar in seeking to address repeated non-compliance by others under his control. In addition, if no documents were produced by the CFMMEU and Mr Ravbar in response to categories 4 and 5 as originally drafted, then certain inferences may be able to be drawn about Mr Ravbar’s conduct, or lack of action, in failing to take reasonable steps to ensure that others under his control failed to comply with the law, or encouraged or tolerated a general culture of non-compliance with the law.

[27] In numerous s 512 applications before the Commission the ABCC has had its submissions about the responsibility of a CFMMEU official for a culture of non-compliance with industrial laws rejected on the basis of a lack of evidence to support the submission. 15 In the present case, the ABCC has sought to avoid such an outcome by seeking orders for the production of documents to ensure the Commission has the necessary evidentiary foundation to make a proper assessment of Mr Ravbar’s conduct in taking steps to ensure that others under his control complied with the law, or whether he encouraged or tolerated a general culture of non-compliance with the law.

[28] For the reasons given, I am satisfied that the documents sought by the ABCC in categories 4 and 5 have a legitimate forensic purpose and are of apparent relevance to the issues to be determined. Although it will take longer to search for documents in answer to categories 4 and 5 without the amendments proposed by the CFMMEU and Mr Ravbar, I am satisfied that the additional time and resources required would not be oppressive in the circumstance and it is in the interests of justice to ensure relevant material is able to be placed before the Commission to properly assess and determine the application for an entry permit for a senior person such as Mr Ravbar. Accordingly, I reject the application to vary categories 4 and 5 of the schedule to the orders for production.

Categories 8A and 8B

8A. A copy of any records, communications or resolutions which record the CFMMEU (including any division or related entity) paying or reimbursing any of the pecuniary penalties incurred by its officers or representatives in the proceedings identified in Annexure A.

8B. A copy of any documents recording Mr Ravbar opposing any payment or reimbursement by the CFMMEU (including any division or related entity) of the pecuniary penalties incurred by its officers or representatives in the proceedings identified in Annexure A.

[29] The ABCC submits that these documents are of apparent relevance for the following reasons:

(a) The principal object of the imposition of a civil penalty is deterrence. The payment by other parties of civil penalties is a step which is calculated to undermine both specific deterrence and (at least in respect of people who are in a class of persons who would be indemnified) general deterrence, and which promotes non-compliance with industrial law. Much can be inferred about the attitudes of persons who support or condone such an approach. Taking that approach would also be inconsistent with the types of steps which would constitute appropriate corporate governance.

(b) If payment by the CFMMEU of civil penalties is occurring with the consent or connivance of Mr Ravbar, that is a significant matter which would count heavily against him being granted a permit. If on the other hand, he had taken steps to oppose or prevent such payments, it is a factor which would count in his favour.

[30] The CFMMEU and Mr Ravbar submit that the premise of the submissions made by the ABCC is that there is some unlawfulness in the indemnification by the CFMMEU of its employees; absent any personal payment orders, that is not so. The CFMMEU and Mr Ravbar contend that so much is recognised by courts in the making of personal payment orders. It is contended that there can, and should, be no sensible submission that because the CFMMEU has indemnified its employees, Mr Ravbar is not a “fit and proper person” to hold an entry permit. It is submitted that category eight is not relevant and has no legitimate forensic purpose.

[31] The CFMMEU and Mr Ravbar also argue that categories 8A and 8B are oppressive and lack proper particularity and clarity.

[32] The ABCC confirmed at the hearing on 20 May 2021 that no personal payment orders were made in any of the proceedings identified in Annexure A to the schedule. I accept the submission made by Mr Dowling that, absent a personal payment order, it is not unlawful for an employer to indemnify its employees in relation to an order made by a court to require an employee to pay a penalty. So much is clear from authorities which deal with applications to make a personal payment order. No application for a personal payment order would be necessary if the indemnification or payment by an employer were unlawful: see, for example, ABCC v CFMMEU. 16 In that case, Kiefel CJ observed (at [19]), on a slightly different but related point, that:

“In addition to an order prohibiting the CFMEU from paying the penalty ordered against Mr Myles, the ABCC sought an order requiring Mr Myles to pay the penalty from his own funds, but her Honour declined to do so, leaving him free to seek the funds from sources other than the CFMEU.” [emphasis added]

[33] Accordingly, there is, and could be, no basis to conclude that Mr Ravbar has engaged, or assisted the CFMMEU or others to engage, in unlawful conduct by paying or reimbursing a pecuniary penalty imposed on a CFMMEU official or employee in connection with the proceedings identified in Annexure A to the schedule to the orders. However, in the event that the CFMMEU has been paying or reimbursing pecuniary penalties incurred by its officers or representatives and Mr Ravbar has, or has not, taken any steps to oppose such conduct, I accept that Mr Ravbar’s conduct in that regard is of apparent relevance to the question of whether he is a fit and proper person to hold a right of entry permit because it goes to the issue of whether he has encouraged or tolerated a general culture within the CFMMEU of non-compliance with the law. It follows that the documents sought in categories 8A and 8B have a legitimate forensic purpose and are of apparent relevance to the issues to be determined in the substantive application.

[34] As to the objection based on the clarity and particularity with which categories 8A and 8B are drafted, the ABCC has amended its original category 8 to address a number of the concerns raised by the CFMMEU and Mr Ravbar on this score. I am satisfied that categories 8A and 8B are sufficiently particularised and clear. They are focused on the specific proceedings identified in Annexure A to the schedule. Either Mr Ravbar or other senior officials of the CFMMEU will know whether the CFMMEU has paid or reimbursed the pecuniary penalties incurred by its officers or representatives in the nominated proceedings. Mr Ravbar will certainly know whether he has taken any steps to oppose such payments or reimbursements being made. Armed with such knowledge, I am satisfied that instructions can be given to relevant employees for focused searches to be conducted of the relevant records, communications and resolutions. Further, category 8A is limited to records, communications and resolutions which “record” the CFMMEU paying or reimbursing the pecuniary penalties. The category does not extend to communications about whether the CFMMEU should make such payments or reimbursements. Category 8B is directed to documents “recording Mr Ravbar opposing any payment or reimbursement”. The CFMMEU and Mr Ravbar submitted that the word “opposing” in this category is ambiguous. I do not agree. Mr Ravbar will know whether he opposed the making of any such payments or reimbursements. If he did so, then appropriate searches will need to be undertaken to look for documents recording Mr Ravbar’s opposition to the payments or reimbursements. By way of example, such opposition may be recorded in the minutes of a particular meeting at which Mr Ravbar spoke against a proposal or decision to make a payment or reimbursement. I am also satisfied that categories 8A and 8B are not oppressive in all the circumstances. They are focused on particular documents pertaining to specific pecuniary penalties. It will no doubt take some time to search for the relevant records. I am prepared to give the CFMMEU and Mr Ravbar a reasonable period of time to have such searches undertaken. I do not consider the time and resources that will be required to be employed to search for documents in response to categories 8A and 8B to be unreasonably burdensome in the circumstances of this case.

[35] I will therefore not accede to the application to vary the orders by deleting categories 8A and 8B from the schedule.

Schedule A to the orders

[36] Both parties accept that the case referred to in item 23 of Annexure A to the schedule to the orders is irrelevant and should be deleted. I will therefore delete that case from Annexure A.

Time for compliance

[37] The documents sought by the ABCC are extensive and reach back to records created from as early as 1 January 2007. I accept the uncontested evidence given by Mr Kennedy that it will take approximately four to six weeks to search for documents in response to categories one to seven in the schedule to the orders for production of documents and at least a further two weeks to search for documents in response to category 8. On 12 May 2021 the solicitors for the CFMMEU and Mr Ravbar informed the Commission that their clients would commence searches for the agreed categories of documents, save to the extent that those searches were dependent on the outcome of the argument regarding the disputed categories. Having regard to that communication and the estimated time period required to conduct the necessary searches, I will amend the orders for production of documents such that documents must be produced to the Commission by 4pm on 7 July 2021, which is eight weeks after 12 May 2021.

Conclusion

[38] The orders I have made for the production of documents will be varied such that categories 4 and 5 will be retained in their original form, category 8 will be replaced with the new categories 8A and 8B set out above, the case at item 23 in Annexure A to the schedule will be deleted, and the time for compliance with the orders will be amended to 4pm on 7 July 2021. I am satisfied that it is appropriate in all the circumstances to exercise my discretion to make such orders, which have a legitimate forensic purpose, do not amount to impermissible fishing, and require the production of documents with apparent relevance to the issues in the proceedings. The categories of documents are drafted with sufficient clarity and particularity. I am satisfied that the burden placed on the CFMMEU and Mr Ravbar to comply with the orders is reasonable. I am also satisfied that making the orders is consistent with the proper administration of justice in the sense that material that is relevant to an issue that falls for determination is available to parties to enable them to advance their respective cases.

DEPUTY PRESIDENT

Appearances:

Mr CW Dowling SC, for the CFMMEU and Mr Ravbar

Mr AJ Smith of counsel, for the ABCC

Hearing details:

2021.

Newcastle (by telephone):

May 20.

Printed by authority of the Commonwealth Government Printer

<PR730091>

 1   [2017] FWCFB 2200 at [6]

 2   [2011] FWA 8756 at [10]-[13]

 3 Section 675 of the Act

 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   [2014] FWCFB 5947

 14   Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947 at [27]

 15   See, for example, CFMMEU re application for entry permit for Mr Desmond [2019] FWC 4165 at [25]-[30]

 16 (2018) 262 CLR 157