Application by the Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Mark Alan Travers

[2019] FWC 6166

[2019] FWC 6166

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 to be issued to Mr Mark Alan Travers
(RE2019/374)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 24 SEPTEMBER 2019

Application for a right of entry permit for Mark Alan Travers - whether condition should be imposed - satisfied that Mr Travers is a fit and proper person to hold and entry permit - application granted - permit to issue.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Mark Alan Travers.

[2] On 8 May 2019, the Australian Building and Construction Commissioner (Commissioner) advised the Commission that he wished to be heard in relation to the application. Both the CFMMEU and the Commissioner agreed to have the matter determined on the papers without a hearing after the filing of submissions.

Relevant statutory provisions and application

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

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

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

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

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

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

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

•  Any other matters that the Commission considers relevant.

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

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

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

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

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

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

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

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

[10] I turn to consider the application.

Consideration

[11] Mr Travers has held previous right of entry permits for 13 years 8, the most recent of which contained a reporting condition as follows:

“If any findings are made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a) to (f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a) to (f) of the Fair Work Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding commenced.” 9

[12] He is employed as an organiser, having commenced that employment in 2002.

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

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

•  Mr Travers has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 17 April 2019 (s.513(1)(a) of the Act);¹⁰

•  Mr Travers has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);¹¹

•  Mr Travers 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;¹²

•  Mr Travers has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Travers 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

•  Mr Travers 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

[14] None of the above was disputed by the Commissioner 15 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 Travers is a fit and proper person to hold a right of entry permit.

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

The Declarations also disclose that:

•  Mr Travers was ordered to pay a penalty of $1,000 for contravening s.767(1) of the Workplace Relations Act 1996 (Cth) (WR Act) by acting in an improper manner while exercising a right conferred on Mr Travers by s.760 of the WR Act in Gregor v CFMEU & Anor 16.

•  The CFMEU, as it then was (now the CFMMEU), was ordered to pay penalties in relation to actions taken by Mr Travers in John Holland Pty Ltd v CFMEU & Ors. 17 In this matter it was found that Mr Travers encouraged and directed unlawful industrial action.

[15] These matters have been considered in previous decisions in relation to the granting of Mr Travers a right of entry permit. 18 They were not then assessed as weighing so heavily as to determine that Mr Travers was not a fit and proper person to hold an entry permit.

[16] The CFMMEU submit that these matters, when considered in their context, do not weigh against a finding that Mr Travers is presently a fit and proper person for the follow reasons:

•  They occurred over ten years ago;

•  The contraventions were relatively minor in nature;

•  The conduct was admitted, thereby acknowledging wrongdoing;

•  The respondents cooperated by making admissions, agreed on statements of fact and appropriate penalties;

•  The two previous times the matters were considered by the Commission, they did not prevent a conclusion that Mr Travers was a fit and proper person; and

•  There has been no repetition of this conduct by Mr Travers and thus the contravening conduct is ‘an uncharacteristic aberration in a lengthy career as a union organiser’. 19

The Commissioner has not disputed this or made any submissions about the weight these matters should be given in determining whether Mr Travers is a fit and proper person.

[17] While these matters are plainly relevant, I accept the CFMMEU’s submissions that significant weight should not be given to them. While the conduct was unlawful, it occurred a considerable time ago and there has been no reoccurrence of this conduct.

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

[18] Mr Travers has not had any entry permit issued under Part 3 – 4 of the Act or a similar law of the Commonwealth revoked or suspended (s.513(1)(e) of the Act).²⁰ This weighs in favour of a conclusion that Mr Travers is a fit and proper person to hold a right of entry permit.

[19] However, Mr Travers has had a condition imposed on his permit (s.513(1)(e) of the Act) in matter number RE2016/355 issued on 31 May 2016. 21

[20] The CFMMEU submits that little weight should be given to the fact that a condition was previously placed on Mr Travers’ entry permit. It submits the condition imposed was based on an irrelevant consideration, as it is now well settled that pending proceedings are not a relevant matter when determining whether an official is a fit and proper person to hold an entry permit, as the allegations have not yet been tested in court. 22 Furthermore the CFMMEU submits it is relevant that the pending proceedings that were taken into consideration by the Vice President when imposing the condition were dismissed with costs ordered against the Commissioner.23

[21] Although the condition imposed on Mr Travers’ permit was based on a consideration that will generally not be relevant to the assessment of whether an official is a fit and proper person, context is also important. As the Vice President noted in imposing the condition, the extant proceedings were relevant ‘against a background of [previous] unlawful conduct.’ 24 The prior imposition of a condition is thus not to be discounted, even though the extant proceeding which led the Vice President to impose the condition has since been dismissed.

Permit qualification matters – s.513(1)(g) – any other matters the FWC considers relevant

Failure to comply with entry permit condition

[22] The Commissioner submits that the failure of Mr Travers to comply with the condition imposed on his current entry permit is a relevant matter that should be considered by the Commission pursuant to s.513(1)(g) of the Act. 25 In Mr Travers’ declaration he states that he was under the impression that the legal department would notify the Commission of the proceedings.26

[23] The Commissioner contends that the Commission should consider it a matter of great concern that Mr Travers did not comply with the condition on his permit, and that Mr Travers displays a lack of care and diligence to ensure he discharges his obligations as a permit holder by not providing any detail as to how he came to be under the impression that the legal department would notify the Commission. 27

[24] The Commissioner submits Mr Travers demonstrates a lack of understanding that it is his responsibility to ensure that he complies with the condition imposed on his permit. 28 He contends this is evidenced by the Declarations where Mr Robert Graauwmans, the Divisional Branch Vice President, refers to the failure of Mr Travers to comply with the condition as a mere ‘internal administrative error’.29

[25] It is unclear how the views of Mr Graauwmans better demonstrate Mr Travers’ understanding of his responsibility to notify the Commission in light Mr Travers’ own declaration which plainly states:

‘I understand that it is my responsibility to notify the FWC in accordance with the condition on my permit and I apologise for not ensuring that the VID881/2017 proceeding was brought to the FWC’s attention until now.’ 30

[26] The CFMMEU submits that it is acknowledged and accepted that Mr Travers neglected to notify the Commission that proceedings in the Federal Court had been commenced against him in 2017. The CFMMEU contends that contrary to the submissions of the Commissioner, the failure to notify the Commission was an error which demonstrates at most carelessness or negligence rather than a lack of candour. 31

[27] I consider the failure to comply with the condition on his previous permit a relevant consideration pursuant to s.513(1)(g) when assessing whether Mr Travers is a fit and proper person, and that this weighs against such a finding. However in Mr Travers’ declaration and witness statement he displays remorse and accepts full responsibility for his failure to notify the Commission in accordance with the condition on his permit. 32 In these circumstances, having regard to Mr Travers’ apology and reassurance that it will not happen again, the matter does not weigh so heavily as to prevent a conclusion that Mr Travers is a fit and proper person to hold an entry permit.

Imposing a reporting condition on the permit – s.515

[28] The Commissioner submits that if the Commission grants Mr Travers a right of entry permit, the following condition should be imposed:

“If any findings are made or penalties imposed that are relevant to the permit qualification matters in s 513(a)-(f) of the FW Act in relation to the permit holder, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters in s 513(a)-(f) of the FW Act in relation to permit holder, that the permit holder notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding being commenced.” 33

[29] The Commissioner contends that having regard to the failure of Mr Travers to comply with the condition imposed on his current entry permit, it is only appropriate that the Commission should be informed on the outcome of any pending proceedings. 34 He submits that in determining whether a candidate is a fit and proper person, the Commission must be satisfied that a candidate will remain so, especially when ‘certain matters may crystalise in the future that may call such a finding into question’.35 The Commissioner also relies on the reasoning of Watson VP in the decision imposing the current condition, that the seriousness of the allegations against Mr Travers and the background of unlawful conduct warrant the imposition of a reporting condition.36

[30] The CFMMEU submit that Mr Travers is a fit and proper person to hold an entry permit and thus his permit should not be subject to any conditions. 37

[31] The CFMMEU contend that the ‘reporting condition’ proposed by the Commissioner can only be imposed if the Commission is not satisfied that Mr Travers is currently a fit and proper person. It relies on the reasoning of the Full Court of the Federal Court in Maritime Union of Australia v Fair Work Commission that the Commission must consider whether conditions should be imposed on a permit concurrently with evaluating whether an official is a fit and proper person. Conditions should then only be imposed to remedy any deficiencies that may be found. 38 The CFMMEU contends the Commissioner has not led any argument as to how the proposed condition may address any current deficiency, only that the condition will ensure the Commission is made aware of any adverse finding in the future.39 The CFMMEU submits that the Commission should not take extant proceedings into account when determining whether Mr Travers is a fit and proper person.40

[32] I am not persuaded that a condition should be imposed. A reporting condition of the kind sought serves no particular utility. Even if the current proceeding involving Mr Travers results in the imposition of a penalty, the nature of the contravening conduct alleged would not result in the Commission being required, for example, to revoke or suspend the permit pursuant to s.510. If the proceeding results in an adverse finding, this will be a matter that will be relevant in respect of any subsequent application by the CFMMEU for a permit to be issued to Mr Travers or it might be the subject of an application by the Commissioner under s.507 of the Act. A notification condition will not assist the Commission in this regard, nor does it assist me now in deciding whether Mr Travers is a fit and proper person to hold an entry permit. I am satisfied without the condition, that Mr Travers is a fit and proper person to hold a permit.

[33] There are no other matters, of which I am aware that are relevant, and which weigh against a conclusion that Mr Travers is a fit and proper person to hold an entry permit under the Act.

Conclusion

[34] For the reasons stated I am satisfied that Mark Travers is a fit and proper person to hold an entry permit.

[35] A permit will be separately issued.

DEPUTY PRESIDENT

Determined on the papers

Written submissions:

The Commissioner on 26 July 2019

The CFMMEU on 23 August 2019

Printed by authority of the Commonwealth Government Printer

<PR712013>

 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   Statement of Mark Alan Travers dated 23 August 2019 at [18]

 9   CFMEU re Travers [2016] FWC 3110 at [35]

10 Form F42, Declaration by proposed permit holder dated 30 April 2019 at (a) and Attachment ‘ACTU Statement of Completion’

11 Ibid at (b)

12 Ibid at (c)

13 Ibid at (e)

14 Ibid at (f)

 15   Submissions of the Australian Building and Construction Commissioner dated 26 July 2019 at [20]

 16 [2011] FMCA 562

 17 [2009] FMCA 1248

 18   CFMEU re Travers [2016] FWC 3110

 19   Submissions of the CFMMEU dated 23 August 2019 at [16]-[18]

20 Form F42, declaration by proposed permit holder dated 30 April 2019 at (e)

 21   CFMEU re Travers [2016] FWC 3110

 22   Submissions of the CFMMEU dated 23 August 2019 [21] citing: Application by Construction, Forestry, Mining and Energy Union – Construction and General Division, SA Divisional Branch [2016] FWC 161 at [34] (Hatcher VP); Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch [2018] FWC 379 at [33] (Saunders C); Application by the Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Michael Ravbar [2018] FWC at [22] (Gostencnik DP).

 23   Submissions of the CFMMEU dated 23 August 2019 at [21]

 24   2016 FWC 3110 at [34]

 25   Submissions of the Australian Building and Construction Commissioner dated 26 July 2019 at [25]-[34]

 26   Form F42, Declaration by proposed permit holder dated 30 April 2019 at (d)

 27   Submissions of the Australian Building and Construction Commissioner dated 26 July 2019 at [31]

 28   Ibid.

 29   For F42, Declaration by member of Committee management dated 30 April 2019.

 30   Form F42, Declaration by proposed permit holder dated 30 April 2019 at (d)

 31   Submissions of the CFMMEU dated 23 August 2019 at [27]

 32   Form F42, Declaration by proposed permit holder dated 30 April 2019; Witness Statement of Mark Alan Travers dated August 2019

 33   Submissions of the Australian Building and Construction Commissioner dated 26 July 2019 at [4]

 34   Submissions of the Australian Building and Construction Commissioner dated 26 July 2019 at [35]

 35   Ibid at [36]

 36   CFMEU [2016] FWC 3110 at [34] to [35] quoted in the submissions of the Australian Building and Construction Commissioner dated 26 July 2019 at [38]

 37   Submissions of the CFMMEU dated 23 August 2019 at [2] and [33] to [37]

 38 (2015) FCR 15 at [35] and [43]

 39   Submissions of the CFMMEU dated 23 August 2019 at [35]

 40   Ibid at [34]