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 2377
•15 MAY 2018
| [2018] FWC 2377 |
| 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 for a right of entry permit to be issued to Mr Michael Ravbar
(RE2018/318)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 15 MAY 2018 |
Application for issue of right of entry permit to Mr Michael Ravbar; satisfied that Mr Ravbar is a fit and proper person to hold an entry permit; application granted; permit to issue.
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Michael Ravbar. Mr Ravbar is the Divisional Branch Secretary for the Queensland and Northern Territory Branch of the CFMMEU.
[2] The Australian Building and Construction Commissioner (Commissioner) advised of his intention to make submissions in respect of the application and did so. The application was listed for hearing on 23 April 2018.
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. Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.
[10] I turn to consider the application.
Consideration
[11] Mr Ravbar has been a union official for 28 years and has held the position of Divisional Branch Secretary for 11 years. 8 Mr Ravbar held a right of entry permit under the Act which expired on 13 April 2018.9
Permit qualification matters – s.513(1)(a), (b), (c), (e) and (f)
[12] According to the declarations filed by the CFMMEU in support of the application for the grant of a permit to Mr Ravbar (the Declarations):
• Mr Ravbar has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted by CFMMEU on 16 March 2018 10 (s.513(1)(a) of the Act);
• He has never been convicted of an offence against an industrial law 11 (s.513(1)(b) of the Act);
• He has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act; 12
• He has not had any entry permit issued under Part 3 – 4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit 13 (s.513(1)(e) of the Act);
• He has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Ravbar held under a State or Territory industrial law or a State or Territory occupational health and safety law 14 (s.513(1)(f)(i) of the Act); and
• He has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law 15 (s.513(1)(f)(ii) of the Act).
[13] None of the above was disputed by the Commissioner and I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. These matters all weigh in favour of a conclusion that Mr Ravbar is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s.513(1)(d) and (g)
[14] In his declaration lodged in support of the application for a permit, Mr Ravbar has disclosed that in Hamberger v Construction Forestry Mining & Energy Union (Hamberger) 16 he and the CFMMEU were found to have contravened s.289P(3)(a) and (b) of the Workplace Relations Act 1996 (WR Act) and that he and the CFMMEU were ordered to pay a penalty in relation to the action taken by him. Specifically, Mr Ravbar was found to have contravened the WR Act by engaging in conduct with the intent of forcing an employer to remove an employee because he refused to join the union.17
[15] The Court imposed a $750 penalty on Mr Ravbar noting that he clearly understood that the conduct he was engaging in was prohibited by the WR Act but was not of the same gravity as some of the other officials involved in the case. 18
[16] The CFMMEU contends that the contravening conduct, the subject of the judgment in Hamberger, occurred some time ago and did not involve a contravention of laws dealing with right of entry and that these are factors that should weigh in favour of a finding that Mr Ravbar is a fit and proper person to hold a right of entry permit. 19 In the application for the grant of Mr Ravbar’s now expired permit, Deputy President Lawrence grappled with the Hamberger decision in the following manner:
“The actions were an attempt to get an employer to take action against an employee because he refused to join the union. In my view, the long period of time since the actions and the nature of the actions mean that they do not weigh heavily against the granting of a permit to Mr Ravbar.” 20
[17] The CFMMEU contends that there is no reason to depart from the above finding and given the further effluxion of time since Deputy President Lawrence’s decision, the matter in Hamberger should carry even less weight. 21
[18] The Commissioner did not address the judgment in Hamberger in his submissions. However, that the conduct engaged in did not concern a breach of a right of entry provision, is not a matter which weighs in favour of a finding that Mr Ravbar is a fit and proper person to hold a right of entry permit, nor is it a matter which diminishes the weight that should otherwise attach to the matter. It matters not that the contravening conduct in which Mr Ravbar engaged and the penalty imposed by the court concerned conduct not involving right of entry. 22 That a pecuniary penalty was imposed for the contravening conduct is relevant. However, the matter disclosed is not assessed at large but in context.
[19] The question is not whether Mr Ravbar is a fit and proper person per se, but rather the assessment of the matter in deciding whether Mr Ravbar is a fit and proper person to hold a right of entry permit occurs having regard to the attendant rights and obligations that flow from the issue of such a permit. What does the matter have to say about Mr Ravbar’s fitness and propriety to hold and entry permit? It says that some time ago Mr Ravbar engaged in conduct in serious disregard for the WR Act and in serious disregard for the rights of an employee, solely for the reason that the person refused to join the union. Entry rights may be exercised for discussion and effectively recruitment purposes. The imposition of a penalty in the circumstances raises issues about Mr Ravbar’s understanding of the rights of and regard for employees who may not wish to participate in discussions or who may not be interested in joining the CFMMEU. Against this is to balance the fact the Mr Ravbar has undertaken appropriate training about the rights and obligations of a permit holder under the Act and there is no evident repetition of the conduct which led, some 16 years ago, a court to impose a penalty. In these circumstances, in combination with the above, I consider having regard to the period of time that has passed since Mr Ravbar’s contravening conduct and since the imposition of a penalty, that the matter does not weigh heavily against a conclusion that Mr Ravbar is a fit and proper person to hold an entry permit.
[20] Mr Ravbar also discloses in the declaration accompanying the application for a permit, the decision of Commissioner Booth in Bechtel Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (Bechtel). 23 In Bechtel, the Commissioner concluded that Mr Ravbar had breached occupational health and safety requirements concerning entry to a project being undertaken on Curtis Island. Consequently, the Commissioner suspended Mr Ravbar’s entry permit.24 On appeal however, a Full Bench set aside the order concluding that the order to suspend Mr Ravbar’s right of entry permit was not validly made as it could not be characterised as an order dealing with the issue in dispute.25
[21] The CFMMEU contend that little weight, if any, should be attributed to the Bechtel matter given the conduct occurred 6 years ago and that the decision was overturned on appeal. 26 I agree generally with this submission. I take into account the conduct but note that it occurred in 2014, and that the suspension of Mr Ravbar’s permit was overturned on appeal. I also note that he has received additional training since the conduct which is directed to his obligations as a permit holder.
[22] Also disclosed in Mr Ravbar’s declaration in support of the application for a right of entry permit is the proceeding in the Federal Court of Australia QUD881 of 2016. The Court has reserved judgment and no findings have been made. Consistent with the approach taken by the Commission in relation to extant proceedings, I do not take this matter into account in determining whether Mr Ravbar is a fit and proper person to hold a right of entry permit. 27
[23] Mr Ravbar has also disclosed that he was a respondent in Australian Building and Construction Commissioner v Ingham (No 2). 28 The application was later discontinued by the ABCC and as the CFMMEU contend, “the ABCC voluntarily and wholly abandoned its allegations of contravention against Mr Ravbar in that proceeding”.29 Given that no adverse findings were made against Mr Ravbar I do not take the matter into account.
[24] In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 30 a Full Bench of the Commission observed in respect of the relevance of the history of contraventions of an applicant organisation in respect of a decision whether to issue an entry permit to one of its officials, as follows:
“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 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.” 31
[25] The Commissioner contends that in light of Mr Ravbar’s seniority as an official within the CFMMEU, he holds considerable power and authority over the conduct of others within the branch, including the level of compliance with industrial laws. 32 The Commissioner says that the levels of compliance or otherwise by those over whom Mr Ravbar exercises control provides an insight into the attitudes and standards of Mr Ravbar.33 The Commissioner contends that in light of the litany of contraventions that have occurred within the branch over which Mr Ravbar exercises control, it is evident that Mr Ravbar has failed to prevent or discourage the offending behaviour and that such is a reflection on Mr Ravbar’s attitude towards industrial legislation.34
[26] The Commissioner contends that during Mr Ravbar’s tenure as the Divisional Branch Secretary there have been 23 occasions on which courts have held that the QLD/NT Branch of the CFMMEU and/or its officials have breached industrial laws and been ordered to pay pecuniary penalties cumulatively exceeding $3 million as a consequence. 35 The Commissioner submits that such an amount is alarming but the imposition of penalties by the Court does not appear to deter the CFMMEU or its officials from engaging in unlawful conduct nor has Mr Ravbar demonstrated any contrition for the breaches.36 The Commissioner ultimately contends that the recidivist conduct of the QLD/NT Branch over the course of the last 11 years demonstrates the poor attitude of Mr Ravbar and lack of respect for industrial laws – a conclusion which weighs against a finding that Mr Ravbar is a fit and proper person to hold a right of entry permit.37
[27] The Commissioner also contends that pursuant to the Construction, Forestry, Mining and Energy Union, Construction and General Division and Construction and General Divisional Branches Rules (C & G Rules), the Divisional Branch Secretary has the “power” to “appoint, control and dismiss the staff of the Divisional Office” and by virtue of the powers that are afforded to Mr Ravbar as the Divisional Branch Secretary he has the ability to hold the officials responsible for the contravening conduct referred to earlier, to account. 38 Further, the Commissioner submits that the C & G Rules provide that the “highest governing body” of each Divisional Branch shall be the ‘Divisional Branch Council’ which includes the Divisional Branch Secretary39 and that the Divisional Branch Secretary has the power to “institute and/or defend legal proceedings” and is also “responsible for” and “shall supervise” legal matters affecting the affairs of the Divisional Branch.40 The Commissioner contends that it is implicit in these rules that the Divisional Branch Secretary is one of the primary decision makers with respect to the affairs of the Divisional Branch and that there can be no doubt that that such a position “would command considerable power and influence in relation to how the Divisional Branch conducts its affairs”.41 The Commissioner says that given the 23 adverse court judgments, Mr Ravbar must have been aware of the unlawful conduct engaged in by the officials and that he has not expressed any remorse or contrition for the actions taken within his Branch42 and consequently, the Commissioner contends that I cannot be satisfied that Mr Ravbar is a fit and proper person to hold a right of entry permit.
[28] The Commissioner also contends that the C & G Rules specify that the Divisional Branch Secretary is ‘responsible’ for the ‘itinerary of organisers duties’ and the carrying out of the decisions of the Divisional Branch Council and Management Committee. 43 The Commissioner says that the responsibility and power vested in the Divisional Branch Secretary to direct officials in relation to how they conduct themselves demonstrates the level of influence and knowledge the Divisional Branch Secretary has in respect of the actions of the officials and that it would be implausible to suggest that the Divisional Branch Secretary would have no knowledge of the conduct that is engaged in by the officials.44 The Commissioner posits that the recidivism of the officials in the QLD/NT Branch is a reflection on the attitude of Mr Ravbar and that it may be inferred that the behaviour of the officials is “tolerated” if not “encouraged” within the Branch.45 In support of its submission, the ABCC refer to the following extract of the judgment of Mansfield J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 3):46
“Pearson’s contravening conduct took place on 17 and 19 June 2013. It is described in detail in the primary judgment. I do not repeat what there appears. The general picture is that he, and others of the Union largely under his direction or leadership, entered the Site not for the legitimate purpose or the legitimate exercise of their right of entry but to indicate the extent to which the Union could, if so minded, disrupt the efficient progress of a building site: see the primary judgment at [103]. That conduct was part of a process to support the threat made to Reday on 19 June 2013 either to procure its employees on the Site to join the Union, or to pay membership fees to the Union of behalf of its employees. It was a serious departure from the conduct which the right of entry permitted. It involved not simply Pearson himself, but Pearson as the leader of a group of the Union employees, supported by the Divisional Branch Secretary, Ravbar.
Ravbar was the Divisional Branch Secretary of the Queensland branch of the Union, and was present with a team of Union officials and employees, including Pearson. He was the Assistant Secretary of the Union’s Construction and General Division, Queensland Builders Labourers Federation Provisional Branch.
……………….
I take into account that Pearson was a responsible officer of the Union. He set the example and the tone for the conduct which followed (with at least the acquiescence of Ravbar). He has not expressed any contrition for his conduct, and did not cooperate in the investigation of his conduct. I accept, on the other hand, that the conduct of the trial is not itself a factor relevant to the determination of the appropriate pecuniary penalty. I did not understand the Director to be submitting to the contrary.
…………………
The conduct of the Union, amounting to a contravention of s 348 of the FW Act incorporates the conduct of both Pearson and Olsen. As the findings record, the conference of the Union in Darwin, at least substantially, was intended to operate as a vehicle for seeking additional membership of the Union in Darwin, and from the beginning involved the visitation of a number of sites including the Reday Site. As I have found, both Pearson and Olsen entered the Site under their entry permits for purposes which were not confined to, and which largely extended beyond, the authorised purposes. Their conduct confirms that. The Union is accountable for that conduct. Moreover, the conference, as it was called, was under the supervision of Ravbar as the Queensland Branch Secretary of the Union and he at least permitted the conduct of Pearson on 17 and 19 June 2013”. 47
[29] The Commissioner says that the fact that nothing has been done to implement preventative measures to guard against future unlawful conduct occurring is “nothing new”. Moreover, the “complete lack of such proactive measures has been the subject of judicial comment on a number of occasions with respect to the specific conduct of the QLD/NT Branch”. 48 The Commissioner asserts that these are matters over which Mr Ravbar has control, and speak against his fitness and propriety.
[30] The CFMMEU contends that there is no evidence before the Commission which goes to establishing that Mr Ravbar is responsible for any of the contraventions that listed are in Schedule A to the Commissioner’s submissions and that no implication adverse to Mr Ravbar, as suggested by the Commissioner, can be drawn. 49 The CFMMEU submits that the Commissioner’s submissions founded on the C & G Rules are misconceived as Mr Ravbar does not have any significant power to influence the conduct of other officials of the CFMMEU50. The CFMMEU suggests that if the Commissioner wants to impugn Mr Ravbar’s character by pursuing such an argument, he should have led evidence, but chose not to.51
[31] It is firstly to be observed that the Commissioner did not lead any evidence about Mr Ravbar’s control or influence in the CFMMEU so far as is relevant to the submission that the Commissioner sought to advance. It is also to be observed that the Commissioner did not request that Mr Ravbar be available to give oral evidence in order that he may be cross-examined, nor was any request made to me for the issuing of an order that Mr Ravbar attend the hearing to give oral evidence or to be cross-examined. Moreover, there has not been any request by the Commissioner for an order directed to Mr Ravbar or the CFMMEU to produce documents directed to establishing the extent of control or direction that is reposed in Mr Ravbar or the extent to which, if any, Mr Ravbar has taken steps to respond to the behaviour of some officials within the Division.
[32] The powers and obligations of officials of any registered organisation are derived from the rules of the organisation. The powers of officials of the CFMMEU are no exception. The C & G Rules, so far as are relevant for present purposes are discussed below.
[33] Rule 40 establishes that the Divisional Branch Council is the highest governing body of the Divisional Branch and provides:
“40 – SUPREME GOVERNING BODY - DIVISIONAL BRANCH COUNCIL
(1) Subject to these Rules, the highest governing body of each Divisional Branch, shall be the Divisional Branch Council convened by the Divisional Branch Management Committee no less frequently than every two years.
Provided however that in the Queensland Northern Territory Divisional Branch the Divisional Branch Council shall meet not less than three times per year.
…
(ii) (A) Without affecting the term of office of the Divisional Branch Council
members of the QNTDB elected to office at the 2016 Divisional Branch elections, on and from the date of certification of this sub-rule, and thereafter, the Divisional Branch Council of the Queensland Northern Territory Divisional Branch shall consist of the following:
(i) the Divisional Branch President;
(ii) two (2) Divisional Branch Senior Vice-Presidents;
(iii) two (2) Divisional Branch Vice-Presidents;
(iv) the Divisional Branch Secretary;
(v) the Divisional Branch Assistant Secretaries;
(vi) two (2) Divisional Branch Executive Members;
(vii) 12 members on the Divisional Branch Council who shall be elected by and from the three sub-groups as follows:
…”
[34] Rule 42 establishes the make-up of the Divisional Branch Management Committee and sets out its responsibilities. It relevantly provides:
“42 – DIVISIONAL BRANCH MANAGEMENT COMMITTEE
…
(c) The Divisional Branch Management Committee shall meet at least once each month and, subject to a review of their actions by the Divisional Branch Council shall have the care, control, superintendence, management and administration in all respects of the affairs, funds and property of the Divisional Branch and shall have all the powers of the Divisional Branch Council including, without limiting, the power, subject to rule 16 hereof, to amend or add to the rules.
Meetings of the Divisional Branch Management Committee shall be held at such time and place as shall be decided by the Divisional Branch Secretary and the Divisional Branch President, subject to the provisions of these rules.
The Divisional Branch Secretary shall arrange for notice of meetings to be given to each Divisional Branch Management Committee member by letter or any electronic means or telephone or verbally, provided that in the latter two instances, such is confirmed by letter, facsimile or electronic means.
(d) The Committee shall carry out any duties which they have been directed to perform by the Divisional Branch Council under Rule 13.
(e) They shall be responsible for the control and supervision of all officers. They may delegate this responsibility in respect to nominated classes of officers to the Divisional Branch Secretary for the exercise of this responsibility on a daily basis in between meetings of the Divisional Branch Management Committee on a temporary or ongoing basis and upon any terms or conditions they see fit; provided that such delegation may be revoked at any time by a subsequent meeting of the Divisional Branch Management Committee. They shall also deal with the proposed Divisional Branch Council Agenda prepared by the Divisional Branch Secretary.
…
(k) They shall be responsible for the calling of any meetings necessary for the proper administration of the Divisional Branch, including meetings of members or stewards.
(l) (i) They may impose penalties, including fines not exceeding the sum of $100.00 on
Divisional Branch Officers, councillors, members, committee persons or delegates representing the Divisional Branch for knowingly refusing to comply with the Rules, or the decisions of Divisional Branch Council or the Divisional Branch Management Committee, or knowingly refusing to carry out the policy of the Divisional Branch, provided that the Rules, decisions of Divisional Branch Council or Divisional Branch Management Committee are available to members in the minutes of the Divisional Branch Council or Divisional Branch Management Committee at the Divisional Branch Office.
(ii) They may suspend, expel or dismiss from office, divisional branch officers, divisional branch councillors, members, committee members or delegates representing the Divisional Branch for misappropriation of the funds of the Divisional Branch or for a substantial breach of the rules of the Divisional Branch or for gross misbehaviour or gross neglect of duty.
…”
[35] Rule 46 contains the reporting lines and duties of a Divisional Branch Secretary and provides:
“46 – DUTIES OF DIVISIONAL BRANCH SECRETARY
(a) The Divisional Branch Secretary shall be under the control of the Divisional Branch Council and the Divisional Branch Management Committee and shall be employed in a full time capacity, and shall conduct correspondence in connection with all industrial matters and in general administration of the Divisional Branch.
(b) The Divisional Branch Secretary shall be responsible for the carrying out of the decisions made by the Divisional Branch Council or Divisional Branch Management Committee.
(c) The Divisional Branch Secretary shall be responsible for the enforcement of all Awards and Industrial Agreements and shall supervise the conduct of all wages claims, compensation matters and legal matters coming within the jurisdiction of the Divisional Branch Council or Divisional Branch Management Committee.
(d) The Divisional Branch Secretary shall cause to be prepared and forwarded to the Industrial Registrar, returns as required by law.
(e) The Divisional Branch Secretary shall have prepared a properly audited financial statement of receipts and payments and all the funds and effects of the Divisional Branch Office, together with a statement of the assets and liabilities of the Divisional Branch Office for the financial year ending 31st December. Provided however that the financial year for the Divisional Branches shall, on and from 1 April 2017, and for each year thereafter, commence on and from 1 April each year and end on 31 March of each following year.
(f) The Divisional Branch Secretary shall prepare the agenda for and minutes of each Divisional Branch Council meeting; and shall attend meetings of the Divisional Branch Council, Divisional Branch Management Committee and other meetings called by the Divisional Branch Council or Divisional Branch Management Committee.
(g) The Divisional Branch Secretary shall be responsible for the production of Divisional Branch publications.
(h) The Divisional Branch Secretary shall be responsible for the itinerary of organisers duties.
(j) The Divisional Branch Secretary shall be an ex officio member of all committees of the Divisional Branch.
(k) The Divisional Branch Secretary shall be an elected delegate to Divisional Conference by virtue of his/her office.”
[36] Rule 47 particularises the duties of the Divisional Branch Assistant Secretary and, inter alia, provides:
“47 – DUTIES OF DIVISIONAL BRANCH ASSISTANT SECRETARY
(a) The Divisional Branch Assistant Secretary/ies (if any) shall be under the control of the Divisional Branch Council and the Divisional Branch Management Committee, and shall work under the direction of the Divisional Branch Secretary.
…”
[37] Rule 48(1) defines the duties of organisers and Rule 48(2) outlines the circumstances in which an elected organiser must attend meetings of the Divisional Branch Council and Divisional Branch Management Committee. Those Rules provide:
“48 – (1) DUTIES OF ORGANISERS
(a) They shall be under the control and supervision of the Divisional Branch Management Committee and shall carry out their duties within the provisions of the Rules.
(b) They shall visit shops and jobs where members of the Divisional Branch and other workers eligible to join are employed and endeavour to enrol new members. They shall co-operate with all Shop and Job Stewards and District Secretaries, and carry out organisational work in any part of the State or Territory as directed by the Divisional Branch Management Committee.
(c) Nothing in this rule affects the right of an organiser elected, in accordance with the rules of the Divisional Branch, as a member of either the Divisional Branch Management Committee or the Divisional Branch Council.
(2) ATTENDANCE OF ORGANISERS ELECTED AT MEETINGS OF DIVISIONAL BRANCH COUNCIL AND DIVISIONAL BRANCH MANAGEMENT COMMITTEE
(a) An elected Organiser who is not otherwise a member of the Divisional Branch Management Committee shall attend any meeting of the Divisional Branch Management Committee when requested so to do by resolution of Divisional Branch Management Committee. An elected or temporary Organiser shall be allowed to attend a meeting of the Divisional Branch Management Committee if the Organiser desires so to do unless otherwise directed by the Divisional Branch Management Committee.
Such an Organiser may by permission of the Divisional Branch Management Committee speak on any matter before the meeting, but shall not move, second or vote on any question.
(b) Each elected Organiser who is not otherwise a member of the Divisional Branch Council shall attend the meetings of Divisional Branch Council when required so to do by resolution of Divisional Branch Management Committee, but shall not move, second or vote on any question.”
[38] It will be apparent from the above, that a singular official and relevantly Mr Ravbar, has no particular power of direction over other officials save in the case of the Divisional Branch Secretary vis-à-vis the Assistant Secretary. The responsibility for the “itinerary of organisers duties” contained in Rule 46(h) read in the context of the relevant C & G Rules as a whole, seems to me to be no more than a requirement that the Divisional Branch Secretary plan the organisers’ duties. Those duties are set out in Rule 48 – (1)(b). Given organisers’ duties seem principally to involve visiting places where Divisional Branch members and other workers eligible to be members are employed, the meaning and effect of the duty that the Divisional Branch Secretary “shall be responsible for the itinerary of organisers (sic) duties” becomes clear.
[39] Moreover, it will be seen from Rule 42(e) that the supervision and control of organisers is reposed in the Divisional Branch Management Committee, not Mr Ravbar. In addition, it is the Management Committee that has (subject to review by the Divisional Branch Council) care, control, superintendence, management and administration of, inter alia, the affairs of the Divisional Branch.
[40] It may be, but there is no evidence of this, that the control reposed in the collective has been delegated to the individual. Documents obtained from the CFMMEU in the form of minutes of management committee and internal memoranda or other documents might have disclosed whether Mr Ravbar has delegated power or has effective control and influence over other officials in the Branch. But such power and such control is not to be inferred. Indeed such an inference would be contrary to the scheme of the C & G Rules, to which I have referred.
[41] It is apparent from Rule 42(e) that the Divisional Branch Management Committee is responsible for “the control and supervision of all officers”. Rule 38 makes clear that organisers hold office by election. The power to remove from office, inter alia, an organiser, for amongst other things, a breach of the rules or gross misbehaviour or gross neglect of duty, is vested in the Divisional Branch Management Committee as Rule 42(l)(ii) makes clear. Organisers are, in accordance with Rule 48 – (1) (a), under the control and supervision of the Divisional Branch Management Committee and are required to carry out their duties within the provisions of the rules. Similarly, the Divisional Branch Secretary is, pursuant to Rule 46, under the control of the Divisional Branch Council and the Divisional Branch Management Committee and is responsible for carrying out the decisions made by the Divisional Branch Council or the Divisional Branch Management Committee. Unlike organisers, the Divisional Branch Assistant Secretary, pursuant to Rule 47 is required to work under the direction of the Divisional Branch Secretary.
[42] As a matter of organisational efficiency, one would expect that the control and supervision of officers reposed in the Divisional Branch Management Committee would not be exercised by it on a daily basis and there would be some form of delegation. Indeed, Rule 42(e) recognises that the Divisional Branch Management Committee may delegate the responsibility of control and supervision of officers in respect of nominated classes of officers to the Divisional Branch Secretary for the exercise of this responsibility on a daily basis in between meetings of the Divisional Branch Committee of Management and that this may be done on a temporary or ongoing basis and upon any terms and conditions that the Committee sees fit. The delegation may also be revoked.
[43] There is no material before me which suggests that the power of delegation has been exercised, and if it has been exercised, there is no evidence about the officers to whom the delegation relates or the terms that might attach to such a delegation.
[44] As I indicated during the hearing, I am not unsympathetic to the submission that an official who has demonstrable management and control over other officials in an organisation and who fails to take reasonable steps to discipline officials or reassigned duties of officials who persistently engage in contravening conduct, exposing themselves and their organisation to a pecuniary penalty, might be held to account in an assessment of whether that official is a fit and proper person to hold an entry permit, to the extent that the failure to take such reasonable steps speaks to that officials fitness and propriety to hold an entry permit. But more than mere assertion is required. Actual evidence of authority and control would assist. Identification of reasonable steps that might have been taken, having regard to the degree of authority and control exercisable and actual evidence of a failure to take one or more of reasonable steps, having regard to the degree of authority or control exercisable would be of assistance.
[45] If it can be demonstrated that an official who is a proposed permit holder who has demonstrable rather than asserted 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). But in this case, the Commissioner is left with a bare allegation of management and control reposed in Mr Ravbar which is not borne out by the text of the rules and nothing more.
[46] In the circumstances there is nothing about Mr Ravbar’s position in the organisation which relevantly can be taken into account.
[47] Taking into account the permit qualification matters and for the reasons stated, I am satisfied that Mr Ravbar is a fit and proper person to hold a permit. That is not to condone any of the contravening conduct in which the officials of the Divisional Branch of which Mr Ravbar is Secretary or of the organisation as a whole have engaged. In relation to the many contraventions involving the CFMMEU beyond just the Divisional Branch, penalties have been imposed and in respect of which, various judges of the courts have, to put it mildly, expressed exasperation.
[48] A permit will be separately issued.
DEPUTY PRESIDENT
Appearances:
Mr R Reitano, Counsel for the Construction, Forestry, Maritime, Mining and Energy Union
Mr R Dalton, Counsel for the Australian Building and Construction Commissioner
Hearing details:
Sydney via Video Link to Melbourne.
23 April.
2018.
<PR606642>
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 Applicant’s Outline of Submissions dated 6 April 2018 at [2]
9 Ibid
10 Ibid at [12(a)]
11 Ibid at [12(b)(i)]
12 Ibid at [12(b)(ii)]
13 Ibid at [12(b)(iii)]
14 Ibid at [12(b)(iv)]
15 Ibid
16 [2002] FCA 585
17 Ibid
18 Ibid at [29]
19 Applicant’s Outline of Submissions dated 6 April 2018 at [21]
20 [2015] FWC 2158 at [51]
21 Applicant’s Outline of Submissions dated 6 April 2018 at [23]
22 See The Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [18] – [25]
23 [2014] FWC 5900
24 Ibid at [102]
25 Construction, Forestry, Mining and Energy Union v Bechtel (Australia) Pty Ltd [2015] FWCFB 946 at [33] – [36]
26 Applicant’s Outline of Submissions dated 6 April 2018 at [28]
27 See for example Construction, Forestry, Mining and Energy Union[2016] FWC 191
28 [2018] FCA 263
29 Applicant’s Outline of Submissions dated 6 April 2018 at [31]
30 [2014] FWCFB 5947
31 Ibid at [27]
32 ABCC’s Outline of Submissions dated 16 April 2018 at [28]
33 Ibid at [29]
34 Ibid at [33]
35 Ibid at [37]
36 Ibid at [37] – [38]
37 Ibid at [39]
38 Ibid at [40]
39 Ibid at [41]
40 Ibid at [41] and [42]
41 Ibid at [41]
42 Ibid at [42]
43 Ibid at [43]
44 Ibid
45 Ibid at [46] – [50]
46 [2015] FCA 845
47 Ibid at [13], [14], [16] and [23]
48 ABCC’s Outline of Submissions dated 16 April 2018 at [54]
49 Applicant’s Outline of Submissions in Reply dated 20 April 2018 at [2]
50 Transcript PN172
51 Applicant’s Outline of Submissions in Reply dated 20 April 2018 at [2]
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