Australasian Meat Industry Employees’ Union, The-Victorian Branch

[2015] FWC 4147

[2015] FWC 4147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Australasian Meat Industry Employees’ Union, The-Victorian Branch
(RE2015/637)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 22 JUNE 2015

Application for entry permit for Jason Piper; fit and proper person; imposition of condition.

Background

[1] The Victorian Branch of the Australian Meat Industry Employees’ Union (AMIEU) applied on 28 April 2015 for an entry permit to be issued to one of its officials, Mr Jason Piper.

[2] Under s.512 of the Fair Work Act 2009 (the FW Act) the Commission may issue an entry permit to an official if it is satisfied that the official is a fit and proper person to hold the entry permit.

[3] Section 513 of the FW Act sets out the matters that the Commission must take into account in deciding whether the official is a fit and proper person. These are:

‘(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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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.’

[4] The AMIEU made a previous application for an entry permit for Mr Piper, on 26 November 2014. That application was the subject of a decision published on 10 February 2015 (the previous decision).

[5] In the previous decision I considered all of the matters referred to in s.513 of the FW Act in relation to Mr Piper. I was satisfied that:

• Mr Piper had received appropriate training about the rights and responsibilities of a permit holder;

• Mr Piper had never been convicted of an offence against an industrial law;

● Mr Piper, nor any other person, had ever been ordered to pay a penalty under the FW Act or any other industrial law in relation to action taken by him;

• Mr Piper had never had a permit issued to him under Part 3-4 of the FW Act, or under a similar law of the Commonwealth, revoked or suspended or made subject to conditions;

• No court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, had ever cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that Mr Piper had under such a law; or disqualified Mr Piper from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law. 1

[6] In the previous decision I indicated that the only matter of concern arose in relation to s.513 (c). Specifically, Mr Piper had been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises; or fraud or dishonesty; or intentional use of violence against another person or intentional damage or destruction of property.

[7] The previous decision described Mr Piper’s criminal history. This included convictions for theft in 1987, for intentionally or recklessly causing injury and unlawful assault in 1995, and for blackmail and common law assault in 2011. These last convictions related to conduct that occurred in 2009. In relation to the most recent convictions, Mr Piper had been sentenced to 30 months imprisonment for the first offence, suspended for two years; and 6 months imprisonment, two months concurrent, also suspended for two years, for the second offence.

[8] The previous decision noted that Mr Piper had submitted a statutory declaration providing some information regarding the circumstances of his criminal convictions. This included the following:

‘I have recently disclosed to the AMIEU that I suffer from a mental health condition. I have suffered from such condition over a long period of time, including at the time I committed the offences in 2009. I did not disclose this previously, partly because of embarrassment about my condition, and partly because I do not like to talk about the events that I put myself and others through in the past. Details of my mental condition were put before the sentencing judge in the County Court in June 2011.

I was previously treated for my condition by a Doctor Mackay. Doctor Mackay was a general practitioner who had worked for many years in one of the main psychiatric hospitals in Melbourne. Doctor Mackay retired from practice a few years ago. Since his retirement I have attended the Boronia Medical Centre, which monitors the medication previously prescribed by Doctor Mackay.

I had been given various medications when I was a younger man, in my 20s, but I went off them at some point. I am not sure when Doctor Mackay first started me on medication for my mental health condition, that I believe he placed me on fluoxetine sometime around 2008. I cannot remember if I was actually taking the medication as I was supposed to at the time of my offending conduct in 2009. I may have been. At some point after I committed the offences in 2009 Dr Mackay prescribed me a drug called seroquel. Taking the combination of fluoxetine and seroquel has been effective in controlling my symptoms.’

[9] In the previous decision I referred to the following comment of SDP Richards in Re Health Services Union - Queensland Branch:

‘Prior convictions should be weighed carefully in respect of considerations under s.512 of the Act as the statutory power invests in a permit holder the right to enter private premises and inspect the private information of other persons, amongst other things. Persons convicted of fraud or deception, for example, may be ill-suited to managing privacy risks and private records. Others with convictions for violence or who have been subject to related court orders may be presumed to lack the impulse controls and reasonable civility that are features of statutory right of entry power.

Past conduct then, may be a relevant consideration for purposes of the discretionary finding as to whether a person seeking a right of entry permit is a fit and proper person under s.512 of the Act. Much will depend, however, on the circumstances of each case.’ 2

[10] In the previous decision, I noted that Mr Piper had received a total of five convictions. I observed that:

‘... while the first of these was a long time ago, and relatively minor, the last four convictions are more serious, and in the case of the last two relate to conduct that occurred only around six years ago. Mr Piper’s resort to violence and blackmail to deal with a business dispute in 2009 are of grave concern. Such behaviour raises serious doubts about whether Mr Piper possesses ‘the impulse controls and reasonable civility that are features of statutory right of entry power’.

I have considered the evidence of Mr Piper’s mental illness and his treatment history. There is nothing in that material that indicates that his past criminal behaviour was caused by his mental illness or that the treatment he is now receiving means that one could be confident similar conduct would not be repeated in the future. It does not alter my conclusion that Mr Piper is nota fit and proper person to obtain an entry permit.’ 3

[11] Consistent with these findings, the application for an entry permit for Mr Piper was dismissed.

The New Medical Information

[12] Following the previous decision, the AMIEU obtained additional information about Mr Piper’s medical condition. In particular, it obtained a letter from Mr Piper’s treating general practitioner, Dr Theva Thevakumar (dated 18 February 2015) and a report from a consultant psychiatrist Dr Gregory White (dated 13 March 2015). This information was included with the application made on 28 April 2015.

[13] Dr Thevakumar confirmed that Mr Piper has been stable over the last few years and sees him on a six monthly basis to review his medication and mental health.

[14] Dr White’s report included the following conclusions:

‘Mr Piper is a 46-year-old man who appears to have suffered from a Bipolar Affective Disorder, which probably commenced during childhood when he experienced intermittent depressive symptoms.

During his adolescence and his 20’s Mr Piper developed more florid psychiatric symptoms, including psychotic features, significant depressive symptoms, a serious suicide attempt, and hypomanic (elevated) mood and associated symptomatology.

During the early unstable phase of his illness and repeated hospitalisations, he was convicted of criminal offences on two occasions.

During his 30’s, Mr Piper’s symptoms improved, but not completely. It was not until he was correctly diagnosed by his general practitioner, and appropriately medicated, that Mr Piper’s symptoms completely remitted. He reports that he has been well over the past seven years.

At around the same time that he was correctly diagnosed, and whilst still on low doses of medication, he was again convicted of criminal offences, which occurred in the context of someone having committed fraud against him.

Aside from times during exacerbations of his psychiatric disorder, when he drank heavily, there is no evidence of Mr Piper ever having suffered from significant alcohol or drug problems.

There is no evidence of his having suffered from unresolved medical illness, personality disorder, or other ongoing, unresolved stressors.

At interview, there was no evidence of current unstable psychiatric illness.

Mr Piper expressed remorse about his previous behaviours.

He also demonstrated good insight into the need to remain indefinitely on his current psychiatric medications. He was motivated to remain well.

Mr Piper appears to be well supported by his wife, and to have good relationships with his adult sons. He also holds a desire to be of assistance to apprentices and workers in the meat industry.’

[15] Dr White stated that:

‘It is this examiner’s opinion that Mr Piper possesses ‘the impulse controls and reasonable civility that are features of statutory right of entry power.’ He appears to have developed good coping skills, and to have been able to appropriately deal with workplace stressors in recent years.’

[16] Of particular importance, Dr White stated that:

‘It would certainly appear, upon the history available, that Mr Piper’s past criminal behaviour was contributed to by his psychiatric disorder...As long as Mr Piper continues to comply with his current treatment, and there appears to be little likelihood that this will not occur, this examiner formed a strong degree of confidence that similar conduct (criminal or other antisocial behaviour) will not be repeated in the future.’

[17] Dr White also noted that:

‘Mr Piper appears to be one of those individuals whose Bipolar Affective Disorder has stabilised well over many years, with ongoing psychiatric treatment. There would now appear to be little likelihood of his suffering a relapse in the future, or to require further psychiatric treatment other than routine prophylactic medications and occasional contacts with his treating general practitioner. Mr Piper will continue to be monitored by his general practitioner, as well as by his wife and his sons, who are now in their adulthood.’

Consideration

[18] This new medical information has led me to revise the conclusions on which I based my previous decision to refuse granting an entry permit to Mr Piper. In particular I note Dr White’s statements that Mr Piper’s past criminal behaviour was contributed to by his psychiatric disorder, and that there appears little likelihood that such behaviour will recur.

[19] I am satisfied that there are no other grounds to conclude that Mr Piper is not a fit and proper person.

[20] I am now satisfied that Mr Piper is a fit and proper person. However this finding is conditional on Mr Piper continuing to receive appropriate treatment for his mental health condition.

[21] The ability to impose a condition in order to be satisfied that someone is a fit and proper person was recently confirmed by the Federal Court in Maritime Union of Australia v Fair Work Commission. In that judgement the Court stated that:

‘Conditions may be imposed pursuant to [s.515] to remedy or address deficiencies or reservations in respect to an officer of an applicant, which deficiencies or reservations could otherwise lead to the conclusion that the person was not “fit and proper”  4

[22] Consistent with a suggestion made by the AMIEU, I propose to grant the application for an entry permit for Mr Piper but to impose the following condition (as permitted by s.515 of the FW Act):

‘This permit is subject to a condition that the permit holder continue to have his mental health condition monitored by his treating medical practitioner(s), and continues to take all medications and undergo any other treatment prescribed by them for his condition.’

Conclusion

[23] The AMIEU’s application for an entry permit for Mr Jason Piper is granted, subject to the imposition of the condition referred to above.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr C Buckley for the AMIEU

Hearing details:

2015

19 June

Sydney/Melbourne/Brisbane video link

 1  Re Australian Meat Industry Employees’ Union - Victorian Branch [2015] FWC 610 at [4]

 2   Re Health Services Union - Queensland Branch [2015] FWC 18 at [22-23]

 3   Re Australian Meat Industry Employees’ Union - Victorian Branch [2015] FWC 610 at [15-16]

 4   Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [43]

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