Australasian Meat Industry Employees’ Union, The-Victorian Branch

[2015] FWC 610

[2015] FWC 610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Australasian Meat Industry Employees’ Union, The-Victorian Branch
(RE2014/1803)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 10 FEBRUARY 2015

Application for entry permit for Jason Piper; fit and proper person; relevance of criminal history.

Background

[1] The Victorian Branch of the Australian Meat Industry Employees’ Union (AMIEU) applied on 27 November 2014 for an entry permit to be issued to one of its officials, Mr Jason Piper. According to the application, Mr Piper is employed by the AMIEU as an Organiser.

[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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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] I have considered all of these matters in relation to Mr Piper. I am satisfied that:

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

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

● Mr Piper, nor any other person, has 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 has 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, has 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.

[5] The only matter of concern arises in relation to s.513 (c). Specifically, Mr Piper has 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.

Piper’s Criminal History

[6] Mr Piper was born on 7 January 1969.

[7] On 23 February 1987 the Heidelberg Magistrates Court issued Mr Piper with a good behaviour bond for the offence of ‘theft from a shop’.

[8] On the 8 August 1995 Mr Piper was found guilty in the Prahran Magistrates Court of two offences: intentionally or recklessly causing injury, and unlawful assault. He was sentenced to 30 days imprisonment for the first offence, and 7 days imprisonment for the second offence.

[9] On June 2011 Mr Piper was found guilty of two offences: blackmail and common law assault. He was 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.

[10] In his statutory declaration accompanying the application Mr Piper said the following about his criminal history:

‘I provide the following details in relation to my convictions:

(a) My first conviction was on 23 February 1987 at Heidelberg Magistrates Court, for an offence of shoplifting. At the time I was eighteen years old and stole some food from a shop. I was placed on a good behavior bond.

(b) On 8 August 1995 at Prahran Magistrates Court I was convicted of two offences; one of “intentionally or recklessly causing injury” and one of “unlawful assault.” These offences were committed on the night of the Grand Final in 1994. At the time I was twenty-five years of age and I was employed to do security work at a pub. I was not working on grand final night, but there was trouble in the pub with patrons smashing things and fighting. The pub owner called me in to work because they needed help controlling the crowd. I attended and helped getting most of the patrons under control and settled down. One group of patrons continued to be a problem throughout the night, and after warning them several times that they needed to settle down, I decided it was necessary to require them to leave. The group, perhaps seven or eight people, objected to being removed, and became physical. A fight broke out, and although I was outnumbered, I got the better of the fight. Some of the group made a complaint to the police, and I was charged. I disputed the charges, but was found guilty, and sentenced to thirty days’ imprisonment.

(c) On 1 June 2011 I was convicted of an offence of blackmail and an offence of common law assault in the Melbourne County Court. At the time I had been running a pet food business, which I ran for a total of thirteen years. The business included a factory which manufactured pet food, the wholesaling of the product, and also included two retail stores which sold pet food. I sold one of the shops to a person I knew. As part of the transaction, I loaned this person $40,000 (for stock, etc). It was an interest free loan, but the person ‘did a runner’ on me. He came to see me at the factory, shook my hand, and promised to repay the money. After he left I never saw him, he never paid anything, and when I contacted him he would either dodge my phone calls, or if he answered, he would lie to me. I knew the person’s address, so I went to see him. When I saw him, we argued and I assaulted him (the common assault charge), and also threatened him if he did not repay me (the blackmail charge). I realized I had gone about things completely the wrong way. After I was charged, I did what I should have done in the first place, and went to see a solicitor about recovering the money. I had the solicitor commence legal action against the person, and I recovered the money I was owed through a legitimate settlement. I pleaded guilty in the County Court and was sentenced to a period of imprisonment, but that imprisonment was wholly suspended for two years, and as I did not breach the suspended sentence, I did not have to go to prison.’

[11] During the hearing on 19 January 2015, the AMIEU’s representative, Mr C Buckley, indicated that the offences recorded on 1 June 2011 related to conduct in 2009. With regard to the incident in the pub in 1994, Mr Buckley said that there was some dispute about whether one of the people struck by Mr Piper had actually involved himself in the fight; Mr Piper’s evidence was not accepted by the magistrate.

[12] Mr Piper also submitted a further statutory declaration providing some additional 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 would 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.’

Consideration

[13] The correct approach to the construction and application of ss.512 and 513 of the FW Act was considered by a Full Bench in The Maritime Union of Australia [2014] FWCFB 1973. In that decision the Full Bench stated that:

‘the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. [Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380] Taking into account context, the structure of s. 512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the 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. Rather the permit qualification matters must be taken into account to decide 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.

A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer 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. These are all to be found in Part 3-4 of the Act.

We reject so much of the Appellant’s submission as suggested that section 513 must be read down in the sense that the various permit qualification matters must be taken into account only to the extent that they are relevant to the exercise of entry permit rights. In our view there is no basis for reading down s.513. In a given application for an entry permit, if a matter that is a permit qualification matter, then that matter must be taken into account in determining whether the official of the applicant organisation is a fit and proper person to hold an entry permit. Parliament has determined that such matters are relevant to that question and it would be wrong to only have regard to those matters if they are relevant to the exercise of entry permit rights. Such words of limitation appear nowhere in s.513. Where parliament intended for particular matters to have a more narrow application, as is the case for the mandatory revocation suspension of entry permits, it has expressly so provided. So it is that s.510(1)(d) provides that the Commission “. . . must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that . . . the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder” since the first of those permits was issued (our underlining).

Put simply, the determination of whether an official is a fit and proper person to hold an entry permit involves an assessment of the effect that the existence of any of the matters in s.513, described as the “permit qualification matters”, has on the suitability of the official to hold an entry permit, with all of its attendant rights, conditions, limitations, and responsibilities.’ 1

[14] In Re Health Services Union - Queensland Branch SDP Richards said:

‘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 in each case.’ 2

[15] In Mr Piper’s case, he has received a total of five convictions. 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’.

[16] 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.

[17] The application for an entry permit for Mr Piper is rejected

.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr C Buckley for the AMIEU

Hearing details:

2015

19 January

Sydney/Melbourne/Brisbane video link

 1   Re Maritime Union of Australia [2014] FWCFB 1973 at [23] - [27].

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

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