Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

[2017] FWC 863

[2017] FWC 863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights

Australian Building and Construction Commissioner
v
Construction, Forestry, Mining and Energy Union & Ors
(RE2014/1389)

VICE PRESIDENT CATANZARITI SYDNEY, 17 FEBRUARY 2017

Voir dire hearing on 8 February 2017 - Tender of materials for final hearing on 27 March 2017.

[1] On 8 February 2017, the above matter was listed for a voir dire hearing in order to determine whether the material intended to be relied upon by the Australian Building and Construction Commissioner (“ABCC”), which was disputed by the Construction, Forestry, Mining and Energy Union (“CFMEU”), may be utilised for the final hearing on 27 March 2017.

[2] At the hearing, the parties presented oral submissions, in addition to their written submissions, relating to whether that disputed material may be utilised for the final hearing on 27 March 2017. I informed the parties that the Decision was reserved and that I would publish a Decision as to whether the disputed material may be utilised for the final hearing. 1 The reasons for my Decision are provided below.

CFMEU’s Submissions

[3] The CFMEU asserted that the ABCC should be confined to the materials it intended to rely upon as outlined in section 2.2 at paragraphs 4(a)-(d) of the Second Further Amended Application (“SFAA”) dated 23 August 2016. In particular, the CFMEU relied upon PN202-PN226 of the transcript in relation to the hearing on 18 August 2016 in asserting that the ABCC did not intend to rely upon anything other than the materials elicited in paragraphs 4(a)-(d) of the SFAA.

[4] Further, the CFMEU contended that the ABCC included extraneous and irrelevant material under the heading “CFMEU culture of non-compliance” of its 4 October 2016 submissions at paragraphs [195]-[207]. The CFMEU outlined the following five reasons as to why the cases and commentary referred to in that section should be disregarded by the Commission:

1. The material additional to that in the SFAA travels beyond the “universe” of documents;

2. None of the material is pertinent to the particular misuses the Commission has to consider in making orders under section 508 of the Act;

3. The CFMEU had no notice that the ABCC would seek to rely on this material and, consequently, would be prejudiced if the Commission were to consider this material;

4. Some of the matters extracted by Mr Hadgkiss do not relate to the Victorian or Queensland branches of the CFMEU which the current proceedings are ostensibly about; and

5. The vast majority of the matters do not pertain to the exercise or purported exercise of entry rights under the Act. The matter that does pertain to right of entry 2 does not concern any official the subject of these proceedings.

[5] The CFMEU contended that it was unclear whether the ABCC pressed the interlocutory decision in Baulderstone Qld Pty Ltd v Construction, Forestry, Mining and Energy Union 3(hereafter “Baulderstone”). On the basis that the ABCC pressed the Baulderstone decision, the CFMEU outlined three reasons as to why it should not be admitted into evidence, which I have fully considered and will not recite in this Decision.

[6] Additionally, the CFMEU contended that the “schedule of matters” outlining 76 judgments in which civil penalty contraventions have been found against the CFMEU, which was emailed to the CFMEU on 4 November 2016, should also be disregarded by the Commission. The CFMEU contended that only 6 of those 76 cases were referred to in the SFAA at section 2.2, paragraphs 4(a)-(d). Therefore, the CFMEU asserted that the Commission should have no regard to the additional 70 cases referred to by the ABCC as they did not form part of the “universe” of documents.

ABCC’s Submissions

[7] The ABCC addressed each of the five reasons espoused by the CFMEU in contending that the disputed material should be disregarded by the Commission.

[8] In relation to the first reason espoused by the CFMEU, the ABCC submitted that the material it intends to rely upon at paragraphs [195]-[207] (“the noncompliance paragraphs”) of its submissions dated 4 October 2016, under the heading “CFMEU culture of non-compliance”, appear at paragraph 4 of the SFAA in two ways:

1. Paragraph 4(d) includes the Final Report of the Heydon Royal Commission, Volume 5, Chapter 8, paragraphs 1 to 24; and

2. The opening words of paragraph 4 specify “the Submissions as to Orders Sought dated 15 January 2016.” 4

[9] The ABCC asserted that paragraphs [115]-[123] of its submissions dated 15 January 2016 bear a close resemblance to the “non-compliance” paragraphs. Further, that the submissions specified in the SFAA cite the Heydon Royal Commission Report and various civil penalty judgments to support the propositions in those submissions. Accordingly, the ABCC contended that paragraphs [195]-[207] of its 4 October 2016 submissions are not outside the “universe” of documents referred to in paragraph 4 of the SFAA.

[10] In relation to the second reason outlined by the CFMEU, the ABCC contended that the question is not whether the material is relevant to the misuses found. Rather, the question is whether the material is relevant to the restrictions that should be imposed under section 508 of the Act. In this regard, the ABCC asserted that the history of the CFMEU’s compliance with workplace laws is relevant and admissible as evidence. Further, the ABCC contended that the Full Bench in Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate 5 (“Tadic”) held that continuing disobedience of the law by an organisation and organisational cultures in which contraventions of the law have been normalised can be addressed by the Commission in terms of rights of entry under section 508 of the Act.

[11] In relation to the third reason espoused by the CFMEU, the ABCC contended that the CFMEU have had, and will continue to have, ample opportunity to address the material upon which the ABCC relies and that the prior history of conduct is relevant as to what restrictions should be imposed for misuse of rights. In response to this submission made by the CFMEU, the ABCC also referred to the Commission’s directions dated 2 March 2015, the transcript of 13 July 2015, paragraphs [42]-[58] of its submissions dated 10 November 2016 and paragraphs [17]-[23] of its submissions dated 2 February 2017.

[12] In response to the fourth reason outlined by the CFMEU, the ABCC asserted that what Gyles J stated in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union 6 was based on 12 previous decisions against the CFMEU. Of those 12 cases, the ABCC submitted that two cases involved illegalities by the CFMEU in Queensland and four cases involved illegalities by the CFMEU in Victoria. In this regard, the ABCC noted that Gyles J stated that those 12 cases illustrated that “the federal body [the CFMEU] has not been effective in ensuring that officials act in accordance with the law …”7 and that this point was not confined to state boundaries.

[13] In relation to the fifth reason advocated by the CFMEU, the ABCC submitted that the CFMEU was found to have been a party to all the misuses under section 508 of the Act. In this regard, the ABCC contended that improper behaviour by CFMEU officials is relevant to what restrictions are to be imposed on the CFMEU pursuant to section 508 of the Act.

[14] The ABCC noted that it did not intend to rely upon the decision of Dowsett J in Baulderstone.

[15] The ABCC also had regard to the schedule it tendered on 14 November 2016, which is not referred to under paragraph 4 of the SFAA. The ABCC noted that the schedule contains a summary of 76 judgments in which civil penalty contraventions have been found against the CFMEU (16 in Queensland and 60 in Victoria). The ABCC contended that the CFMEU will not be prejudiced by tender of the schedule as they will have had over 4 months to consider and respond to the contents of the schedule before the final hearing on 27 March 2017. The ABCC asserted that if the schedule is not accepted into evidence by the Commission, then the Commission must deal with what judgments contained in the schedule can be tendered by the ABCC in support of the judicial comments included in the SFAA.

[16] Further, the ABCC, in its oral submissions, contended that the schedule containing 76 judgments is not “evidence” and, therefore, may be referred to at the final hearing on 27 March 2017. 8

Consideration

[17] I note that the Commission is not bound by the rules of evidence and procedure in relation to a matter before it. 9 Nevertheless, the rules of evidence “provide general guidance as to the manner in which the Commission chooses to inform itself.”10

[18] I now turn to deal with each of the disputed materials and whether those materials may be utilised for the final hearing on 27 March 2017.

[19] In relation to the “noncompliance paragraphs”, the material upon which those paragraphs are based appear in paragraph 4 of the SFAA. For example, paragraph 4(d) of the SFAA refers to the Final Report of the Heydon Royal Commission, Volume 5, Chapter 8, paragraphs 1 to 24. In this regard, the submissions specified in the SFAA cite the Heydon Royal Commission Report and various civil penalty judgments to support the propositions in those submissions. Moreover, at paragraph 4(d) of the SFAA, it states:

“In addition the director relies upon his submissions as to orders sought dated 15 January 2016 and the material filed and served with those submissions.”

[20] At paragraph [116] of the ABCC’s submissions dated 15 January 2016, it states, for example:

“The FWC has recently been referred to a long line of judicial comments as to the pattern of lawless behaviour of the CFMEU over the past 15 years. Its attitude of deliberate disregard for the law is well known.”

[21] In addition to its written submissions, the CFMEU made oral submissions contending that section 508 of the Act does not permit the Commission to make wide-ranging enquiries into misconduct or the records of the CFMEU regarding rights of entry. Rather, the CFMEU asserted that, in applying section 508, the Commission is to have regard to the misuses merely as they are found and to use its discretion in this regard. I do not agree with this submission. The question the Commission must ask itself is not whether the material is relevant to the misuses as they are found. Rather, the question is whether the material is relevant to the restrictions that should be imposed under section 508 of the Act.

[22] Therefore, for the above reasons, I am satisfied that the material relating to the historical records of the CFMEU, as outlined in the “noncompliance paragraphs”, regarding the CFMEU’s conduct relating to rights of entry may be relevant for the purposes of identifying which, if any, restrictions should be imposed on the CFMEU pursuant to section 508 of the Act. I am also satisfied that the tender of this material is not prejudicial, nor procedurally unfair to the CFMEU. As a result, the material elicited in the “noncompliance paragraphs” may be utilised for the final hearing on 27 March 2017.

[23] In relation to the schedule containing a summary of 76 judgments, the CFMEU contended that these judgements were sought to be tendered as “evidence” for the purposes of the final hearing on 27 March 2017. However, it is trite that previously decided judgments are not considered as “evidence” as they are public documents, which is outlined in section 157 of the Evidence Act 1995 (Cth). I note that 22 of the 76 judgments are referred to in paragraph 4 of the SFAA or in the ABCC’s submissions dated 15 January 2016. As such, those 22 judgments may be utilised for the purposes of the final hearing. Moreover, the remaining 54 judgments are of a similar nature in terms of referring to the history of the CFMEU’s conduct relating to rights of entry. As such, I am satisfied that these remaining 54 judgments may be utilised for the final hearing and are not prejudicial to the CFMEU. However, given that the schedule outlines a subjective viewpoint by way of summarising these 76 judgments, the schedule may not be tendered. Nevertheless, the 76 judgments, by themselves, may be utilised for the purposes of the final hearing on 27 March 2017.

[24] Additionally, as the 12 judgments referred to in Silvestri are also public documents and are of the same nature as those referred to above, these judgments may also be utilised for the final hearing.

[25] Ultimately, submissions are to be made as to the relevance of the abovementioned materials at the final hearing. In this regard, the CFMEU will have every opportunity to make submissions as to what notice and relevance should be taken of the material tendered by the ABCC.

[26] Consequently, I am of the view that it would not be prejudicial, nor procedurally unfair to the CFMEU by allowing the abovementioned material to be tendered at the final hearing on 27 March 2017.

VICE PRESIDENT

Appearances:

Mr I. Neil, of Senior Counsel, and Mr R. Dalgleish, of Counsel, for the ABCC.

Mr R. Reitano, of Counsel, and Mr P. Boncardo for the CFMEU.

Hearing details:

2016.
Sydney:

February 8.

 1   Transcript 8 February 2017, PN333.

 2   Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432.

 3 [2012] FCA 520.

 4   Appeal Book, 1041-1110.

 5   [2016] FWCFB 6058, [89].

 6 [2008] FCA 466, [13].

 7   Ibid.

 8   Transcript 8 February 2017, PN214.

 9   Fair Work Act 2009 (Cth) s 591.

 10   Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) 143 IR 354 at [47]-[50].

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