Australian Rail, Tram and Bus Industry Union-Victorian Branch - Locomotive Division

[2014] FWCD 4220

[2014] FWCD 4220

DECISION

Fair Work (Registered Organisations) Act 2009
s.512—Application for a right of entry
Australian Rail, Tram and Bus Industry Union
(RE2014/623)
MR ENRIGHT	MELBOURNE, 1 AUGUST 2014
Background

[1] On 3 March 2014, an application under s.512 of the Fair Work Act 2009 (the Act) dated 3 March 2014 was lodged in the Fair Work Commission (the Commission) by the Australian Rail, Tram and Bus Industry Union (ARTBIU) for a permit to enter and inspect premises for the following official of the ARTBIU:

Marcello Marotta: RE2014/623

[2] The application was supported by declarations from Mr Jim Chrysostomou, the relevant Committee of Management member, and Mr Marotta, the proposed permit holder, both dated 3 March 2014. Mr Chrysostomou is the State Assistant Secretary of the Victorian Branch of the Locomotive Division (the Branch) of the ARTBIU. Mr Marotta is the Divisional State Secretary within the Branch.

[3] On 17 April 2014 a further application was received by the Commission, supported by declarations (the declarations) from Mr Terry Sheedy, the relevant Committee of Management member, and Mr Marotta, the proposed permit holder, both dated 17 April 2014. Mr Sheedy is the Divisional President within the Branch of the ARTBIU.

[4] I acknowledge receipt on 17 March 2014 of a permit returned to the Commission by Mr Marotta in matter RE2011/2761. Also on 17 April 2014, an email correspondence was received from the ARTBIU to confirm that Mr Marc Marotta’s legal name is Marcello Marotta.

[5] The declarations did not disclose potentially relevant matters in that Mr Marotta had an entry permit which had been suspended for three months in 2012 following a Decision in

Metro Trains Melbourne Pty Ltd v Marc Marotta [2012] FWA 432 (PR519126)i (Metro

Trains). Furthermore, the application had omitted sub-paragraph (e) of the Right of Entry F42

application form which is a form approved by the President of the Commission pursuant to rule 8 of the Fair Work Commission Rules 2013 (the Rules). Accordingly, the Commission wrote to the ARTBIU on 23 April 2014 requesting amended declarations and sought an explanation by statutory declarations for the reason why the above mentioned information was omitted.

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[6] On 25 June 2014 a further amended application was lodged with the Commission supported by fresh declarations (the amended declarations) from Mr Chrysostomou as the relevant Committee of Management member and Mr Marotta, the proposed permit holder, both dated 24 June 2014. Attached to the amended declarations were statutory declarations from Mr Marotta and from Mr Sheedy, dated 10 and 17 June 2014 respectively (the statutory

declarations).

[7] The amended declarations disclosed that Mr Marotta had a permit suspended for a period of three months in 2012 in Metro Trains.

[8] The statutory declarations stated that an ARTBIU office staff member had filled in the application forms; the staff member had believed that they were unable to alter the contents of the sub-paragraphs in the Right of Entry F42 application form and consequently deleted sub- paragraph (e) of the application form. The statutory declarations also stated that the further application lodged on 17 April 2014 had been completed by a relief receptionist, who had applied electronic signatures to Mr Marotta’s application.

[9] The statutory declarations added that the relief receptionist did not have the authority to apply Mr Marotta’s electronic signature. Mr Marotta’s statutory declaration further added that the Branch has issued a new staff policy, named the ‘Electronic Signature Policy’, which has been introduced to avoid a future recurrence of a similar situation. A copy of the Electronic Signature Policy was attached to the statutory declaration. The aim of the Electronic Signature Policy is said to ensure that an electronic signature is only applied to a document if authorised to do so by the relevant officer. The policy instructs employees not to apply electronic signatures unless certain conditions have been met, and the policy outlines those conditions.

[10] Both Mr Marotta and Mr Sheedy’s statutory declarations apologised for any

inconvenience caused to the Commission as a result of the initial declarations and added that the oversight of not disclosing the suspension was an inadvertent administrative error rather than any deliberate omission.

Legislative framework

[11] Under s.512 of the Act, the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied the official is a “fit and proper person” to hold an entry permit. In deciding this, the Commission must take into account the permit qualification matters set out in s.513(1).

[12]      Section 513(1) of the Act is set out below:

(1) In deciding whether the official is a fit and proper person, the FWC must take into
account the following permit qualification matters:

(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;

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(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.”

[13] Sections 512–513 are within Part 3–4 of the Act, entitled ‘Right of Entry’. The objects of Part 3–4 are set out at s.480:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work,
information and representation from officials of organisations; and

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(c) the right of occupiers of premises and employers to go about their business
without undue inconvenience.”

[14] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australiaii, Delegate Nassios made the following observations

regarding the objects of Part 3–4 of the Act with respect to an application for an entry permit:

“[21] The objects of Part 3-4 are set out in section 480 of the Act. The object of right of entry provisions is to establish a framework for officials of organisations to enter premises while balancing competing rights of organisations, employees and occupiers/employers. Organisations have the right to represent their members in the workplace, to hold discussions and to investigate suspected contraventions of relevant laws. Balanced against these rights are the rights of occupiers and employers ‘to go about their business without undue inconvenience’. The objects set out in section 480 of the Act emphasise the mutual rights and responsibilities of participants in the system in much the same way as the objects under the Workplace Relations Act 1996. Earlier decisions regarding the granting of right of entry permits under the Workplace Relations Act 1996 have made reference to the ‘important contextual issue’ of the nature of the power that is exercised by permit holders. In Vivienne Daniels v Joe Patti

& Anor, Munro J observed that:

Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.

The observations of Munro J apply equally to the granting of right of entry permits under the legislative regime set out in the Fair Work Act 2009.”iii (endnotes omitted)

[15] Although I am not bound by the above views I find they are a useful context for considering an application for an entry permit.

Permit Qualification Matters

[16] Section 512 of the Act provides that, upon application by an organisation, the Commission may issue an entry permit to an official of that organisation if it is satisfied that the official is a “fit and proper person to hold the entry permit”. Thus, the task of the Commission in the present matter is to consider and determine whether Mr Marotta is a “fit and proper person” not in a universal sense entirely divorced from any context but specifically whether he is a “fit and proper person” to hold an entry permit. As observed by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380:

“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have

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confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”

[17] Therefore, the determination of whether a particular official is a “fit and proper person” to hold an entry permit for the purposes of section 512 of the Act is required to be made by having regard to the nature of the statutory right of entry powers potentially provided to the official pursuant to Part 3-4 of the Act, the activities that the official will be engaged in when exercising such powers and the ends to be served by such activities. As the Full Bench of the Commission in The Maritime Union of Australia [2014] FWCFB 1973 (The Maritime

Union of Australia [2014]) observed:

“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”.iv

[18] Section 513(1) of the Act provides that, in order to make the primary determination required to be made pursuant to s. 512 of the Act, the Commission must take into account the “permit qualification matters” listed at paragraphs (a) to (g) therein. Although several of those matters do not directly relate to statutory right of entry powers, the Commission is bound to take them into account and apply them in a manner that assists the Commission in determining whether a particular official is a “fit and proper person” to hold an entry permit.

[19] I will consider each of the “permit qualification matters” separately below as they pertain to the current matter before me.

Training about rights and responsibilities

[20] Section 513(1)(a) of the Act requires me to take into account whether Mr Marotta has received appropriate training about the rights and responsibilities of a permit holder. The declarations disclose that Mr Marotta undertook such training on 28 March 2011. The content of the training material was approved by, then, Fair Work Australia, on 6 October 2009. I note that the training was undertaken pursuant to the present Act’s legislation, however since Mr Marotta’s right of entry permit was suspended in 2012 he has not completed new training. I will further refer to the issue of training later in this decision.

Conviction/s against an industrial law

[21] Section 513(1)(c) of the Act requires me to take into account whether Mr Marotta has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Marotta. There is no evidence before me that suggests otherwise.

Conviction/s involving fraud, dishonesty or intentional use of violence
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[22] Section 513(1)(c) of the Act requires me to take into account whether Mr Marotta has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Marotta. There is no evidence before me that suggests otherwise.

Order/s to pay a penalty under an industrial law in relation to action taken by the official

[23] Section 513(1)(d) of the Act requires me to take into account whether Mr Marotta, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law, in relation to action taken by Mr Marotta. There is no evidence before me that suggests otherwise.

Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[24] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Marotta under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. The amended declarations disclose that Mr Marotta had a permit suspended for a period of three months in 2012 in Metro Trains. This permit qualification matter will be considered later in this decision.

Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law

[25] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Marotta held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations do not disclose that Mr Marotta has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no other evidence before me that suggests otherwise.

Any other matter the Commission considers relevant

[26] Section 513(1)(g) of the Act provides the Fair Work Commission with a broad discretion to take into account any other matters it considers relevant. This discretion is limited to a consideration of matters that pertain to a proposed permit holder’s status as a “fit and proper person” to hold an entry permit. The proper construction should be determined by examining the provision in the context of the Act as a whole and the specific considerations set out in subsections 513(1)(a)-(f) of the Act in particular in the sense that such matters must fall within the purview of relevance delineated by the subject, scope and purpose of the Act, particularly Part 3-4 of the Act.v Relevant considerations in this regard include whether a particular matter has an industrial or OHS “flavour” or context, the extent to which it raises issues analogous to the considerations set out in subsections 513(1)(a)-(f) of the Act and its

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pertinence to the exercise of the public right associated with the exercise of statutory right of
entry powers pursuant to Part 3-4 of the Act.

[27] As noted above, there has been a failure to adequately disclose relevant matters in the application currently before me. This matter will be considered in further detail below.

[28]      In this regard, I have also taken into consideration the objects of Part 3-4 of the Act.

Training about rights and responsibilities

[29] As noted above, the most recent training undertaken by Mr Marotta regarding the rights and responsibilities of permit holder occurred on 28 March 2011. That training was delivered by completing an ACTU ‘Federal Right of Entry’ training course. Since the completion of that right of entry training course, Mr Marotta had his right of entry permit suspended in Metro Trains for a three month period, from 16 January 2012 to 16 April 2012.

[30] Subsection 513(1)(a) of the Act refers to “appropriate training” specifically regarding the “rights and responsibilities of a permit holder”. I am of the view that should I decide to issue Mr Marotta with a right of entry permit, that he undertake new appropriate training prior to the issue of a new permit. I note that the training must be of a type that has been lodged and approved by the Commission.

Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[31] As referred to in paragraphs [7] and [24] above, Mr Marotta had a right of entry permit suspended for three months in Metro Trains. This followed a finding by Fair Work Australia (as it was known then) that Mr Marotta had misused his statutory right of entry on 6 June 2011. The matter was heard by Deputy President Ives on 15, 16 and 21 December 2011.

[32] The allegations made against Mr Marotta in Metro Trains are that on 6 June 2011, Mr Marotta had ‘engaged in threatening, aggressive and violent behaviour’ towards a train driver, and had ‘behaved improperly by getting involved in an aggressive physical and verbal altercation’ with a train driver.

[33] A further allegation is that Mr Marotta ‘engaged in unreasonable and disruptive

conduct in connection with his statutory right of entry to Metro premises’ on 7 July, and on 1
and 9 September 2011.

[34] Deputy President Ives determined the applicant’s claim that Mr Marotta’s behaviour

was unreasonable or disruptive on 7 July and 1 September 2011 was unpersuasive. He also
found no issue with Mr Marotta’s behaviour on 9 September 2011.

[35] However, in regards to Mr Marotta’s behaviour on 6 June 2011, Deputy President Ives did find that Mr Marotta had made some physical contact with the arm of a train driver ‘causing some sort of scuffle to ensue between the two of them’vi. Deputy President Ives also determined that it was ‘more likely than not’ that Mr Marotta had pushed the train driver down a corridor.

[36] Deputy President Ives determined that he had ‘not been able to make findings to the

requisite level of satisfaction on the precise degree of physical violence’ involved in the
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scuffle between Mr Marotta and the train driver, nor was he able to be satisfied to what extent

the train driver had contributed to the violence that occurredvii.

[37] Deputy President Ives did find that Mr Marotta’s conduct on 6 June 2011 was ‘unacceptable, improper and a misuse’ of his statutory right of entryviii. Deputy President Ives concluded that Mr Marotta behaved improperly and misused his statutory right of entry to the applicant’s premises and suspended Mr Marotta’s right of entry permit for a period of three months, effective from 13 January 2012. Mr Marotta returned his permit on 18 January 2012, and on 16 April 2012, the permit was subsequently returned to Mr Marotta.

[38] There is no evidence before me of any further relevant behaviour concerning Mr Marotta since the finding in Metro Trains.

Other relevant matters

[39] In “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”

known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branchix,
Delegate Nassios expressed the following view:

“[14] Thoroughness by an applicant in disclosing adverse issues is paramount in assisting a Delegate to make an informed judgment as to whether an application for an entry permit is a fit and proper person. Thoroughness however can only be gauged in relation to each individual applicant’s circumstances.”x

[40] The non-disclosure of relevant matters in this application raises significant concerns regarding Mr Marotta’s status as a “fit and proper person” to hold an entry permit. As noted by Munro J in Vivienne Daniels v Joe Patti & Anor in relation the previous right of entry regime established by the WR Act, due diligence is not only to be expected of but is a statutory condition for the exercise of the public right vested in the holders of entry permits.xi

[41] There is a public imperative that the Commission must have confidence that an official

who has been issued an entry permit exercises statutory right of entry powers in adherence
with these attendant responsibilities with a sufficient degree of care and diligence.

[42] In my view, Mr Marotta and the ARTBIU, at the very least, have failed to exercise a

sufficient degree of diligence when making and lodging the application in matter
RE2014/623.

[43] Given the above, I have reservations about whether Mr Marotta has demonstrated a sufficient level of due diligence to be vested with statutory right of entry powers pursuant to Part 3-4 of the Act. This also affects my confidence regarding his adherence to the duties, obligations, limitations and conditions imposed upon permit holders set out in Part 3-4 of the Act and, therefore, whether he is a “fit and proper person” to hold an entry permit.

[44] I have taken into account the evidence of Mr Sheedy and Mr Marotta contained within their statutory declarations, and their respective explanations that the omission was an inadvertent error rather than a deliberate omission. I have also taken into account and I have significant concerns about the statutory declarations of Mr Marotta and Mr Sheedy describing flawed and unacceptable ARTBIU governance procedures which enabled electronic signatures to be affixed to formal application forms absent the authority of the signatories.

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[45] Balanced against those significant concerns and unacceptable circumstances, I have taken into account the fact that Mr Marotta and the ARTBIU subsequently took steps to introduce an electronic signature policy, to avoid documents being sent without the consent of the signatories. Consequently, I do not find the failure of proper disclosure, of itself, fatal to a finding that Mr Marotta is a fit and proper person to hold an entry permit.

Conclusion

[46] I have carefully considered and balanced all of the available circumstances of this

matter and have had particular regard to the permit qualification matters for the purposes of
s.512 of the Act.

[47] I am satisfied that there is nothing before me which suggests either that the relevant omission was not of the inadvertent character submitted or that Mr Sheedy and Mr Marotta have demonstrated anything less than candour in the amended application and each of their statutory declarations.

[48] I have also carefully considered and taken into account the facts and circumstances of the Metro Trains matter and particularly the findings by Deputy President Ives concerning Mr Marotta’s behaviour on 6 June 2011 which led to the suspension of Mr Marotta’s entry permit for a period of three months. On the one hand, a finding that Mr Marotta had ‘behaved improperly and misused his statutory right of entry’ is particularly concerning and is relevant to whether or not I can be satisfied that Mr Marotta is a fit and proper person to hold an entry permit.

[49] On the other hand however, I have carefully considered and taken into account the period of time which has elapsed since the offending behaviour found to have occurred on 6 June 2011 and the absence (save the issues of disclosure and sufficient diligence referred to in this decision) of any subsequent relevant behaviours or circumstances which might bear on whether Mr Marotta is a fit and proper person to hold an entry permit. I have taken into account that after the suspension period, Mr Marotta’s permit was returned to him on 16 April 2012 and that he continued to hold that permit until its expiration on 17 March 2014.

[50] I am satisfied on balance, that Mr Marotta is a fit and proper person, taking into

account the permit qualification and each of the relevant matters referred to in this
application. Accordingly, I will issue a permit.

[51] However, for the reason given in paragraph [30] above, I require Mr Marotta to first undertake new appropriate training prior to the issue of a new permit.

[52] Once the requirement for new and appropriate training has been met, and presuming

no other matters that are relevant to my consideration of the permit qualification matters arise
in the meantime, I will grant a right of entry permit to Mr Marotta.
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DELEGATE OF THE FAIR WORK COMMISSION

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Endnotes

i Metro Trains Melbourne Pty Ltd v Marc Marotta [2012] FWA 432 (PR519126) 13 January 2012

ii [2011] FWAD 3518.

iii Ibid at [21].

iv The Maritime Union of Australia [2014] FWCFB 1973 at [25].

v Santos Ltd v Saunders (1988) 49 SASR 556.

vi Metro Trains at [68].

vii Ibid at [88].

viii Ibid at [82].

ix [2010] FWAD 10039.

x Ibid at [14].

xi Vivienne Daniels v Joe Patti & Anor, AIRC Print S4571 (31 March 2000).