Australian Workers’ Union, The - Queensland Branch

[2021] FWC 3671

[2021] FWC 3671

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Australian Workers’ Union, The - Queensland Branch
(RE2021/453)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 24 JUNE 2021

Application by AWU for issue of right of entry permit for Paul John Cradden – satisfied that fit and proper person – permit issued.

[1] On 15 April 2021 the Australian Workers’ Union (AWU) made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Paul John Cradden (Application). Mr Cradden is employed by the AWU as an organiser.

[2] Mr Cradden has been employed by the AWU since 2015 and held a right of entry permit from that time until his most recent right of entry permit expired on 14 May 2021. Prior to being employed by the AWU, Mr Cradden was employed as an organiser by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and held right of entry permits from 2009 until 2014.

[3] The Australian Building and Construction Commissioner (ABCC) was notified of the application by the AWU for a new right of entry permit for Mr Cradden but did not intervene in these proceedings.

[4] I have determined this application on the basis of the AWU’s written submissions dated 9 June 2021, together with the information in the Application and the declarations accompanying it, as well as the submissions and affidavits filed in by the AWU on 9 June 2021.

Statutory Framework

[5] Part 3-4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

[6] The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. 1

[7] Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 2 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.3 Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.4

[8] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold the entry permit. The Commission’s discretion whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the “permit qualification matters” set out in s.513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose. 5

[9] Section 513 of the Act sets out the permit qualification matters as follows:

“513 Considering application

(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;

(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.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.”

[10] Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:

“515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).”

[11] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 6 Vice President Hatcher set out the following principles relevant to the interpretation and application of sections 512 and 513(1) of the Act as follows:

“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:

•  A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

•  The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an 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, but rather 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.

•  The question of whether an official 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.

•  The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

•  The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

•  While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).

•  Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.”

[12] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 7, a Full Court of the Federal Court of Australia observed the following in relation to the phrase “a fit and proper person”:

“[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

‘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 that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides 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.’” 8

[13] In MUA v FWC, the Full Court ultimately concluded as follows:

“[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged ‘unreasonableness’.” 9

Consideration

[14] I will now take into account all of the permit qualification matters specified in s 513(1) of the Act in relation to the application for an entry permit for Mr Cradden.

Permit qualification matters – ss 513(1)(a), (b), (c), (e) and (f)

[15] According to the declarations filed by the AWU in support of the Application:

(a) Mr Cradden has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act). Mr Cradden completed right of entry training approved by the Commission on 12 April 2021;

(b) Mr Cradden has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);

(c) Mr Cradden has never 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 (s 513(1)(c) of the Act); and

(d) Mr Cradden has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions (s 513(1)(e) of the Act); and

(e) Mr Cradden has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit (s 513(1)(f) of the Act).

[16] I accept that the information set out in the previous paragraph, as disclosed in the declarations made by Mr Stephen Kenneth Baker, Branch Secretary of the AWU, and Mr Cradden concerning these matters, is true and correct. The permit qualification matters set out in s 513(1)(a), (b), (c), (e) and (f) of the Act weigh in favour of a conclusion that Mr Cradden is a fit and proper person to hold an entry permit.

Permit qualification matter – s 513(1)(d)

[17] The declarations filed by the AWU with the Application reveal legal proceedings in which Mr Cradden was involved and which has relevance under s 513(1)(d) of the Act. 10 Those proceedings pre-date the application by the AWU for an entry permit for Mr Cradden in 2018, and were taken into account by Senior Deputy President Hamberger in his decision to grant an entry permit to Mr Cradden in 2018.11 I have read and considered Senior Deputy President Hamberger’s decision in that case. I agree with its conclusions in relation to the proceedings considered and the Senior Deputy President’s reasoning for reaching that conclusion.

[18] The Commission has identified one further legal proceedings in which Mr Cradden was involved and which has relevance under s 513(1)(d) of the Act. In Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 (ABCC v Ravbar), the ABCC alleged that in 2012 various officials, including Mr Cradden, took action against a company to force it to enter into an enterprise agreement on terms reflecting the CFMMEU’s model enterprise agreement. By the time the matter was heard, Mr Cradden had left his employment with the CFMMEU and commenced employment with the AWU. In 2015, Mr Cradden, through his lawyer, wrote to the Fair Work Building and Construction (FWBC) seeking immunity from prosecution in exchange for certain information. Mr Cradden received immunity from prosecution and gave evidence for the ABCC in the matter.

[19] The ABCC alleged a series of incidents involving Mr Cradden, and other officials of the CFMMEU, were in breach of the Act. However, only conduct in relation to what is referred to as the “third Port Connect incident” was found to have involved contraventions of the Act. In relation to that incident, it was alleged that in October 2012 Mr Cradden, and other CFMMEU officials, at the direction of a senior official of the CFMMEU, followed cranes to a work site and used their vehicles to stop the cranes from being able to operate resulting in the cranes being removed from the site and not performing any work on that day. Further, it was alleged that Mr Cradden, or another CFMMEU official, said to a construction manager words to the effect that the project would continue to have problems if they continued to use the relevant crane company. A new crane company was thereafter used for the project. In relation to that conduct, it was alleged that the senior official, the other official, and the CFMMEU contravened ss 340, 343 and 354 of the Act. In relation to this incident, Mr Cradden gave evidence that he followed a crane in his vehicle, parked behind it so it could not move, spoke with the construction manager and said “we’re here to stop these cranes” and that “we would continue to block” the crane company “until he got someone else in” and that he or the other official provided the construction manager with a list of crane companies to use. 12 The direction given by the senior CFMMEU official to Mr Cradden, and other CFMMEU officials, and the use of vehicles to stop the cranes from being able to operate formed the factual basis on which the senior official of the CFMMEU and the CFMMEU were found to have contravened ss 340, 343 and 354 the Act.13 Those contraventions lead to Justice Reeves imposing penalties on the CFMMEU and the senior official for contravening s 343 of the Act.14 Having read and considered Justice Reeves’s substantive and penalty decisions, I am satisfied that the senior CFMMEU official and the CFMMEU were ordered to pay a penalty under an industrial law (being the Act) and those penalties were imposed, at least in part, in relation to action taken by Mr Cradden. It is therefore a relevant consideration pursuant to s 513(d) of the Act. Mr Cradden’s conduct in relation to the third Port Connect incident weighs against a conclusion that he is a fit and proper person to hold a right of entry permit. This is so because it demonstrates Mr Cradden’s prior willingness to put his employer’s interest before his obligations to comply with the Act.

[20] In his affidavit made on 9 June 2021 Mr Cradden expresses his deep regret for his conduct in 2012 and explains that he takes full responsibility for his actions and decisions in relation to that conduct. Further, Mr Cradden explains that in 2014 he left the CFMMEU because he felt that he did not fit into their culture and subsequently joined the AWU in 2015 where he has worked predominantly in the civil construction sector without incident. Those circumstances, coupled with the fact that there is no suggestion that Mr Cradden has contravened any relevant legislation since leaving the CFMMEU, gives me comfort that Mr Cradden has reformed and that his conduct in 2012 is not likely to be indicative of his conduct in the future.

Permit qualification matter – s 513(1)(g)

[21] Pursuant to s 513(1)(g) of the Act, in deciding whether Mr Cradden is a fit and proper person I must take into account any other matters that I consider relevant. Any such matters must be relevant to whether Mr Cradden is a fit and proper person to hold a right of entry permit.

[22] Mr Cradden, as he did in his application for an entry permit before Senior Deputy President Hamberger in 2018, has again failed to disclose in his declaration Federal Court proceedings relevant to this Application. In ABCC v Ravbar, Justice Reeves made the following observation in relation to the issuing of Mr Cradden’s right of entry permit in 2018:

“… in his letter attaching that permit, the delegate made the following point:

I understand that Mr Cradden is listed as a respondent in proceedings in the Federal Court of Australia in Director of the Fair Work Building Industry Inspectorate v Cradden, Myles, O’Brien, Davis, Cummins & CFMEU (QUD98/2014), which is due to commence for trial in June 2015. I note that this matter was not disclosed in the declarations accompanying the application. Although Mr Cradden has not been convicted of any offence against an industrial law, full and frank disclosure is always recommended to provide thoroughness, particularly if an adverse finding is pending.” 15

[23] I remind Mr Cradden that making a declaration to the Commission is a serious matter and he should carefully consider the content of any such declaration before making and filing it. Although Mr Cradden’s repeated non-disclosure is concerning, it is not a matter which persuades me that he is not a fit and proper person to hold a right of entry permit. However, having now received two cautions from the Commission in relation to non-disclosure, I would find it difficult to be satisfied that any future non-disclosure was an inadvertent mistake or that it should not weigh significantly against Mr Cradden being found to be a fit and proper person to hold a right of entry permit.

[24] Finally, it is also relevant that in the nine year period since Mr Cradden’s involvement in the legal proceedings to which I have referred, Mr Cradden has not been found to have engaged in any contravening or other inappropriate conduct. This weighs in favour of a finding that Mr Cradden is a fit and proper person to hold an entry permit.

Conclusion

[25] After taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act, I am satisfied that Mr Cradden is a fit and proper person to hold a right of entry permit. The matters which weigh in favour of a finding that Mr Cradden is a fit and proper person to hold a right of entry permit outweigh those that weigh against such a conclusion.

[26] I have considered whether any conditions should be imposed on any entry permit issued to Mr Cradden conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. My conclusion on that score is that no conditions should be imposed.

[27] In the circumstances, I am satisfied that it is appropriate to exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Cradden with an entry permit.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR731055>

 1 Section 480 of the Act

 2   Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

 3   Ibid at 405 [56] per Flick J

 4   Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

 5   Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141

 6   [2015] FWC 1522

 7 [2015] FCAFC 56

 8   Ibid at [17]

 9   Ibid at [42]

 10   Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614

 11   The Australian Workers' Union - Queensland Branch [2018] FWC 2628

 12   ABCC v Ravbar,[347] – [349]

 13   Ibid [467] – [509]; Australian Building and Construction Commissioner v Ravbar (No 2) [2019] FWC 522 (Penalty Decision), [4]

 14   Penalty Decision, [4]

 15   ABCC v Ravbar, [112]