"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" Known as the Australian Manufacturing Workers' Union (AMWU)-Victorian Branch

[2014] FWCD 3894

[2014] FWCD 3894

DECISION

Fair Work Act 2009

s.512—Application for a right of entry permit

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries

Union" known as the Australian Manufacturing Workers' Union (AMWU)

(RE2014/748)

MR ENRIGHT	MELBOURNE, 25 JUNE 2014
Background

[1] On 31 March 2014, an application under s.512 of the Fair Work Act 2009 (the Act) dated 19 March 2014 was lodged in the Fair Work Commission (the Commission) by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (AMWU) for a permit to enter and inspect premises for the following official of the AMWU:

Gregory Warren: RE2014/748

[2] The application was supported by declarations from Mr Steve Dargavel, the relevant Committee of Management member, and Mr Warren, the proposed permit holder, both dated 19 March 2014. Mr Dargavel is the State Secretary of the Victorian Branch (the Branch) of the AMWU. Mr Warren is an Organiser within the Branch.

[3] On 25 March 2014 a letter was received from Mr Paul Bastian, the National Secretary of the AMWU, indicating that permit RE2010/3952 previously issued to Mr Warren on 21 January 2011, was returned to the Commission on 12 November 2013. The letter further states that no acknowledgement of the return was received by the AMWU from the Commission. Given the above correspondence, I am satisfied that Mr Warren has returned his permit as required by s.517(1)(c) of the Act.

[4] On 9 April 2014 the Commission wrote to Mr Dargavel acknowledging receipt of the application. The Commission further noted in the correspondence that the application contained declarations stating that the proposed permit holder “(d) has never been ordered to

pay a penalty under this Act or any other industrial law in relation to action taken by [him]

nor has any other person been ordered to pay a penalty in respect of such action”.

[5] Having noted the content of the declarations, the Commission referred to its records indicating a relevant Federal Court judgment, Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818 (4 August 2010) (Hardwick). The records appeared to demonstrate that in Hardwick, the proposed permit holder Mr Gregory Warren was found to have contravened section 44(1) of the Building and Construction Industry Improvement Act 2005 (BCII Act) and was penalised $5000. In addition in Hardwick, the AMWU was found [2014] FWCD 3894

to have been vicariously liable for the conduct of Mr Warren. Accordingly, the Court found that the AMWU had contravened section 44(1) of the BCII Act as a result of the actions of Mr Warren and was penalised $15,000.

[6] In its correspondence, the Commission requested an amended application containing

submissions from Mr Dargavel and the proposed permit holder Mr Warren setting out any
explanation for the omission of the contravention.

[7] On 15 May 2014 the Commission again wrote to Mr Steve Dargavel at the AMWU advising that no response had been received to the 9 April 2014 request for an amended application, and further advised that in the event an amended application was not received by 22 May 2014 the application would be closed and deemed withdrawn.

Amended Application

[8] On 21 May 2014 an amended application (the amended application) was received

supported by fresh declarations from Mr Steve Dargavel as the relevant Committee of
Management member and Mr Warren the proposed permit holder both dated 21 May 2014.

[9] The amended application contained a concession that it was materially different from the original application in that it now contained declarations by Mr Dargavel and Mr Warren that Mr Warren had been ordered to pay a penalty in relation to Hardwick. Further, the amended application contained Statutory Declarations from each of Mr Dargavel and Mr Warren conceding that the Hardwick matter should have been disclosed in the original application and that the matter had identified procedural issues at the AMWU which contributed to what, in summary, was an inadvertent error rather than any deliberate omission.

[10] For his part, Mr Warren stated that he had appropriately disclosed the Hardwick matter

in his previous application for an entry permit in matter RE2010/3952 and had mistakenly
understood that it was not necessary for him to again disclose the same contravention.

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;

[2014] FWCD 3894

(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

[2014] FWCD 3894

(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 Australiai, 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.”ii (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 Warren 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

[2014] FWCD 3894

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”.iii

[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.

Training about rights and responsibilities

[19] Section 513(1)(a) of the Act requires me to take into account whether Mr Warren has received appropriate training about the rights and responsibilities of a permit holder. The declarations disclose that Mr Warren undertook such training on 23 January 2014. The content of the training material was approved by, then, Fair Work Australia, on 6 October 2009.

Conviction/s against an industrial law

[20] Section 513(1)(c) of the Act requires me to take into account whether Mr Warren 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 Warren. There is no evidence before me that suggests otherwise.

Conviction/s involving fraud, dishonesty or intentional use of violence

[21] Section 513(1)(c) of the Act requires me to take into account whether Mr Warren 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 [2014] FWCD 3894

declarations do not disclose any such convictions against Mr Warren. 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

[22] Section 513(1)(d) of the Act requires me to take into account whether Mr Warren, 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 Warren. As noted at paragraph [5] of this decision, Mr Warren, and the AMWU were ordered to pay penalties under the BCII Act in Hardwick. This permit qualification matter will be considered later in this decision.

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

[23] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Warren 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 declarations do not disclose that any such permits issued to Mr Warren having ever been revoked, suspended or made subject to conditions. There is no evidence before me that suggests otherwise.

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

[24] 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 that Mr Warren had under that law or disqualified Mr Warren from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Warren has 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 Warren 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 evidence before me that suggests otherwise.

Any other matter the Commission considers relevant

[25] 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.iv 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 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.

[2014] FWCD 3894

[26] As noted above, there has been a failure to adequately disclose relevant matters in the application referred to in paragraphs [1] and [2] of this decision.

[27]      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.

Penalties imposed under the BCII Act

[29] Mr Warren and the AMWU have been ordered to pay penalties under section 44(1) of

the BCII Act. To be satisfied that this is a penalty relevant to s. 513(1)(d), s. 44(1) of the BCII
Act must be an “industrial law” for the purposes of that provision.

[30]      ‘Industrial law’ is defined at s.12 of the Act:

“12 The Dictionary...

industrial law means:

(a) this Act; or

(b) the Fair Work (Registered Organisations) Act 2009; or

(c) a law of the Commonwealth, however designated, that regulates the

relationships between employers and employees; or

(d) a State or Territory industrial law.”

[31] I note that the BCII Act was renamed the FW(BI) Act and amended by the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 on 1

June 2012. In particular, the amending Act repealed Chapters 5 and 6 of the BCII Act which contained various building industry specific provisions, including the provision that Mr Warren and the AMWU was found to have contravened. However, the repeal of these building industry specific provisions does not affect any previous liability acquired, or penalty incurred, under them.v In addition, the amendments also abolished the Office of the Australian Building and Construction Commissioner (ABCC) and established a new agency, the FWBC. For clarity, where I refer to the BCII Act I am referring to that legislation at the time the contraventions took place.

[32] I am not aware of any authorities that have determined whether the BCII Act was or

was not, or the FW(BI) Act is or is not, a law of the Commonwealth that “regulates the
relationships between employers and employees”.

[33]      In Dowling v Fairfax Media Publications Pty Ltdvi (Dowling v Fairfax), Justice Jagot

considered whether the Occupational Health and Safety Act 2000 (NSW) and the Workplace

Injury Management and Workers Compensation Act 1998 (NSW) were ‘industrial laws’ for

the purposes of the repealed s.779 of the WR Act. Her Honour observed that:
[2014] FWCD 3894

“[79] WorkCover has a range of enforcement powers under legislation vesting it with functions including the taking of criminal proceedings, the issuing of penalty notices, the preparation of industry codes of practice, powers to issue investigation notices, improvement notices and prohibition notices, powers to take proceedings for offences against such notices, and powers to include directions in such notices…

[80] The legislation in respect of which WorkCover has functions includes issues relating to the relationships between employers and employees and not merely, as the respondent submitted, regulating the environment within which such relationships operated. For example, s 46 of the Workplace Injury Management and Workers Compensation Act requires employers to participate and co-operate in the establishment of an injury management plan required to be established for an injured worker and to comply with the plan. Section 47 imposes reciprocal obligations on employees. Section 48 imposes an obligation on an injured employee to return to work and s 49 imposes a reciprocal obligation on the employer to provide suitable work for an injured employee. There are many other examples of such mutual or related obligations as between employers and employees in the legislation vesting functions in WorkCover.

[81] Having regard to these matters I am satisfied that the legislation vesting functions in WorkCover, in a number of respects, regulates the relationship between employers and employees. The legislation is thus within the definition of ‘industrial law’ in s. 779.”vii

[34] The BCII Act vested the ABCC with enforcement powers including the investigation and prosecution of breaches of its provisionsviii and specifically proscribed certain conduct,ix and created criminal offences.x Although the former BCII Act adopted the concept of “building industry participants”xi and generally imposed obligations on “persons” rather than

“employers” and “employees”, it did appear to regulate the relationship between employers

and employees engaged in “building work” xii in a number of significant ways.

[35] The relevant provision of the BCII Act that was contravened by Mr Warren and the AMWU is s. 44(1). An extract of that provision is set out below:

44 Coercion of persons to make, vary, terminate etc. enterprise

agreements etc.

(1) A person must not:

(a) take or threaten to take any action; or

(b) refrain or threaten to refrain from taking any action; with intent to coerce

another person, or with intent to apply undue pressure to another person, to

agree, or not to agree:

(c) to make, vary or terminate, or extend the nominal expiry date of, a building

enterprise agreement; or

(d) to approve any of the things mentioned in paragraph (c).”

[2014] FWCD 3894

[36] Whilst regulation in the above provision is not limited to employees and employers, it does appear to regulate the industrial context of the building and construction industry, including enterprise bargaining and industrial action, an important relationship between employers and employees. Although the mere use of the term industrial should not lead to an immediate finding that a provision is an industrial law for the purposes of the Act, it is clear from the above provisions that the industrial context being regulated affects relations between employers, employees and industrial organisations, even where the person to whom the provision may apply is not an employer or employee themselves. The term industrial law, in my view, applies to at least the provision of the BCII Act pursuant to which a penalty was imposed on the AMWU.

[37] I shall proceed on the basis that the BCII Act is an industrial law for the purposes of s.513(1)(d) of the Act.

[38] Even if it is ultimately determined the relevant provision of the BCII Act was not an industrial law as contemplated by s.513(1)(d) of the Act, the imposition of a penalty under the BCII Act is, in any event, a matter to which I could relevantly turn my mind under s.513(1)(g) of the Act since the conduct occurred in an industrial context and arose while Mr Warren was acting in his role as an official of the AMWU at all material times.

[39]      I now turn to Hardwick.

Hardwick

[40] While I have noted the particular details in Hardwick, given that the matter was fully

considered by Delegate Nassios in RE2010/3952 before issuing a permit, it is not necessary to
canvass those particulars in any detail for the purposes of this application.

[41] In the case of Mr Warren, he has been issued a right of entry permit subsequent to his conduct referred to in Hardwick. In the absence of any further adverse issues, Mr Warren would have a reasonable expectation that a Delegate who has issued a permit subsequent to such conduct may not consider such an adverse issue to be of relevance in issuing a later permit. However, this is not a case where there are no further relevant matters to consider as Mr Warren and the AMWU failed to disclose the Hardwick matter in application RE2014/748.

Other relevant matters

The duty for thorough disclosure concerning adviser issues

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

known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branchxiii,
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.”xiv

Disclosure of relevant matters in application
[2014] FWCD 3894

[43] The non-disclosure of relevant matters in application RE2014/748 raise significant concerns regarding Mr Warrens’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.xv

This is reflected in various provisions of Part 3-4 of the Act which place conditions and limitations on the power to exercise entry rights such as giving the prescribed notice of entry, producing authority documents and complying with reasonable requests to take a particular route to reach a room or area of the premises and with site occupational health and safety requirements. Part 3-4 also prohibits misrepresentations about things authorised by Part 3-4 of the Act and intentionally hindering or obstructing any person or otherwise acting in an improper manner amongst other duties.

[44] 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.

[45] In my view, Mr Warren and the AMWU, at the very least, failed to exercise a

sufficient degree of diligence when making and lodging the application in matter
RE2014/748.

[46] Given the above, I have reservations regarding whether Mr Warren 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.

[47] I have taken into account the evidence of Mr Dargavel and Mr Warren contained within their statutory declarations, both dated 21 May 2014, that the omission was an inadvertent error rather than a deliberate omission. I also note that Mr Warren had appropriately disclosed the Hardwick matter in his previous application for an entry permit in matter RE2010/3952. I have also taken into account that Mr Warren and the AMWU subsequently took steps to correct this error of omission in application RE2014/748 by making an amended application. Consequently, I do not find the failure of proper disclosure, of itself, fatal as to whether Mr Warren is a fit and proper person to hold an entry permit.

Conclusion

[48] 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.

[49] I have also had particular regard to the contemporaneous nature of Mr Warren’s entry permit training in 2014. Having regard to the RE2010/3952 disclosure of Hardwick, 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 Dargavel and Mr Warren have demonstrated anything less than candour in the amended application and each of their statutory declarations.

[2014] FWCD 3894

[50] I am satisfied, on balance, that Mr Warren is a fit and proper person, taking into account the permit qualification matters. Accordingly, I will issue a permit.

DELEGATE OF THE GENERAL MANAGER

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i [2011] FWAD 3518.

ii Ibid at [21].

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

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

v Building and Construction Industry Improvement Amendment(Transition to Fair Work) Act 2012 sch 2, item 1; Building

and Construction Industry Improvement Amendment(Transition to Fair Work) Regulation 2012, reg 2.4; Acts

Interpretation Act 1901 s7(2).

vi Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470.

vii Ibid at [79]-[81].

viii Building and Construction Industry Improvement Act 2005 ch 7.

ix Building and Construction Industry Improvement Act 2005 ch 5.

x Building and Construction Industry Improvement Act 2005 ss 52(6) & 65(2).

xi Building and Construction Industry Improvement Act 2005 s 3.

xii Building and Construction Industry Improvement Act 2005 s 5.

xiii [2010] FWAD 10039.

xiv Ibid at [14].

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