“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) -Victorian Branch

[2016] FWC 21

[2016] FWC 21

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) -Victorian Branch
(RE2014/1867)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 4 JANUARY 2016

Application for a right of entry permit for Tony Mavromatis - re-hearing - permit not issued.

Background

[1] This decision concerns an application by the Victorian branch of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) under s.512 of the Fair Work Act 2009 (FW Act) for the issue of a right of entry permit (ROE permit) to Mr Tony Mavromatis.

[2] In an earlier decision on 16 April 2015 (the initial decision), I refused to issue Mr Mavromatis a ROE permit. 1 I did so on the ground that I was not satisfied that Mr Mavromatis was a fit and proper person to be issued with such a permit. Consistently with the Full Bench’s decision in Re Maritime Union of Australia,2 I did not consider the imposition of conditions under s.515 prior to making my determination as to whether Mr Mavromatis was a fit and proper person.

[3] However, since Re Maritime Union of Australia, the Full Court of the Federal Court has held in Maritime Union of Australia v Fair Work Commission 3(MUA v FWC)that consideration of whether conditions should be imposed on an entry permit pursuant to s.515 (1) of the FW Act should occur conjointly with consideration of whether the official for whom the permit is sought is a fit and proper person under s.512.

[4] On 17 August 2015, a Full Bench of this Commission, having regard to MUA v FWC, made a consent order granting permission to appeal against the initial decision. The Full Bench ordered that:

‘Pursuant to section 607(3)(c)(i) and 607(3)(c)(ii) of the Fair Work Act 2009 (the Fair Work Act) the issue of whether the imposition of conditions pursuant to section 515 of the Fair Work Act on any entry permit issued to Mr Mavromatis would satisfy the Fair Work Commission that Mr Mavromatis is a fit and proper person to hold an entry permit, including the terms of any such conditions, is referred to Senior Deputy President Hamberger for determination in accordance with the decision of the Full Court of the Federal Court in Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56.

The Senior Deputy President shall proceed on the basis of the existing evidence and such further evidence as he may decide to admit.’ 4

[5] A hearing was held in Melbourne on 9 November 2015. The AMWU was represented by Ms L Doust of counsel, and the Director of the Fair Work Building Industry Inspectorate (the Director) by Mr C O’Grady of counsel. I admitted into evidence a statement by Mr Mavromatis. 5 He was cross-examined on that evidence.

The initial decision

[6] The concern in the initial decision about whether Mr Mavromatis was a fit and proper person to hold a ROE permit was prompted by the judgment of Jessup J in Williams v AMWU. 6 In that judgment, Jessup J imposed eight separate penalties, totalling $298,000, on the AMWU for contraventions of the Building and Construction Industry Improvement Act 2005 (BCII Act), constituted by a range of conduct engaged in and action organised or taken by Mr Mavromatis as its officer. This conduct and action took place on around 13 separate days between 5 February and 21 March 2009. The conduct concerned a dispute in relation to the West Gate Bridge project of John Holland Pty Ltd. Most of the conduct involved in the contraventions was designed to coerce John Holland Pty Ltd to make an enterprise agreement or to employ particular employees on the project. The conduct included authorising unlawful industrial action, and preventing access to the site. In addition, four penalties totalling $27,000 were imposed on Mr Mavromatis personally for his conduct.

[7] In the initial decision I made the following observations:

‘A few things need to be pointed out about these penalties. First, and most obviously, we are not talking about one penalty - but several. The penalties were not in relation to a single, let alone an isolated incident. They were in response to actions taken by Mr Mavromatis on a number of occasions over the course of several weeks.

The penalties were not at the lower end of the scale. Indeed they total $325,000. The reason for the penalties being so considerable is that the conduct by Mr Mavromatis - as well as being repeated - was particularly egregious - indeed it was ‘disgraceful’ to use Jessup J’s description. Moreover, as the Federal Court made clear, not only did Mr Mavromatis engage in his own appalling behaviour, he played a leading role in encouraging others to engage in similarly appalling conduct.

The behaviour of Mr Mavromatis during the John Holland dispute has no place in contemporary workplace relations. It indicated a contempt for the law and for proper standards of conduct. I note that Mr Nassios found it appropriate to issue Mr Mavromatis with a ROE permit less than 18 months after the judgement in Williams v AMWU. I find that decision quite baffling. One explanation is that he appeared to accept a submission made by the AMWU that to refuse a permit for Mr Mavromatis would be to impose further punitive sanctions upon him arising from a decision in a matter that had already been dealt with by the Federal Court. That is to misconceive the role of the FWC under ss.512 - 513. A refusal to grant a permit is not a punishment. It is a recognition that certain individuals are not suitable to be given the rights and responsibilities that go with being granted a ROE permit. I am satisfied that Mr Mavromatis is such a person. He is not a fit and proper person to be issued with a ROE permit.

I have taken into account that the conduct to which Williams v AMWU relates was in 2009, and that no further penalties have been imposed on Mr Mavromatis since then. The mere passage of time is however, by itself, of limited relevance. Moreover 2009 is only six years ago.

If I could be persuaded that Mr Mavromatis was somehow a changed character then that could have altered my decision. However, apart from the fact that no further penalties have been imposed on him, there is very little to support such a conclusion. There was no evidence of contrition on his part at the time of the proceedings in Williams v AMWU or since. Nor did Mr Mavromatis provide any evidence to the Commission that might have indicated that he understands that his behaviour six years ago was wrong and that he now ensures that he behaves properly and lawfully.’ 7

MUA v FWC

[8] In MUA v FWC the Full Court of the Federal Court made the following observations concerning ROE permits under the FW Act:

‘…it is important to recognise at the outset that Part 3-4 of theFair Work Act fundamentally modifies common law rights.

A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61-62 thus observed:

“The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.”

See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR at 439-440 per von Doussa J.

Section 480 … sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, 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. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.

It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.

The phrase a “fit and proper person” is used in many different statutory contexts: e.g., Customs Act1901(Cth), ss 67H, 102CF; Migration Act1958 (Cth), s 290; Marriage Act1961 (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

[9] In considering the decision of the Full Bench in Re Maritime Union of Australia, the Court agreed that:

‘ the question of whether an official is a fit and proper person to hold a permit will 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.’ 9

[10] However the Court also observed that the limitations and conditions attaching to the exercise of the rights of a permit holder can include conditions imposed by the Commission itself under s.515, rather than just those imposed specifically by the FW Act.

‘This construction of s 515 is to be preferred, as it is consistent with the discernible legislative intent to provide the Commission with a capacity to facilitate the balance contemplated by s 480 and, regarding the imposition of conditions, to do so harmoniously both in relation to the grant of a permit and the Commission’s supervision of its subsequent use (see ss 505(2), 505A (3)(a), 507(1) and 508(2)).’ 10

[11] The Court concluded:

‘Conditions may be imposed pursuant to that section to remedy or address deficiencies or reservations in respect to an officer of an applicant, which deficiencies or reservations could otherwise lead to the conclusion that the person was not “fit and proper”.’ 11

The evidence

[12] In his written statement, Mr Mavromatis outlined his career as a union official. He indicated that he commenced full-time employment as an organiser with the Victorian Branch of the AMWU in mid-2002, when he applied for and was granted a ROE permit under the Workplace Relations Act 1996.

[13] In early 2003, an application for the revocation of his ROE permit was refused by a decision of a Deputy Industrial Registrar.

[14] According to Mr Mavromatis, during the period 2003-2011 he kept abreast of the law

in relation to the exercise of his right of entry. Industrial officers of the AMWU gave regular updates to organisers about developments in the law, and about decisions which interpreted the law in this area. He undertook regular training about Federal right of entry laws. 12

[15] Mr Mavromatis gave his version of the dispute at the West Gate Bridge project. This included a comment that the dispute was the most difficult he had ever dealt with in his career as an organiser. 13 He said, amongst other things:

‘I was involved in setting up a protest outside John Holland’s project head office. By this stage, I felt personally involved in this matter because the workers had come to me for help, and because of my involvement, they had lost their jobs and been black banned. It did not seem to me that there was any legal recourse so I tried to exert moral and industrial pressure on John Holland.

As the dispute wore on, my frustration got the better of me, and I said and I did a number of things I now deeply regret.’ 14

[16] Mr Mavromatis suggested that some of his most reprehensible conduct had been provoked, though he admitted that this makes little difference to the characterisation of his behaviour. 15 He concluded:

‘I know that what I did was wrong and that I have to follow the law. Even if you don’t agree with the law you have to work within the system and play by the rules.’ 16

[17] During his cross-examination, Mr Mavromatis agreed that he was not generally disputing the findings of Jessup J in Williams v AMWU. 17

[18] In his statement, Mr Mavromatis proposed that the Commission adopt the following conditions and assured the Commission that he would abide by those conditions:

‘Additional training conditions

1. The permit holder must undertake on an annual basis training approved by the Fair Work Commission in relation to Parts 3-1, 3-3 and 3-4 of the Fair Work Act 2009 for the duration of the permit.

2. The permit holder must notify the Fair Work Commission within two weeks of the training referred to in paragraph 1 being undertaken.

Ongoing disclosure conditions

1. The permit holder must notify a Fair Work Inspector in writing within 14 days of any of the following:

i. the permit holder being charged with an offence against an industrial law;

ii. the permit holder being charged with an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

1. entry onto premises; or

2. fraud or dishonesty; or

3. intentional use of violence against another person or intentional damage or destruction of property;

iii. the permit holder being served with originating process howsoever described commencing proceedings against the permit holder seeking an order that he pay a penalty under the Fair Work Act 2009 or any other industrial law in relation to action taken by the permit holder;

iv. the permit holder being notified of any decision to revoke, suspend, or impose any condition upon any permit issued to the permit holder under the Fair Work Act 2009, or under a similar law of the Commonwealth (no matter when in force);

v. the permit holder being served with originating process howsoever described commencing proceedings before any court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, which seeks an order:

1. cancelling, suspending or imposing conditions on the right of entry for industrial or occupational health and safety purposes that the permit holder had under that law; or

2. disqualifying the permit holder from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law.’ 18

The submissions of the parties

[19] The AMWU submitted that it follows from the reasoning in MUA v FWC that where the Commission has any concerns as to the fitness and propriety of a proposed ROE permit holder, it must consider whether the imposition of conditions upon the permit holder might address those concerns, such that the Commission could be satisfied that the person was a fit and proper person to hold an entry permit subject to those conditions. It added that, whilst the Commission should give consideration to such conditions as are proposed by the applicant organisation or the permit holder, the Commission’s discretion is not limited to a consideration of such conditions as are proposed by the parties.

[20] The AMWU asked the Commission to consider the grant of a ROE permit to Mr Mavromatis, subject to the conditions outlined in Mr Mavromatis’s statement.

[21] The AMWU submitted that the volunteering of the conditions demonstrated on the part of Mr Mavromatis:

a. An acknowledgement of the impropriety of the matters which were adverse to the application;

b. An understanding of the need for him to abide by the laws which govern his role as a union official. The Commission would not think Mr Mavromatis would be willing to subject himself to a level of scrutiny much greater than that to which other ROE permit holders were subject unless he had resolved not to bring himself to the Commission’s attention through his future conduct; and

c. An acceptance that in the event an entry permit was granted, any engagement in conduct which brought him to adverse attention would likely have consequences for his continued holding of an entry permit.

[22] The AMWU submitted that these matters should be regarded, along with the ‘long period’ since Williams v AMWU, during which Mr Mavromatis has not been the subject of any further penalties, as together providing a sound basis for the Commission to be satisfied that he understands and accepts the necessity of compliance with industrial and other relevant laws, and will properly and lawfully exercise the rights attaching to any entry permit granted to him.

[23] The AMWU noted that the conditions it was proposing were consistent with those imposed by the Commission in an earlier decision. 19

[24] In relation to the absence of penalties imposed on Mr Mavromatis since the events dealt with in Williams v AMWU, Ms Doust said:

‘... that is a very important indicator of a person’s conduct. Because the fact that there hasn’t been a repetition of this earlier conduct, the more time that passes, makes it more likely that this behaviour was aberrant, out of character, that the person has understood their obligations and has now understood the need to comply with the obligations such as they are. We say time is important, very important.’ 20

[25] Ms Doust described the proposed conditions as exposing Mr Mavromatis to ‘an extremely close scrutiny’:

‘What that would indicate is, not just an acceptance about the inappropriateness of the conduct, which shows both a confidence that his future conduct won’t be the same and a determination that that conduct won’t be repeated.’ 21

[26] Ms Doust submitted that Mr Mavromatis’s calm behaviour in the witness box while giving his evidence should further give the Commission confidence that he was no longer given ‘to temper or the sort of intemperate outbursts that are described in the Federal Court decision.’ 22

[27] The Director submitted that the material filed by the AMWU and the conditions proposed by it would not result in Mr Mavromatis satisfying the Commission that he was a fit and proper person to be issued a ROE permit. His conduct as recorded in Williams v AMWU was of a nature and degree that the imposition of conditions should not satisfy the Commission that he is a fit and proper person to be granted a ROE permit, and no such permit should be issued.

[28] The Director submitted that Mr Mavromatis knew what he was doing was not lawful. His conduct did not result from a lack of training. Therefore the addition of the training suggested by the AMWU as a condition would not, in itself, affect Mr Mavromatis’s fitness to be issued a permit. Moreover the ongoing disclosure conditions proposed would not impact on his fitness to be issued a permit. ‘They do no more than facilitate an attempt by the Commission to shut the gate after the horse has bolted.’

[29] In the alternative, if the Commission formed the view that the imposition of conditions would mean that Mr Mavromatis was a fit and proper person to be issued a permit, the Director submitted that those conditions would need to impose ‘very significant limitations on him in order to reduce the likelihood of him engaging in such conduct in the future.’

[30] The Director submitted that such conditions ‘should proactively reduce the likelihood of Mr Mavromatis engaging in such conduct in the future.’ He then proposed a series of conditions that would ‘either stop the attendance of Mr Mavromatis on sites where building work is being performed or put procedures in place that ensure that his being appropriately supervised when attending such sites.’

[31] In addition to the conditions proposed by the AMWU, the Director proposed that a condition be imposed that Mr Mavromatis must not use his entry permit to enter sites where building work is being performed or, alternately, he only use his entry permit to enter sites where building work is being performed in the company of another permit holder also exercising their right as a permit holder into the building site.

Consideration

[32] In considering whether someone is a ‘fit and proper person’ in the sense in which that term is used in s.512 of the FW Act, the key issue the Commission must consider is the extent to which the person under consideration can reasonably be expected to exercise the rights attaching to a ROE permit properly and lawfully.

[33] I have no difficulty with the concept that the imposition of conditions may make someone a ‘fit and proper person’ to hold a ROE permit who might not otherwise meet that description.

[34] However I am not convinced that this is such a case. Mr Mavromatis’s conduct, as described in Williams v AMWU, was not only particularly egregious but it demonstrated a complete contempt for the law. I note, for example, Mr Mavromatis’s statement during the West Gate Bridge dispute (as reported at [71] of Williams v AMWU) ‘You think we give a fuck about the courts?’

[35] While I note his belated statement to the Commission to the effect that he now accepts that he has to obey laws even where he does not agree with them, I give more weight to Mr Mavromatis’s behaviour ‘on the ground’.

[36] Mr Mavromatis did not behave the way he did because he was unaware of his legal obligations. I cannot see the use of requiring someone with an attitude such as his to undergo further training in his or her legal obligations.

[37] I also share the Director’s concerns that the other conditions suggested by the AMWU amount to no more than shutting the stable door after the horse has bolted.

[38] I have considered the alternative conditions suggested by the Director. Preventing Mr Mavromatis from entering building sites begs the question as to how he would behave on other work sites. I am no more confident about his future behaviour on non-building sites than on those in the construction industry. Nor, in the circumstances of this case, do I think much would be served by allowing Mr Mavromatis only to exercise a right of entry when accompanied by another permit holder.

[39] I have carefully considered all the submissions and the material put forward by the AMWU. Some of the issues raised by the AMWU (for example, the passage of time since the imposition of penalties on Mr Mavromatis) were dealt with in the initial decision. I remain unconvinced that Mr Mavromatis is a fit and proper person to hold a ROE permit. In particular, I am not satisfied that there are any conditions that could reasonably be imposed that would address my concerns with regard to Mr Mavromatis.

Conclusion

[40] The application for a ROE permit for Mr Mavromatis is refused.

SENIOR DEPUTY PRESIDENT

Appearances:

L Doust of counsel with B Terzic for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

C O’Grady of counsel with B Vallence for the Director of the Fair Work Building Industry Inspectorate.

Hearing details:

Melbourne.

2015.

November 9.

 1   [2015] FWC 1843.

 2   Re Maritime Union of Australia [2014] 241 IR 216.

 3   Maritime Union of Australia v Fair Work Commission and Another [2015] FCAFC 56.

 4   PR570858.

 5   Exhibit AMWU1.

 6   Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754.

 7   [2015] FWC 1843 [24]-[28].

 8 [2015] FCAFC 56 [13]-[17].

 9 Ibid [34].

 10 Ibid [35].

 11 Ibid [43].

 12   Exhibit AMWU1 para 20.

 13   Ibid para 27.

 14   Ibid paras 28-9.

 15   Ibid para 34.

 16   Ibid para 38.

 17   PN125.

 18   Exhibit AMWU1 para 3.

 19   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division -Victorian Divisional Branch [2015] FWC 1522.

 20   PN347.

 21   PN353.

 22   PN368.

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