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

[2015] FWC 1843

[2015] FWC 1843 [Note: An appeal pursuant to s.604 (C2015/3867) was lodged against this decision.]

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, 16 APRIL 2015

Entry permit for Tony Mavromatis.

[1] This matter involves 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] A hearing was conducted in Melbourne on 10 March 2015. The AMWU was represented by Mr K Farouque. Submissions were also made by the Director of the Fair Work Building Industry Inspectorate (Director). The Director was represented at the hearing by Mr C O’Grady of counsel.

[3] Section 512 of the FW Act provides that the Commission may issue a ROE permit to an official of an applicant organisation if the Commission is satisfied that the official is a fit and proper person. Section 513(1) provides that in deciding whether the official is a fit and proper person, the Commission must take into account the ‘permit qualification matters’ identified in paragraphs (a)-(g).

[4] Section 513(1) (a)-(g) refers to the following 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.’

[5] In the recent decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 1, the Commission summarised the principles relevant to the interpretation and application of s.512 and s.513(1) as stated in a number of Full Bench decisions 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 a ROE 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 ROE permit that has been applied for by the organisation.

• The question of whether an official is a fit and proper person to hold a ROE 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 a ROE 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 a ROE 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.

Background

[6] Mr Mavromatis commenced with the AMWU Victorian Branch as an organiser on 22 July 2002. Shortly thereafter he was issued a ROE permit for a three year term by the Australian Industrial Relations Commission (AIRC). In 2005 he was issued with another ROE permit for a further three year term. On 15 August 2008 he was issued with a further ROE permit for a three year term by the AIRC.

Williams v AMWU

[7] On 28 July 2010 Jessup J issued his decision in Williams v AMWU 2. 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.

[8] The evidence presented by the applicant in the case (an Australian Building Construction Inspector) was uncontested by the various respondents (which included the AMWU and Mr Mavromatis). The penalties that the Court imposed were agreed to by the respondents.

[9] In his reasons for decision, Jessup J described in some detail the history of the dispute. This included a protest held outside the project head office. Jessup J recounted how on one occasion:

‘Mr Mavromatis led a group of these protestors chanting “What do we want? Our jobs! When do want it? Now!”. Mr Mavromatis then walked past the office windows of the project head office, yelling “get fucked” very loudly and aggressively, whilst giving a middle finger gesture, towards the office.’ 3

[10] Jessup J described a range of aggressive and abusive activities engaged in by the protestors, which he said appeared to have been superintended by Mr Mavromatis and two other union officials. He also described how Mr Mavromatis was seen kicking dirt out of the garden bed of the project head office, and walking inside the planter box. ‘He removed dirt from his boots by forcefully banging them against the automatic glass doors of the project head office’. 4

[11] Later the same day (6 March 2009) Mr Mavromatis saw a security guard (Brian Lee) take out his camera as if to take a photograph of two of the protestors handling the rope on the John Holland flag pole. Jessup J recounts:

‘A short time later, Mr Mavromatis, who was sitting in his car at the time, took a photograph of Mr Lee, at which time he (Mavromatis) said “smile cunt”. He then commenced to abuse Mr Lee in words reported by the latter as:

Your whole family will be on this camera cunt...You just made it personal cunt...I’m gunna get the lot of you...I heard everything you said cunt...You’re fucking gone cunt...You’re fucked...laugh now cunt, I’ll fucking get you...Fucking coppa wanna-be...You fucking loser, you wanna get personal? You don’t know how fucked you are....You’re gone cunt, you grey haired cunt.

Mr Lee did not respond to these taunts, but turned to walk back inside the project head office. As he was doing so, Mr Mavromatis yelled at him: “You are too fucking stupid to be a copper so you had to be a security guard. Yeah, fuck off, you’re too dumb to fucking understand.” Mr Mavromatis then drove off.’ 5

[12] Mr Mavromatis returned to the site that afternoon where he resumed his abuse of Mr Lee. Jessup J then recounted the following evidence.

‘Mr Mavromatis came up to the sliding glass doors of the building and abused him and Mr Williams, such as by calling Mr Lee “a grey-haired fucking woman”, and “ugly cunt” and a “copper wanna-be”. Mr Mavromatis said to Mr Lee, “good job you did on the steps you fucking woman” (with apparent reference to the fact that Mr Lee had earlier been obliged to sweep the tan-bark from the steps which had apparently been scattered there by the protesters). Mr Mavromatis yelled at Mr Williams, “Hey junior, what are you working with that ugly old cunt for, I tried to take a photo of him and my camera cracked”. Mr Mavromatis put the AMWU flag up to the window with his face behind it, pulling it from side to side, and up and down, and saying “peek a boo”. He said “I treat children like children”. He then poked out his tongue at Messrs Lee and Williams, and moved it in and out, according to Mr Lee, as though “mimicking a person giving cunnilingus”. Mr Mavromatis asked Mr Lee twice if he wanted to come outside saying, “Come on, you know you want to have a go” and “Come outside and have a go and see what happens, you know you want to”.  6

[13] Later in his reasons for decision, Jessup J describes events that took place on 17 March 2009 at the corporate head office. That morning of 17 March a picket line of around 25 had assembled outside the corporate head office. According to Jessup J:

‘Mr Mavromatis was yelling through a megaphone such things as: “Marshall, Gary Marshall, come down and talk to us”; “Stop hiding Marshall”; and “You’re costing the bridge money and delaying the project”. Mr Mavromatis also led the repetitive chant, “What do we want? Our jobs. When do we want them? Now.” Mr Mavromatis yelled out “Fists in the air”, and the picketers in the group raised their fists when they were chanting. For much of the time, Mr Lee was standing nearby, and was subjected to derisive and abusive commentary. One of the protesters was yelling through a megaphone words to the effect, “Marshall, come outside, grow a set of balls and come and face us. This whole project is stopped because of Gary Marshall. Gary, if you want the job to go on, give us our jobs back now.’ 7

[14] Jessup J subsequently found that Mr Mavromatis (with another official) was directly and knowingly involved in unlawful industrial action by 21 employees of Civil Pacific, a contractor to John Holland, on 5 and 6 February 2009. He also found that he counselled and procured the Civil Pacific employees to take the industrial action. 8

‘Jessup J also found that Mr Mavromatis (with others) engaged in picketing activities on 6 February 2009 with the intention of exerting pressure on John Holland and Civil Pacific as would negate their choice to take any course other than to enter into an enterprise agreement with the unions.

Messrs Powell and Mr Mavromatis took leadership roles in this respect, and their conduct on the picket line, and their words to John Holland representatives, left no doubt but that they asserted an ability, and an intention, to prevent work going ahead on the project until either John Holland or Civil Pacific, or both, indicated a readiness to make such an agreement. That work on the project should be deferred on this ground was manifestly a circumstance which John Holland could not endure indefinitely, and I infer that Messrs Powell and Mavromatis were not only aware of that circumstance, but intended that it should be used to the unions’ advantage to secure the end which they sought.

I also consider that the means employed by Messrs Powell and Mavromatis, and those who followed their leadership, were illegitimate. ... the use of direct tactics, involving as it does the implication that the physical presence of human beings and mechanical objects would, if necessary, be used to prevent any commercially beneficial access to a major construction site without any colour of justification save the ends sought to be achieved is, in my view, readily described as illegitimate.’ 9

[15] With regard to the protest held outside John Holland’s office, Jessup J agreed with the description of Mr Mavromatis’s conduct as ‘disgraceful’. He also noted that Mr Mavromatis (along with others) was in a position to influence the protestors as a group, and took no step to prevent or discourage the in individuals over whom he had this influence from engaging in a range of abusive and intimidating acts. 10 Jessup J later noted that there was little doubt that Mr Mavromatis (together with two other officials) was, generally speaking, entrusted with the prosecution of the unions’ campaign against John Holland, at least insofar as ‘on the ground’ activities were concerned.11

[16] Jessup J found that Mr Mavromatis contributed to the harassment of John Holland staff at the project head office and consented to or agreed with the blockade of the site facility.

Nassios Decision

[17] On 14 December 2011 Mr T Nassios, a Delegate of the General Manager of Fair Work Australia issued a decision indicating that he would grant a ROE permit to Mr Mavromatis. Mr Nassios’ decision included the following:

‘[29] Serious penalties were imposed upon Mr. Mavromatis and the AMWU for contraventions of sections 38, 43 and 44 of the BCII Act, which provide that a person must not engage in unlawful coercion or unlawful industrial action as defined in that Act. During the course of the events in Williams Mr. Mavromatis clearly engaged in threatening, intimidating and harassing conduct. Indeed the Court characterised such conduct as „disgraceful‟. Such behaviour is clearly inconsistent with the object set out in subsection 480(c) of the Act of safeguarding the right of occupiers of premises and employers „to go about their business without undue inconvenience.‟ The provision makes it clear that this is one of the elements that must be balanced against the rights of organisations to represent their members; and employees and outworkers to receive information and representations from officials of organisations. This was an element that was emphasised in the case of The Office of the Australian Building and Construction Commissioner v Mr Brent Harrison.

[30] There are however countervailing factors that I should also take into account.

[31] Mr. Mavromatis has held a number of entry permits under the current Act and the previous Workplace Relations Act 1996 over the past nine years. There is no evidence that he has had any adverse findings made against him regarding his use of such permits.

[32] There is no evidence that Mr. Mavromatis abused his right of entry powers in the course of events outlined in Williams.

[33] There is some merit in the AMWU‟s submission that to refuse a permit for Mr. Mavromatis would be to impose further punitive sanctions upon him arising from the Williams decision, in a matter that has already been dealt with by the Federal Court.

[34] The penalties in Williams should also be considered in the context of Mr Mavromatis’ considerable years of service as an official with the AMWU.

[35] I have also taken into account the fact that Mr. Mavromatis has engaged in further training about the rights and responsibilities of permit holders since the events in Williams and the enactment of the current Act in 2009. In the absence of any evidence to the contrary, this appears to be consistent with a willingness of Mr. Mavromatis to improve his understanding of permit holder rights and responsibilities.

[36] Finally, unless I am mistaken as to the powers of an Inspector appointed under the BCCI Act, I note that the ABCC did not seek to have Mr. Mavromatis‟ previous permit [RE2008/2678] suspended or revoked under section 507 of the Act following the imposition of penalties by the Federal Court in Williams. The absence of any such action by the ABCC tends to diminish the force of its submissions that Mr Mavromatis should now be denied a new permit based on his conduct in Williams.’

Consideration

[18] Mr Mavromatis completed the ACTU Federal Right of Entry course on 21 November 2014. I am accordingly satisfied that he has received appropriate training about the rights and responsibilities of a ROE permit holder.

[19] Mr Mavromatis has never been convicted of an offence against an industrial law.

[20] Mr Mavromatis has never 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.

[21] Mr Mavromatis has not had a ROE permit revoked, suspended or made subject to conditions.

[22] No court or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has: cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Mavromatis has under that law; or disqualified Mr Mavromatis from exercising, or applying for, a right of entry for industrial or OHS purposes under that law.

[23] On the other hand, as outlined earlier, Mr Mavromatis and the AMWU have been ordered to pay a number of penalties under an industrial law, in relation to action taken by Mr Mavromatis.

[24] 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.

[25] 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.

[26] 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.

[27] 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.

[28] 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. 12

Conclusion

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

SENIOR DEPUTY PRESIDENT

Appearances:

K Farouque Solicitor with C Catalini Solicitor and B Terzit for the AMWU

C O’Grady Barrister with M Fisher Solicitor for the Director of the Fair Work Building Industry Inspectorate

Hearing details:

2015

10 March

Melbourne

 1  [2015] FWC 1522 at [32]

 2   Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA754

 3   At [41]

 4   At [44]

 5   At [46]

 6   At [49]

 7   At [84]

 8   At [174]

 9   At [176-177]

 10   At [183]

 11   At [190]

 12   Iin contrast, for example, to Mr Graham Pallot in [2015] FWC 2138

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