"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Victorian Branch
[2020] FWC 4814
•1 OCTOBER 2020
| [2020] FWC 4814 |
| FAIR WORK COMMISSION |
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)-Victorian Branch
(RE2020/697)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 1 OCTOBER 2020 |
Application for a right of entry permit for Mr Stephen William Dodd – whether fit and proper person to hold an entry permit under the Act – satisfied that Mr Dodd is a fit and proper person to hold a permit – permit issued.
[1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Stephen William Dodd. Mr Dodd is currently employed by the AMWU as an Organiser.
[2] Mr Dodd’s current permit expired on 6 September 2020.
[3] On 4 September 2020 the Australian Building and Construction Commissioner (ABC Commissioner) advised that he did not wish to intervene in this application.
Relevant statutory provisions and application
[4] The applicable principles for determining right of entry permit applications under s.512 are now well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in someabstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.1 The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.
[5] The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend),2 that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process.3 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:4
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”.5
[6] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:6
“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".”7
[7] Having regard to the structure and content of s.513, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. There is no statutory indication in the Act or in the right of entry scheme the Act establishes that any particular permit qualification matter should be given more weight than any other. Each matter must be accorded appropriate weight. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.
[8] Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s.513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.
[9] I turn to consider the application.
Consideration
[10] In support of its application, the AMWU filed declarations by Mr Dodd and Mr Tony Mavromatis, Victorian State Secretary of the AMWU (Declarations).
Permit qualification matters – s.513(1)(a), (b), (c), (e) and (f)
[11] According to the Declarations:
• Mr Dodd has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 5 August 2020 (s.513(1)(a) of the Act));8
• Mr Dodd has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);9
• Mr Dodd has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;10
• Mr Dodd has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked or suspended (s.513(1)(e) of the Act);11
• Mr Dodd has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Dodd held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act);12 and
• Mr Dodd has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).13
[12] I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. These matters all weigh in favour of a conclusion that Mr Dodd is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s.513(1)(d)
[13] The Declarations disclose that Mr Dodd has been ordered to pay a number of penalties under the Fair Work Act 2009 and another industrial law in relation to action taken by him and other persons have been ordered to pay a number of penalties in respect of such actions.
[14] The AMWU’s submissions outline that Mr Dodd:
• Contravened s.38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) on 25 October 2007 by engaging in unlawful industrial action. Mr Dodd was ordered to pay a penalty of $1500 in respect of this contravention. The AMWU was penalised $8000 for the same contravention.
• Contravened s.38 of the BCII Act on 23 November 2007 by engaging in unlawful industrial action. Mr Dodd was ordered to pay a penalty of $1750 in respect of this contravention. The AMWU was penalised $8750 in respect of the same contravention.
• Contravened s.38 of the BCII Act on 5 February 2008 by engaging in unlawful industrial action. Mr Dodd was ordered to pay a penalty of $1200 in respect of this contravention. The AMWU was penalised $5800 in respect of this contravention.
• On 28 August 2009, was found by Justice North to have breached s.44 of the BCII Act. Mr Dodd was penalised $5000 for this contravention. The AMWU was penalised $25,000.
• In March 2014, contravened ss. 417(1), 421(1) and 346.7 of the Act by inserting himself into a workplace stoppage over AMWU members’ workplace safety concerns.
[15] All of these matters were considered at length by Senior Deputy President Hamberger in Re “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) - Victorian Branch 14 (2017 Decision). The AMWU relies on the observations made in the 2017 Decision that the trajectory of Mr Dodd’s relevant contraventions of industrial laws shows a growing propensity for him to work within the law. The AMWU submits that that Mr Dodd “went from a serial law breaker in 2007-2008, to a well-meaning but mistaken contravener in 2014, to a well-trained clean skin over the last 6 years.” The AMWU submits this trajectory weighs in favour of a finding that Mr Dodd is a fit and proper person to hold an entry permit.
[16] The AMWU submits that Hamberger SDP’s lingering doubts as to Mr Dodd’s appreciation of the interaction of occupational health and safety laws and industrial laws due to his conduct in March 2014 were dealt with by the imposition of a condition on Mr Dodd’s permit that he be trained on this subject. According to the Declarations, Mr Dodd underwent the required training.
[17] The AMWU submits Mr Dodd faced the full and complete scrutiny of the Commission and was found to be a fit and proper person to hold an entry permit. It submits that it should be noted that when Mr Dodd’s application was before Hamberger SDP, Mr Dodd made a statement, he gave oral evidence, he was cross-examined and the ABC Commissioner was a contradictor in the proceedings.
[18] The AMWU submits that nothing has occurred since the 2017 Decision that requires further disclosure should result in the Commission finding again that Mr Dodd is a fit and proper person to hold an entry permit. It seeks to rely on the decision of the Full Court of the Federal Court in Tax Agents’ Board of Queensland v Haddad 15which it says supports the principle that if someone is adjudged to be a fit and proper person, that person’s fitness and propriety should endure and be respected into the future. The AMWU relies on the following observations:
“Counsel for the Board submitted that, as the Act does not provide for automatic re-registration, the Board must be satisfied that the applicant is a fit and proper person for re-registration. That is so. But if the only point raised as against an applicant for re-registration is that the applicant does not meet prescribed qualifications which do not apply to him, then it is inevitable that there will be a finding of fitness and propriety to practice. That is because the mere fact that the applicant is a registered tax agent provides an inference that he or she is a fit and proper person to be a tax agent. As Wigmore’s Principles of Judicial Proof states at (p 34):
“When the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later period.”” 16
[19] I agree with the observations of Hamberger SDP that as there has been no repetition of the breaches Mr Dodd committed in 2007-2008, Mr Dodd has learned from that experience and is unlikely to behave in the same way again. 17 There has certainly not been a repetition in the years since Hamberger SDP last issued Mr Dodd with an entry permit. In relation to the 2014 conduct, Hamberger SDP concluded that Mr Dodd did not understand the interaction between industrial and occupational health and safety which led him to impose a condition on Mr Dodd’s permit that he attend training on the subject. That Mr Dodd has completed this training and there has been no repetition of the 2014 conduct suggests he now has a clear understanding of the interaction between these laws.
[20] Overall, I consider that while the matters above are plainly relevant, taking into account that the conduct occurred a considerable time ago, there has been no repetition of the conduct, and that Mr Dodd has completed the relevant training, I am satisfied that they do not weigh so heavily as to prevent a finding that Mr Dodd is a fit and proper person to hold an entry permit.
Permit qualification matters – s.513(1)(e)
[21] Mr Dodd had the following condition imposed on his most recent right of permit (s.513(1)(e) of the Act):
“This permit must not be used until the permit holder has completed training conducted by the Australian Government Solicitor on the interaction between occupational health and safety and industrial law - particularly with regard to when work may lawfully stop.”
[22] According to the Declarations Mr Dodd has completed the training required by the condition on his permit. There has been no repetition of the conduct that lead to the imposition of the condition. Taking into account the permit qualification matter as a whole I consider that it now weighs neutrally.
Permit qualification matters – s.513(1)(g)
[23] There are no other matters of which I am aware that are relevant to the determination of whether Mr Dodd is a fit and proper person to hold an entry permit.
Conclusion
[24] Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Mr Stephen William Dodd is a fit and proper person to hold an entry permit. As Mr Dodd has complied with the condition in his previous permit and there has been no repetition of the contravening conduct which lead to the imposition of the condition, I will issue the permit without the condition. The application by the AMWU for an entry permit to be issued to Mr Dodd is granted.
[25] A permit will be separately issued.
DEPUTY PRESIDENT
Written submissions: 7 September 2020
Printed by authority of the Commonwealth Government Printer
<PR722614>
1 Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]
2 [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional
Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the
Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
3 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and
Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail
Association v Fair Work Commission [2014] FCAFC 118
4 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62]
and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74
at [103]
5 (1987) 16 FCR 167 at 184
6 [1986] HCA 40, (1986) 162 CLR 24
7 Ibid at [15], p 41
8 Form F42, declaration by proposed permit holder dated 7 August 2020 at (a) and ‘ACTU Statement of completion’.
9 Ibid at (a)
10 Ibid at (b)
11 Ibid at (f)
12 Ibid at (e)
13 Ibid at (f)
14 [2017] FWC 3888
15 Tax Agents’ Board of Queensland v Haddad [1994] FCA 899; 48 FCR 223
16 Ibid at [9]
17 [2017] FWC 3888 at [61]
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