"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Victorian Branch
[2020] FWC 2794
•29 MAY 2020
| [2020] FWC 2794 |
| 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
(RE2020/288)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 29 MAY 2020 |
Application for an Entry Permit for Zeljko Cimbora– whether fit and proper person to hold an entry permit under the Act – satisfied that Mr Cimbora 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) applied for an entry permit to be issued under s.512 of the Fair Work Act 2009 (Act) to Mr Zeljko Cimbora.
[2] On 6 May 2020 the Australian Building and Construction Commissioner advised he did not wish to be heard in relation to this application. In the circumstances, I have decided to determine the application on the papers without holding a hearing.
[3] Mr Cimbora currently holds the office of ‘State Organiser – Division 4’ for the Victorian Branch of the AMWU. 1
[4] Mr Cimbora’s current permit issued on 11 May 2017 was to expire before this application could be determined. Consequently, and having otherwise been satisfied that the requirements in s.516(2) of the Act had been met and that no matter in s.516(4) precluded an extension of the period of operation of the permit, I exercised my discretion to extend the period of operation.
[5] 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 some abstract sense. The inquiry is whether 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. 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.
[6] 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 Taxation4:
“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
[7] 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
[8] 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. 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.
[9] 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 pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.
[10] I turn to consider the application.
Consideration
[11] In support of its application the AMWU filed declarations by Mr Cimbora and Mr Tony Mavromatis, AMWU Victorian State Secretary, in conjunction with the application (the Declarations). As the Declarations disclosed some adverse matters discussed further below, the AMWU was asked to file any further submissions or material on which it wished to rely in support of the application. The AMWU subsequently lodged submissions and a statement of Mr Cimbora.
[12] Mr Cimbora is employed as an organiser by the AMWU, having commenced that employment in 2011. 8 Mr Cimbora has held an entry permit for the last nine years.9
Permit qualification matters – s.513(1)(a), (b), (c), (e), and (f)
[13] According to the Declarations:
• Mr Cimbora 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 17 March 2020 (s.513(1)(a) of the Act);10
• Mr Cimbora has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);11
• Mr Cimbora 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;12
• Mr Cimbora has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act);
• Mr Cimbora has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Cimbora 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);13 and
• Mr Cimbora 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).14
[14] 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 Cimbora is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s.513(1)(d)
[15] Mr Cimbora’s declaration discloses the following:
“(d) I have been ordered to pay a penalty under the Fair Work Act 2009 or any other industrial law in relation to action taken by me and nor has any other person been ordered to pay a penalty in respect of such action.” 15
[16] Similarly, Mr Mavromatis declared in his statement:
“(c) has been ordered to pay a penalty under the Fair Work Act 2009 or any other industrial law in relation to action taken by the proposed permit holder and nor has any other person been ordered to pay a penalty in respect of such action” 16
[17] In its submissions the AMWU says both of the above passages are ‘ungrammatical and incorrect’ due to some ‘sloppiness’ in their drafting. 17 The AMWU submit that Mr Cimbora’s declaration should instead read:
“(d) I have not been ordered to pay a penalty under the Fair Work Act 2009, but I have been ordered to pay a penalty under another industrial law in relation to action taken by me and another person (the AMWU) has been ordered to pay a penalty in respect of such action.” 18
[18] The AMWU submits that for Mr Mavromatis, the declaration should read:
“(c) has never been ordered to pay a penalty under the Fair Work Act 2009, but has been ordered to pay a penalty under another industrial law in relation to action taken by the proposed permit holder and another person (the AMWU) has been ordered to pay a penalty in respect of such action.”
[19] The AMWU applies under s.586 to correct the declarations by substituting into the declarations at the appropriate place the passages in [1] – [2] of this decision. 19 In Mr Cimbora’s statement he confirms that he wishes to rephrase his declaration as outlined above.20 Permission to correct the Declarations in the manner sought is granted.
[20] The Declarations disclose the details of the penalties under industrial law imposed on Mr Cimbora and AMWU as follows:
• In Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] FCA 404 (ABCC v AMWU); O'Callaghan J ordered that the AMWU must pay $100,000 and Mr Cimbora pay $12,000 as penalties for a contravention of s.52 of Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCI(IP) Act); and
• The contravention occurred on 17 October 2017 when Mr Cimbora engaged in conduct with an intent to coerce NewCold Melbourne Holding Pty Ltd to employ persons as employees.
[21] The AMWU submits that despite the inaccuracies in the Declarations detailed above, they were substantially correct and honest because they both fully disclosed the penalties imposed on Mr Cimbora and the AMWU. 21 I accept that the errors in the declarations were not deliberate. The substance of the outcome of the proceeding is disclosed. The correction to the Declarations earlier allowed, now accurately reflects the position.
[22] The AMWU accepts that for the purposes of s.513(d) of the Act, the BCI(IP) Act is an “industrial law”. 22 Both Mr Cimbora and the AMWU accept that the penalties imposed by the court raise a serious issue for the Commission in determining whether to grant Mr Cimbora a right of entry permit, or, to impose conditions on a permit as issued.23
[23] The AMWU proffers the following explanation of the conduct that led to the imposition of the penalties:
• In the spring of 2017, Mr Cimbora was providing industrial relations services to about a dozen AMWU members (Members) who were installing racks in a freezer storage building which was under construction for NewCold in Truganina. Once this rack installation job finished, the Members ended their work at the site.
• Shortly afterwards, Mr Cimbora became aware that for the next phase of the project, the installation of a conveyor system linked to the racks, a different group of workers had been engaged. Mr Cimbora took the view that the Members were qualified to do this work, so he took up the issue with NewCold.
• After about a fortnight of communications between Mr Cimbora and NewCold over this issue—communications that Mr Cimbora took as promising—NewCold went quiet.
• Mr Cimbora then went to the Truganina site to take up the matter face to face with NewCold. In his statement, Mr Cimbora said:
“I asked [NewCold] whether one of the contractors I suggested would be given the conveyor job and I was told that another contractor had already been chosen. On getting that news, out of frustration, I expressed my disappointment in a forceful way, at one point saying words to the effect, “Tomorrow morning we’re going to block all your gates. You won’t get any trucks in or out of this place.” 24
[24] The AMWU submits that penalties, when considered in their context, do not weigh so heavily as to prevent a finding that Mr Cimbora is presently a fit and proper person for the follow reasons:
• The conduct was admitted, which demonstrates his honesty and willingness to co-operate in the administration of justice. 25
• Mr Cimbora’s impugned conduct was an isolated and impulsive act, borne out of frustration. Mr Cimbora thought his entreaties to NewCold, over about a fortnight, were leading to his desired result, that is, NewCold’s agreeing to engage the Members. When he was rebuffed, his actions, while admittedly excessive and unlawful, were made in circumstances where disappointment and frustration were natural human reactions. 26
• In the Proceedings, the Court saw fit to impose on Mr Cimbora a penalty in the “low range”. 27
• Since the contravention, Mr Cimbora has undergone training to prevent a recurrence of such an event. 28
• Mr Cimbora has stated his appreciation of the rule of law and how his actions sit with this principle. 29
• Mr Cimbora has been a union official for almost a decade, and the contravention is the only matter that warrants a negative disclosure in the Application.
[25] Mr Cimbora’s statement adds that both he and the AMWU have now fully complied with the Court’s orders. 30
[26] That Mr Cimbora has been ordered to pay a penalty under industrial law in relation to action taken by him and that another person (AMWU) has been ordered to pay a penalty in respect of such action weighs against a finding that Mr Cimbora is a fit and proper person to hold an entry permit.
[27] Nonetheless both Mr Cimbora’s statement and the admission of the conduct during the proceeding resulting in the imposition of penalties, demonstrates acceptance of responsibility and acknowledgement of wrongdoing and is a matter that is also relevant to the assessment and specifically the weight that attaches to that permit qualification matter.
[28] Moreover, in addition to his acceptance of responsibility, Mr Cimbora has now undertaken training to prevent occurrence of any further contravening conduct. I accept that the conduct the subject of the proceeding before the Court was an isolated incident, that the penalty imposed was in the “low range” in the context of the BCI(IP) Act and that Mr Cimbora has been a union official for 10 years without any other incident. Taken together as mitigating the weight that I might otherwise ascribe to this permit qualification matter the imposition of the aforementioned penalties do not weigh so heavily, when account is taken of the other permit qualification matters, as to support a conclusion that Mr Cimbora is not a fit and proper person to hold an entry permit under the Act.
Permit qualification matters – s.513(1)(g) – any other matters the FWC considers relevant
[29] There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Cimbora is a fit and proper person to hold an entry permit.
Conclusion
[30] For the reasons stated I am satisfied that Mr Zeljko Cimbora is a fit and proper person to hold an entry permit.
[31] A permit will be separately issued.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR719726>
1 Submission of the applicant at [1]
2 (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 Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
3 See 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 CFMEU v FWA (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], pp.39-41
8 Statement of Zeljko Cimbora at [4]
9 Ibid at [7]
10 Form F42, declaration by proposed permit holder dated 9 April 2020 at (a) and Attachment ‘ACTU Statement of Completion’
11 Ibid at (b)
12 Ibid at (c)
13 Ibid at (e)
14 Ibid at (f)
15 Form F42, declaration by proposed permit holder dated 9 April 2020 at (c)
16 Form F42, declaration by member of Committee of Management dated 9 April 2020 at (d)
17 Submission of the applicant at [11]
18 Ibid
19 Submission of applicant at footnote 6
20 Statement of Zeljko Cimbora at [24]
21 Submission of the applicant at [12]
22 Ibid
23 Ibid at [15]
24 Statement of Zeljko Cimbora at [18]
25 Ibid at [23]
26 Ibid and Statement of Zeljko Cimbora at [18]
27 Submission of the applicant at [23] and [2020] FCA 404 at [39]
28 Submission of the applicant at [23], Statement of Zeljko Cimbora at [23]; [2020] FCA 404 at [39]
29 Submission of the applicant at [23], Statement of Zeljko Cimbora at [10]
30 Statement of Zeljko Cimbora dated 14 May 2020 at [22]
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