Benedict Davis
[2022] FWC 405
| [2022] FWC 405 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Benedict Davis
(RE2021/1382)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 28 FEBRUARY 2022 |
Application for a right of entry permit for Mr Benedict Davis – permit issued
The Australian Workers Union (AWU) has made an application under s 512 of the Fair Work Act 2009 (FW Act) for the issuance of a right of entry permit to Mr Benedict Davis, the Victorian branch secretary of the AWU. The union contends that the Commission should be satisfied that Mr Davis is a fit and proper person to hold a right of entry permit under Part 3-4 of the FW Act and that it should issue a permit without conditions.
In accordance with s 112 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act), the General Manager notified the Australian Building and Construction Commissioner (‘ABC Commissioner’) of the present application. The ABC Commissioner did not seek to be heard pursuant to s 110 of the BCIIP Act or otherwise.
The AWU filed a written submission in support of its application and advised the Commission that it was content for the application to be determined on the papers. I consider it appropriate to do so.
Section 512 of the FW Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation, if it is satisfied that the official is a ‘fit and proper person’ to hold the entry permit. The Commission’s discretion to issue an entry permit must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the FW Act. That section provides as follows:
“513 Considering application
(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;
(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.”
The principles that apply to the Commission’s consideration of an application for a right of entry permit are well known and need not be restated here.
The materials filed by the AWU in support of the application included declarations by Mr Davis and Mr Dimitrios Mastrandonakis, the assistant Victorian secretary of the AWU. In respect of the permit qualification matter in s 513(1)(a), the AWU submitted that Mr Davis had completed the union’s approved right of entry training course on 24 November 2021, that this training is appropriate training for the purposes of s 513(1)(a), and that the Commission should conclude that the consideration in s 513(1)(a) therefore weighs in favour of a conclusion that Mr Davis is a fit and proper person to hold a permit. I agree. A certificate attesting to Mr Davis’s completion of the training was provided to the Commission. In my view the training course, which has previously been endorsed by the Commission, is appropriate training about the rights and responsibilities of a permit holder.
As to the permit qualification matters in ss 513(1)(b) and (c), the declarations attested that Mr Davis has not been convicted of an offence against an industrial law, nor has he been charged with any offences falling within the categories set out in s 513(1)(c). I accept the information in the declarations. These considerations weigh in favour of a conclusion that Mr Davis is a fit and proper person.
The declarations stated that Mr Davis has not previously had a federal permit revoked, suspended or made subject to conditions, and that Mr Davis has not had a State or Territory entry permit cancelled, suspended or made subject to conditions, nor has he been disqualified under a State or Territory law from exercising or applying for an entry permit. I accept that the declarations are correct about these matters. The considerations in ss 513(1)(e) and (f) weigh in favour of a conclusion that Mr Davis is a fit and proper person to hold a permit.
This leaves for consideration the qualification matter in s 513(1)(d). The declarations disclose that the AWU was recently ordered by the Federal Court to pay penalties for contraventions of the FW Act in relation to conduct of Mr Davis that occurred in 2015 (Fair Work Ombudsman v AWU [2020] FCA 60 (‘the Orica case’)). That matter concerned an application by the Fair Work Ombudsman (FWO) for civil penalties and declarations in relation to contraventions by the AWU of ss 340(1) and 346 of the FW Act. The background to that matter may briefly be summarised, from the Court’s decision, as follows.
In the course of 2015, the AWU and Orica Pty Ltd (Orica) were engaged in negotiations for an enterprise agreement to apply to employees of Orica at a site in Deer Park in Melbourne. On or about 25 February 2015 the AWU gave notice to Orica of the union’s intention to organise, and of its members’ intention to engage in, protected industrial action. The notice contemplated that members of the AWU employed by Orica at the Deer Park site would engage in two-hour stoppages of work at various times on 3 March 2015. On that day, most employees who were members of the AWU stopped work in accordance with the notice of industrial action. But two particular members did not. These persons were referred to in the court’s decision as the ‘Relevant Employees’.
On 6 March 2015, an official of the AWU petitioned for ‘charges’ to be laid against the Relevant Employees under rule 19(2) of the AWU’s registered rules. On 16 March 2015, Mr Davis sent to each of the Relevant Employees a letter informing them that an AWU organiser had charged them with ‘gross misbehaviour’ and failing to comply with a resolution or direction of the union by continuing to work during a period of protected industrial action in defiance of resolutions at mass meetings of AWU members. The letters went on to state that this was a very serious matter, and that the Relevant Employees were required to attend a meeting on 13 April 2015 to defend the charges. The letters stated that if the charges were sustained, the Relevant Employees may be subject to a fine, suspension from membership, or expulsion from the union.
On or about 29 April 2015, Mr Davis met with the Relevant Employees and indicated to each of them that they remained potentially subject to the imposition by the AWU of a fine or expulsion from the union and that they were charged with gross misbehaviour.
On 2 September 2015, the charges against the Relevant Employees were withdrawn. By letters dated 18 October 2018, following the commencement of proceedings in the Federal Court by the FWO, and a subsequent agreement between the parties as to the proposed disposition of that application, Mr Davis apologised to the Relevant Employees for contraventions of ss 340 and 346.
Before Snaden J, the AWU acknowledged that each of the Relevant Employees had been subject to adverse action by the AWU, first from the laying of the ‘misconduct’ charges on 16 March 2015, and secondly from the fact that they remained subject to those charges until 2 September 2015. The AWU agreed that Mr Davis’s conduct and state of mind was to be attributed to the AWU (see ss 363 and 793), and that Mr Davis took the action he did because the Relevant Employees had declined to take part in the industrial action organised by the AWU. In this regard, the Relevant Employees had exercised a ‘workplace right’ and engaged in ‘industrial activity’ within the meanings of ss 341(1)(b) and 347(b) respectively. It was further agreed, and his Honour accepted, that the AWU’s contravening conduct gave rise to contraventions of s 340(1) and 346 in respect of each of the Relevant Employees. The Court imposed on the AWU a penalty of $18,000.
The AWU accepted that, in light of the Orica case, the permit qualification matter in s 513(1)(d) weighs against the granting of its application for a right of entry permit to be issued to Mr Davis. It contended however that the Commission should have regard to particular passages in the judgment of Snaden J which were relevant to the Commission’s consideration of the question of whether Mr Davis is a fit and proper person to hold a right of entry permit, and specifically the consideration in s 513(1)(d). In particular, the AWU noted that Snaden J had accepted that Mr Davis engaged in the conduct because he thought that it was lawful and legitimate for him to do so, and that such conduct was objectively less serious than conduct engaged in with knowledge of its unlawfulness (at [38]).
Mr Davis submitted to the Commission a witness statement in which he said that at the relevant time, he had not turned his mind to the issue of the interaction between the AWU’s rules and the general protections provisions in the FW Act, but that he was now acutely aware of the overriding effect of the general protections provisions, and that he is extremely confident that the type of incident that gave rise to the proceedings in the Orica case will not occur again. Mr Davis also noted that he had apologised to the relevant members and that he was committed to maintaining a culture of compliance within the AWU Victorian Branch. Mr Davis said that he had been a union official for 27 years and that the Orica case has been the only instance in which he has been responsible for a contravention of an industrial law. I accept Mr Davis’s evidence.
The AWU submitted that the above considerations, including the evidence of Mr Davis, together with the positive weight associated with the other permit qualification matters, meant that the Commission should conclude that Mr Davis is a fit and proper person to hold a permit. I agree.
The permit qualification matters in s 513(1)(a), (b), (c), (e) and (f) all weigh in favour of granting the application. The only permit qualification matter that weighs against the issuance of a permit to Mr Davis is that in s 513(1)(d). The contravention was a serious matter however it is moderated by the fact that Mr Davis believed at the time that his conduct was lawful. It is also appropriate to take into account Mr Davis’s long and otherwise unblemished record as a union official. He has held a federal right of entry permit for many years and had not previously been found to have engaged in conduct that contravened the FW Act. The contravening conduct occurred over 6 years ago, and there has been no further contravening conduct since that time.
I am satisfied that Mr Davis is a fit and proper person to hold a right of entry permit. This conclusion enlivens the discretion conferred on the Commission under s 512. Absent any discretionary reasons not to issue a permit, the appropriate course is to grant the application, and I do so.
An entry permit will be issued to Mr Davis separately.
DEPUTY PRESIDENT
Determined on the papers
Printed by authority of the Commonwealth Government Printer
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