CEPU v Director of the Fair Work Building Industry Inspectorate
[2014] FWCFB 4397
•7 JULY 2014
[2014] FWCFB 4397 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
The Director of the Fair Work Building Industry Inspectorate
(C2014/4123)
VICE PRESIDENT HATCHER | SYDNEY, 7 JULY 2014 |
Appeal against decision [[2014] FWCD 2102] of Mr Chris Enright at Melbourne on 1 April 2014 in matter number RE2013/1344.
Introduction
[1] On 25 July 2013 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged an application in this Commission under s.512 of the Fair Work Act 2009 (the Act) for an entry permit to be issued to one of its officials, Mr Peter Mooney. The application was allocated for determination to Mr Enright, a member of the staff of the Commission (the Delegate). The President of the Commission had previously delegated to Mr Enright under s.625(2)(g) of the Act the functions and powers of the Commission under Division 6 of Part 3-4 of the Act, which includes the power under s.512 to issue entry permits upon application by registered organisations. On 1 April 2014 the Delegate issued a decision 1 in which he determined not to issue an entry permit to Mr Mooney (Decision). The CEPU applies for permission to appeal, and appeals, the Decision.
The statutory scheme
[2] Part 3-4 of the Act contains the statutory scheme concerning the rights of entry afforded to officials of registered organisations by the Act. Subdivision A of Division 6 of Part 3-4 is concerned with the issue, expiry and return of the entry permits which officials of registered organisations must hold in order to be able to exercise entry rights under the Part. Sections 512, 513 and 515 are the provisions of Subdivision A relevant to this appeal. They provide as follows:
512 FWC may issue entry permits
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.
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.
(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.
Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
...
515 Conditions on entry permit
(1) The FWC may impose conditions on an entry permit when it is issued.
(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.
(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).
(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.
(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).
The Decision
[3] In his Decision, the Delegate commenced by referring to the application lodged by the CEPU. That application was accompanied by declarations by Mr Mooney and Mr Troy Gray, a member of the CEPU’s relevant Branch Committee of Management, that disclosed a number of court and tribunal decisions of relevance to Mr Mooney. The list of decisions referred to in the declarations was set out in full by the Delegate in paragraph [4] of the Decision, and the list included Hardwick v Australian Manufacturing Workers’ Union 2(Hardwick); Cozadinos v The Australian Workers’ Union & Ors3(Cozadinos); Stuart v The Australian Workers’ Union & Ors 4 (Stuart); Martino v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia5(Martino); and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2)6 (ACCC v IPM), as well as a number of identified decisions made under the former s.127 of the Workplace Relations Act 1996 (WR Act).
[4] After referring to the process by which submissions in respect of the matter were received from the CEPU and the Director of the Fair Work Building Industry Inspectorate (FWBC) and setting out the relevant provisions of the Act, the Delegate summarised the submissions received from the parties. In respect of the FWBC submissions, the Delegate said:
“[21] The FWBC does not directly submit whether or not Mr Mooney is a “fit and proper person” for the purposes of s. 512 of the Act but argues that he has a “poor record of committing contraventions of Australia’s industrial laws”...
[22] The FWBC concludes that the Commission should exercise “some caution” in considering whether to issue an entry permit to Mr Mooney and that, if the Commission determines that Mr Mooney is a “fit and proper person” to hold an entry permit, then conditions should be imposed on any permit issued to him pursuant to s. 515 of the Act.”
[5] In relation to the CEPU submissions, the Delegate noted:
“[24] The CEPU’s submissions do not specifically address each of the permit qualification matters as they pertain to Mr Mooney beyond asserting that the matters listed in the Schedule should not be taken into account.”
[6] The Delegate then considered, and rejected, the submission made by the CEPU that the only permit qualification matters required to be taken into account under s.513(1) were those relevant to the exercise of entry permit rights. The Delegate’s reasons for his rejection of this submission were set out in detail at paragraphs [30]-[38] of the Decision, and the Delegate also stated at paragraph [39] that the CEPU’s submission was contrary to statements made by the Full Bench of the Commission in response to a similar submission in The Maritime Union of Australia 7. The Delegate’s conclusion as to the approach he was required to take under ss.512 and 513 was as follows:
“[41] Therefore, consistent with s. 512 of the Act, the task in the present matter is to determine whether I am satisfied that Mr Mooney is a “fit and proper person” to hold an entry permit within the specific context of the statutory regime of right of entry powers under Part 3-4 of the Act, the activities that he will be engaged in when exercising such powers and the ends to be served by such activities. In order to make this determination, section 513(1) of the Act provides that the Commission must take into account the “permit qualification matters” listed at paragraphs (a) to (g) several of which do not directly relate to the exercise of statutory right of entry powers under Part 3-4 of the Act. Those matters are to be taken into account with reference to the primary determination required to be made, namely, whether Mr Mooney is a “fit and proper person to hold the entry permit”.
[42] If any of the permit qualification matters set out in s. 513(1) of the Act are enlivened due to the conduct of a particular official when exercising powers under Part 3-4 of the Act, then this would be a relevant consideration for the weight to be given to such matters when determining whether he or she is a “fit and proper person” to hold an entry permit. However, this does not mean that they are irrelevant for the purposes of the Commission’s determination of whether that official is a “fit and proper person to hold the entry permit” if they arise due to the conduct of the official unrelated to or outside his or her exercise of statutory right of entry powers under Part 3-4 of the Act. Indeed, as noted above, I am bound to take such matters into account.”
[7] The Delegate then dealt separately with the matters he considered to be permit qualification matters under s.513(1). In the course of doing so, the Delegate found that:
• Mr Mooney, for the purpose of s.513(1)(a), received appropriate training about the rights and responsibilities of a permit holder 8;
• for the purpose of s.513(1)(b), there was no evidence that Mr Mooney had ever been convicted of an offence against an industrial law 9;
• for the purpose of s.513(1)(c), there was no evidence that Mr Mooney had ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud, dishonesty, intentional use of violence against another person or intentional damage or destruction to property 10;
• for the purpose of s.513(1)(e), there was no evidence that Mr Mooney had ever had an entry permit under the Act or its legislative predecessors revoked, suspended or made subject to conditions 11; and
• for the purpose of s.513(1)(f), there was no evidence that Mr Mooney had ever had a right of entry permit revoked, suspended or made subject to conditions or had a disqualification imposed under a State or Territory industrial law or occupational health and safety law 12.
[8] Martino, Stuart, Cozadinos and Hardwick were treated by the Delegate as matters in which penalties had been ordered against Mr Mooney under industrial laws for the purposes of s.513(1)(d). In summary, the Delegate recorded the following in respect of these matters:
• Martino: A penalty of $2,400 (36% of the maximum) was imposed on Mr Mooney for contravention of s.170NC of the WR Act for engaging in coercion of persons to enter into a certified agreement with the CEPU on 8 November 2004. 13
• Stuart: A penalty of $1,500 (7% of the maximum) was imposed on Mr Mooney for contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) in connection with unlawful industrial action on 25 October 2007. In the absence of reasons for decision, it was not possible to specify the conduct of Mr Mooney which led to the imposition of penalties. 14
• Cozadinos: A penalty of $1,500 (7% of the maximum) was imposed on Mr Mooney for contravention of s.38 of the BCII Act on 23 November 2007. In the absence of reasons for decision, it was not possible to specify the conduct of Mr Mooney which led to the imposition of penalties. 15
• Hardwick: A penalty of $4,000 (18% of the maximum) was imposed on Mr Mooney for contravention of s.44(1) of the BCII Act. His admitted conduct was involvement in the organisation of protests at the site of a project to coerce subcontractors into entering into building agreements in the period 2 December 2008 to 27 March 2009. 16
[9] The Delegate dealt with ACCC v IPM as a matter which he considered relevant under s.513(1)(g). In that matter the CEPU was ordered to pay a pecuniary penalty of $125,000 for a contravention of s.45E(3) of the Trade Practices Act in August 2001. 17 The Delegate’s finding of relevance was based on the fact that “Mr Mooney was acting in his role as an official of the CEPU at all material times and the context of the contravention was part of an industrial campaign by the CEPU regarding its demand that contractors had an enterprise agreement with it”.18 Mr Mooney was not himself the subject of any penalty, and the Delegate said that it was not possible in the court’s reasons for decision to “precisely identify the conduct of Mr Mooney which contributed to the finding regarding the liability of the CEPU beyond his knowledge of certain matters which was attributed to the CEPU”.19
[10] The Delegate then referred to the matters which involved the making of orders under the repealed s.127 of the WR Act. He dealt with these matters as follows:
“[91] This raises an issue regarding whether such matters should properly be taken into account in determining whether Mr Mooney is a “fit and proper person” for the purposes of section 513(1)(g) of the Act. These matters certainly have a relevant industrial context and involve orders being issued regarding the cessation of industrial action. Thus, there is a relevant connection with one of the objects of Part 3-4 of the Act, namely, “the right of occupiers of premises and employers to go about their business without undue interference”. On the other hand, with the exception of subsection 513(1)(a) of the Act, the matters which the Fair Work Commission must taken into account when determining whether a proposed permit holder is a “fit and proper person” involve the commission of an offence, the imposition of a penalty or some other form of punitive action. In contrast, although the exercise of the power vested in the AIRC pursuant to section 127 of the WR Act was usually predicated on finding that the industrial action made subject to the order was “illegitimate”, such action only became unlawful when it was continued or commenced in contravention of the relevant order.
[92] On balance, I am of the view that the Fair Work Commission is entitled to take such matters into account pursuant to section 513(1)(g) of the Act. However, given the nature of the discretion vested in the AIRC pursuant to section 127(1) of the WR Act as outlined above, my consideration of such matters should serve merely as relevant background rather than as a discrete item to takeinto account.”
[11] The Delegate decided not to take into account two other matters in which injunctive relief was ordered by the Federal Court against the CEPU. 20 He then dealt at some length with the CEPU’s and Mr Mooney’s failure to disclose in earlier applications for entry permits the matters disclosed in the current application21, and determined that the earlier non-disclosure of Martino, Stuart, Cozadinos and Hardwick was relevant under s.513(1)(g) and to be taken into account because such non-disclosure “bears upon both the character and the level of due diligence demonstrated by and can expected of Mr Mooney” [sic]22.
[12] The Delegate then assessed whether Mr Mooney was a fit and proper person to hold an entry permit under s.512 having regard to the permit qualification matters which he had earlier identified for the purposes of s.513(1). He took into account Martino, Stuart, Cozadinos, Hardwick and ACCC v IPM in the following way:
“[124] In my view, the penalties imposed, and the relevant conduct found to have occurred, in Martino, Stuart, Cozadinos and Hardwick raise significant concerns regarding Mr Mooney’s adherence to provisions of industrial legislation. This concern is heightened by taking into account that the conduct in Hardwick occurred more than four years after Mr Mooney’s conduct in Martino and essentially involved the same underlying motivation and by the penalties imposed in Stuart and Cozadinos which relate to conduct which occurred in the intervening period.
[125] Further, the CEPU had incurred a pecuniary penalty under the TP Act in ACCC v IPM approximately two years before the relevant conduct of Mr Mooney in Hardwick. The contravention of the TP Act in ACCC v IPM involved entering into a “contract, arrangement or understanding” that required each contractor engaged by a company to have an enterprise agreement with the CEPU. Although I will not make any adverse findings against Mr Mooney in relation to his specific conduct in that matter given the difficulty of indentifying that conduct in the published reasons for decision, the fact that Mr Mooney subsequently engaged in unlawful conduct in furtherance of the object of having contractors enter into enterprise agreements with the CEPU in Hardwick is highly relevant.
[126] In short, at the time that the relevant conduct of Mr Mooney found to have been committed in Hardwick occurred both he and the CEPU had previously had penalties imposed upon them in Martino pursuant to the WR Act and the CEPU had a penalty imposed upon it in ACCC v IPM pursuant to the TP Act for conduct motivated by essentially the same objective, namely, to ensure that contractors had an enterprise agreement with the CEPU. Despite this, Mr Mooney further engaged in the unlawful conduct found to have occurred in Hardwick in furtherance of that object. Bearing in mind the rights, conditions, limitations and responsibilities attaching to the exercise of entry permits set out in Part 3-4 of the Act, I have serious reservations regarding Mr Mooney’s status as a “fit and proper person” to hold an entry permit given such conduct.
[127] Contrary to the submissions of the CEPU, in my view, this lack of willingness to adhere to provisions of industrial legislation as demonstrated in the conduct found to have occurred in Martino, Stuart, Cozadinos and Hardwick is relevant to my consideration of whether he is a “fit and proper person” to hold an entry permit. It was noted that his conduct in Martino was “deliberate”, caused the affected employer to suffer losses of approximately $19,000 and occurred during his attendance at the site of the relevant project. In Hardwick, Gordon J observed that the relevant conduct of Mr Mooney and officials of other employee organisations was “serious in nature and at certain times involved interference or damage to property with the employees’ ability to enter and exit the Site”. The penalties in Stuart and Cozadinos involved unlawful industrial action as defined in the BCII Act. In my view, Mr Mooney’s demonstrable lack of regard for the provisions of industrial legislation is a proper matter to be taken into account when assessing whether he is a “fit and proper person” to hold an entry permit given the rights, conditions, limitations and responsibilities attaching to the exercise of such permits set out in Part 3-4 of the Act.”
[13] In respect of the non-disclosure of these matters in the earlier applications, the Delegate said:
“[131] Given the above, I have significant reservations regarding whether Mr Mooney has demonstrated a sufficient level of due diligence to be vested with statutory right of entry powers pursuant to Part 3-4 of the Act. This also affects my confidence regarding his adherence to the duties, obligations, limitations and conditions imposed upon permit holders set out in Part 3-4 of the Act and, therefore, whether he is a “fit and proper person” to hold an entry permit.”
[14] The Delegate took into account that there were no permit qualification matters to be considered under paragraphs (a), (b), (c), (e) and (f) of s.513(1) 23, and then said:
“[133] I have also taken into account the submissions of the CEPU regarding Mr Mooney’s length of service as an official, the significant period of time he has held an entry permit and that he has not been subject to any proceedings regarding any alleged improper use of those permits. These are important considerations as they directly relate to Mr Mooney’s conduct as a permit holder. However, it should be noted that the permit issued in RE2010/2776 which was held by Mr Mooney for a period of approximately three years was granted on the basis of the insufficient information provided to the Delegate of the Commission.”
[15] The Delegate also took into account that the absence of an entry permit would affect Mr Mooney’s capacity to discharge his duties as a CEPU official, but notwithstanding this then stated the following conclusion:
“[136] Having carefully considered all of the available circumstances of this matter and having particular regard to the permit qualification matters for the purposes of s. 512 of the Act, I have concluded that I am not satisfied that Mr Mooney is a “fit and proper person” to hold an entry permit and accordingly, I must refuse the application to issue a permit.
[137] On balance, I am not satisfied that the lack of any adverse findings made against Mr Mooney regarding the permit qualification matters set out in paragraphs (b), (c), (e) and (f) of subsection 513(1) of the Act particularly regarding his exercise of statutory right of entry powers, his length of service as an official and permit holder, his role as an official of the CEPU and the level of disclosure provided in the current application before me outweighs my significant concerns regarding his demonstrable lack of regard for provisions of industrial legislation.
[138] I cannot be satisfied that Mr Mooney will exercise the powers derived from the issue of an entry permit in a manner expected of permit holders exercising a public right in conformity with the duties, conditions and limitations imposed by Part 3-4 of the Act.
[139] Mr Mooney’s disregard for the provisions of industrial legislation is sufficient for me to conclude that I am not satisfied that he is a “fit and proper person” to hold the entry permit the subject of the current application. His lack of due diligence in making and lodging previous right of entry applications further contributes to this conclusion.
[140] Given my conclusions above, although I have taken the matters of Simon Engineering, ABB Australia, Basin and Transfield, Transfield, ABB Australia v CEPU (2004), Worley and Esso into account, it has not been necessary to attach a degree of weight to them which is sufficient to affect my consideration of whether Mr Mooney is a “fit and proper person” or make any adverse findings against Mr Mooney in relation to them.
...
[142] As I have determined not to issue a permit to Mr Mooney, it is not necessary for me to consider imposing any conditions pursuant to section 515 of the Act.”
Submissions
[16] Although the CEPU’s appeal notice contained 26 grounds of appeal, its submissions on the appeal involved three propositions. The first and primary proposition was that the Delegate erred in his assessment of whether Mr Mooney was a fit and proper person in that he failed to take into account the permit qualification matters under s.513(1) only to the extent that they were relevant to the exercise of entry permit rights, and in doing so failed to exercise or properly exercise his jurisdiction. Section 512, which the CEPU characterised as the leading provision in the legislative scheme, made it clear, the CEPU submitted, that the test was whether an official was a fit and proper person “to hold the entry permit”; the required assessment under s.512 was therefore confined to an assessment in respect of the functions to be performed by the prospective permit holder. Section 513 was a subordinate provision which was to be read down in order to achieve consistency in the legislative scheme, with the result that the permit qualification matters specified in that section were only permitted to be taken into account to the extent that they were relevant to the exercise of entry permit rights. The CEPU submitted by way of example that a number of offences against industrial laws (as referred to in s.513(1)(b)) had nothing to do with right of entry or the exercise of entry permit rights and therefore were not be taken into account under s.513(1). The CEPU accepted that its first proposition was contrary to the construction of ss.512 and 513 adopted by a Full Bench of this Commission in The Maritime Union of Australia 24, but submitted that this decision was wrong and should not be followed.
[17] The CEPU’s second proposition, which was related to the first, was that the Delegate had erroneously taken into account under s.513(1) the penalty cases of Martino, Stuart, Cozadinos, and Hardwick, as well as ACCC v IPM, which had nothing to do with his exercise of right of entry powers. The Delegate had also, because of his incorrect and literal construction of s.513(1), failed to treat as relevant the dates of the conduct which caused penalties under those decisions to be imposed on Mr Mooney and the time which had passed without any re-offending conduct, failed to give any attention to the lack of any offending conduct by Mr Mooney since March 2009, and had taken into account under s.513(1)(g) orders made under s.127 of the WR Act. By taking into account irrelevant considerations, the Delegate fell into appellable error in the exercise of his discretion as described in House v The King. 25 The outcome, whereby Mr Mooney was determined not to be a fit and proper person to hold an entry permit despite the fact that he had held such a permit for over 15 years without ever having been subject to an adverse finding about his use of that permit, was submitted to be unreasonable and plainly unjust and therefore reviewable on appeal under the second limb of appellable error in discretionary decision-making identified in House v The King.26
[18] The third proposition advanced by the CEPU was that the Delegate erred by failing to take into account in his assessment under s.512 whether Mr Mooney could be issued an entry permit with conditions attached under s.515. Such conditions, the CEPU submitted, could have addressed the concerns which the Delegate held as to Mr Mooney’s fitness to hold an entry permit. The need to consider s.515 arose under the s.512 decision-making process because it was an integral part of the granting of a permit, or alternatively was a relevant matter to be taken into account in considering an entry permit application.
[19] Finally, the CEPU submitted that permission to appeal should be granted because the appeal raised important questions as to the proper construction and application of s.512 which went to the Commission’s jurisdiction - in particular, the question of whether The Maritime Union of Australia was correctly decided.
[20] The FWBC made submissions in opposition to the appeal by virtue of the right conferred on him by s.72 of the Fair Work (Building Industry) Act 2012. 27 The FWBC submitted that the Full Bench decision in The Maritime Union of Australia was correctly decided, and therefore that the Delegate made no error in following that decision. It was further submitted that, beyond its first proposition, the CEPU’s case on appeal was substantially different to the case that it ran before the Delegate. Beyond submitting that they should not be taken into account at all, the CEPU had not made any submissions to the Delegate concerning the weight to be given to the prior penalty cases of Martino, Stuart, Cozadinos,and Hardwick, or to any of the other matters referred to in the Decision. The FWBC submitted that in those circumstances it was not open to the CEPU to contend on appeal that the Delegate erred by not treating as relevant the dates when the conduct for which Mr Mooney was penalised occurred or the period since the last instance of such conduct had occurred or that he erred in the weight he gave to particular matters. In any event, the FWBC submitted, the Delegate was required to take Martino, Stuart, Cozadinos,and Hardwick into account by s.513(1), and he was entitled to give them weight as demonstrating a disregard for compliance with industrial laws. ACCC v IPM was relevant as it demonstrated involvement by Mr Mooney in a contravention of the Trade Practices Act 1974. Cases involving s.127 orders were relevant because the making of such orders under the WR Act had been regarded as a “serious step” and responsive to “illegitimate” conduct (see Coal and Allied Operations Pty Ltd v AFMEPKIU28). The Delegate had noted the dates on which the conduct in Martino, Stuart, Cozadinos, Hardwick and ACCC v IPM had occurred, and had taken into account Mr Mooney’s length of service as an official, the period over which he had held entry permits, and the fact that he had not been subject to any proceedings concerning improper use of those permits. Finally, the FWBC submitted, the Delegate had not erred in not considering the issue of an entry permit with conditions attached, since the approach he had taken was consistent with the Full Bench’s approach in The Maritime Union of Australia.
Consideration
Construction of ss.512 and 513
[21] As the CEPU properly conceded, the Full Bench decision in The Maritime Union of Australia 29adopted a construction of ss.512 and 513 which was contrary to the first proposition it advanced in its appeal. In that matter, the appellant similarly submitted that the permit qualification matters in s.513(1) had to be assessed “in light of the overarching question of whether the applicant was a fit and proper person to be issued with a permit”30 and consequently that s.513(1) had to be read down so that only those permit qualification matters which were relevant to the exercise of entry permit rights were to be taken into account. The Full Bench rejected this submission:
“[23] As is apparent from the above, the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. Taking into account context, the structure of s. 512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.
[24] The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the entry 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. Rather the permit qualification matters must be taken into account to decide whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.
[25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry 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. These are all to be found in Part 3-4 of the Act.
[26] We reject so much of the Appellant’s submission as suggested that section 513 must be read down in the sense that the various permit qualification matters must be taken into account only to the extent that they are relevant to the exercise of entry permit rights. In our view there is no basis for reading down s.513. In a given application for an entry permit, if a matter that is a permit qualification matter, then that matter must be taken into account in determining whether the official of the applicant organisation is a fit and proper person to hold an entry permit. Parliament has determined that such matters are relevant to that question and it would be wrong to only have regard to those matters if they are relevant to the exercise of entry permit rights. Such words of limitation appear nowhere in s.513. Where parliament intended for particular matters to have a more narrow application, as is the case for the mandatory revocation suspension of entry permits, it has expressly so provided. So it is that s.510(1)(d) provides that the Commission “. . . must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that . . . the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder” since the first of those permits was issued (our underlining).
[27] Put simply, the determination of whether an official is a fit and proper person to hold an entry permit involves an assessment of the effect that the existence of any of the matters in s.513, described as the “permit qualification matters”, has on the suitability of the official to hold an entry permit, with all of its attendant rights, conditions, limitations, and responsibilities.”
[22] The Commission’s normal operative principle is that, although the doctrine of stare decisis is not applicable, earlier Full Bench decisions will be followed unless there are cogent reasons for not doing so. 31 We are not persuaded that the CEPU has demonstrated cogent reasons for us to depart from the decision in The Maritime Union of Australia. We cannot discern any argument on the point that was raised by the CEPU in this appeal which was not considered and rejected in The Maritime Union of Australia. We consider that the conclusion reached in that case was correct, and we agree with the Full Bench’s reasoning. We would simply add the following comments.
[23] A statutory requirement upon a decision-maker to take identified matters into account requires the decision-maker to treat the consideration of those matters as a central element in the deliberative process, to give proper, genuine and realistic consideration to each of those matters, and to give them appropriate weight in making the required decision. 32 In considering what weight is to be assigned to the permit qualification matters required to be taken into account under s.513 in a particular case, it will be necessary for the Commission member or delegate to consider (as was stated in The Maritime Union of Australia at [27]) the effect of those matters on the suitability of the relevant official to hold an entry permit.
[24] The CEPU’s submission concerning the proper construction of ss.512 and 513 essentially sought to turn the decision-making process on its head by requiring that the effect of a permit qualification matter on or its relevance to an official’s suitability to hold an entry permit be assessed at the outset in order to determine whether that matter should be taken into account. That submission is to be rejected for the reasons stated in The Maritime Union of Australia. But the rejection of that submission does not lead to the result that an official may be assessed as being not a fit and proper person to hold an entry permit by reason of permit qualification matters which can have no bearing on the official’s suitability to exercise the statutory rights of entry. The fact that, in a given case, the effect of s.513 is to require a number of specific permit qualification matters to be taken into account does not by itself dictate or suggest a particular outcome to the assessment process required by s.512.
House v The King error
[25] Our rejection of the CEPU’s first submission concerning the construction of ss.512 and 513 means that we must likewise reject the CEPU’s further submission that the Delegate erred in taking into account the matters of Martino, Stuart, Cozadinos, and Hardwick. The Delegate was required by s.513(1)(d) to take those matters into account, and he would have fallen into error had he not done so. Further, it is clear that in taking those matters into account the Delegate assessed their significance in light of their relevance to Mr Mooney’s suitability to hold an entry permit. His conclusions that these matters raised significant concerns regarding Mr Mooney’s adherence to provisions of industrial legislation and demonstrated a lack of regard for the provisions of such legislation were, we consider, reasonably open to him. Further, we consider that conclusions of that nature clearly bore upon the proper assessment of Mr Mooney’s suitability to hold an entry permit.
[26] The matter of ACCC v IPM is in a somewhat different category. The Delegate took it into account as a relevant matter under s.513(2). It is difficult to discern any proper basis for it being considered relevant given that no penalty was imposed on Mr Mooney (or sought to be imposed) and no finding was made that he had engaged in any unlawful activity. The CEPU was found to have committed an accessorial contravention of the Trade Practices Act, but as the Delegate stated in the Decision 33 it is not possible to identify what, if any, conduct on the part of Mr Mooney caused or contributed to the CEPU’s liability. However, the Delegate did not in the Decision give weight to ACCC v IPM as demonstrating any conduct on the part of Mr Mooney that went to his suitability to hold an entry permit. Rather, he took into account ACCC v IPM for the very limited purpose of characterising the seriousness of the subsequent conduct for which Mr Mooney was penalised in Hardwick.34 To the extent that there was any error involved in taking ACCC v IPM into account, we do not consider that this had any significant effect upon the outcome of the matter such as to justify appellate intervention.
[27] A similar position applies with respect to the matters decided under s.127 of the WR Act. Those matters did not involve any findings of unlawful conduct at all or any adverse findings concerning the conduct of Mr Mooney. The fact that they were referred to in the declarations accompanying the CEPU’s application for a permit to be issued to Mr Mooney (no doubt for more abundant caution), or that they might serve as “relevant background” in the determination of the application 35, did not make them relevant for the purposes of s.513(1)(g). It is however apparent that the Delegate did not assign them any degree of weight sufficient to have an effect on the outcome.36 Accordingly appellate intervention is not justified.
[28] The CEPU’s submission that the Delegate erred by not taking into account the period of time that had passed since the occurrence of the last conduct for which Mr Mooney was penalised has some force. As at the date of the Decision, that period was in excess of five years. If an official has for a significant period of time not engaged in any conduct required to be taken into account under s.513(1)(b)-(f), that will usually be an important if not critical consideration in an assessment of the official’s fitness to hold an entry permit, since it provides a sound basis upon which to have confidence that the official understands the need to comply with industrial and other relevant laws and will therefore diminish the weight to be given to any earlier permit qualification matters. Beyond identifying the dates of the occurrence of the conduct involved in each permit qualification matter, the Delegate did not disclose in the Decision that he gave any consideration or weight to the fact that there had been no offending conduct on the part of Mr Mooney for over five years. This would appear to involve House v The King error.
[29] However, as the FWBC’s submissions pointed out, this issue was simply not raised in the CEPU’s submissions to the Delegate. Those submissions were entirely concerned with the proposition that there were no matters required to be taken into account under s.513(1) based upon what the CEPU contended was the proper construction of that provision, and the subsidiary proposition that Mr Mooney had never been the subject of any adverse finding in respect of his compliance with right of entry laws. The CEPU made no submission concerning the conduct of Mr Mooney in Martino, Stuart, Cozadinos,or Hardwick, including the time which had passed since the occurrence of that conduct.
[30] A party will not usually be permitted to raise merit arguments on appeal which were not advanced at first instance. 37 No submission was advanced by the CEPU as to why this principle should be departed from here. We therefore decline to interfere with the Decision on the basis of the CEPU’s submission that the Delegate failed to take into account the five years which had passed since Mr Mooney last engaged in conduct giving rise to a permit qualification matter.
[31] Finally, we do not accept the CEPU’s submission that the Decision was unreasonable and plainly unjust. Although we may not have refused to issue Mr Mooney a permit had we heard the matter at first instance, we consider that the Delegate’s determination that Mr Mooney was not a fit and proper person under s.512 was one that was reasonably open to him to make having regard to the permit qualification matters required to be taken into account under s.513(1).
Failure to consider imposition of conditions
[32] The CEPU’s submission that the Delegate erred by failing to consider, as part of the process of determining whether to issue an entry permit to Mr Mooney, whether conditions could be imposed under s.515 in order to address any issues concerning Mr Mooney’s fitness to hold a permit necessarily involved a construction of ss.512 and 515 whereby the issue of conditions could be considered and determined conjointly with the issue of whether a person was a fit and proper person to hold an entry permit. However, that issue of construction has, again, already been determined in The Maritime Union of Australia in a manner adverse to the CEPU’s case. In that decision, the Full Bench interpreted ss.512 and 515 as operating sequentially, so that consideration of whether conditions should be attached to an entry permit under s.515 did not arise unless and until a determination had been made under s.512 that the relevant person was fit and proper to hold an entry permit. The Full Bench said:
“[43] It is firstly to be observed that the exercise of the power to impose a condition on an entry permit when it is issued is discretionary. Secondly, an entry permit will only be issued if the Commission is satisfied that the officer of the applicant for a permit is a fit and proper person to hold an entry permit. If the Commission is not satisfied that the officer is a fit and proper person to hold an entry permit, there is no power in s.512 to issue the permit. It must follow that the question of whether the Commission will impose a condition on an entry permit when it is issued will only arise after the Commission is first satisfied that the officer of the applicant for a permit is a fit and proper person to hold the permit.
[44] As s.512 makes clear, entry permits may only be issued to a person whom the Commission is satisfied is a fit and proper person to hold an entry permit. It would undermine the legislative intent that underpins s.512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions.”
[33] We have considered an alternate construction whereby the consideration under s.512 of whether a person is fit and proper to hold an entry permit might include an assessment of fitness to hold an entry permit with conditions as well as fitness to hold an unconditional entry permit. Such an approach would assist in resolving the apparent conundrum as to why the Act would, under s.515, allow the imposition of conditions on an entry permit in relation to a person who has already, under s.512, been determined to be a fit and proper person to hold an entry permit. However the text of s.515 militates against the adoption of this alternative construction. Section 515(1) authorises the imposition of conditions on an entry permit only “when it is issued”. The prerequisite for the issue of a permit under s.512 is satisfaction that the official is a fit and proper person. Therefore the question of conditions being imposed on the entry permit cannot arise until a “fit and proper person” finding has been made. Further, s.515(2) requires the Commission, in deciding whether to impose conditions, to take into account the “permit qualification matters” - that is, the matters specified in s.513(1). This confirms that the process of considering whether conditions should be imposed on an entry permit is separate from the consideration of whether an official is a fit and proper person. If the imposition of conditions was required to be considered as part of or conjointly with the consideration of whether the official was a fit and proper person, s.515(2) would be unnecessary since the requirement to take into account the permit qualification matters in relation to the latter consideration is already established by s.513(1).
[34] We therefore agree with the approach of the Full Bench in The Maritime Union of Australia concerning s.515. The Delegate did not err in failing to consider whether Mr Mooney could be issued an entry permit with conditions. Once the Delegate had found that Mr Mooney was not a fit and proper person under s.512, it was not open to him to issue a permit on any basis.
Conclusions and order
[35] Because the CEPU’s appeal involved a challenge to the correctness of the Full Bench decision in The Maritime Union of Australia, we consider it appropriate to grant permission to appeal. However, for the reasons stated above, we will not uphold the appeal.
[36] We emphasise that this conclusion does not mean that Mr Mooney is permanently or indefinitely prevented from obtaining an entry permit. Indeed it does not appear that there is any impediment to the CEPU making a further application under s.512 for Mr Mooney to be issued with an entry permit forthwith. If such an application is made, the CEPU will have the opportunity to make appropriate submissions concerning the permit qualification matters applying in Mr Mooney’s case - particularly the matters of Martino, Stuart, Cozadinos and Hardwick - and Mr Mooney will have the opportunity if he wishes to give evidence in support of the application. With the assistance of any such submissions and evidence, the Commission will be able to give appropriate consideration to the permit qualification matters and other relevant matters, including whether the passage of time since Mr Mooney last engaged in conduct for which he was required to pay a penalty under industrial laws demonstrates that he has acquired an understanding of the need to comply with such laws and is fit and proper to hold an entry permit.
[37] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
VICE PRESIDENT
Appearances:
H. Borenstein QC with G. Borenstein for the appellant
C. O’Grady of counsel with P. Barker solicitor for the respondent
Hearing details:
2014.
Melbourne:
13 June.
1 [2014] FWCD 2102
2 [2010] FCA 818
3 MLG390/2009
4 MLG1179/2008
5 No. U02229162
6 [2007]FCA 11
7 [2014] FWCFB 1973
8 Decision at [59]-[60]
9 Decision at [48]
10 Decision at [49]
11 Decision at [51]
12 Decision at [52]
13 Decision at [63]-[66]
14 Decision at [78]-[79], [81]
15 Decision at [78], [80]-[81]
16 Decision at [82]-[86]
17 Decision at [87]
18 Decision at [89]
19 Decision at [88]
20 Decision at [93]
21 Decision at [94]-[109]
22 Decision at [109]
23 Decision at [132]
24 [2014] FWCFB 1973
25 (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ
26 Ibid
27 The notice to the General Manager of the Commission required by s.72 was provided by the FWBC on 23 April 2014.
28 (1997) 73 IR 311
29 [2014] FWCFB 1973
30 Ibid at [9]
31 Cetin v Ripon Pty Ltd (2003) 127 IR 205 at [48]-[49]; Australian and International Pilots Association v Network Aviation Pty Limited[2013] FWCFB 5216 at [30]
32 Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [103]-[112], referred to with approval in Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23 at [267]
33 Decision at [88], [125]
34 See Decision at [125]-[126]
35 See Decision at [92]
36 See Decision at [140]
37 Coulton v Holcombe (1986) 162 CLR 1 at 7; Goumas v Wattyl Australia Pty Ltd (2005) 145 IR 256 at [44]; ASU v Yarra Valley Water Corporation[2013] FWCFB 7453 at [24]
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