Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland and Northern Territory Divisional Branch

[2017] FWC 96

[2017] FWC 96

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.512—Right of entry

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland and Northern Territory Divisional Branch
(RE2016/1374)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 10 JANUARY 2017

Application for entry permit for Michael Francis Haire - permit issued with conditions.

[1] On 11 October 2016 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) made an application under s.512 of the Fair Work Act 2009 (the FW Act) for an entry permit for Mr Michael Francis Haire.

[2] On 2 November 2016 a telephone mention and directions hearing was held and on 7 December 2016 the matter was listed in Brisbane before me.

[3] Mr White of counsel appeared for the CEPU and Mr Haire.

[4] During the hearing, Mr White tendered the following documents:

● Submissions of the Applicant dated 9 November 2016;

● Declaration of Mr Peter Simpson, Divisional Branch Secretary of the CEPU, Queensland and Northern Territory Divisional Branch dated 10 October 2016;

● Declaration of Mr Haire dated 10 October 2016; and

● Statement of Mr Haire dated 7 December 2016.

[5] At the conclusion of the hearing I gave an ex tempore decision. An order 1 was issued and an entry permit dated 7 December 2016, with conditions, was issued by a Fair Work Commission Delegate. These are the reasons for my decision.

The Legislative provisions

[6] The provisions concerning entry permits are to be found in Part 3-4 of the FW Act which deals with right of entry. The object of Part 3-4 is set out in s.480:

‘480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.’

[7] In Maritime Union of Australia v Fair Work Commission the Full Court of the Federal Court (North, Flick and Bromberg JJ) observed:

‘Section 480 … sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.’ 2

[8] Section 512 of the FW Act states:

‘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.’

[9] Section 513(1) of the FW Act states:

‘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.’

[6] In The Maritime Union of Australia 3 a Full Bench referred to the concept of a ‘fit and proper person’ in the following terms:

‘[23]… 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.’ (references omitted)

[7] Those observations were adopted by the Full Bench in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 4 . The Full Bench made the following additional observations:

‘[22]Thus the “fit and proper person test” is necessarily concerned with the personal characteristics of the person for whom the issue of an entry permit is sought. The large number of cases concerned with the use of the “fit and proper person” criterion in a variety of statutory contexts have consistently taken that approach. In the South Australian Supreme Court Full Court decision in Teachers Registration Board of South Australia v Edwards, Anderson J said:

“[103] [T]he cases show in my view that although the expression “fit and proper person” takes its meaning from the content of the legislation, there are nevertheless certain consistent notions which emerge in the relevant decisions.

[104] These are that a consideration of whether a person is fit and proper looks to the suitability and eligibility to hold a position. The suitability in turn is viewed against a consideration of the person’s previous conduct and their general reputation.”

[23] Various formulations have been used in the cases concerning the matters relevant to an assessment of whether a person meets the “fit and proper” standard to engage in particular activities; for example in the High Court decision in Australian Broadcasting Tribunal v Bond, Toohey and Gaudron JJ referred to a person’s conduct, character and reputation as being part of a non-exhaustive list of considerations, while in the earlier High Court decision in Hughes & Vale Pty Ltd v The State of New South Wales (No 2) Dixon CJ and McTiernan and Webb JJ characterised the fitness aspect of the criterion as involving honesty, knowledge and ability. Whatever the formulation, it is clear that the assessment process required by the standard, although one which “give[s] the widest scope for judgment and indeed for rejection”, necessarily involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required. That position is in no way altered by the fact that, under the Act, it is the organisation which may apply for a particular official to be issued with an entry permit rather than the official personally.

[24] Section 513(1) of the Act requires the Commission, in considering whether an official is a fit and proper person to hold an entry permit, to take into account a number of matters (described as “permit qualification matters”) specified in paragraphs (a)-(g) of the subsection. It is apparent, as the CFMEU/ CFMEIUEQ submitted, that the permit qualification matters in paragraphs (a)-(f) are all concerned with matters personal to the official for whom the issue of an entry permit is sought. Paragraph (g) requires the Commission to take into account any other matters which it considers to be relevant. It is not necessary to apply the eiusdem generis presumption to conclude that the relevance referred to in paragraph (g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.’

[8] In the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 5 Hatcher VP articulated the following relevant principles:

“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of the s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia, CEPU v Director of the Fair Work Building Industry Inspectorate, Director of the Fair Work Building Industry Inspectorate v CFMEU, Construction, Forestry, Mining and Energy Union, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate. The relevant principles may be summarised as follows:

● A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

● The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an 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, but rather 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.

● The question of whether an official 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.

● The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

● The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

● While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).

● Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.’

[10] Section 515 allows the Commission to impose conditions on entry permits. It relevantly provides as follows:

‘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).’

[11] In Maritime Union of Australia v Fair Work Commission the Federal Court held that the consideration of whether conditions ought to be imposed on an entry permit can be made in conjunction with the assessment of whether a person is a fit and proper person to hold the permit.

‘… the assessment of fitness and propriety is to be made by reference to all of the applicable conditions upon the exercise of rights conferred by the grant of a particular permit, including any imposed under s 515 …

This construction of s 515 is to be preferred, as it is consistent with the discernible legislative intent to provide the Commission with a capacity to facilitate the balance contemplated by s 480 and, regarding the imposition of conditions, to do so harmoniously both in relation to the grant of a permit and the Commission’s supervision of its subsequent use (see ss 505(2), 505A(3)(a), 507(1) and 508(2).’ 6

Background

[12] Mr Haire is employed by the Queensland and Northern Territory Divisional Branch of the CEPU. He has been employed by the CEPU since September 2010, at all times as an organiser. In this capacity he has held entry permits from 2010 to 2013, and again from 2013 to 2016.

[13] Mr Haire is currently the CEPU’s organiser based in Cairns. His area of responsibility is far North Queensland.

[14] On 16 May 2016 the Federal Court issued its judgement in Director of the Fair Work Building Industry Inspectorate v Robinson (Robinson). 7The case concerned a dispute involving the CEPU, the Construction, Forestry Mining and Energy Union (CFMEU) and the Australian Manufacturing Workers’ Union (AMWU). The dispute was over park and ride facilities at the Inpex LNG project near Darwin. The Federal Court found that during the course of the dispute three union officials, including Mr Haire, organised industrial action by employees of Laing O’Rourke Construction Australia Pty Ltd (a construction company working on the Inpex project) during the term of an enterprise agreement, in breach of s.417 of the FW Act.

[15] By the time of the hearing in the matter, the facts were largely uncontested, and most of the judgement was concerned with the issue of penalties. In response to submissions suggesting that the breaches committed by the respondents (including Mr Haire) were at the lower end of seriousness, Charlesworth J stated:

‘I have found that the industrial action organised by the respondents involved the cessation of work by 66 employees for one day at a construction site. Their absence from the workplace caused significant disruption and inconvenience to O’Rourke on that day, although no serious or ongoing economic loss is proven. I reject the respondents’ submission that both the scale of the industrial action and the seriousness of their contraventions are to be regarded as “low-level”.

The following paragraphs summarise the inferences I have drawn from the affidavit material in respect of the individual respondents’ states of mind.

Put simply, the individual respondents deliberately contravened s 417 of the FW Act. They knowingly encouraged the employees to do the same. Their actions formed a part of an organised strategy in respect of which their contraventions of s 417 were not merely an accidental or collateral consequence, but a planned and central feature. They were aware of at least the possibility that O’Rourke or some other person with standing may, as a result of their contraventions, suffer the costs and inconvenience of obtaining orders under s 418 of the FW Act to compel the employees’ compliance with the requirements of the FW Act. Mr Robinson and Mr Taylor referred to that possibility at their respective meetings and Mr Haire, as I have found, both endorsed Mr Taylor’s statements and added words of encouragement of his own.

It is reasonable to infer that the individual respondents knew that the industrial action taken by the employees was not protected industrial action and that the employees would be in breach of their obligations as employees to O’Rourke and enjoy no immunity under the FW Act in respect of it. The ballots conducted by them were not secret ballots and were accompanied by language intended to influence as many O’Rourke employees as possible to vote collectively in favour of the stop work proposals.’ 8

[16] Charlesworth J said the following with regard to the motivation of the respondents:

‘It was submitted on behalf of the respondents that their motivations in conducting the Park and Ride meetings were well-intentioned in the sense that they acted in what they perceived to be the best interests of the O’Rourke employees in connection with the subject matter of a grievance. This circumstance, it was submitted, called for a reduction in penalty. I reject that submission for two reasons.

First, in all of the circumstances, and in the absence of evidence from the respondents themselves, I am not prepared to infer that the motivations of the individual respondents were well-intentioned in a sense that diminishes the seriousness of their contraventions. This is especially so in light of a concession by the respondents’ counsel to the effect that the union organisers had other (lawful) means to address any safety issues they identified at the Park and Ride facilities, for example, by addressing the issues in accordance with State occupational health and safety laws. No evidence was given as to why lawful means of that kind were not pursued.

Second, and relatedly, the respondents’ submission invites the Court to reduce the penalty that might otherwise be imposed for a contravention of s 417 in circumstances where the contravener knows that he or she is acting in contravention of its requirements, merely because he or she genuinely believes that the ends (advancing employees’ interests in a dispute) justify the means (unlawful industrial action). In my opinion, the conduct of a union organiser who appreciates that the law proscribes industrial action as unlawful and therefore unjustified ought not be treated more leniently by reference to his or her subjective opinion that the law does not strike an appropriate balance and can justifiably be ignored.

That is not to say that there could not be cases in which an intentional breach of the law may nonetheless be accompanied by a motive supporting a finding that the conduct is less culpable. However, the text and context of s 417 of the FW Act (to which I have earlier referred), together with the facts of the present case, count against such a conclusion in favour of the respondents in this case.

In all of the circumstances, I regard the mental attitudes accompanying the contraventions of Mr Robinson, Mr Taylor and Mr Haire as defiant and serious. Their states of mind are attributable to their respective unions by the operation of s.793 of the FW Act.’ 9

[17] With regard to the issue of deterrence Charlesworth J stated:

‘Mr Robinson, Mr Taylor and Mr Haire have committed no prior contraventions of the FW Act. Notwithstanding that, the circumstances of these respondents’ contraventions call for a penalty that meets the proper objective of specifically deterring each of them from engaging in like conduct and from maintaining the mental attitudes I have found in respect of each of them. Their knowledge that their actions were unlawful did not deter them, on this occasion, from contravening the law, and there is no evidence that they have since gained any insight into the importance of compliance by union organisers with the requirements of the FW Act. There is, in that circumstance, a considerable need for specific deterrence notwithstanding their status as first-time contraveners.’ 10

[18] The Court was informed that the respondents had entered into an agreement with the Director of the Fair Work Building Industry Inspectorate (the Director) which included a term whereby Mr Haire (as well as the other respondents) would ‘consent’ to orders by the Commission for the purposes of an application to be made by the Director for orders pursuant to s.507 of the FW Act. Section 507 provides:

‘507 FWC may take action against permit holder

(1) The FWC may, on application by an inspector or a person prescribed by the regulations, take the following action against a permit holder:

(a) impose conditions on any entry permit issued to the permit holder;

(b) suspend any entry permit issued to the permit holder;

(c) revoke any entry permit issued to the permit holder.

(2) In deciding whether to take action under subsection (1), the FWC must take into account the permit qualification matters.’

[19] Charlesworth J said:

‘This Court was informed that Mr Robinson, Mr Taylor and Mr Haire will consent to orders that provide for the suspension of their permits for a period of three months, although the orders themselves would be “suspended” for 12 months. I am prepared to assume for present purposes that the “suspension” of the Fair Work Commission order is intended to have the effect that the individual respondents will not suffer any suspension of their s 512 permits unless they are found, within 12 months, to have committed a further contravention of the FW Act. I heard no submissions on the question of whether the Fair Work Commission had the power to suspend the taking of any action it is empowered to take under s 507, whether for 12 months or at all. In light of what I say below, it is not necessary to determine that question.

The reference in s 507(2) of the FW Act to “permit qualification matters” is a reference to the same matters to which the Fair Work Commission is to have regard when determining whether a person is a fit and proper person to hold an entry permit: see ss 512 and 513. The matters include, but are not limited to, the circumstance that the person has been ordered to pay a penalty for contravention of the FW Act or any other industrial law: s 513(1)(d).

The practice (if there be one) of agreeing orders to be made on an application made pursuant to s 507 is one that cannot bind the Fair Work Commission in its determination as to whether or not a person is a fit and proper person within the meaning of s 512 of the FW Act.

It was submitted nonetheless that the willingness of the individual respondents to consent to the orders evidenced an attitude of contrition and that it should be regarded as a step taken by them and their respective unions toward preventing future contraventions of the FW Act. I am not persuaded by that submission for three related reasons.

First, the respondents did not tender the agreement in these proceedings. As a consequence, this Court cannot make any assessment as to its terms, including on such matters as to whether the agreement to the consent orders was made in exchange for any concessions made by the Director.

Second, in circumstances where the respondents have not given any direct evidence of contrition or change of attitude, I am disinclined to draw inferences in their favour on the basis of statements from the bar table about the content or purpose of the agreement or the circumstances in which it was made.

Third, the reality for the respondents is that by virtue of their liability for contraventions of s 417 the FW Act, they would be at risk of the Fair Work Commission ordering a suspension of their permits on terms more severe than those proposed in the consent orders or, depending on the circumstances and the proper exercise of the Fair Work Commission’s discretion, an order revoking their permits. The respondents may well have agreed to the consent orders to advance their self-interests in reducing that risk. In the absence of evidence, the Court is in no position to make a finding either way.’ 11

[20] The Court imposed a penalty of $6,700 on Mr Haire and $35,500 on the CEPU in relation to Mr Haire’s conduct.

[21] On 27 June 2016 the Director made the application to the Commission under s.507 that had been foreshadowed to the Court and referred to by Charlesworth J. A hearing was held by Vice President Watson on 5 July 2016 who issued the following that day:

‘Further to the hearing on 5 July 2016, the Fair Work Commission makes the following orders by consent:

1 …

2. That the following condition be imposed on the entry permit of Mr Michael Haire:
“Under section 507(1)(a) of the Fair Work Act 2009 (the Act), a three month suspension be imposed, but that suspension be suspended, and only activated if Michael Haire, after 5 July 2016 is ordered by a Court of competent jurisdiction to pay a pecuniary penalty in relation to conduct which gives rise to a contravention of the Act or an industrial law, which occurs within 12 months of 5 July 2016.’ 12

[22] This order was made in conformity with the agreement made between the parties to the Federal Court matter. I note that the agreement (which was included as Annexure B to the s.507 application) included the following:

‘The Applicant will not take any other action against the Entry Permits of …Michael Haire, whatsoever, as a result of the matters the subject of NTD 45 of 2015 13 (for example, contending that they are not fit and proper under Section 512 of the Act in any subsequent Permit Renewal Application)’.

[23] In his statement in the current proceedings Mr Haire said:

‘The breach proceeding and the subsequent Fair Work Commission proceeding in which the suspended suspension condition was imposed was a valuable lesson for me. I had previously not had cause to think as carefully as I now do about my actions and how they may affect the union, members of the union, me and my employment. I now have a better understanding of my rights and obligations under the Act and I am all the more careful about ensuring that I discharge those obligations.

In hindsight, the conduct which I engaged in on 19 June 2014 could have been avoided. I now realise that I got caught up in the heat of the moment and, when it became clear to me that members were very unhappy, I gave in to that when I should have encouraged them to seek to resolve the dispute through the usual dispute resolution mechanisms.

It can be difficult to stand up in front of a large and vocal group of members and advise them against action they wish to take, but that is what I should have done and that is what I will do in the future.’

[24] Only a matter of days after Watson VP’s order was issued, Commissioner Simpson issued his decision in JKC 14. The decision concerned an application for orders pursuant to s.505 of the FW Act against six respondents, including the CEPU and Mr Haire. The application was made by JKC Australia LNG Pty Ltd, a company in charge and control of the Ichthys Onshore Construction Project and Project site in the Northern Territory. The application stemmed from a dispute that initially arose from a right of entry exercised by Mr Haire and two other officials, one from the CFMEU and one from the AMWU, on 10 June 2015. (The other two officials also exercised right of entry on 12 June that led to additional concerns).

[25] The issues of concern with Mr Haire’s conduct on 10 June 2015 included not following reasonable directions, not remaining with his escort, not holding a meeting in the designated location or a default location (as provided under s.492 of the FW Act) and holding discussions with employees outside his union’s eligibility. In particular, Simpson C found that Mr Haire:

● Walked away from his escort (despite agreeing that it was a condition of his entry on the site that he should not do so); 15

● Held or participated in discussions with employees other than those whose industrial interests his union was entitled to represent; 16

● Failed to comply with a reasonable request as to an occupational health and safety requirement (by holding a meeting in an area which was not an agreed location and despite being specifically directed not to meet there by his escort); 17and

● Failed to comply with a reasonable request to take a particular route to reach a room. 18

[26] While he did not spell it out, it is clear that Simpson C considered that the conduct of Mr Haire was inconsistent with his obligations under ss. 491, 492 and 492A of the FW Act (dealing with occupational health and safety requirements, the location of discussions and the route to the location for discussions). However he correctly noted that his role was not to sanction any of the respondents for past conduct, but to find a practical resolution of the dispute. He indicated that he had given serious consideration to issuing orders requiring the three union officials concerned (including Mr Haire) to do the following for a period of time to address the future likelihood of repetition of that conduct:

‘(a) follow all reasonable directions given by JKC’s representatives and their designated escort;

(b) remain with and not walk away from their designated escort;

(c) not hold meetings or discussions in locations other than those assigned by the occupier for that purpose or that are the default locations under section 492 of the FW Act;

(d) not hold, organise, attend or participate in combined union meetings, joint meetings, or meetings or discussions with any employees other than employees whose industrial interests they are entitled to represent.’ 19

[27] In the end, Simpson C decided not to issue any orders. He said in his conclusion:

‘It is my understanding that the Project will run at least well into 2017. Since the specific events of June 2015 there has been no other evidence put before me of conduct on the part of the 2nd 4th or 6th Respondent 20 of the nature that has been the subject of the findings in this decision. I am alive to the possibility that these proceedings themselves may have had a restraining influence on the 2nd 4th and 6th Respondents. It is also notable that none of the parties have appeared to have regarded the resolution of the dispute as an urgent matter as is sometimes the case in section 505 matters. As referred to earlier in this decision, when I requested at the conclusion of the hearing in February that the parties confer over a timetable for closing submissions the timetable put to the Commission on a consent basis extended to May. As the length of time since the events of June 2015 has grown without a recurrence of the conduct, the weaker the case has become for orders to be issued to resolve the dispute.

I have ultimately concluded that the proposed orders I have referred to above, even if issued for a limited duration, are not now appropriate for resolving this dispute. Given the period of approximately 13 months since the events of 10 and 12 June 2015, I am satisfied that the findings in this decision are sufficient to resolve the dispute, when taken in combination with the knowledge that the Respondents, on becoming aware of the findings in this decision, should also be well aware that any further findings of such conduct against them would provide the Applicant a very strong basis for the kind of orders sought by the Applicant in this matter.’

[28] Mr Haire said, in his written statement in the current proceedings, about the JKC matter:

‘That litigation taught me some valuable lessons about the way in which the Act operates and, in particular, the way in which Part 3-4 of the Act operates where officials from multiple Unions are exercising right of entry…

As well as having some of the finer points of Part 3-4 of the Act clarified for me through this decision, it also reinforced to me the fact that I need to be particularly careful when I am acting with other Unions, that I do not get swept up in any conduct proposed by others, and that I continue to make measured and sensible decisions on my own behalf in relation to how I conduct myself at a particular workplace. Again, I have at all times acted consistently with the decision since it was delivered and will do in the future.’

Submissions on behalf of the CEPU and Haire

[29] Mr Haire in his written statement indicated that he thought his entry permit should be renewed with the balance of the condition imposed by Watson VP ‘rolled over’ so that the ‘suspended suspension’ would remain in place for 12 months from the date that it was issued (5 July 2016) in accordance with the agreement with the Director.

[30] Mr White drew attention to the minimum suspension periods set out in s.510 of the FW Act for first time contraveners, second time contraveners and for those who have contravened on more than two occasions of 3 months, 12 months and five years respectively.

[31] Mr White submitted that the purpose of the Commission having regard to the nature of any contravening conduct listed in s.513 of the FW Act in exercising its discretion under s.512 is because that will inform the Commission in its consideration of the likelihood of re-offending – not because the Commission is imposing a further penalty.

[32] Mr White drew attention to what he described as ‘the contrition and cooperation demonstrated by the CEPU and Mr Haire both in terms of the penalty imposed by the Court and the Condition imposed by the Commission.’ He said the Commission should place no weight on the JKC matter ‘because the presiding member of the Commission was not persuaded that consequential orders were appropriate.’ He also said the Commission should have regard to the views of the Director of the Fair Work Building Industry Inspectorate as ‘the regulator’, and noted that ‘the Director, who has previously taken an active role in respect of permit applications, did not seek to be heard in this application’.

[33] Mr White submitted that Mr Haire was demonstrably a fit and proper person and that if the Commission had residual or other concerns about Mr Haire’s understanding of the obligations imposed on him generally by the FW Act, conditions imposing further and additional training would be appropriate to address such concerns.

Consideration

[34] I agree that the role of the Commission in matters such as this is concerned with the future conduct of the permit holder rather than punishing him or her for past misconduct. Past breaches are only relevant in so far as they might be a guide to the likelihood of future misconduct.

[35] In the absence of Simpson C’s decision in JKC I would have been content to ‘roll over’ the condition imposed by Watson VP with an expiry date of 5 July 2017. However I do not agree with Mr White’s submission that no weight should be placed on the JKC matter because Simpson C made no orders.

[36] In JKC Simpson C made a number of adverse findings against Mr Haire. In effect he found that Mr Haire had exercised his right of entry in a way that was inconsistent with his obligations under the FW Act. This misconduct occurred around one year after the events for which Mr Haire was penalised in Robinson. While the Commissioner made no orders, this was because he considered that they would not be an appropriate way of resolving the dispute on the project in question.

[37] Nor do I give any particular weight to the fact that the Director has not sought to become involved in the current proceedings. The Commission is not bound by the views of the Director. In any case, the Director may have considered himself limited by the agreement he reached with the parties to the Robinson matter.

[38] On the other hand, I have given some weight to the statements made to the Commission by Mr Haire which suggest he may have ‘learned his lesson’ from the previous proceedings.

[39] Having regard to all the circumstances, I am satisfied that Mr Haire’s permit should be renewed, but that a condition should be imposed in the following terms:

‘i. If Mr Haire, after 7 December 2016, is ordered by a Court of competent jurisdiction to pay a pecuniary penalty in relation to conduct which gives rise to a contravention of the Act or an industrial law; or

ii. the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Queensland and Northern Territory Divisional Branch, is ordered to pay a pecuniary penalty in relation to conduct by Mr Haire which gives rise to a contravention of the Act or an industrial law; and

iii. that conduct occurred within 12 months of 7 December 2016; then his entry permit is to be suspended for a period of six months.’

[40] With the imposition of this condition, and having regard to all the permit qualification matters, I am satisfied that Mr Haire is a fit and proper person to hold an entry permit.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr E White of counsel appeared for the Applicant and Mr Haire, instructed by Mr L Tiley, solicitor, of Hall Payne Lawyers

Hearing details:

2016

Brisbane

7 December

 1   PR588288

 2 [2015] FCAFC 56 at [15]

 3   The Maritime Union of Australia [FWCFB] 1973

 4   [2014] FWCFB 5947

 5   [2015] FWC 1522

 6   At [35] – [36]

 7 [2016] FCA 525

 8   At [38] – [40]

 9   At [75] - [79]

 10   At [81]

 11   At [83] – [89]

 12   PR582420

 13 The Federal Court matter that led to [2016] FCA 525

 14   JKC Australia LNG Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU); Mr Rolly Cummins; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Mr Bryan Wilkins; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); Michael Haire [2016] FWC 536

 15   At [191] and [206]

 16   At [214]

 17   At [216] and [145]

 18   At [217]

 19   At [252]

 20   Mr Haire was the sixth respondent

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