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

[2015] FWC 5475

[2015] FWC 5475

The attached document replaces the document previously issued with the above code on 11 August 2015.

All references to the CFMEU have been amended to CEPU.

Brendan Pearce

Associate to Senior Deputy President Richards

Dated 31 March 2016

[2015] FWC 5475

FAIR WORK COMMISSION

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 Divisional Branch
(RE2015/880)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 11 AUGUST 2015

Summary: application for right of entry permit for Mr Beau Malone- commentary on participation in unlawful industrial action by the court - approach to penalties – questionable contrition.

[1] This decision concerns an application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under section 512 of the Fair Work Act 2009 (“the Act”) seeking a right of entry permit for its organiser Mr Beau Malone.

[2] Section 512 of the act provides 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.

[3] The CEPU is an appropriate organisation under s.512 of the Act to make an application of this kind.

[4] The determination of the application by the Commission is subject to the Commission taking into account the matters set out in s.513 of the Act for the purposes of determining whether Mr Malone is a fit and proper person to hold an entry permit.

[5] Section 513 of the Act 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.

(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.

[6] In Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No.5) [2012] FCA 1144 (19 October 2012), Mr Malone was ordered to pay a penalty in respect of a contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth) amounting to $2,150.00. Section 38 of the Building and Construction Industry Improvement Act 2005 (Cth) provides, in essence, that a person must not engage in unlawful industrial action (as defined therein).

[7] The penalties followed a finding of fact that there had been an unlawful industrial action that was “protracted, conspicuously public, and coordinated across two project sites” (those being the Brisbane Law Courts Project and the Gold Coast University Hospital Project). Collier J further recorded that hundreds of workers on both sides ceased work on the projects “causing delays to the critical path of each project […].”

[8] In his declaration provided for the purposes of this application, Mr Malone indicated that he “admitted to one contravention that occurred on 26 May 2011” and was required to pay a penalty “in relation to action taken by me.”

[9] Collier J further indicated that the unlawful industrial action: was not taken in respect of specific concerns relevant to particular sites; the claims made by the Respondents in relation to sham contracting were ultimately found to be unsubstantiated; the industrial action was taken despite orders from the Fair Work Commission that the industrial action should not occur and was deliberate; and that Lend Lease suffered estimated loss and damage totalling $1,210,770.65 as a consequence of the conduct of the Respondents.

[10] Collier J also stated that:

“[…] It is questionable whether the respondents had demonstrated contrition in respect of the contraventions of the legislation. Rather, in their written submissions they vaguely referred to a “willingness to facilitate justice”.”

[11] His Honour proceeded to note that the Respondents had conceded that contraventions of the legislation had occurred and they had reached agreement in relation to the appropriate penalties and injunctive relief.

[12] In the judgement of the court, Collier J noted that the parties had reached agreement in respect of both culpability of the Respondents (which included Mr Malone) and appropriate sanctions, with the Court being left to determine the nature and quantum of any penalties to be imposed (accepting that if the penalties fell within the appropriate range, the court would generally give effect to the parties’ agreed position).

[13] In his conclusion in relation to the adequacy of penalties for the purposes of an appropriate deterrent effect, Collier J indicated that the parties proposed position in respect of the individual respondents was relatively low when considering the maximum penalties which could be imposed in the circumstances. Notwithstanding this, he was persuaded that the total amount of the penalties agreed by the parties was within the permissible range and agreed there with.

[14] That said, Collier J observed that the penalties were intended to have both particular and general deterrent effects.

[15] The individual respondents, including Mr Malone, appear also to have undertaken to refrain from hindering or obstructing third parties entering the relevant sites, while the CEPU entered into a wider ranging undertaking which also involved a bank guarantee as security of the compliance.

[16] In having a penalty imposed upon him of this kind and in the context set out by Collier J (which included comment in relation to the questionable nature of the respondents’ contrition), issues arise for purposes of s.513(d) and s.513(g) of the Act.

[17] Other than in respect of these matters, Mr Malone indicated that for the purposes of s.513(a) of the act, he had received appropriate training about the rights and responsibilities of the permit holder and had completed a training course provided by the ACTU Organising, Education and Campaign Centre to this effect, on 26 May 2015. This was an online training course content of which was said to have been approved by “the Federal Registry” (which I take to be an administrative functional area within the Fair Work Commission).

[18] For the purposes of s.513(b) of the act, Mr Malone indicated he had never been convicted of an offence against industrial law.

[19] For the purposes of s.513(c) of the act, Mr Malone indicates that he’s never been convicted of an offence against a law of the Commonwealth, state, territory or foreign country, involving entry onto premises, fraud or dishonesty, or intentionally use of violence against another person or intentional damage or destruction of property.

[20] The matters that I have referred to above reflect the information at hand in relation to matters relevant to s.513(d) of the Act.

[21] The purposes of s.513(e) of the Act, Mr Malone declared that he had not had revoked, suspended or been subject to any conditions in respect of any permit issued under the act or otherwise.

[22] For the purposes of section 513(f) of the Act, Mr Malone declared that he had not had counselled, suspended or had imposed on him any conditions on a right of entry for industrial or occupational health and safety purposes, by any court, or other personal body, under a state or territory industrial law or an OHS law.

[23] Finally, Mr Malone declared that he had not been disqualified by any court or any other personal body under a state or territory industrial law or an OHS law from exercising or applying for a right of entry for industrial occupational health and safety purposes under that law.

Consideration

[24] Mr Malone’s participation in a proscribed form of industrial action was subject to a penalty by the court. Mr Malone showed questionable contrition, according to the Court.

[25] Mr Malone so conducted himself after such time as he had successfully completed the Fair Work Commission approved training conducted by the ACTU. That is, Mr Malone appears to have commenced as an organiser with the CEPU in 2008.

[26] I brought this matter to the attention of the CEPU which responded in the following terms:

“In relation to Mr Malone’s training, he successfully completed “Right of Entry” Training in September, 2009, shortly after he commenced with the Union. Attached to this email is a copy of correspondence to the Federal Registry about that training. He again successfully completed “Right of Entry training” in May 2015. The Certificate in relation to that training was attached to the union’s application for Mr Malone’s permit.

“Mr Malone commenced work with the Union in September, 2009. As such, at the time of the events that led to the contravention he was a relatively new and inexperienced organiser.

“Mr Malone continues to work in areas of the Union’s membership where he is frequently called on to exercise his rights under his entry permit. Despite this, there have been no further incidents since that time [that being the judgment in the Lend Lease matter referred to above], indicating that Mr Malone has “learnt his lesson”.”

[27] I also inquired of the CEPU as to whether Mr Malone had personally discharged from his own finances the personal penalty imposed upon him. The CEPU replied the following terms:

“As to his Honour’s query concerning the payment of the civil penalty imposed on Mr Malone, we confirm that in the exercise of its jurisdiction the Federal Court ( [2012] FCA 1144) imposed a civil penalty of $2,150 on Mr Malone in respect of his contraventions of the BCII Act and, further, ordered that the penalty be paid to the Commonwealth. The penalty has been paid to the Commonwealth. The cause of action has merged in the judgment and orders. It is not for any party or, with respect, the Commission, to go beyond or behind orders of the Court, especially those that have been satisfied. The matters raised in his Honour’s query, with respect, are not matters properly to be considered in this application.”

[28] The same issue was raised in relation to an application by the CEPU for a right of entry permit in [2015] FWC 5247. My decision in that regard, which is also relied upon here, was as follows:

“The court imposed penalties on individual respondents for reason of both personal and general deterrence.

“It appears to me that if Mr Vink did not himself personally discharge the penalty as imposed from his own private financial resources, then it may be held he was not appropriately exposed to the deterrent effect of the penalty (and its general deterrent effect would have been mitigated).

“I posed this issue to the CEPU’s legal representative and inquired as to whether Mr Vink personally discharged his penalty. The CEPU response was as follows:

‘As to his Honour’s query concerning the payment of the civil penalty imposed on Mr Vink, we confirm that in the exercise of its jurisdiction the Federal Court ([2012] FCA 1144) imposed a civil penalty of $6,450 on Mr Vink in respect of his contraventions of the BCII Act and, further, ordered that the penalty be paid to the Commonwealth. The penalty has been paid to the Commonwealth. The cause of action has merged in the judgment and orders. It is not for any party or, with respect, the Commission, to go beyond or behind orders of the Court, especially those that have been satisfied. The matters raised in his Honour’s query, with respect, are not matters properly to be considered in this application.’

“My tentative position, notwithstanding the CEPU counter argument, is that should it be demonstrated that a person (seeking to hold a right of entry permit) has not discharged a personal penalty intended to have a personal deterrent effect, as imposed by a court (in a relevant proceeding), it would be a matter for relevant consideration under s.513(1)(g) of the Act. That is, in not having been exposed personally to the intended personal deterrent imposed by the court, it may reasonably be inferred that a person would not be less actuated to re-offend.

“Further, where the person does not seek to disclose upon reasonable inquiry by the Commission or otherwise, whether he or she personally discharged a deterrent penalty imposed upon them personally by a court may give rise to inference that the person has not personally discharged the penalty.

“As this matter has proceeded off the documents, without the benefit of full submissions and without a contradictor, I have not had cause to determine the matter to finality, or rely on my tentative position to reach an adverse finding in respect of Mr Vink’s fitness to hold an entry permit.”

[29] Having said as much, I find Mr Malone to be a fit and proper person to exercise the requisite statutory powers, taking into account of the CEPU submissions (noting those submissions were not exposed to a contradictor).

[30] That so found, the circumstances of the application warrant that I impose two conditions on Mr Malone’s right of entry permit. Those two conditions (which are largely the same conditions imposed by way of decision of the Commission in [2015] FWC 1522) are that:

● Mr Malone must undertake training approved by the Fair Work Commission on an annual basis in relation to each of Parts 3-1, 3-3 and 3-4 of the Fair Work Act 2009 (Cth) for the duration of the permit. Evidence of attendance at such training shall be provided to the Fair Work Commission within 2 weeks of the training being undertaken by the permit holder each year for which the permit is held; and

● If any findings are made or penalties imposed that are relevant to the permit qualification matters at s 513(a)-(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s 513(a)-(f) of the Fair Work Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding commenced.

[31] I consider that these two conditions will ensure to some degree that Mr Malone closely observes his responsibilities as a holder of a right of entry permit.

[32] An order [PR570674] giving effect to my decision to issue Mr Malone a right of entry permit will take effect seven days from the date of this decision, and subject to Mr Malone surrendering firstly his current right of entry permit to the General Manager of the Fair Work Commission.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR570660>