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

[2015] FWC 4450

[2015] FWC 4450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch – Mark Bateman
(RE2015/106)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch – Peter Ong
(RE2015/107)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 JULY 2015

Applications for Right of Entry Permit for Mark Bateman and Peter Ong; whether fit and proper person; applications granted.

Introduction

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made applications under s. 512 of the Fair Work Act 2009 (Act) for the issue of right of entry permits to its officials, Mr Mark Bateman and Mr Peter Ong. Both Mr Bateman and Mr Ong are organisers within the electrical division, Queensland and Northern Territory Divisional Branch of the CEPU.

[2] The Director of the Fair Work Building Industry Inspectorate (Director) had given notice under s. 72 of the Fair Work (Building Industry) Act 2012 (BCII Act) that he proposed to make submissions in relation to each application. The Director opposes the grant of an entry permit to each of Mr Bateman and Mr Ong.

Relevant statutory provisions and application

[3] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as is relevant for present purposes these 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.

514 When the FWC must not issue permit

(1) The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official’s exercise of; or
(b) prevents the official from exercising or applying for; a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.

515 Conditions on entry permit

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).

[4] In Maritime Union of Australia v Fair Work Commission 1(MUA) a Full Court of the Federal Court of Australia recently considered the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3 – 4 of the Act. The Court observed the following:

Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.

A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:

The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.

Section 480, extracted at [8] above, 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.

It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.

The phrase a “fit and proper person” is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase “fit and proper person” by expressly including a reference to whether an individual is of “good fame, integrity and character...”: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 2 

[5] The Full Court ultimately concluded that when the Fair Work Commission (Commission) is deciding whether to issue an entry permit pursuant to s. 512 of the Act, those considerations relevant to the exercise of the power in s. 513 of the Act are not confined, for example, to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the Commission – at least initially. However the prospect remains for judicial review founded upon, for example, alleged unreasonableness. 3 

[6] The CEPU made a formal submission, before MUA was decided, that on a proper construction of s. 513 of the Act, the Commission is only required to take particular matters into account if they are relevant to the exercise of permit entry rights. 4 This approach was rejected by a Full Bench of this Commission5 and in light of the Full Court’s decision in MUA6the submission must be rejected.

[7] The Full Court in MUA also concluded that conditions may be imposed pursuant to s. 515 of the Act to remedy or address deficiencies or reservations in respect to a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person was not fit and proper. 7

[8] I turn to consider each application.

Consideration

Mr Bateman

[9] Mr Bateman has held right of entry permits under the Act and under predecessor legislation since at least 2003 and during that time he has not had any right of entry permit held by him suspended or revoked. 8

[10] According to the declarations filed by the CEPU in support of the application for the grant of a permit to Mr Bateman (Bateman declarations), Mr Bateman has never been convicted of an offence against an industrial law (s. 513(1)(b) of the Act); he has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s. 513(1)(c) of the Act; he has not had any entry permit issued under Part 3 – 4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s. 513(1)(b) of the Act); he has not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes that Mr Bateman held under a State or Territory industrial law or a State or Territory occupational health and safety law (s. 513(1)(f)(ii) of the Act); and he has not been disqualified from exercising or applying for a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s. 513(1)(f)(ii) of the Act). None of this is disputed by the Director and I accept that this information as disclosed in the Bateman declarations is accurate and correct.

[11] As to the question of whether Mr Bateman has received appropriate training about the rights and responsibilities of a permit holder, I note that the Bateman declarations disclose that Mr Bateman received training about these matters and that such training constituted the attendance at a seminar conducted by the Queensland Council of Unions on 24 November 2011. There was no evidence at the time I reserved my decision that Mr Bateman had undertaken any further training about the rights and responsibilities of a permit holder under the Act.

[12] Since the training undertaken by Mr Bateman in November 2011, there have been a number of amendments to the right of entry provisions contained in Part 3 – 4 of the Act. Specifically by Schedule 4 of the Fair Work Amendment Act 2013, the Act was amended to include significant provisions dealing with the location of interviews and discussions with employees, the capacity of the Commission to deal with disputes about the operation of Part 3 – 4 of the Act and disputes about the frequency of entry to hold discussions, and new civil remedy provision. These amendments commenced operation on 1 January 2014.

[13] These provisions, along with the operation and effect on the rights and obligations of a permit holder, will not have been the subject of the training received by Mr Bateman in November 2011. Whilst it is doubtless that the training was appropriate having regard to the statutory regime in which a permit holder will then have been required to operate, I do not consider that the training, without more, to be appropriate having regard to the current statutory regime. In the circumstances, at the time of commencing to draft this decision I was satisfied that Mr Bateman had received appropriate training as contemplated by s. 513(1)(a) of the Act. This is a matter that might have been addressed by the imposition of a condition under s. 515 (1) of the Act. I will return to this later in these reasons.

[14] The Bateman declarations disclose that in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 9 the CEPU has agreed to the imposition of a penalty on the CEPU in relation to conduct it agrees was engaged in by Mr Bateman. On 29 November 2013 the parties to the proceeding executed an agreed statement of facts in which they agreed, inter alia, as to the declarations of contraventions that should be made and the penalties consequent on the contraventions that should be imposed. The proceeding has not concluded and is not likely to conclude in the near future. This is because in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union10 a Full Court of the Federal Court of Australia determined that the agreed penalties contained in the agreed statement of facts filed in the proceeding were not admissible for the purposes of determining the appropriate penalty that the Court should impose on the CFMEU and the CEPU consequent upon the contraventions. A grant of special leave to appeal the Full Court’s decision has since been obtained from the High Court of Australia.11

[15] Although the Bateman declarations disclose this proceeding for the purposes of the permit qualification matter described in s. 513(1)(d) of the Act, strictly speaking, since a penalty is yet to be imposed I do not consider it in that context and instead I regard the matter disclosed as being relevant for the purposes of s. 513(1)(g) of the Act.

[16] The conduct that the CEPU has agreed was engaged in by Mr Bateman occurred in the context of concerns of the CEPU about the use of sham contracting on Queensland Government building sites and a campaign between 24 and 26 May 2011 directed to publicising its concerns to members of the CEPU.

[17] The agreed statement of facts discloses the following:

Breach of the BC/1 Act on the QIMR Project Site

91. At about 6:00am on 24 May 2011, Andrew CLARK, Tony KONG and Mark BATEMAN attended at the QIMR Project Site.

92. Work was scheduled to commence on the QIMR Project Site at 6:00am.

93. At between 6:15 and to 7:15am on 24 May 2011, QIMR Employees attended a meeting convened by Andrew CLARK, Tony KONG and Mark BATEMAN.

94. At the meeting a pro forma letter to the Queensland Workplace Rights Ombudsman about alleged "sham contracting" on the QIMR Project Site was distributed by Andrew CLARK, Tony KONG and Mark BATEMAN.

95. Andrew CLARK stated to Mr Andrew Negri of Watpac after the meeting to the effect that the meeting concerned employees being paid incorrect entitlements for "BUSS" and "BERT", and that the employees would return to work on Friday 27 May 2011.

96. Following the meeting:

(a) approximately 180 QIMR Employees left the QIMR Project and did not return for work on 24 May;

(b) only a minimal number of the QIMR Employees continued to work on the QIMR Project Site; and

(c) scheduled work could not be undertaken due to the absence of QIMR Employees.

97. At or about 5:30am on 25 May 2011, Tony KONG attended at the QIMR Project Site.

98. On 25 May 2011, as a result of indications given by Tony KONG to QIMR Employees, scheduled work to be carried out on the QIMR Project Site was restricted to only six QIMR Employees and other QIMR Employees did not attend for work.

99. At or about 5:30am on 26 May 2011, Andrew CLARK attended at the QIMR Project Site.

100. On 26 May 2011, as a result of indications given by Andrew CLARK to QIMR Employees scheduled work to be carried out on the QIMR Project Site was restricted to only six QIMR Employees and other QIMR Employees did not attend for work.

101. Andrew CLARK, Tony KONG and Mark BATEMAN took the action pleaded herein over 24, 25 and 26 May as part of the Campaign in respect of the QIMR Project.

102. The failure of the QIMR Employees to perform scheduled work on 25 to 26 May 2011 (the QIMR Action) was:

(a) not authorised by Watpac or by the QIMR Project sub-contractors; and

(b) not "protected industrial action" within the meaning of the BCII Act.

103. The said QIMR Action constituted:

(a) a failure by the QIMR Employees to attend for and perform building work within the meaning of section 5 of the BCII Act; and

(b) a failure or refusal to perform any work at all by persons who had attended for building work within the meaning of section 5 of the BCll Act.

104. The QIMR Action was "industrially motivated" within the meaning of section 36(1) of the BCII Act as it was motivated by purposes that included one or more of the following purposes:

(a) advancing industrial objectives of the First and/or Second Respondent namely a campaign in respect of alleged "sham contracting"; and

(b) disrupting the performance of work on the QIMR Project Site.

105. The QIMR Action was "constitutionally connected" within the meaning of section 36 of the BCII Act in that:

(a) the said action adversely affected Watpac as a constitutional corporation in its capacity as a building industry participant, in that scheduled work could not be performed on the QIMR Project; and

(b) the action related to work regulated by the Commonwealth industrial instrument referred to in paragraphs 16 to 20 above.

106. At all material times, the QIMR Action was not "excluded action" within the meaning of that term in section 36 of the BCII Act.

107. By reason of the matters set out in paragraphs 18 to 20 and 85 to 106, the action by the QIMR Employees constitutes "unlawful industrial action" within the meaning of section 37 of the BCII Act.

108. The QIMR Action was undertaken in breach of section 38 of the BCII Act. Section 38 of the BCII Act is a Grade A civil remedy provision within the meaning of that Act.

109. By reason of the matters set out in paragraphs 91 to 96 Andrew CLARK, Tony KONG and Mark BATEMAN engaged in unlawful industrial action in contravention of section 38 of the BCII Act in that they were each a person involved in the said contraventions by the QIMR Employees for the purposes of section 48(2) of the BCII Act on the basis that, for the period 24 to 26 May 2011, Andrew CLARK, Tony KONG and Mark BATEMAN were, by their acts, directly or indirectly knowingly concerned in or party to employees employed on the QIMR Project engaging in unlawful industrial action.

110. By reason of the matters set out in paragraph 96 Tony KONG engaged in unlawful industrial action in contravention of section 38 of the BCII Act in that he was a person involved in the said contraventions for the purposes of section 48(2) of the BCII Act on the basis that on 25 May 2011 Tony KONG was, by his acts, directly or indirectly knowingly concerned in or party to employees employed on the QIMR Project engaging in unlawful industrial action.

111. By reason of the matters set out in paragraphs 99 and 100 Andrew CLARK engaged in unlawful industrial action in contravention of section 38 of the BCII Act in that he was a person involved in the said contraventions for the purposes of section 48(2) of the BCII Act on the basis that on 26 May 2011 Andrew CLARK was, by his acts, directly or indirectly knowingly concerned in or party to employees employed on the QIMR Project engaging in unlawful industrial action.

112. By reason of the matters set out in paragraphs 109 to 111 above and by virtue of section 69(1)(b) of the BCII Act:

(a) the conduct of Mark BATEMAN was engaged in by him in his capacity as an officer or agent of the Second Respondent (CEPU) and was therefore conduct of the Second Respondent (CEPU); and

(b) the conduct of Andrew CLARK and Tony KONG was engaged in by them in their capacity as officers or agents of the First Respondent (CFMEU) and was therefore conduct of the First Respondent (CFMEU).

113. By reason of the matters set out in paragraph 112 above, the First Respondent (CFMEU) and the Second Respondent (CEPU) each contravened section 38 of the BCII Act.

[18] The Bateman declarations contend that Mr Bateman made no admissions in relation to the conduct and was not a party to the proceeding. Nonetheless, it is not insignificant that the CEPU admits and agrees that the conduct Mr Bateman engaged in was conduct which was in contravention of s. 38 of the BCII Act. This admission is important because it is the CEPU which is the applicant in this proceeding and it discloses this matter as relevant in assessing whether or not Mr Bateman is a fit and proper person to hold a permit. Although Mr Bateman claimed that he did not admit the conduct for the purposes of the proceeding, there is no material before me from Mr Bateman denying that he engaged in the conduct as set out in the statement of agreed facts, nor did he allege that the conduct described in the statement of agreed facts or the legal conclusions agreed in those facts are not accurate. No issue is taken that the BCII Act is,or was at the relevant time, an industrial law.

[19] It is discernible from the agreed statement of facts that the conduct engaged in by Mr Bateman was deliberate and part of a campaign. The conduct is said to have been in contravention of s. 38 of the BCII Act and occurred during a period when Mr Bateman attended the QIMR Project Site. The circumstances of Mr Bateman’s entry to the site are not disclosed in the agreed statement of facts nor is there any material before me which would explain the nature and purpose of his entry onto site. Whilst on-site, Mr Bateman, along with others, addressed the meeting of employees and thereafter a large number of employees left the site and did not continue working. As a consequence, a schedule of works at the QIMR Project was disrupted.

[20] The CEPU submitted that the admissions made, described above, should be given limited weight because Mr Bateman was not a party to the proceeding in which the agreed statement of facts was filed and that it should not be treated as containing admissions for all purposes. Whilst I accept that admissions made during the course of a particular litigation should not be treated as admissions for all purposes and that admissions of this kind are often made in proceedings for strategic purposes, I do not accept that the admissions contained in the statement of agreed facts are not relevant to my consideration and I do not accept that the admissions should be given limited weight. Mr Bateman was free to attend before me to give an explanation of the circumstances of his involvement in the conduct set out in the agreed statement of facts. He was free to explain or qualify any fact that had been admitted by the CEPU. He did not do so, nor did the CEPU submit that the conduct it agreed Mr Bateman engaged in did not accurately reflect Mr Bateman’s conduct. That Mr Bateman, by his conduct whilst on the QIMR Project site as set out in the agreed statement of facts, breached a prohibition in an industrial law is an important factor in assessing the fitness and propriety of Mr Bateman to hold an entry permit. The conduct demonstrates either a lack of regard for or failure to understand particular provisions in what was at the time an operative industrial law.

[21] Weighed against this, however, is the fact that Mr Bateman appears to have been a holder of an entry permit under the Act and its predecessor legislation for a continuous period since 2003. There does not appear to be any other occasion on which Mr Bateman has been found to have contravened the Act or an industrial law. Similarly, there does not appear to have been any other occasion on which the CEPU has agreed in a proceeding that Mr Bateman’s conduct contravened the Act or an industrial law. The contravening conduct as set out in the agreed statement of facts occurred some four years ago, and whilst the passage of time in and of itself does not indicate any particular remorse or acknowledgement of earlier wrongdoing or the dissipation of any propensity to engage in unlawful conduct, the passage of time in this case needs to be examined in context. Mr Bateman was the holder of entry permits for a continuous period of some 12 years, and in that time on one occasion was engaged in conduct in breach of an industrial law. In these circumstances I am not persuaded that the one transgression in the context of Mr Bateman’s entire period as a permit holder should so effect the assessment of his character as to render him not a fit and proper person.

[22] The Director submitted that Mr Bateman showed a lack of candour in his disclosures set out in his declaration filed in support of the CEPU application. The Director pointed to the decision in Laing O'Rourke Australia Pty Ltd v Construction, Forestry, Mining and Energy Union 12 in which Collier J made interlocutory orders directed to the CEPU, Mr Bateman and other officials, relevantly restraining Mr Bateman from engaging in particular conduct (including advising, encouraging, inciting, aiding, abetting, counselling and procuring any industrial action) in connection with what is described as the M & A Project.

[23] The CEPU and Mr Bateman sought leave to appeal this decision. Leave was granted but not in respect of Mr Bateman. The Director was not a party to the proceeding. It is common ground that the matter was later discontinued. Mr Bateman denied the allegations and the discontinuance followed a settlement made without admission of liability. 13

[24] However, the Director submitted that there was probative evidence adduced and accepted by the Court to warrant the granting of an injunction and the refusal of leave to appeal. Consequently, the Director submitted that one of two conclusions may reasonably be drawn from the failure to disclosure in the application the existence of this related adverse conduct of Mr Bateman:

a) The 'inquiries' purported to be made by the CEPU and Mr Bateman must have been deficient, and made with lack of care and diligence; or

b) given Mr Bateman and the CEPU's direct knowledge of these matters in which they participated, they elected not to disclose them to the Commission.

[25] The Director submitted that given the privilege conferred on a person who holds an entry permit, such applications should not be made lightly or without due care and diligence. Rather, the Director submitted such applications should be completed with the utmost care, honesty, due diligence and professionalism available. Applications under s. 512 of the Act should be made with full and frank disclosure. The Director submitted it cannot be said that the present application before the Commission had been made in such a manner. In the Director's submission, the application is less than candid in respect of s. 513(1)(g) of the Act and did not provide all relevant materials on the question of establishing whether Mr Bateman is a fit and proper person to hold an entry permit.

[26] The propositions that candour and full disclosure of relevant facts is required of applicants for a permit and that proposed permit holders should diligently assist in that regard, seems to me to be uncontroversial. However, I do not regard the failure to disclose the circumstances in Laing O'Rourke Australia Pty Ltd v Construction, Forestry, Mining and Energy Union 14or the fact that an interlocutory order was made as indicating a lack of candour or a failure to exercise due diligence.

[27] The grant of an interlocutory order restraining Mr Bateman pending the final determination of the principal proceeding is indicative of no more than the Court being satisfied that there was a serious issue to be tried and that the balance of convenience favoured the making of the order. That determination does not provide a foundation for conclusive factual findings as to conduct nor as to the legal consequences of the conduct. It would, in my view, be most unsound to take into account allegations of conduct concerning that which were contested and which were ultimately not subject of any finding of fact or conclusion of law. That leave to appeal the interlocutory order was not granted in respect of Mr Bateman does not advance the argument nor elevate the matter as a matter of relevance for my purposes.

[28] In those circumstances I can see no basis for concluding that a disclosure was required. It follows that there has not been an absence of candour or due diligence.

[29] The Director suggested that the failure of Mr Bateman to give evidence before me about the matters disclosed should tell against the application as the information provided in the Bateman declarations is insufficient to enable me to be satisfied that Mr Bateman is a fit and proper person to hold an entry permit and that any assessment would be speculative. Whilst I accept that more fulsome information could, and perhaps should, have been provided, I consider that the information disclosed, coupled with the materials tendered as exhibits and the facts disclosed in the agreed statement of facts, allow me to reach a safe conclusion. Moreover, I accept the submission of the CEPU that had Mr Bateman been given notice that the Director wished to cross-examine him, he would have made himself available for this purpose. 15 The Director did not make any such request. I might have taken a different view had the request been made or had Mr Bateman been found to have contravened (or the CEPU because of Mr Bateman’s conduct) an industrial law on more than the single occasion.

[30] Consequently, for the reasons given, I do not regard the contravening conduct engaged in by Mr Bateman as disclosed in the agreed statement of facts as sufficiently significant in the circumstances of his history as a permit holder to render Mr Bateman a person who is not fit and proper to hold an entry permit. There are no other matters, save the training issue, which would cause me to conclude that I was not satisfied as to his fitness and propriety to hold a permit. On 2 July 2015 I wrote to the parties outlining my concern and sought submissions on whether any condition should be imposed pursuant to s. 515 of the Act to address that concern. On 6 July 2015 the CEPU filed a statement of Patricia Rogers, an Industrial Officer employed by the CEPU. The statement sets out that on 2 July 2015 the CEPU caused Mr Bateman to undertake a further course of approved training concerning federal right of entry which was conducted by the Australian Council of Trade Unions (ACTU). A copy of the “Certificate of Achievement” is annexed to the statement.

[31] The Director submitted that there was an absence of any meaningful information from the CEPU as to the nature and content of the training undertaken by Mr Bateman and no "first person" confirmation by Mr Bateman as to the level of his comprehension of the rights and responsibilities of a permit holder under the Act. Consequently, the Director submitted the training undertaken by Mr Bateman could not be considered adequate. 16

[32] The recent training undertaken by Mr Bateman, as disclosed in the statement of Patricia Rogers, is conducted by the ACTU. The course of training is one of a number of training packages that is approved by a delegate of the Commission to whom the power to issue an entry permit pursuant to s. 512 the Act has been delegated (Delegate). Accordingly, there does not seem to me to be any basis to question the appropriateness or adequacy of that course of training. Further, in the circumstances of this case, there does not appear to be any appropriate basis upon which Mr Bateman’s understanding of his rights and obligations, so recently explained to him in the course of training conducted by the ACTU, would be called into question.

[33] In the circumstances, I am now satisfied that Mr Bateman has received appropriate training about the rights and responsibilities of a permit holder, and it is unnecessary for me to deal with the Director’s additional submission that a suitable condition as to training could be imposed when an entry permit is issued to Mr Bateman. I am therefore satisfied that Mr Bateman is a fit and proper person to hold an entry permit. There does not seem to be any other discretionary consideration which might weigh against the grant of a permit.

Mr Ong

[34] Mr Ong has held right of entry permits under the Act and under predecessor legislation since at least 2000 and during that time he has not had any right of entry permit held by him suspended or revoked. 17

[35] According to the declarations filed by the CEPU in support of the application for the grant of a permit (Ong declarations), Mr Ong has never been convicted of an offence against an industrial law (s. 513(1)(b) of the Act); he has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s. 513(1)(c) of the Act; 18 he has not had any entry permit issued under Part 3 – 4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s. 513(1)(b) of the Act); he has not had cancelled, suspended or imposed conditions on any right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s. 513(1)(f)(ii) of the Act); and he has not been disqualified from exercising or applying for, a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s. 513(1)(f)(ii) of the Act). None of this is disputed by the Director, and I accept that this information as disclosed in the Ong declarations is accurate and correct.

[36] As to the question of whether Mr Ong has received appropriate training about the rights and responsibilities of a permit holder, the Ong declarations disclose that Mr Ong received training about these matters and that such training constituted the attendance at a seminar conducted by the Queensland Council of Unions on 24 November 2011. At the time I reserved my decision there was no evidence of Mr Ong having undertaken any further training about the rights and responsibilities of a permit holder under the Act.

[37] Since the last training undertaken by Mr Ong in November 2011 there have been a number of amendments to the right of entry provisions contained in Part 3 – 4 of the Act. Specifically, by Schedule 4 of the Fair Work Amendment Act 2013, the Act was amended to include significant provisions dealing with the location of interviews and discussions with employees, the capacity of the Commission to deal with disputes about the operation of Part 3 – 4 of the Act and disputes about the frequency of entry to hold discussions, and new civil remedy provision. These amendments commenced operation on 1 January 2014.

[38] These provisions, along with the operation and effect on the rights and obligations of a permit holder, will not have been the subject of the training received by Mr Ong in November 2011. Whilst it is doubtless that the training was appropriate having regard to the statutory regime in which a permit holder will then have been required to operate, I do not consider that training, without more, to be appropriate having regard to the current statutory regime. In the circumstances at the time I commenced drafting this decision, I was not satisfied that Mr Ong had received appropriate training as contemplated by s. 513(1)(a) of the Act. This is a matter that might have been addressed by the imposition of a condition under s. 515(1) of the Act. I will return to the issue of training later in this decision.

[39] The Ong declarations disclose that in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 19 Collier J imposed a penalty on the CEPU in relation to conduct in which the CEPU agreed Mr Ong had engaged. The Court imposed a penalty on the CEPU for contraventions of s. 43(1)(b) of the BCII Act, by operation of s. 69(1)(b) ofthe BCII Act, with respect to the coercion on the QIMRProject on 9 November and 10 November 2010.

[40] The relevant conduct engaged in by Mr Ong, and the consequences of that conduct, are set out in the judgment of Collier J derived from the agreed statement of facts filed in the proceeding as follows:

Events on 9 and 10 November 2010 at the QIMR Project Site

On 9 and 10 November 2010 Mr Peter Ong, Mr Andrew Clark and Mr Edward Bland each entered the QIMR Project site. Mr Ong was an organiser of the CEPU. Mr Clark and Mr Bland were organisers of the CFMEU.

9 November 2010

On 9 November 2010 Mr Ong, Mr Clark and Mr Bland entered the site at approximately 5.45 am and met with some workers there. Mr Ong spoke with Mr David Fordham, the Watpac site manager, and said words to the following effect:

We are having a talk to the boys about Watpac and its [sic] national.

Mr Ong, Mr Clark and Mr Bland subsequently addressed a meeting attended by some of the employees of Watpac and of the QIMR Project sub-contractors on the QIMR Project site. During the meeting the following occurred:

● Mr Ong opened the meeting by introducing himself and the other two officials.

● Mr Ong said words to the following effect:

The reason for the meeting was that we have had enough of Watpac using inferior subbies ... We have had enough, it is time to stand up and take action to the likes of Watpac, they are one of the main offenders. By using non EBA subcontractors they are pushing everyone’s wages down ... Watpac are continuing to use non-union EBA companies like Blue Star Pacific and they are driving the prices down and are bleeding the union EBA companies, forcing them to compete against each other, forcing them to drive the prices down.

● Mr Clark said words to the following effect:

Swiftform was a non-union EBA subcontractor working on the site.

● Mr Bland addressed the meeting.

● Mr Ong or Mr Clark said words to the following effect:

We motion that we take the day off and go home to our families and take a stand against Watpac.

● The majority of the employees present raised their hands, and then seconded the motion.

● Mr Clark then said:

Do you wish us to be back tomorrow morning to have a meeting with you all?

● A few workers shouted “Yes”.

Work on the project was scheduled to commence at 6 am.

Some of the assembled employees of Watpac and of the QIMR Project sub-contractors began to pack up their possessions and left the QIMR Project site. They did not return to the site that day.

The parties agree that:

● Those employees were induced, counselled, procured and organised to leave the QIMR Project site by Messrs Ong, Clark and Bland.

● The relevant action was taken by Messrs Ong, Clark and Bland to coerce Watpac or with intent to apply undue pressure to Watpac to cease to engage contractors that did not have an enterprise agreement with a union, and to engage contractors that did.

● The relevant action was intended by Messrs Ong, Clark and Bland to compel and/or force Watpac to cease to engage contractors that did not have an enterprise agreement with a union, and to engage contractors that did.

● By the actions of Messrs Clark and Bland, pursuant to s 69(1)(b) of the BCII Act the CFMEU is taken to have acted in breach of s 43(1)(b) of the BCII Act.

● By the actions of Mr Ong pursuant to s 69(1)(b) of the BCII Act the CEPU is taken to have acted in breach of s 43(1)(b) of the BCII Act.

● The CFMEU and the CEPU each contravened s 43(1)(b) of the BCII Act.

10 November 2010

The following day on 10 November 2010 Messrs Ong, Clark and Bland returned to the QIMR Project site. At approximately 6 am they attended a meeting with employees at the site. During the meeting the following occurred:

● Mr Ong or Mr Clark said words to the following effect:

[He was] happy with the efforts of Tuesday 9 November 2010, and the unions were having a meeting with the Federal Manager of Watpac and Mr Phillip Corcoran, the State Manager of Watpac, on Monday.

● Mr Ong said words to the following effect:

We propose that if the meeting doesn’t go well we come back Tuesday for a meeting and discuss the outcome of Monday’s meeting. Pending on the outcome of Monday’s meeting as to whether we take further action ... I propose a motion that if the meeting doesn’t go well Monday, we take action Tuesday.

The parties agree that:

● During the meeting Mr Ong and Mr Clark proposed to take action which constituted a threat to take action in the form of further industrial action made with the intent to coerce Watpac or with intent to apply undue pressure to Watpac to cease to engage contractors that did not have enterprise agreements with a union and to engage contractors that did.

● These threats were made by Mr Ong and Mr Clark to compel and/or force Watpac to cease to engage contactors that did not have enterprise agreements with a union and to engage contractors that did.

● By the actions of Mr Clark, pursuant to s 69(1)(b) of the BCII Act the CFMEU is taken to have acted in breach of s 43(1)(b) of the BCII Act.

● By the actions of Mr Ong pursuant to s 69(1)(b) of the BCII Act the CEPU is taken to have acted in breach of s 43(1)(b) of the BCII Act.

● The CFMEU and the CEPU each contravened s 43(1)(b) of the BCII Act. 20

[41] It is discernible from the extract above (and from other parts of the judgment) that the conduct agreed by the CEPU, in which Mr Ong engaged, was deliberate and part of a calculated and co-ordinated campaign against Watpac over two days. 21 The contravening conduct occurred during a period when Mr Ong attended the QIMR Project Site on 9 and 10 November 2010. The circumstances of Mr Ong’s entry to the site on each on 9 and 10 November 2010 are not disclosed in the judgment nor is there any material before me explaining the nature and purpose of his entry onto site. Whilst he was on-site, Mr Ong, along with others, addressed meetings of employees. During the meeting on 9 November 2010, Mr Ong proposed that “we take the day off and go home to our families and take a stand against Watpac”, and after that meeting a number of employees left the site and did not continue working.

[42] At the meeting with employees on 10 November 2010 Mr Ong told the employees that he was happy with their efforts on 9 November 2010 and that the unions were having a meeting with Watpac the following Monday. Mr Ong then proposed to employees in attendance at the meeting that “if the meeting doesn’t go well Monday, we take action Tuesday”. The action taken by Mr Ong on 9 November 2010 and the threat of action made by Mr Ong on 10 November 2010 were taken and made with the intent to compel and/or force Watpac to cease to engage contractors that did not have an enterprise agreement with a union, and to engage contractors that did. The action taken and the threat made each constituted a separate contravention of s. 43(1)(b) of the BCII Act by the CEPU by reason of s. 69(1)(b) of the BCII Act.

[43] The CEPU submitted that the admissions it made, described above, should be given limited weight because Mr Ong was not a party to the proceeding in which the agreed statement of facts were filed, and that it should not be treated as containing admissions for all purposes. Moreover, the admissions made by the CEPU were not the subject of a contested hearing or evidential findings by the Court, and the conduct of Mr Ong could not be said to be egregious or deserving of special censure. I agree that the conduct of Mr Ong, as described in the judgment, should not fairly be described as egregious. Nevertheless, the conduct was in my view, conduct of a serious character because not only was it conduct which resulted in a determination that the CEPU had contravened provisions of the BCII Act, which at the time guarded against the application of unlawful, illegitimate or unconscionable pressure by one person against another in order that the other person might do or refrain from doing certain unlawful acts, but the action had the effect, doubtless, of causing a disruption to schedule of works at the QIMR Project.

[44] Whilst I accept that admissions made in the course of a particular litigation should not be treated as admissions for all purposes, and that admissions of this kind are often made in proceedings for strategic purposes, I do not accept that the admissions contained in the statement of agreed facts and recorded in the judgment are not relevant to my consideration, and I do not accept that the admission should be given limited weight. Mr Ong was free to attend before me to give an explanation of the circumstances of his involvement in the conduct set out in the agreed statement of facts. He was free to explain or qualify any fact that had been admitted by the CEPU. He did not do so, nor did the CEPU submit that the conduct in which it agreed Mr Ong engaged did not accurately reflect Mr Ong’s conduct. That Mr Ong by his conduct, and for which the CEPU is held liable, whilst on the QIMR Project site on 9 and 10 November 2010, as set out in the agreed statement of facts, contravened a prohibition in an industrial law is an important factor in assessing the fitness and propriety of Mr Ong to hold an entry permit. In my view, the conduct demonstrates either a lack of regard for or failure to understand particular provisions in what was at the time an operative industrial law.

[45] Weighed against this, however, is the fact that Mr Ong appears to have been a holder of an entry permit under the Act and its predecessor legislation for a continuous period since 2000. There does not appear to be any other occasion on which Mr Ong has been found to have contravened the Act or an industrial law. Similarly, there does not appear to have been any other occasion on which the CEPU has agreed in a proceeding that Mr Ong’s conduct contravened the Act or an industrial law. The contravening conduct, as set out in the agreed statement of facts and recorded in the judgment occurred, some nearly five years ago and whilst the passage of time in and of itself does not indicate any particular remorse or acknowledgement of earlier wrongdoing or the dissipation of any propensity to engage in unlawful conduct, the passage of time needs to be examined in context. Mr Ong was the holder of entry permits for a continuous period of some 15 years and in that time on one occasion was engaged in conduct in breach of an industrial law. I also take into account that in comparison to the conduct of the CFMEU officials, the CEPU’s role in the offence of 9 and 10 November 2010 was regarded by his Honour as smaller, and that this was reflected in the quantum of the penalty imposed by the Court. 22 I accept that the conduct involved two separate contraventions however, Mr Ong’s transgression in the context of his entire period as a permit holder should not by itself so effect the assessment of his character as to render him not a fit and proper person.

[46] The Ong declarations also disclose the relevant conduct the subject of proceedings in Lend Lease Engineering Pty Ltd v CFMEU and Ors (Lend Lease No 1). 23 Mr Ong was the thirteenth respondent in that proceeding. The proceeding was the subject of a contested hearing in which Mr Ong denied the allegations made against him.24 A decision in the proceeding was reserved25 and subsequently the proceeding was discontinued by the applicant.26 There is a related proceeding, Lend Lease Engineering Pty Ltd v CFMEU and Ors (Lend Lease No 2)27, in which Mr Ong was the eighth respondent and which was not disclosed in the Ong declarations. Lend Lease No 1 was to be heard and determined together with Lend Lease No 2.28 Mr Ong denied the allegations made against him in Lend Lease No 2.29 A decision in that proceeding was reserved30 and subsequently the proceedings were discontinued by the applicant.31

[47] Given that neither of the proceedings in Lend Lease No 1 or Lend Lease No 2 were the subject of a final determination by the Federal Circuit Court, and have since been discontinued, the conduct alleged against Mr Ong in those proceedings was not subject to any factual findings or legal conclusions, and is not relevant to any of the express permit qualification matters set out in s. 513(1) of the Act, nor do I consider the alleged conduct to be relevant for the purposes of s. 513(1)(g) of the Act.

[48] The Director submitted the failure by the CEPU and by Mr Ong to disclose the proceeding in Lend Lease No 2 demonstrates a lack of candour or a lack of diligence on the part of Mr Ong and the CEPU. The propositions that candour and full disclosure of relevant facts is required of applicants for a permit and that proposed permit holders should diligently assist in that regard are uncontroversial. However, I do not regard the failure to disclose the circumstances in Lend Lease No 2 as indicating a lack of candour or a failure to exercise due diligence. It is difficult to see how a proceeding that is yet to be determined in which allegations are contested can be relevant to the assessment that I am required to undertake. Even if it were disclosed, it would not be appropriate to take into account the existence of such a proceeding or the allegations made therein. It seems to me that the existence of such a proceeding is not a relevant matter, and it must follow that there was no obligation to disclose Lend Lease No 2.

[49] The Ong declarations disclose that on 30 October 2014 Mr Ong was convicted of assault. "Convicted" is used in the Ong declarations as indicating that Mr Ong was found guilty of assault as ultimately no conviction was recorded. A fine of $1,000.00 was imposed. 32 The only additional information about the assault contained in the Ong declarations is that the assault occurred on 16 May 2013 at the Breakfast Creek Hotel, and that the assault had no connection with Mr Ong’s employment with the CEPU. There is some doubt whether the finding of guilt in the circumstances where no conviction was recorded means that Mr Ong has been convicted of an offence against a law of a State involving intentional use of violence against another person for the purposes of s. 513(1)(c) of the Act.33 Although I am of the view that the finding of guilt absent a conviction recording is not to be regarded for the purposes of s. 513(1)(c) of the Act, it is ultimately unnecessary for me to decide that issue as the matter disclosed in the Ong declarations is plainly relevant and may be taken into account under s. 430(1)(g) of the Act. This is accepted by the CEPU.34

[50] The difficulty in assessing the weight and significance that should be attributed to the assault is the absence of any factual disclosures about the assault that would assist in assessing the circumstances and seriousness of the assault. For example, there is no material about whether the assault was provoked or unprovoked, whether Mr Ong was affected by alcohol and whether the victim of the assault sustained any injuries. That the assault occurred outside of work and did not bear any connection with his employment with the CEPU does not divorce that conduct from the assessment of whether Mr Ong is a fit and proper person to hold an entry permit. It is clearly relevant to Mr Ong’s character. Although it may be concluded that the assault was at the lower end of gravity given the level of the fine imposed and the decision not to record a conviction, the fact of the assault in 2013, combined with the earlier discussed contravening conduct, is suggestive of a propensity on the part of Mr Ong to disregard the law. Moreover, there is no indication in the materials before me that Mr Ong regrets committing the assault, although I accept the submission that he entered a guilty plea. This is to his credit and is indicative of an acceptance of responsibility. Although the assault was relatively recent (May 2013), I also take into account that no other incident involving an assault is apparent on the materials, and that no complaint of any assault or similar conduct is alleged against Mr Ong during his 15 years as a permit holder. In the circumstances I do not consider that the assault, whether considered alone or in combination with the 2010 contravening conduct, renders Mr Ong not fit and proper to hold a permit.

[51] It was suggested by the Director that the absence of Mr Ong giving evidence about the matters disclosed should tell against the application as the information provided in the Ong declarations is insufficient to enable me to be satisfied that Mr Ong is a fit and proper person to hold an entry permit. Whilst it is accepted that more fulsome information could,and perhaps should, have been provided, I consider that the information disclosed, coupled with the materials tendered as exhibits and the facts as disclosed in the judgment of Collier J, allow me to reach a conclusion. Moreover, I accept the submission of the CEPU that had Mr Ong been given notice that the Director wished to cross-examine him, he would have made himself available for that purpose. 35 The Director did not make any such request. I might have taken a different view had the request been made.

[52] Consequently, for the reasons given, I do not regard the matters disclosed in the Ong declarations as sufficiently significant to conclude that Mr Ong is not a person who is fit and proper to hold an entry permit. There are no other matters, save the training issue, which would cause me to conclude that I was not satisfied as to his fitness and propriety to hold a permit. On 2 July 2015 I wrote to the parties outlining my concerns and sought submissions on whether any condition should be imposed pursuant to s. 515 of the Act to address that concern. On 6 July 2015 the CEPU filed a statement of Patricia Rogers, an Industrial Officer employed by the CEPU. The statement sets out that on 2 July 2015 the CEPU caused Mr Ong to undertake a further course of approved training concerning federal right of entry, conducted by the ACTU. A copy of the “Certificate of Achievement” is annexed to the statement.

[53] The Director submitted that there was an absence of any meaningful information from the CEPU as to the nature and content of the training undertaken by Mr Ong and no "first person" confirmation by Mr Ong as to the level of his comprehension of the rights and responsibilities of a permit holder under the Act. Consequently, the Director submitted the training undertaken by Mr Ong could not be considered adequate. 36

[54] The recent training undertaken by Mr Ong, as disclosed in the statement of Patricia Rogers, was conducted by the ACTU. The course of training is one of a number of training packages that is approved by the Delegate. Accordingly, there does not seem to me to be any basis to question the appropriateness or adequacy of that course of training. Further, in the circumstances of this case, there does not appear to be any appropriate basis upon which Mr Ong’s understanding of his rights and obligations, so recently explained to him through the course of training, should be called into question.

[55] In the circumstances, I am now satisfied that Mr Ong has received appropriate training about the rights and responsibilities of a permit holder, and it is unnecessary for me to deal with the Director’s additional submission that a suitable condition as to training could be imposed when an entry permit is issued to Mr Ong. I am therefore satisfied that Mr Ong is a fit and proper person to hold an entry permit. There are no other apparent discretionary factors which might weigh against the exercise of my discretion.

Conclusion

[56] For the reasons given, I am satisfied that Mr Bateman and Mr Ong are each a fit and proper person to hold an entry permit. As I have already indicated, there does not appear to be any other discretionary factors which would tell against the issuing of a permit to either Mr Ong or Mr Bateman.

[57] The applications for the issue of entry permits to Mr Bateman and Mr Ong are granted. The permits will separately be issued.

DEPUTY PRESIDENT

Appearances:

W. Friend QC and C. Massey for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

A. Herbert of Counsel and R. Hilton for the Director of Fair Work Building Industry Inspectorate

Hearing details:

2015

29 April (Brisbane)

5 May (Melbourne, Brisbane by video link)

Final written submissions:

CEPU, 6 July 2015, 7 July 2015 and 17 July 2015

Director, 17 July 2015

 1 [2015] FCAFC 56

 2   Ibid at [13]-[17]

 3   Ibid at [42]

 4   Submission of the CEPU at [16]

 5   Maritime Union of Australia [2014] FWCFB 1973

 6   Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 particularly at [18] – [25]

 7   Ibid at [43]

 8   Exhibit CEPU 2 at [3]-[4]

 9   QUD257/13

 10 [2015] FCAFC 59

 11   See Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCATrans 149 (18 June 2015)

 12 [2013] FCA 133

 13   Exhibit CEPU1 at [13]-[14]

 14 [2013] FCA 133

 15   Transcript PN366

 16   Director’s submissions (Bateman) 15 July 2015 at [7]

 17   Exhibit CEPU 4 at [3]-[4]

 18   I note the disclosure of the assault that occurred on 16 May 2013 in connection with which no conviction was recorded

 19 [2013] FCA 846

 20   Ibid at [17]-[24]

 21   Ibid at [34]

 22   Ibid at [39]

 23   BRG714/2012

 24   Exhibit CEPU 3 at [10] – [11]

 25   Ibid

 26   Exhibit CEPU 7

 27   BRG771/2012

 28   Exhibit CEPU 3 at [9]

 29   Exhibit CEPU 3 at [10] – [11]

 30   Ibid

 31   Exhibit CEPU 6

 32   Transcript PN 158-PN159

 33   Transcript PN149-PN162

 34   Transcript PN163

 35   Transcript PN366

 36   Director’s submissions (Ong) 15 July 2015 at [7]

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