Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Victorian Divisional Branch
[2014] FWCD 2102
•1 April 2014
[2014] FWCD 2102
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
(RE2013/1344)
| MR ENRIGHT | MELBOURNE, 1 APRIL 2014 |
[1] On 25 July 2013, an application under s.512 of the Fair Work Act 2009 (the Act) dated 11 July 2013 was lodged in Fair Work Commission (the Commission) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a permit to enter and inspect premises for the following official of the CEPU:
Peter Mooney: RE2013/1344
[2] The application was supported by declarations from Mr Troy Gray, the relevant Committee of Management member, and Mr Peter Mooney, the proposed permit holder (the declarations). Mr Gray’s declaration was undated and Mr Mooney’s declaration was dated 23 July 2013. Mr Mooney is a Divisional Branch Organiser attached to the Victorian Divisional Branch (the Divisional Branch) of the Electrical, Energy and Services Division of the CEPU. Mr Gray is the Divisional Branch Secretary of the Divisional Branch.
[3] The declarations of both Messrs Mooney and Gray disclose that Mr Mooney has:
“had the orders and decisions set out in Schedule 1 made in connection with (Mr
Mooney)”.
[4] The schedule referred to in the declarations was appended to the application and made reference to the following matters:
Simon Engineering (Australia) Pty Ltd v Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(2003)1 (Simon Engineering);
ABB Australia Pty Ltd (2002)2 (ABB Australia);
Basin Oil Pty Ltd & Transfield Construction Pty Ltd (2002)3 (Basin & Transfield);
Transfield Construction Pty Ltd (2002)4 (Transfield);
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ABB Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2004)5 (ABB Australia v CEPU (2004)); Worley Pty Limited & ABB Australia Pty Ltd (2002)6 (Worley);
Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union, Australian Workers’ Union & Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2003)7 (Esso);
ABB Australia Pty Ltd v Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia [2002] FCA
1070 (ABB Australia v CEPU [2002])8;
Transfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information,
Postal, Plumbing and Allied Services Union of Australia [2002] FCA 8709
(Transfield v CEPU);
Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 81810
(Hardwick);
Cozadinos v The Australian Workers’ Union & Ors (2009)11 (Cozadinos);
Stuart v Australian Workers’ Union & Ors (2008)12 (Stuart);
Martino v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2007) 13 (Martino); and Australian Competition and Consumer Commission v IPM Operation and
Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 and (ACCC v IPM).
[5] On 19 November 2013, the Commission wrote to the CEPU noting my concerns regarding Mr Mooney’s status as a “fit and proper person” given the number of matters disclosed in Schedule 1 appended to the application (the Schedule) and invited the CEPU to make any submissions it wished to make in the present matter regarding Mr Mooney’s conduct in each matter and addressing each of the “permit qualification matters” set out in section 513(1) of the Act. The Commission also requested submissions regarding the circumstances surrounding the apparent failure to disclose several of those matters in previous applications for a right of entry permit for Mr Mooney. The Commission further advised that such submissions should be lodged by 29 November 2013 but that a further period of time to lodge such submissions may be considered if requested.
[6] On 9 December 2013, Mr Geoff Borenstein of the CEPU wrote to the Commission requesting details of my specific concerns with the current application and the alleged failure to disclose all relevant matters in previous applications for a right of entry permit for Mr Mooney.
[7] On 13 December 2013, the Commission wrote to Mr Borenstein noting that the CEPU
had failed to lodge submissions by 29 November 2013 and had not requested a further period
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in which to lodge such submissions. The Commission also provided further clarification of the specific details it was requesting from the CEPU including an outline of the relevant conduct of Mr Mooney in several matters listed in the Schedule, the view of the CEPU regarding whether or not several other matters listed in the Schedule were relevant matters for the Commission to take into account for the purposes of section 513(1)(g) of the Act and any submissions the CEPU may wish to make in the present matter regarding Mr Mooney’s status as a “fit and proper person” taking into account the “permit qualification matters” set out in section 513(1) of the Act. The correspondence further expressed my particular concern about several of the matters listed in the Schedule which potentially demonstrated Mr Mooney’s lack of regard for the provisions of industrial legislation. Finally, the Commission provided details of three previous applications for right of entry permits for Mr Mooney in which it appeared that the CEPU and Mr Mooney had failed to disclose several of the matters listed in the Schedule and invited the CEPU to make any submissions that might assist in clarifying whether such disclosure should have previously been made in those applications and, if so, why they had not been made. The CEPU was invited to make such submissions no later than 17 January 2014.
[8] On 15 January 2014, the Fair Work Building Industry Inspectorate (the FWBC) filed written submissions in the present matter and a notice to the General Manager of the Commission pursuant to s. 72 of the Fair Work (Building Industry) Act 2012 (the FW(BI) Act).
[9] On 16 January 2014, the Commission wrote to Mr Borenstein noting that the FWBC had lodged submissions in the present matter and advised that, given this, the Fair Work Commission had allowed the CEPU an additional week to lodge any submissions it may wish to make.
[10] On 16 January 2014, Mr Borenstein wrote in response to the Commission’s correspondence of 13 December 2013. In that correspondence, Mr Borenstein asserted that the Commission’s correspondence did not address his request of 9 December 2013 regarding the provision of particulars of the concerns I had regarding Mr Mooney’s status as a “fit and proper person” and the basis for this “conclusion” and failed to provide copies of previous applications for a right of entry permit for Mooney where there had been an apparent failure to disclose relevant matters. Mr Borenstein further argued that this alleged failure denied procedural fairness and natural justice to the CEPU.
[11] On 21 January 2014, the Commission again wrote to Mr Borenstein advising that I had not made a final determination regarding Mr Mooney’s status as a “fit and proper person” and that the purpose of the Commission’s previous correspondence had been to provide the CEPU with an opportunity to make any submissions it might wish to make addressing the “permit qualification matters” set out in section 513(1) of the Act in the context of the matters disclosed in the Schedule. The Commission further advised that its letter of 13 December 2013 provided particulars regarding the specific information sought from the CEPU and that the basis for my concerns in this regard arose directly from the disclosure of the matters set out in the Schedule. Attached to the correspondence were copies of previous applications for a right of entry permit where both the CEPU and Mr Mooney apparently failed to disclose relevant matters. The CEPU was once again invited to make any submissions in the present matter generally and also to make any specific submissions in reply to the submissions of the FWBC it may wish to make. The CEPU was given until 24 January 2014 to file any such submissions.
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[12] On 22 January 2014, Mr Borenstein requested an extension to file submissions by 31 January 2014. This request was granted.
[13] On 31 January 2014, the CEPU filed written submissions with the Commission.
Legislative framework
[14] Under s.512 of the Act, the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold an entry permit. In deciding this, the Fair Work Commission must take into account the “permit qualification matters” set out in s.513(1).
[15] Section 513(1) of the Act is set out below:
“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
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(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.”
[16] Sections 512–513 are part of Part 3–4 of the Act, entitled ‘Right of Entry’. The objects of Part 3–4 are set out at 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.”
[17] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia14 Delegate Nassios made the following observations
regarding the objects of Part 3–4 of the Act with respect to an application for an entry permit:
“[21] The objects of Part 3-4 are set out in section 480 of the Act. The object of right of entry provisions is to establish a framework for officials of organisations to enter premises while balancing competing rights of organisations, employees and occupiers/employers. Organisations have the right to represent their members in the workplace, to hold discussions and to investigate suspected contraventions of relevant laws. Balanced against these rights are the rights of occupiers and employers ‘to go about their business without undue inconvenience’. The objects set out in section 480 of the Act emphasise the mutual rights and responsibilities of participants in the system in much the same way as the objects under the Workplace Relations Act 1996. Earlier decisions regarding the granting of right of entry permits under the Workplace
Relations Act 1996 have made reference to the ‘important contextual issue’ of the
nature of the power that is exercised by permit holders. In Vivienne Daniels v Joe
Patti & Anor, Munro J observed that:
Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of
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the powers under Division 11A are not only to be expected, they are a statutory
condition of the powers being retained.
The observations of Munro J apply equally to the granting of right of entry permits under the legislative regime set out in the Fair Work Act 2009.”15 (endnotes omitted)
[18] Although I am not bound by the above views I find they are a useful context for considering an application for an entry permit.
Submissions
[19] As noted above, both the FWBC and the CEPU filed written submissions in this
| matter. |
FWBC Submissions
[20] The written submissions of the FWBC, filed in the Commission on 15 January 2014, address three primary issues, namely:
The statutory framework of the Commission’s powers under s. 512 of the Act;
An alleged failure to adequately disclose the matters of Martino, Stuart, Cozadinos
and Hardwick in the application currently before me; and
The adequacy of training, incentive and support systems given to Mr Mooney by
the CEPU particularly as it relates to my consideration of whether he has received
appropriate training pursuant to section 513(1)(a) of the Act.
[21] The FWBC does not directly submit whether or not Mr Mooney is a “fit and proper person” for the purposes of s. 512 of the Act but argues that he has a “poor record of committing contraventions of Australia’s industrial laws”. The FWBC also urges the Commission take into account Mr Mooney’s conduct in contravening industrial laws, whether the alleged failure to appropriately disclose penalties imposed upon him can be satisfactorily explained and whether he has completed appropriate training concerning his rights and responsibilities as a permit holder for the purposes of making a determination of whether he is a “fit and proper person” to hold an entry permit.
[22] The FWBC concludes that the Commission should exercise “some caution” in considering whether to issue an entry permit to Mr Mooney and that, if the Commission determines that Mr Mooney is a “fit and proper person” to hold an entry permit, then conditions should be imposed on any permit issued to him pursuant to s. 515 of the Act.
CEPU Submissions
[23] The written submissions of the CEPU, filed in the Commission on 31 January 2014, assert that the matters listed in the Schedule should not be taken into account by the Commission when making a determination of whether or not Mr Mooney is a “fit and proper person” to hold an entry permit. This submission is based on an analysis of Part 3-4 of the Act, particularly Division 6 of Part 3-4 of the Act which contains sections 512 and 513. The essential thrust of the submissions of the CEPU is that the “permit qualification matters” set out in section 513(1) of the Act “must be taken into account only to the extent that they are relevant to the exercise of entry permit rights”.
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[24] The CEPU’s submissions do not specifically address each of the permit qualification
matters as they pertain to Mr Mooney beyond asserting that the matters listed in the Schedule
should not be taken into account.
[25] The CEPU concludes that Mr Mooney should be issued a permit.
[26] I will deal with the submissions of the CEPU in the next section of this decision
immediately below.
Permit Qualification Matters
[27] In its submissions, the CEPU notes that the term “fit and proper person” is not defined in the Act and that it has been held to carry no precise meaning standing alone but takes its meaning from its statutory context. This appears to be a reference to the well known passage from Australian Broadcasting Tribunal v Bond (1990)16 (Tribunal v Bond) in which Toohey and Gaudron JJ stated that:
“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 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 an 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.”17
[28] Similarly, the submissions of the FWBC also set out this quote in its entirety and assert that a number of principles can be gleaned from it including that the meaning of the term “fit and proper person” must be construed from the statutory context in which it appears and from the activities in which person is or will be engaged.
[29] The submissions of the CEPU also highlight the use of the words “to hold an entry permit” as they appear immediately after the words “fit and proper person” in s. 512 of the Act. I accept that the language of s. 512 of the Act clarifies that the task of the Commission is to consider and determine whether a particular official is a “fit and proper person” not in a universal sense entirely divorced from any context but specifically whether he or she is a “fit and proper person” to hold an entry permit. That determination is required to be made by having regard to the nature of the statutory right of entry powers potentially provided to the official pursuant to Part 3-4 of the Act, the activities that the official will be engaged in when exercising such powers and the ends to be served by such activities. As the Full Bench of the Commission in The Maritime Union of Australia [2014] FWCFB 1973 (The Maritime Union
of Australia [2014]) observed:
“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[2014] FWCD 2102
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”.18
[30] However, I do not accept the submission of the CEPU that the language of s. 512 of the Act when juxtaposed with the permit qualification matters set out in s. 513(1) of the Act leads to a conflict such that the “permit qualification matters” must be read down “in the sense that [they] must be taken into account only to the extent that they are relevant to the exercise of entry permit rights”.
[31] As noted above, the task of the Commission pursuant to s. 512 of the Act is to determine whether a particular official is a “fit and proper person” specifically to hold an entry permit. Section 513(1) of the Act provides that, when making this determination, the Commission “must take into account” the “permit qualification matters” listed in paragraphs (a) to (g). Several of those “permit qualification matters” do not directly relate to the exercise of statutory right of entry powers. That these “permit qualification matters” include considerations beyond the exercise of statutory right of entry powers does not alter the ultimate determination that is required to be made, namely, that the official is a “fit and proper person to hold the entry permit”.
[32] Contrary to the CEPU’s submissions, I cannot discern any relevant inconsistency or conflict between the structure and operation of sections 512 and 513 of the Act. Parliament has expressed an intention that the Commission “must” take into account the permit qualification matters set out in s. 513(1) of the Act to “ensure that only appropriate persons are conferred with the significant rights to access premises”.19 That some of the “permit
qualification matters” do not directly relate to statutory right of entry powers does not present any necessary inconsistency with the nature of the determination required to be made under s. 512 of the Act. As noted above, that determination entails the Commission coming to the requisite satisfaction that a particular official is a “fit and proper person” for the purposes of holding an entry permit. In order to make that determination, s. 513(1) of the Act provides that the Commission must take into account the permit qualification matters. Those matters are to be considered and applied in a manner that assists the Commission in determining whether the official is a “fit and proper person to hold the entry permit”. The CEPU’s submissions conflate the determination required to be made under s. 512 of the Act, namely, that the Commission be satisfied that a particular official is a “fit and proper person” specifically to hold an entry permit with the matters that are to be taken into account when making this determination pursuant to s. 513(1) of the Act.
[33] The construction of s. 513(1) of the Act proposed by the CEPU is also inconsistent with a plain reading of that provision. Section 513(1) of the Act provides that in making its determination of whether a particular official is a “fit and proper person”, the Commission “must” take into account the “permit qualification matters”. The provision does not provide or otherwise imply that the Commission must only take into account such matters to the extent that they relate to the exercise of statutory right of entry powers under Part 3-4 of the Act. The construction given by the CEPU also appears to be directly contradictory to subsection 513(1)(c) of the Act which provides that the Commission must take into account:
(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
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(ii) fraud or dishonesty; or
(iii) intentional use of violence against another person or intentional
damage or destruction of property (emphasis added).
[34] The use of the word “or” indicates that the Commission is required to take into account whether a particular official has ever been convicted of an offence involving either entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. If one were to give the meaning proposed by the CEPU, then subsections 513(1)(c)(ii) and (iii) would have no work to do unless the relevant conviction involved fraud or dishonesty or intentional use of violence against another person or damage or destruction of property and was in some way related to the exercise of statutory right of entry powers under Part 3-4 of the Act. In other words, those subsections would not be enlivened unless the relevant offence also involved entry onto premises as set out in subsection 513(1)(c)(i) of the Act. This would involve reading the word “or” as “and”
as it appears in section 513(1)(c) of the Act, something that the courts have only rarely
entertained when construing legislation.20
[35] In short, the submissions of the CEPU urge the Commission to read into section 513(1) of the Act words that are not there which, in the absence of a clear necessity to do so,
is an incorrect approach to take when construing statutory provisions.21
[36] This conclusion is also supported by the structure and language of the various provisions of Division 5 of Part 3-4 of the Act highlighted by the CEPU in its submissions. For example, section 508 of the Act provides that the Commission may restrict the rights that are exercisable under Part 3-4 of the Act if the Commission is satisfied that the relevant organisation or official has misused those specific rights. Section 510 of the Act provides that the Commission must revoke or suspend each entry permit held by a permit holder if it is satisfied that certain prescribed events have occurred since the first of those permits was issued. Subsection 510(1)(d) of the Act provides that a relevant trigger is that the “permit holder, or another person, was ordered to pay a pecuniary penalty under [the Act] in relation to a contravention of this Part by the permit holder”.
[37] By contrast, with the exception of subsection 513(1)(e), the permit qualification matters set out in section 513(1) of the Act do not make reference to Part 3-4 of the Act. For instance, subsection 513(1)(d) provides that the Commission must take into account whether the relevant official or any other person “has ever been ordered to pay a penalty under [the Act] or any other industrial law in relation to action taken by the official”. As noted above, section 510(1)(d) specifically refers to a contravention of Part 3-4 of the Act. This difference in the drafting of sections 508, 510 and 513(1) of the Act does not support the construction given by the CEPU in its submissions. Rather, it reinforces my view that the permit qualification matters set out in section 513(1) of the Act are not be read down in the sense that such matters must only be considered to the extent that they relate to the exercise of statutory right of entry powers under Part 3-4 of the Act. As noted by the Full Bench of the Commission noted when considering sections 510 and 513(1) of the Act in The Maritime
Union of Australia [2014]:
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“Where parliament intended for particular matters to have a more narrow application, as is the case for the mandatory revocation suspension of entry permits, it has expressly so provided”.22
[38] Further, contrary to its submissions, the construction of sections 512 and 513 of the Act advocated by the CEPU may well lead to “capricious or unjust results”. For example, a particular official may have been recently convicted of a series of offences involving violence against a person whose commission was unrelated to the exercise of statutory right of entry powers under Part 3-4 of the Act. If the CEPU’s submissions are accepted, then these are not relevant matters for the Commission to take into account when determining whether or not to issue a permit to that official. However, if an entry permit previously issued to that official was made subject to a condition that was imposed on all permit holders of a particular organisation or branch of an organisation which did not arise due to any relevant conduct of the official, then the Commission would be bound to take this matter into account. This construction of the Act would also effectively preclude the Commission from taking into account the “permit qualification matters” for officials who have never previously held an entry permit with the exception of subsection 513(1)(a) of the Act. When regard is had to the nature of the power exercised by a permit holder pursuant to Part 3-4 of the Act, it is reasonable to conclude that Parliament would not have intended to limit the Commission’s consideration of whether a particular official is a “fit and proper person” to hold an entry permit in the manner advocated by the CEPU.
[39] Finally, the submissions of the CEPU are directly contrary to the conclusion reached
by the Full Bench of the Commission in The Maritime Union of Australia [2014] where it was
held that:
“We reject so much of the Appellant’s submission as suggested that section 513 must be read down in the sense that the various permit qualification matters must be taken into account only to the extent that they are relevant to the exercise of entry permit rights. In our view there is no basis for reading down s.513. In a given application for an entry permit, if a matter that is a permit qualification matter, then that matter must be taken into account in determining whether the official is a fit and proper person to hold an entry permit.”23
[40] The submissions of the CEPU regarding the objects of the Act and International Labour Organization conventions do not assist it in the face of a plain reading of s. 513(1) of the Act, the context in which it appears in Part 3-4 of the Act and previous authority.
[41] Therefore, consistent with s. 512 of the Act, the task in the present matter is to determine whether I am satisfied that Mr Mooney is a “fit and proper person” to hold an entry permit within the specific context of the statutory regime of right of entry powers under Part 3-4 of the Act, the activities that he will be engaged in when exercising such powers and the ends to be served by such activities. In order to make this determination, section 513(1) of the Act provides that the Commission must take into account the “permit qualification matters” listed at paragraphs (a) to (g) several of which do not directly relate to the exercise of statutory right of entry powers under Part 3-4 of the Act. Those matters are to be taken into account with reference to the primary determination required to be made, namely, whether Mr Mooney is a “fit and proper person to hold the entry permit”.
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[42] If any of the permit qualification matters set out in s. 513(1) of the Act are enlivened due to the conduct of a particular official when exercising powers under Part 3-4 of the Act, then this would be a relevant consideration for the weight to be given to such matters when determining whether he or she is a “fit and proper person” to hold an entry permit. However, this does not mean that they are irrelevant for the purposes of the Commission’s determination of whether that official is a “fit and proper person to hold the entry permit” if they arise due to the conduct of the official unrelated to or outside his or her exercise of statutory right of entry powers under Part 3-4 of the Act. Indeed, as noted above, I am bound to take such matters into account.
[43] Having dealt with the construction to be given to sections 512 and 513 of the Act, I will consider each of the permit qualification matters separately below.
Training about rights and responsibilities
[44] Section 513(1)(a) of the Act requires me to have regard to whether Mr Mooney has
received appropriate training about the rights and responsibilities of a permit holder. The
declarations provide that Mr Mooney completed:
“the online Federal Right of Entry Training - issued 4/210 [sic] as provided to Fair
Work Australia on 19/2/2010”.
[45] This appears to be a reference to the training undertaken by Mr Mooney as part of a previous application for a right of entry permit under section 512 of the Act which was completed on 4 February 2010. Confusingly, attached to the current application is a copy of a certificate of completion of such training issued by the Australian Council of Trade Unions on 25 June 2013 in relation to Mr Mooney. The content of the training material in both instances was approved by, then, Fair Work Australia on 6 October 2009.
[46] In its submissions, the FWBC points to the date of 19 February 2010 that was provided in the declarations as the date on which Mr Mooney last undertook relevant training regarding the rights and responsibilities of a permit holder and urges the Commission to consider why Mr Mooney has not undertaken such training since that date and the adequacy of the training he received in light of the subsequent conduct he was found to have engaged in the matters of Hardwick, Stuart and Cozadinos. The FWBC submits that the Commission “may have some difficulty being satisfied that Mr Mooney has received appropriate training” and suggests that it may be necessary for Mr Mooney to not only undertake new training about the rights and responsibilities of a permit holder but also training directed to compliance with industrial law beyond right of entry.
[47] This matter will be considered later in this decision.
Conviction/s against an industrial law
[48] Section 513(1)(b) of the Act requires me to take into account whether Mr Mooney has ever been convicted of an offence against an industrial law. The declarations do not disclose any such convictions against Mr Mooney. There is no evidence before me to suggest otherwise.
Conviction/s involving fraud, dishonesty or intentional use of violence
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[49] Section 513(1)(c) of the Act requires me to take into account whether Mr Mooney has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Mooney. There is no other evidence before me that suggests otherwise.
Order/s to pay a penalty under an industrial law in relation to action taken by the official
[50] Section 513(1)(d) of the Act requires me to have regard to whether Mr Mooney, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law, in relation to action taken by Mr Mooney. Several of the matters listed at paragraph [4] indicate that Mr Mooney and/or the CEPU have been ordered to pay several such penalties. More specifically, Mr Mooney and the CEPU were ordered to pay penalties under the
Building and Construction Industry Improvement Act 2005 (the BCII Act) in Hardwick, Stuart and Cozadinos and under the Workplace Relations Act 1996 (the WR Act) in Martino.
These matters will be considered in detail later in this decision.
Permit/s revoked, suspended or made subject to conditions under Commonwealth law
[51] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Mooney under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. The declarations do not disclose that any such permits issued to Mr Mooney having ever been revoked, suspended or made subject to conditions. There is no other evidence before me that suggests otherwise.
Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law
[52] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Mooney had under that law or disqualified Mr Mooney from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Mooney has held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations do not disclose that Mr Mooney has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no other evidence before me that suggests otherwise.
Any other matter the Commission considers relevant
[53] Section 513(1)(g) of the Act provides the Fair Work Commission with a broad discretion to take into account any other matters it considers relevant. This discretion is limited to a consideration of matters that pertain to a proposed permit holder’s status as a “fit and proper person” to hold an entry permit. The proper construction should be determined by
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examining the provision in the context of the Act as a whole and the specific considerations set out in subsections 513(1)(a)-(f) of the Act in particular in the sense that such matters must fall within the purview of relevance delineated by the subject, scope and purpose of the Act, particularly Part 3-4 of the Act.24 Relevant considerations in this regard include whether a
particular matter has an industrial or OHS “flavour” or context, the extent to which it raises issues analogous to the considerations set out in subsections 513(1)(a)-(f) of the Act and its pertinence to the exercise of the public right associated with the exercise of statutory right of entry powers pursuant to Part 3-4 of the Act.
[54] In ACCC v IPM, the CEPU was ordered to pay a penalty under the Trade Practices Act 1974 (the TP Act).
[55] The declarations also made reference to the matters of Simon Engineering, ABB Australia, Basin & Transfield, Transfield, ABB Australia v CEPU (2004), Worley, Esso, ABB Australia v CEPU [2002] and Transfield v CEPU. Those matters primarily relate to actions
brought under the now repealed sections 127 and/or 170MN of the WR Act.
[56] During the course of considering the current application before me, it came to the attention of the Commission that Mr Mooney and the CEPU apparently failed to disclose relevant matters in three previous applications for a right of entry permit for Mr Mooney pursuant to both the Act and the WR Act.
[57] In its submissions, the FWBC argues that the CEPU and Mr Mooney in the declarations in support of the current application before me have conveyed information regarding the matters of Martino, Stuart, Cozadinos and Hardwick in a way that “is inconsistent and does not adequately reveal or detail the relevant information that the Commission is required to consider”.
[58] These matters will be considered in further detail below.
Training about rights and responsibilities
[59] As noted above, there is considerable ambiguity regarding when Mr Mooney last undertook relevant training regarding the rights and responsibilities of a permit holder. The declarations seem to suggest that the last evidence of completion of such training was provided on 19 February 2010. This appears to be a reference to the training delivered by the ACTU and completed on 4 February 2010. A copy of the certificate of completion of this training was provided on 15 March 2010 as part of a previous application for a right of entry permit for Mr Mooney. However, appended to the current application is a copy of a certificate of completion of such training also issued by the ACTU on 25 June 2013 in relation to Mr Mooney. As noted above, the content of the training material in both instances has previously been approved.
[60] Given the above, it appears that Mr Mooney last undertook training about the rights and responsibilities of a permit holder on 25 June 2013. If this is the case, I am satisfied that Mr Mooney has received appropriate training about the rights and responsibilities of a permit holder for the purposes of section 513(1)(a) of the Act. However, if I determine that Mr Mooney is otherwise a “fit and proper person” to hold an entry permit, I will require the lodgement of fresh declarations which accurately reflect the most recent relevant training undertaken by Mr Mooney in order to be satisfied of this.
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[61] The FWBC submitted that it may be appropriate for Mr Mooney to undertake training directed to compliance with industrial law beyond right of entry. Subsection 513(1)(a) of the Act refers to “appropriate training” specifically regarding the “rights and responsibilities of a permit holder”. I am not persuaded that the reference to “appropriate training” should be extended to embrace training beyond such “rights and responsibilities” as contained within Part 3-4 of the Act.
Penalties imposed under the WR Act
[62] I am satisfied that the WR Act is an “industrial law” for the purposes of section
513(1)(d) of the Act.
Martino
[63] In Martino, a penalty of $2,400 was imposed on Mr Mooney for contravening section 170NC of the WR Act. A penalty of $13,000 was also imposed on the CEPU as a result of the conduct of Mr Mooney. The judgment in the matter was delivered, and the final orders issued, on 7 May 2007.
[64] Section 170NC of the WR Act provided that:
“170NC Coercion of persons to make, vary or terminate certified agreements etc.
(1) A person must not:
(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c) making, varying or terminating, or extending the nominal expiry date of, an
agreement under Division 2 or 3; or
(d) approving any of the things mentioned in paragraph (c).”
[65] Mr Mooney’s conduct involved a demand that several apprentices employed by a sub- contractor leave the site of a major construction project because their employer did not have an enterprise agreement with the CEPU during his attendance at the site of the project on 8 November 2004. Mr Mooney subsequently advised two of the relevant apprentices and the affected employer that they would not be allowed to work on the project until the employer entered into a certified agreement with the CEPU. As a result of this conduct, the relevant apprentices were required to the leave the site of the project on 8 November 2004 and prevented from performing work on the project for a period of time.
[66] The parties agreed to the quantum of penalties to be imposed on Mr Mooney and the CEPU. In considering whether the agreed penalties where within the appropriate range, Magistrate Hawkins observed that “(t)he contraventions by...Mr Mooney were deliberate, and by inference, occurred with the full knowledge of the CEPU” 25 and noted that the affected
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sub-contractor suffered losses of approximately $19,000 as a result. It was also noted that the actions of Mr Mooney and the CEPU in acknowledging the contraventions avoided the expense and time associated with a lengthy trial and that the CEPU had taken steps to avoid similar contraventions from occurring by filing an undertaking to the court to the effect that the CEPU would provide training to officials of the Southern States Divisional Branch of the CEPU in relation to the rights and obligations of the CEPU and its officials arising under the WR Act and the BCII Act. The penalty imposed upon Mr Mooney represented approximately 36% of the maximum penalty available and the penalty imposed upon the CEPU represented approximately 39% of the maximum penalty available.
Penalties imposed under the BCII Act
[67] Mr Mooney and the CEPU have been ordered to pay penalties under sections 38 and
44 of the BCII Act. To be satisfied that this is a penalty relevant to s.513(1)(d) the pertinent
provisions of the BCII Act must be industrial laws for the purpose of that provision.
[68] “Industrial law” is defined at s.12 of the Act:
“12 The Dictionary...
industrial law means:
(a) this Act; or
(b) the Fair Work (Registered Organisations) Act 2009; or
(c) a law of the Commonwealth, however designated, that regulates the
relationships between employers and employees; or
(d) a State or Territory industrial law.”
[69] I note that the BCII Act was renamed the Fair Work (Building Industry) Act 2012
(FW(BI) Act) and amended by the Building and Construction Industry Improvement
Amendment (Transition to Fair Work) Act 2012 on 1 June 2012. In particular, the amending
Act repealed Chapters 5 and 6 of the BCII Act which contained various building industry specific provisions, including provisions that Mr Mooney and the CEPU were found to have contravened. However, the repeal of these building industry specific provisions does not affect any previous liability acquired, or penalty incurred, under them.26 In addition, the amendments also abolished the Office of the Australian Building and Construction Commissioner (ABCC) and established a new agency, the FWBC. For clarity, where I refer to the BCII Act I am referring to that legislation at the time the contraventions took place.
[70] I am not aware of any authorities that have determined whether the BCII Act was, or
the FW(BI) Act, is or is not a law of the Commonwealth that “regulates the relationships
between employers and employees”.
[71] In Dowling v Fairfax Media Publications Pty Ltd27 (Dowling v Fairfax), Justice Jagot
considered whether the Occupational Health and Safety Act 2000 (NSW) and the Workplace
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Injury Management and Workers Compensation Act 1998 (NSW) were ‘industrial laws’ for
the purposes of the repealed s.779 of the Workplace Relations Act 1996 (the WR Act). Her
Honour observed that:
“[79] WorkCover has a range of enforcement powers under legislation vesting it with functions including the taking of criminal proceedings, the issuing of penalty notices, the preparation of industry codes of practice, powers to issue investigation notices, improvement notices and prohibition notices, powers to take proceedings for offences against such notices, and powers to include directions in such notices…
[80] The legislation in respect of which WorkCover has functions includes issues relating to the relationships between employers and employees and not merely, as the respondent submitted, regulating the environment within which such relationships operated. For example, s 46 of the Workplace Injury Management and Workers Compensation Act requires employers to participate and co-operate in the establishment of an injury management plan required to be established for an injured worker and to comply with the plan. Section 47 imposes reciprocal obligations on employees. Section 48 imposes an obligation on an injured employee to return to work and s 49 imposes a reciprocal obligation on the employer to provide suitable work for an injured employee. There are many other examples of such mutual or related obligations as between employers and employees in the legislation vesting functions in WorkCover.
[81] Having regard to these matters I am satisfied that the legislation vesting functions in WorkCover, in a number of respects, regulates the relationship between employers and employees. The legislation is thus within the definition of ‘industrial law’ in s. 779.”28
[72] The BCII Act vested the ABCC with enforcement powers including the investigation and prosecution of breaches of its provisions29 and specifically proscribed certain conduct,30
and created criminal offences.31 Although the former BCII Act adopted the concept of
“building industry participants”32 and generally imposed obligations on “persons” rather than
“employers” and “employees”, it did appear to regulate the relationship between employers and employees engaged in “building work” 33 in a number of significant ways.
[73] The relevant provisions of the BCII Act that were contravened by Mr Mooney and the CEPU were ss.38 and 44. Extracts of the provisions are set out below:
“38 Unlawful industrial action prohibited
A person must not engage in unlawful industrial action.
44 Coercion of persons to make, vary, terminate etc. enterprise
agreements etc.
(1) A person must not:
(a) take or threaten to take any action; or
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(b) refrain or threaten to refrain from taking any action; with intent to coerce
another person, or with intent to apply undue pressure to another person, to
agree, or not to agree:
(c) to make, vary or terminate, or extend the nominal expiry date of, a building
enterprise agreement; or
(d) to approve any of the things mentioned in paragraph (c).”
[74] For the purposes of s.38 ‘unlawful industrial action’ must be ‘industrially-motivated’ which is defined at s.36 of the BCII Act:
“36 Definitions...
(1) In this Chapter, unless the contrary intention appears:
industrially-motivated means motivated by one or more of the following purposes, or
by purposes that include one or more of the following purposes:
(a) supporting or advancing claims against an employer in respect of the
employment of employees of that employer;
(b) supporting or advancing claims by an employer in respect of the
employment of employees of that employer;
(c) advancing industrial objectives of an industrial association;
(d) disrupting the performance of work.”
[75] Whilst regulation in the above provisions is not limited to only employees and employers it does appear to regulate the industrial context of the building and construction industry, including enterprise bargaining and industrial action, an important relationship between employers and employees. Although the mere use of the term ‘industrial’ should not lead to an immediate finding that a provision is an industrial law for the purposes of the Act, it is clear from the above provisions that the industrial context being regulated affects relations between employers, employees and industrial organisations, even where the person to whom the provision may apply is not an employer or employee themselves. The term industrial law, in my view, applies to at least the provisions of the BCII Act under which penalties were imposed on Mr Mooney and the CEPU.
[76] Even if it is ultimately determined that the relevant provisions of the BCII Act were not industrial laws as contemplated by s.513(1)(d) of the Act, the imposition of a penalty under the BCII Act is, in any event, a matter to which I could relevantly turn my mind under s.513(1)(g) of the Act since the conduct occurred in an industrial context and arose while Mr Mooney was acting in his role as an organiser of the CEPU.
[77] I now turn to the particulars of the penalties imposed.
Stuart and Cozadinos
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[78] Without the benefit of published reasons for decision, it is not possible to specify the conduct of Mr Mooney which led to the imposition of penalties in Stuart and Cozadinos.
[79] In the orders issued in the matter of Stuart on 25 August 2009 a penalty of $1,500 was imposed on Mr Mooney and a penalty of $8,000 was imposed on the CEPU for a contravention of section 38 of the BCII Act which occurred on 25 October 2007. The orders provide that the relevant contravention involved unlawful industrial action constituted by a failure or refusal by employees engaged at a particular construction site (the site) to attend or perform work.
[80] In the final orders issued in the matter of Cozadinos on 25 August 2009 a penalty of $1,500 was imposed on Mr Mooney and a penalty of $8,000 was imposed on the CEPU for a contravention of section 38 of the BCII Act which occurred on 23 November 2007. The orders provide that the relevant contravention involved unlawful industrial action constituted by a failure or refusal by employees engaged at the site to attend or perform work.
[81] Section 38 of the BCII Act was a Grade A civil penalty provision, which at the time attracted a maximum penalty of $110,000 for a body corporate and $22,000 for a natural
person.34 Therefore, the penalties imposed upon Mr Mooney and the CEPU in Stuart and
Cozadinos represented approximately 7% of the maximum penalty available.
Hardwick
[82] In Hardwick a penalty of $4,000 was imposed upon Mr Mooney for contravening section 44(1) of the BCII Act. A penalty of $11,000 was also imposed on the CEPU as a result of the conduct of Mr Mooney. The judgment in the matter was delivered, and the final orders issued, on 4 August 2010.
[83] The relevant conduct occurred against the background of construction work
undertaken by Worley Parsons Pty Ltd (Worley Parsons) to upgrade a gas plant (the project). In order to complete such work, Worley Parsons engaged a number of sub-contractors on the project. Several of these sub-contractors (the sub-contractors) had a building agreement, as defined in the BCII Act, and a workplace agreement pursuant to Part 8 of the WR Act in respect of work to be performed on the project. The workplace agreements were non-union agreements.
[84] In the statement of agreed facts filed by the parties in the proceedings, both Mr Mooney and the CEPU admitted to contravening section 44(1) of the BCII Act by organising protests at the site of the project on various occasions between 2 December 2008 and 27 March 2009 with the intent to coerce the sub-contractors to agree to enter into building agreements. Mr Mooney was involved in the organisation of such protests on three days.
[85] In addition to Mr Mooney and the CEPU, several other employee organisations, and officials of those organisations, had penalties imposed upon them in the matter.
[86] The parties agreed to the quantum of penalties to be imposed on Mr Mooney and the CEPU. In considering whether the agreed penalties where within the appropriate range, Gordon J observed that the conduct was “serious in nature and at certain times involved interference or damage to property with the employees’ ability to enter and exit the Site”.35 It
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was also noted that Mr Mooney and the CEPU demonstrated cooperation which avoided the time and expense associated with a contested trial and that the relevant conduct did not ultimately prevent any person from entering or leaving the site of the project. Section 44(1) of the BCII Act was a Grade A civil penalty provision, which at the time attracted a maximum penalty of $110,000 for a body corporate and $22,000 for a natural person.36 Therefore, the penalty imposed upon Mr Mooney represented approximately 18% of the maximum penalty available and the penalty imposed upon the CEPU represented approximately 10% of the maximum penalty available.
Other relevant matters
ACCC v IPM
[87] In ACCC v IPM, the CEPU was ordered to pay a pecuniary penalty of $125,000 and was subject to further injunctive relief for a contravention of the TP Act. More specifically, Young J found that the CEPU was party to a “contract, arrangement or understanding” that required each contractor engaged by a company which operated a power station to have an enterprise agreement with the CEPU. This constituted a contravention of section 45E(3) of the TP Act by the company to which the CEPU was liable as an accessory pursuant to section 76(1) of the TP Act. The relevant contravention was found to have occurred in August 2001. The final judgment regarding the liability of the CEPU issued on 19 December 2006. The final judgement regarding the relevant penalties, and the orders imposing such penalties, issued on 16 January 2007.37
[88] From the published reasons for decision, it is not possible to precisely identify the
conduct of Mr Mooney which contributed to the finding regarding the liability of the CEPU
beyond his knowledge of certain matters which was attributed to the CEPU.
[89] For the reasons given in previous decisions regarding applications under section 512 of the Act, in my view, the TP Act is not an “industrial law” for the purposes of section 513(1)(d) of the Act.38 However, in my view, the matter of ACCC v IPM is a relevant matter for the purposes of section 513(1)(g) of the Act as Mr Mooney was acting in his role as an official of the CEPU at all material times and the context of the contravention was part of an industrial campaign by the CEPU regarding its demand that contractors had an enterprise agreement with it.
Matters arising under section 127(1) & 170MN of the WR Act
[90] The matters of Simon Engineering, ABB Australia, Basin and Transfield, Transfield,
ABB Australia v CEPU (2004), Worley and Esso primarily involved an exercise of the former
Australian Industrial Relations Commission’s (AIRC) power to order that industrial action to stop or not occur pursuant to section 127(1) of the WR Act.
[91] This raises an issue regarding whether such matters should properly be taken into account in determining whether Mr Mooney is a “fit and proper person” for the purposes of section 513(1)(g) of the Act. These matters certainly have a relevant industrial context and involve orders being issued regarding the cessation of industrial action. Thus, there is a relevant connection with one of the objects of Part 3-4 of the Act, namely, “the right of occupiers of premises and employers to go about their business without undue interference”.39 On the other hand, with the exception of subsection 513(1)(a) of the Act, the matters which [2014] FWCD 2102
the Fair Work Commission must taken into account when determining whether a proposed permit holder is a “fit and proper person” involve the commission of an offence, the imposition of a penalty or some other form of punitive action. In contrast, although the exercise of the power vested in the AIRC pursuant to section 127 of the WR Act was usually predicated on finding that the industrial action made subject to the order was “illegitimate”,40 such action only became unlawful when it was continued or commenced in contravention of the relevant order.
[92] On balance, I am of the view that the Fair Work Commission is entitled to take such matters into account pursuant to section 513(1)(g) of the Act. However, given the nature of the discretion vested in the AIRC pursuant to section 127(1) of the WR Act as outlined above, my consideration of such matters should serve merely as relevant background rather than as a discrete item to take into account.
[93] In ABB Australia v CEPU [2002], the Federal Court of Australia granted injunctive relief pursuant to section 127(6) and an interlocutory injunction pursuant to section 170MN of the WR Act. Similarly, in Transfield v CEPU, the Federal Court of Australia granted interlocutory injunctive relief pursuant to section 170MN of the WR Act. While there may be circumstances in which interlocutory proceedings could be relevant in addressing the “fit and proper person’ requirement in s 512, I do not propose to take these matters into account when determining whether Mr Mooney is a “fit and proper person” to hold an entry permit.
Disclosure of relevant matters in previous applications
[94] As noted above, during the course of considering the current application before me, it came to the attention of the Commission that Mr Mooney and the CEPU have apparently failed to disclose several relevant matters identified in the Schedule in three previous applications for a right of entry permit under both the Act and WR Act.
[95] On 16 October 2006, the CEPU lodged an application for an entry permit for Mr Mooney under section 740(1) of the WR Act in matter RE2006/2809. The declarations of Mr Mooney and Mr Alex McCallum, Acting Divisional Branch Secretary, both dated 8 October 2006 in support of the application do not make any reference to or provide any indication of the matters of Simon Engineering, ABB Australia, Basin and Transfield, Transfield, ABB
Australia v CEPU (2004), Worley and Esso. On the basis of the information disclosed in those
declarations, a permit was issued to Mr Mooney on 16 October 2006.
[96] On 15 March 2010, the CEPU lodged an application for an entry permit for Mr Mooney under section 512 of the Act in matter RE2010/2776. The declarations of Mr Mooney and Mr Dean Mighell, Divisional Branch Secretary, both dated 19 February 2010 in support of the application do not make any reference to or provide any indication of the matters referred to above or the matters of Stuart, Cozadinos, Martino and ACCC v IPM. On the basis of the information disclosed in those declarations, a permit was issued to Mr Mooney on 6 April 2010.
[97] On 20 February 2013, the CEPU lodged an application for an entry permit for Mr Mooney under section 512 of the Act in matter RE2013/561. The declarations of Mr Mooney and Mr Mighell both dated 19 February 2013 in support of the application do not make any reference to or provide any indication of any of the matters listed in the Schedule. Due to a
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lack of prosecution of the application, it was subsequently deemed withdrawn and the file
closed by the Commission on 11 June 2013.
[98] In “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”
known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch41,
Delegate Nassios expressed the following view:
“[14] Thoroughness by an applicant in disclosing adverse issues is paramount in assisting a Delegate to make an informed judgment as to whether an application for an entry permit is a fit and proper person. Thoroughness however can only be gauged in relation to each individual applicant’s circumstances.”42
[99] The above quote has been cited as a statement of general principle in several decisions regarding applications under s.512 of the Act.43 This obligation to disclose facts relevant to the permit qualification matters has been defined as a “duty of full and frank disclosure”44 and reflects the practice that entry permits are issued to officials of organisations largely on the basis of the contents of the declarations made by proposed permit holders and members of the Committee of Management of the relevant registered organisation.
[100] The relevant forms for making an application for an entry permit required both the
proposed permit holder and the relevant Committee of Management member to make declarations addressing the permit qualification matters at the time the relevant applications were made.45 Despite this, Mr Mooney and the CEPU failed to disclose several matters relevant to the permit qualification matters in the previous three applications for an entry permit outlined above.
[101] Given that the matters of Simon Engineering, ABB Australia, Basin and Transfield,
Transfield, ABB Australia v CEPU (2004), Worley and Esso do not conform to any of the
specific matters set out in paragraphs (a) to (f) of section 742(2) of the WR Act and that the relevance of these matters to paragraph (g) of that subsection may have been less than clear cut at the time the application was made, I make no adverse findings against Mr Mooney or the CEPU regarding their non-disclosure in the application in matter RE2006/2809. For similar reasons, I also make no adverse findings against Mr Mooney or the CEPU for not disclosing these matters in the application in matters RE2010/2776 and RE2013/561. However, those matters should have been disclosed given the obligation to provide full and frank disclosure.
[102] This reasoning also applies to the non-disclosure of the matter of ACCC v IPM in the application in matters RE2010/2776 and RE2013/561. However, this matter is clearly more immediately obvious as a relevant matter for the purposes of determining whether Mr Mooney is a “fit and proper person” to hold an entry permit. Despite this, I will make no adverse findings against Mr Mooney or the CEPU in the present matter in this regard.
[103] The lack of disclosure of the matters of Stuart, Cozadinos and Martino in the application in matter RE2010/2776 and the failure to disclose those matters and the matter of
Hardwick in the application in matter RE2013/561 are of a different character. Those matters
pertain directly to the permit qualification matter set out in s. 513(1)(d) of the Act. The declarations of the relevant Committee of Management member and Mr Mooney in support of both applications state in relation to Mr Mooney that he has:
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“never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official nor has any other person been ordered to pay a penalty in respect of such action”.
[104] As noted above, the Commission invited the CEPU to make submissions regarding the non-disclosure of these matters in its previous applications for an entry permit for Mr Mooney, particularly addressing whether they should have been disclosed and, if so, why they had not been disclosed. The CEPU’s submissions did not specifically address these matters. However, as previously set out in this decision, the CEPU made a general submission that these matters are irrelevant to the Commission’s determination of whether Mr Mooney is a “fit and proper person” to hold an entry permit pursuant to section 512 of the Act.
[105] In the absence of a specific submission regarding the failure of Mr Mooney and the CEPU to disclose relevant matters in the declarations supporting the applications in matters RE2010/2776 and RE2013/561 it is not possible to determine whether it occurred due to inadvertence on the part of Mr Mooney and the relevant Committee of Management members or were deliberate omissions. However, even if the non-disclosure occurred due to inadvertence, this represents a serious failure to provide full and frank disclosure on the part of both the relevant members of the Committee of Management of the CEPU and Mr Mooney when making an application for an entry permit.
[106] I have already considered the CEPU’s submission that the matters listed in the
Schedule are irrelevant for the purposes of determining whether Mr Mooney is a “fit and proper person” to hold an entry permit. This submission is no answer to the issue of the non- disclosure of relevant matters in the applications in matters in RE2010/2776 and RE2013/561. Decisions of various Delegates of the Fair Work Commission and its predecessors have consistently held that matters not directly related to the exercise of statutory right of entry powers but which involve the imposition of penalties such as Stuart, Cozadinos, Martino and
Hardwick are relevant in determining whether an official is a “fit and proper person” to hold
an entry permit and that the BCII Act is an “industrial law” for the purposes of section 513(1)(d) of the Act. Further, Martino involved the imposition of a penalty for a contravention by Mr Mooney of a provision of the WR Act.
[107] The statements of both the relevant Committee of Management members and Mr
Mooney in the relevant declarations also state that Mr Mooney has never been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Mr Mooney nor has any other person been ordered to pay a penalty in respect of such action without any qualification. If the view of the CEPU and Mr Mooney was that the matters of Stuart,
Cozadinos, Martino and Hardwick were irrelevant for the purposes of the Commission’s
determination under section 512 of the Act, then the declarations could simply have been adjusted to state that neither Mr Mooney nor the CEPU have ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Mr Mooney specifically when exercising right of entry powers or disclosed the matters with a notation that, in the view of the CEPU, these matters are not relevant for the Commission’s determination under s. 512 of the Act.
[108] Given the unequivocal nature of the statements made by the Committee of
Management members and Mr Mooney in the relevant declarations, the lack of any clarification in those declarations or elsewhere in the applications and the consistent position of the Commission regarding the relevance of matters such as Stuart, Cozadinos, Martino and
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Hardwick for the purposes of section 513(1)(d) of the Act, the only reasonable conclusion that
can be drawn is that Mr Mooney and the CEPU, at the very least, did not exercise sufficient diligence when making and lodging the applications in matters RE2010/2776 and RE2013/561.
[109] As this consideration bears upon both the character and the level of due diligence
demonstrated by and can expected of Mr Mooney, I consider it to be relevant matter to which
I may turn my mind under s. 513(1)(g) of the Act.
Disclosure of relevant matters in current application
[110] Given the above, I also view the level of disclosure provided by Mr Mooney and the
CEPU in the current application before me to also be a relevant matter for the purposes of s.
513(1)(g) of the Act.
[111] The FWBC submits that the application currently before me is “somewhat deficient
and ambiguous” regarding the manner in which the penalties that have been imposed on Mr Mooney and the CEPU in relation to his previous conduct have been disclosed. The FWBC further submits that the way in which the relevant disclosures have been made is “inconsistent and does not adequately reveal or detail the relevant information that the Commission is required to consider”. The FWBC urges the Commission to have regard to whether the Mr Mooney and the CEPU provided an adequate explanation for these alleged omissions of relevant information when considering whether Mr Mooney is a “fit and proper person” to hold an entry permit.
[112] The CEPU did not make any submissions addressing this issue.
[113] I accept that the relevant disclosures have been made in the declarations in a manner that is both inconsistent and somewhat ambiguous. For instance, Mr Mooney’s declaration provides that he has never been ordered to pay a penalty under the Act or any other industrial law in relation to his action nor has any other person been ordered to pay a penalty in respect of such action. This is both inconsistent with the matters listed in the Schedule of both Mr Mooney and Mr Gray and the content of Mr Gray’s declaration which includes a proviso in relation to those matters. Further, the reference to “the orders and decisions set in Schedule 1 made in connection with” Mr Mooney in the declarations is also somewhat vague.
[114] However, in my view, both Mr Mooney and the CEPU have provided a sufficient level of disclosure in the current application before me. As noted above, several of the matters listed in the Schedule do not directly relate to any of the specified “permit qualification matters” set out in s. 513(1)(a)-(f) of the Act and their status as relevant matters for the purposes of subsection 513(1)(g) of the Act is not immediately obvious. It is apparent that, as a matter of caution, both Mr Mooney and the CEPU have disclosed all matters that may have been reasonably considered relevant to Mr Mooney’s status as a “fit and proper person” to hold an entry permit. Although I have noted that the declaration of Mr Mooney is deficient in this regard and that the reference to the Schedule is vague in the declarations, it cannot be said that the relevant information has not been provided. Taking a balanced view, this level of disclosure reflects favourably on the credibility of Mr Mooney and is not diminished by the lack of further information being provided by the CEPU in its submissions as the CEPU was invited but not required to specifically address such matters.
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[115] However, this must be tempered by taking into account that the Commission wrote to the CEPU on 4 March 2013 noting that the matters of Martino, Stuart, Cozadinos and
Hardwick had not been disclosed in the declarations supporting the application in matter
RE2013/561. Therefore, it appears that the CEPU and Mr Mooney only provided full and frank disclosure of relevant matters in the current application before me after being specifically advised of their omission in a previous application.
Objects of Part 3-4 of the Act
[116] In exercising my discretion under s.512 of the Act to determine whether or not to issue an entry permit to Mr Mooney, I have also considered the objects of Part 3–4 of the Act.
[117] In this regard, I have taken into account the role Mr Mooney performs as an official of the CEPU and the submissions of the CEPU regarding the length of time he has held a permit, the approximate number of workplaces he has attended when exercising those permits and that no proceedings have been brought against him regarding any improper use of those permits.
Consideration
[118] My task in the present matter is to determine whether Mr Mooney is a “fit and proper person” to hold the entry permit for which application is made taking into account the nature of the powers that are bestowed pursuant to the grant of such a permit within the statutory regime set out in Part 3-4 of the Act, the activities that he will potentially be engaged in when exercising such powers and the ends to be served by such activities. In order to make this determination, I must take into account the “permit qualification matters” set out in paragraphs (a) to (g) of section 513(1) of the Act. Those matters are to be taken into account and applied in a way that assists me in determining whether Mr Mooney is a “fit and proper person to hold the entry permit”.
[119] The issues raised in the present matter raise particular concerns regarding the permit qualification matters set out in paragraphs (d) and (g) of section 513(1) of the Act.
[120] The total quantum of penalties imposed upon Mr Mooney in Martino, Stuart,
Cozadinos and Hardwick amounts to $9,400. The total quantum of penalties imposed upon
the CEPU attributable to the conduct of Mr Mooney amounts to $40,000. These penalties are
substantial.
[121] I have also taken into account the conduct of Mr Mooney in those matters. Subsection 513(1)(d) of the Act provides that the Fair Work Commission must take into account whether an official, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by the official. In my view, this encompasses a consideration of the relevant conduct of the official which led to the imposition of such penalties. In any event, I am entitled to take the conduct of Mr Mooney into account in those matters pursuant to subsection 513(1)(g) of the Act as they are clearly relevant matters.
[122] In Martino, it was found that Mr Mooney attended the site of a major construction project on 8 November 2004 and demanded that several apprentices employed by a sub- contractor leave the site of the project as the affected sub-contractor did not have an enterprise agreement with the CEPU. In Hardwick, it was found that Mr Mooney organised protests at
[2014] FWCD 2102
the site of another major construction project on various occasions between 2 December 2008 and 27 March 2009 with the intent to coerce sub-contractors to agree to enter into building agreements. The conduct in Hardwick occurred more than 12 months after the final judgement was delivered, and the final orders issued, in Martino. Although, the nature of the contraventions in those matters differ and arose pursuant to separate pieces of legislation, the underlying motivation of Mr Mooney’s conduct in both matters was the entering into of an enterprise agreement with the CEPU by the affected sub-contractors.
[123] As the submissions of the FWBC highlight, the conduct of Mr Mooney in Stuart,
Cozadinos and Hardwick occurred after the CEPU gave an undertaking to the court in Martino that it would provide training to officials attached to the Southern States Divisional
Branch of the CEPU in relation to the rights and obligations of the CEPU and its officials pursuant to both the WR Act and the BCII Act.
[124] In my view, the penalties imposed, and the relevant conduct found to have occurred, in
Martino, Stuart, Cozadinos and Hardwick raise significant concerns regarding Mr Mooney’s
adherence to provisions of industrial legislation. This concern is heightened by taking into account that the conduct in Hardwick occurred more than four years after Mr Mooney’s conduct in Martino and essentially involved the same underlying motivation and by the penalties imposed in Stuart and Cozadinos which relate to conduct which occurred in the intervening period.
[125] Further, the CEPU had incurred a pecuniary penalty under the TP Act in ACCC v IPM
approximately two years before the relevant conduct of Mr Mooney in Hardwick. The contravention of the TP Act in ACCC v IPM involved entering into a “contract, arrangement or understanding” that required each contractor engaged by a company to have an enterprise agreement with the CEPU. Although I will not make any adverse findings against Mr Mooney in relation to his specific conduct in that matter given the difficulty of indentifying that conduct in the published reasons for decision, the fact that Mr Mooney subsequently engaged in unlawful conduct in furtherance of the object of having contractors enter into enterprise agreements with the CEPU in Hardwick is highly relevant.
[126] In short, at the time that the relevant conduct of Mr Mooney found to have been
committed in Hardwick occurred both he and the CEPU had previously had penalties imposed upon them in Martino pursuant to the WR Act and the CEPU had a penalty imposed upon it in ACCC v IPM pursuant to the TP Act for conduct motivated by essentially the same objective, namely, to ensure that contractors had an enterprise agreement with the CEPU. Despite this, Mr Mooney further engaged in the unlawful conduct found to have occurred in
Hardwick in furtherance of that object. Bearing in mind the rights, conditions, limitations and
responsibilities attaching to the exercise of entry permits set out in Part 3-4 of the Act, I have serious reservations regarding Mr Mooney’s status as a “fit and proper person” to hold an entry permit given such conduct.
[127] Contrary to the submissions of the CEPU, in my view, this lack of willingness to
adhere to provisions of industrial legislation as demonstrated in the conduct found to have occurred in Martino, Stuart, Cozadinos and Hardwick is relevant to my consideration of whether he is a “fit and proper person” to hold an entry permit. It was noted that his conduct in Martino was “deliberate”, caused the affected employer to suffer losses of approximately $19,000 and occurred during his attendance at the site of the relevant project. In Hardwick, Gordon J observed that the relevant conduct of Mr Mooney and officials of other employee [2014] FWCD 2102
organisations was “serious in nature and at certain times involved interference or damage to property with the employees’ ability to enter and exit the Site”. The penalties in Stuart and
Cozadinos involved unlawful industrial action as defined in the BCII Act. In my view, Mr
Mooney’s demonstrable lack of regard for the provisions of industrial legislation is a proper matter to be taken into account when assessing whether he is a “fit and proper person” to hold an entry permit given the rights, conditions, limitations and responsibilities attaching to the exercise of such permits set out in Part 3-4 of the Act.
[128] The non-disclosure of relevant matters in the applications in RE2010/2776 and
RE2013/561 also raise significant concerns regarding Mr Mooney’s status as a “fit and proper person” to hold an entry permit. As noted by Munro J in Vivienne Daniels v Joe Patti & Anor in relation the previous right of entry regime established by the WR Act, due diligence is not only to be expected of but is a statutory condition for the exercise of the public right vested in the holders of entry permits.46 This is reflected in various provisions of Part 3-4 of the Act
which place conditions and limitations on the power to exercise entry rights such as giving the prescribed notice of entry, producing authority documents and complying with reasonable requests to take a particular route to reach a room or area of the premises and with site occupational health and safety requirements. Part 3-4 also prohibits misrepresentations about things authorised by Part 3-4 of the Act and intentionally hindering or obstructing any person or otherwise acting in an improper manner amongst other duties.
[129] There is a public imperative that the Commission must have confidence that an official
who has been issued an entry permit exercises statutory right of entry powers in adherence
with these attendant responsibilities with a sufficient degree of care and diligence.
[130] As noted above, in my view, Mr Mooney and the CEPU, at the very least, failed to exercise a sufficient degree of diligence when making and lodging the applications in matters RE2010/2776 and RE2013/561. On the basis of the application and associated declarations in matter RE2010/2776, a permit was issued to Mr Mooney on 6 April 2010 which was returned on 20 February 2013. That permit was issued to Mr Mooney without the Delegate of the Commission having the benefit of all relevant matters before him. This failure to disclose was again repeated in the application in mater RE2013/561.
[131] Given the above, I have significant reservations regarding whether Mr Mooney has
demonstrated a sufficient level of due diligence to be vested with statutory right of entry powers pursuant to Part 3-4 of the Act. This also affects my confidence regarding his adherence to the duties, obligations, limitations and conditions imposed upon permit holders set out in Part 3-4 of the Act and, therefore, whether he is a “fit and proper person” to hold an entry permit.
[132] On the other hand, I have also taken into account that there is no evidence before me that indicates that Mr Mooney has ever had any adverse findings made against him regarding the permit qualification matters set out in paragraphs (b), (c), (e) and (f) of subsection 513(1) of the Act and, as noted above, I am prepared to be satisfied that he has undertaken appropriate training for the purposes of subsection 513(1)(a) of the Act upon the lodgement of fresh and accurate declarations.
[133] I have also taken into account the submissions of the CEPU regarding Mr Mooney’s length of service as an official, the significant period of time he has held an entry permit and that he has not been subject to any proceedings regarding any alleged improper use of those
[2014] FWCD 2102
permits. These are important considerations as they directly relate to Mr Mooney’s conduct as a permit holder. However, it should be noted that the permit issued in RE2010/2776 which was held by Mr Mooney for a period of approximately three years was granted on the basis of the insufficient information provided to the Delegate of the Commission.
[134] Another relevant consideration includes the role Mr Mooney performs as an official of the CEPU including the provision of advice, support and assistance to its members. This is relevant to the objects set out in sections 480(a) and (b) of the Act and the absence of an entry permit will obviously affect Mr Mooney’s capacity to effectively undertake such activities.
[135] I have also taken into account the level of disclosure provided in the current
application before me which reflects favourably on the credibility of Mr Mooney. However, as noted above, this must be considered in the context of the CEPU and Mr Mooney previously being put on notice by the Commission of previous omissions.
Conclusion
[136] Having carefully considered all of the available circumstances of this matter and
having particular regard to the permit qualification matters for the purposes of s. 512 of the Act, I have concluded that I am not satisfied that Mr Mooney is a “fit and proper person” to hold an entry permit and accordingly, I must refuse the application to issue a permit.
[137] On balance, I am not satisfied that the lack of any adverse findings made against Mr Mooney regarding the permit qualification matters set out in paragraphs (b), (c), (e) and (f) of subsection 513(1) of the Act particularly regarding his exercise of statutory right of entry powers, his length of service as an official and permit holder, his role as an official of the CEPU and the level of disclosure provided in the current application before me outweighs my significant concerns regarding his demonstrable lack of regard for provisions of industrial legislation.
[138] I cannot be satisfied that Mr Mooney will exercise the powers derived from the issue
of an entry permit in a manner expected of permit holders exercising a public right in
conformity with the duties, conditions and limitations imposed by Part 3-4 of the Act.
[139] Mr Mooney’s disregard for the provisions of industrial legislation is sufficient for me to conclude that I am not satisfied that he is a “fit and proper person” to hold the entry permit the subject of the current application. His lack of due diligence in making and lodging previous right of entry applications further contributes to this conclusion.
[140] Given my conclusions above, although I have taken the matters of Simon Engineering,
ABB Australia, Basin and Transfield, Transfield, ABB Australia v CEPU (2004), Worley and Esso into account, it has not been necessary to attach a degree of weight to them which is
sufficient to affect my consideration of whether Mr Mooney is a “fit and proper person” or
make any adverse findings against Mr Mooney in relation to them.
[141] I note that any potential presumption that Mr Mooney is a “fit and proper person” to hold an entry permit on the basis that a permit was previously issued to him in matter RE2010/2776 does not arise because, as noted above, the Delegate of the Commission did not have all relevant matters before him at the time that the permit was issued. Therefore, the [2014] FWCD 2102
Delegate of the Commission was not in a position to consider those matters and how they may affect Mr Mooney’s status as a “fit and proper person” to hold an entry permit.
[142] As I have determined not to issue a permit to Mr Mooney, it is not necessary for me to consider imposing any conditions pursuant to section 515 of the Act.
DELEGATE OF THE FAIR WORK COMMISSION
FAIR WORK COMMISSION
Endnotes
1 Simon Engineering (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia, AIRC Print PR941768 (11 December 2003).
2 ABB Australia Pty Ltd, AIRC Print PR920886 (2 August 2002)
3 Basin Oil Pty Ltd & Transfield Construction Pty Ltd, AIRC PR923627 (15 October 2002).
4 Transfield Construction Pty Ltd, AIRC Print PR924386 (6 November 2002).
5 ABB Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia, AIRC Print PR944757 (19 March 2004).
6 Worley Pty Limited & ABB Australia Pty Ltd, AIRC Print PR922565 (16 September 2002).
7 Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Australian
Workers’ Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia, AIRC Print PR936678 (22 August 2003).
8 ABB Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia [2002] FCA 1070 (27 August 2002)
9 Transfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia[2002] FCA 870
10 Hardwick v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU) [2010] FCA 818
11 Cozadinos v The Australian Workers’ Union & Ors (MLG390/2009).
12 Stuart v Australian Workers’ Union & Ors (MLG1179/2008).
13 Martino v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia (Unreported; Matter No: U0229162).
14 [2011] FWAD 3518.
15 Ibid at [21].
16 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
17 Ibid at 380 (per Toohey and Guadron JJ).
18 The Maritime Union of Australia [2014] FWCFB 1973 at [25].
19 Explanatory Memorandum, Fair Work Bill 2008, 2041.
20 Gill v Department of Industry, Technology and Resources [1987] VR 681.
21 Thompson v Goold & Co [1910] AC 409 at 420; Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corp Ltd (2008) 232
CLR 314 at 332.
22 The Maritime Union of Australia [2014] FWCFB 1973 at [26].
23 Ibid.
24 Santos Ltd v Saunders (1988) 49 SASR 556.
25 Martino v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia (Unreported; Matter No: U0229162) at [23].
26 Building and Construction Industry Improvement Amendment(Transition to Fair Work) Act 2012 sch 2, item 1; Building
and Construction Industry Improvement Amendment(Transition to Fair Work) Regulation 2012, reg 2.4; Acts
Interpretation Act 1901 s7(2).
27 Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470.
28 Ibid at [79]-[81].
29 Building and Construction Industry Improvement Act 2005 ch 7.
30 Building and Construction Industry Improvement Act 2005 ch 5.
31 Building and Construction Industry Improvement Act 2005 ss 52(6) & 65(2).
32 Building and Construction Industry Improvement Act 2005 s 3.
33 Building and Construction Industry Improvement Act 2005 s 5.
34 Building and Construction Industry Improvement Act 2005 s 49(2); Crimes Act 1914 s 4AA.
35 Hardwick v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU) [2010] FCA 818 at [24].
36 Building and Construction Industry Improvement Act 2005 s 49(2); Crimes Act 1914 s 4AA.
37 On appeal, the Full Court of the Federal Court of Australia upheld the decisions at first instance regarding the liability of,
and penalties imposed upon, the CEPU despite finding that Young J erred in the use of a certain piece of evidence in
finding the CEPU liable: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132.
38 For example, see Construction, Forestry, Mining and Energy Union [2012] FWAD 961at [68].
39 Fair Work Act 2009 s 480(c).
40 Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union &
Ors (1997) 73 IR 311 at 327.
41 [2010] FWAD 10039.
42 Ibid at [14].
43 For example, see The Australian Workers’ Union [2011] FWAD 5025;“Automotive, Food, Metals, Engineering, Printing
and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch
[2011] FWAD 443; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia [2011] FWAD 3518; Construction, Forestry, Mining and Energy Union [2011] FWAD 5188;
Construction, Forestry, Mining and Energy Union [2012] FWAD 962; Construction, Forestry, Mining and Energy Union
[2012] FWAD 8712.
44 For example see “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the
Australian Manufacturing Workers’ Union (AMWU) - Victorian Branch [2010] FWAD 10039; Re Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2011] FWAD 3518.
45 Australian Industrial Relations Commission Rules 2006 rule 46, Form F40; Fair Work Australia Rules 2009 rule 6, Form
F42; Fair Work Australia Rules 2010 rule 67; Form F42.
46 Vivienne Daniels v Joe Patti & Anor, AIRC Print S4571 (31 March 2000).
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