Construction, Forestry and Maritime Employees Union
[2024] FWC 1030
•1 MAY 2024
| [2024] FWC 1030 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry and Maritime Employees Union
(RE2024/273)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 1 MAY 2024 |
Application for a right of entry permit for Gerald Joseph McCrudden – whether fit and proper person to hold an entry permit under the Fair Work Act 2009 (Cth) – satisfied Mr McCrudden is a fit and proper person to hold a permit – application for entry permit granted
The Construction, Forestry and Maritime Employees Union (CFMEU) applies to the Commission under s 512 of the Fair Work Act 2009 (Cth) (Act) for a right of entry permit to be issued to its official, Gerald Joseph McCrudden, who is an Organiser of the CFMEU.
Mr McCrudden was issued with an entry permit on 16 April 2021,[1] which will expire on 7 May 2024.[2]
The applicable principles for determining right of entry permit applications under s 512 of the Act are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder, the subject of an application for a permit, is assessed taking into account the permit qualification matters set out in s 513(1), having regard to the rights a permit holder can exercise under Part 3-4, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit and exercise the powers, functions and responsibilities attached to holding a permit.[3] The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.
The permit qualification matters contained in s 513(1) of the Act are mandatory considerations which must be taken into account, and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,[4] that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s 513 means that each of the matters must be treated as a matter of significance in the decision-making process,[5] which must be evaluated and accorded appropriate weight.[6]
The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.[7]
Having regard to the structure and content of s 513 of the Act, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all the permit qualification matters identified in s 513(1) of the Act must be taken into account. The absence of, for example, a conviction of a proposed permit holder of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty is relevant in the assessment, just as a conviction of a proposed permit holder for such an offence would be. The absence of such a conviction must be accorded appropriate weight.
Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s 513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.
I turn to consider the application.
Consideration
In support of its application, the CFMEU filed declarations by Mr McCrudden and Robert Graauwmans. The declarations by Mr McCrudden and Mr Graauwmans disclose adverse matters not considered in the previous application for the issue of a right of entry permit for Mr McCrudden.
The permit qualification matters that weigh in favour of the conclusion that Mr McCrudden is a fit and proper person to hold a right of entry permit are that Mr McCrudden has:
·received appropriate training about the rights and responsibilities of a permit holder on the subject of federal right of entry on 15 March 2024, specifically through undertaking the ACTU – Federal Right of Entry approved online training and the TCF Training in person (s 513(1)(a) of the Act);[8]
·never been convicted of an offence against an industrial law (s 513(b) of the Act);[9]
·never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s 513(1)(c) of the Act;[10]
·not had any entry permit issued under Part 3-4 of the Act or similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permits (s 513(1)(e) of the Act);[11]
·not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr McCrudden held under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(i) of the Act);[12] and
·not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(ii) of the Act).[13]
Mr McCrudden discloses other matters that may be relevant to whether he is a fit and proper person to hold a permit,[14] providing a response that is substantially the same as Mr Graauwmans’ declaration on this question, which are outlined further below.[15]
Section 513(1)(d) of the Act
Sub-section 513(1)(d) of the Act relevantly provides as follows:
“513 Considering application
(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:
…
(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;
…”
The declarations of Mr McCrudden and Mr Graauwmans disclose that Mr McCrudden has, or another person has, been ordered to pay a penalty under the Act or other industrial law in relation to action taken by Mr McCrudden. They disclose that in Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union[16], the Court held Mr McCrudden breached s 340(1)(b) of the Act and imposed penalties of $3,300 on Mr McCrudden and $33,300 on the CFMEU in relation to Mr McCrudden’s conduct.[17] Further, they disclose that the “conduct involved Mr McCrudden threatening to take adverse action against a person to prevent the person from exercising their workplace right to make a complaint to the Australian Building and Construction Commission” (ABCC).[18] Mansini J made orders to the effect that Mr McCrudden and the CFMEU pay the pecuniary penalties listed above under file number MLG663/2022, only one day before the CFMEU lodged its application for a right of entry permit to be issued to Mr McCrudden.
The judgment above relates to conduct in which Mr McCrudden engaged on 25 June 2021. Mr McCrudden entered an area between the Dingley Bypass and south of Springvale Road (the Project) in his role as CFMEU Organiser and as a permit holder to inquire into suspected contraventions of the Occupational Health and Safety Act 2004 (Vic).[19] Mr McCrudden was escorted to an area, where he met the two Health and Safety Managers, Mr Fuller and Ms Cannata.[20] On conclusion of the visit, Mr Fuller waved and grinned at Mr McCrudden where he was positioned on an abutment.[21] Mr McCrudden gave evidence that he viewed Mr Fuller’s actions as hostile and an attempt to antagonise him.[22] In response, with a reference to the ABCC, Mr McCrudden said words to the effect of: “[y]ou will not have much of a future if you continue talking to the ABCC. You’ll see mate, you’ll see.”[23] Mr McCrudden admitted that he contravened s 340(1)(b) of the Act by taking adverse action against Mr Fuller. By operation of s 793, the CFMEU was also found to have contravened s 340(1)(b) by reason of s 550.
These matters are plainly relevant and weigh against a conclusion that Mr McCrudden is a fit and proper person to hold a right of entry permit. The circumstances of each case should be examined so that each may be considered in its proper context in assessing whether Mr McCrudden is now a fit and proper person to hold a right of entry permit.
The weight that is to be ascribed to this negative matter is to be informed by the following matters:
the contravening conduct occurred nearly 3 years ago;
Mr McCrudden admitted the contravention;
Mr McCrudden showed some insight into the contravention and reflected that he sincerely regrets his conduct;[24]
Mr McCrudden says he takes ownership of his behaviour toward Mr Fuller and is committed to ensuring that there will be no repeat of such behaviour in the future;[25] and
Mr McCrudden indicated he understood why his conduct was unlawful and demonstrated commitment to ensure he does not engage in similar conduct in the future, and instead represent workers in a professional way that delivers a safe workplace for them.[26]
Although this contravention plainly weighs against a finding that Mr McCrudden is a fit and proper person to hold an entry permit, the weight that should be accorded is to be assessed in circumstances where the contravening occurred nearly 3 years ago, and Mr McCrudden admitted the contravention and understood that his conduct was unacceptable. As earlier noted, Mr McCrudden showed insight into why his conduct was unlawful and demonstrated commitment to ensuring he does not engage in similar conduct in the future. I accept Mr McCrudden’s assurances and ascribe them appropriate weight.
Section 513(1)(g) of the Act
Sub-section 513(1)(g) of the Act allows the Commission to take into account any other relevant matter it has identified.
The declarations of Mr McCrudden and Mr Graauwmans disclose that Mr McCrudden is currently a respondent in a Federal Court proceeding (VID669 of 2021).[27] The declarations disclose that Mr McCrudden has admitted in the proceedings that he contravened s 500 of the Act at a construction site known as the Mordialloc Freeway Project “by acting in an improper manner by using offensive language whilst exercising rights in accordance with Part 3-4”.[28] The declarations make reference to a copy of the amended pleadings filed, which state that throughout the period of 11:00 AM to 2:00 PM on Wednesday, 18 November 2020, Mr McCrudden and another CFMEU officer acted in an improper manner by saying offensive words to representatives of the contractor to the following effect: “you’re pathetic”, “you’re a disgrace”, and “you’re fucked this time”.
Mr McCrudden’s improper conduct weighs against a finding that he is presently a fit and proper person to be issued an entry permit and weighs against a conclusion that he is today a fit and proper person to hold a right of entry permit. However, the following matters are also relevant in assessing that weight that should be ascribed. Firstly, judgment is currently reserved for this Federal Court proceeding, which weighs neutrally in my assessment of whether he is today a fit and proper person to hold a right of entry permit. Secondly, the conduct in question took place almost 3 and a half years ago, Mr McCrudden admitted liability for that conduct and he has been transparent to the Commission in attaching his amended pleadings filed with his application, which are factors weighing in favour of a conclusion that Mr McCrudden is today a fit and proper person to hold a right of entry permit. However, when judgment is given in relation to the proceeding, this may have an impact on any entry permit Mr McCrudden may hold by reason of s 510 of the Act.
Following receipt of the CFMEU’s application, my Associate requested the CFMEU to provide further information to my Chambers regarding Mr McCrudden’s involvement in a Federal Court matter (VIC206/2022), noting the name of the proposed permit holder being listed on the Commonwealth Courts Portal for that matter. In response, the CFMEU stated that Mr McCrudden is no longer a respondent in that matter at the time it filed its application, that Mr McCrudden had made no relevant admissions and attached supporting evidence filed in that proceeding. Based on the CFMEU’s response, I am satisfied that Mr McCrudden is no longer named as a respondent in that Federal Court matter (VIC206/2022), that the declarations of Mr McCrudden and Mr Graauwmans did not need to disclose this matter in the application and that this matter is not relevant to the CFMEU’s application. Further, I am satisfied, based on the declaration of Mr Graauwmans, that Mr Graauwmans made inquiries to satisfy himself that Mr McCrudden is a fit and proper person to be issued an entry permit by meeting the permit qualification matters at the time of the CFMEU’s application, such as by reviewing a copy of a search of the proposed permit holder’s name through the Commonwealth Courts Portal.[29]
A declaration by David Vroland supports Mr McCrudden’s application, which outlines that he provided Mr McCrudden with training in relation to right of entry under the Act on 15 March 2024.[30] I accept the CFMEU’s submission that Mr McCrudden’s participation in this training should be accorded some significance. And it weighs in favour of a conclusion that Mr McCrudden is today a fit and proper person to hold a right of entry permit.
Taken together, although the contravening conduct in which Mr McCrudden engaged and which are outlined above are serious, these adverse permit qualification matters viewed in their proper context today, are not sufficiently significant as to outweigh the other matters which must be considered in the balance, which all tend to favour a conclusion that Mr McCrudden is today a fit and proper person to hold a right of entry permit. I consider Mr McCrudden has taken corrective action by undertaking right of entry training, admitting wrongdoing regarding his conduct on 25 June 2021 and demonstrating commitment not to repeat his prior conduct. These considerations reduce the weight that might otherwise be ascribed to the permit qualification matters disclosed.
Mr McCrudden’s record since 25 June 2021,[31] his acceptance of this past wrongdoing, his recent participation in targeted training and his commitment to not engaging in contravening conduct again speak loudly in his favour. He also regrets that past conduct, which is to his credit.
Conclusion
Taking into account the permit qualification matters, I am satisfied that Gerald Joseph McCrudden is today a fit and proper person to hold an entry permit. The application by the CFMEU for an entry permit to be issued to Mr McCrudden is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] RE2021/236
[2] PR774291
[3] Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 at [32]
[4] [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen [1989] HCA 39, (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
[5] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836, (1999) 94 FCR 561 and National Retail Association v Fair Work Commission [2014] FCAFC 118, (2014) 225 FCR 154
[6] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184 (cited with approval by Hely J in Elias v Federal Commissioner of Taxation [2002] FCA 845, (2002) 123 FCR 499 at [62])
[7] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41
[8] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (a); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 4; ACTU Certificate of Completion of Mr Gerald Joseph McCrudden dated 15 March 2024; Declaration by Mr David Vroland dated 15 March 2024
[9] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (b); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(a)
[10] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (c); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(b)
[11] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (e); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(d)
[12] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (f); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(e)
[13] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (g); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(f)
[14] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (h)
[15] Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(g)
[16] [2024] FedCFamC2G 235
[17] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (d); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(c)
[18] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (d); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(c)
[19] Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2024] FedCFamC2G 235 (14 March 2024) at [12]
[20] Ibid at [13]
[21] Ibid at [14]
[22] Ibid
[23] Ibid at [15]
[24] Ibid at [17]
[25] Ibid
[26] Ibid
[27] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (h); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(g)
[28] Amended Form F42, Declaration by Mr Gerald Joseph McCrudden dated 15 March 2024 at (h); Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 2(g)
[29] Amended Form F42, Declaration by Mr Robert Graauwmans dated 15 March 2024 at 3
[30] Declaration by Mr David Vroland dated 15 March 2024
[31] Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2024] FedCFamC2G 235 (14 March 2024) at [12]
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