Construction, Forestry and Maritime Employees Union
[2024] FWC 388
•2 APRIL 2024
| [2024] FWC 388 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry and Maritime Employees Union
(RE2023/852)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 2 APRIL 2024 |
Application for a right of entry permit for Mr William Warren Tracey – whether fit and proper person to hold an entry permit under the Fair Work Act 2009 (Cth) – satisfied Mr Tracey 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, William Warren Tracey, who is the Divisional Branch Secretary of the WA Divisional Branch of The Maritime Union of Australia (MUA) – the CFMEU. Mr Tracey’s involvement in the union movement began in 1993 as an industrial officer with that which is now known as the Construction and General Division of the CFMEU in Western Australia.
Mr Tracey has previously held right of entry permits under the Act and the Workplace Relations Act 1996 (Cth) (WR Act). In 2013, Mr Tracey was refused a new permit after he had several pecuniary penalties imposed on him for contraventions of industrial law.[1] More than 10 years have passed since that application was refused. Mr Tracey has not been found to have engaged in conduct in the intervening period, which was in contravention of an industrial law, but his union was found, by reason of his conduct and that of two other senior officials, to have engaged in serious civil contempt[2] in deliberate defiance of an order of the Supreme Court of Victoria made on 12 December 2017.
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 Tracey and Warren Smith, Deputy National Secretary of the MUA – CFMEU. The declarations by Mr Tracey and Mr Smith disclose adverse matters not considered in the previous application for the issue of a right of entry permit for Mr Tracey.
The permit qualification matters that weigh in favour of the conclusion that Mr Tracey is a fit and proper person to hold a right of entry permit are that Mr Tracey has:
·received appropriate training about the rights and responsibilities of a permit holder on the subject of federal right of entry on 25 August 2023 online, specifically through the ACTU (ATUI) Online Training Centre (s 513(1)(a) of the Act);[8]
·separately undertaken directed training in August 2023 dealing not only with the rights and responsibilities of a permit holder but also the conduct in respect of which he contravened industrial laws, and his union has been found to contravened, or has been found to have been in contempt of court (s 513(1)(a) of the Act);[9]
·never been convicted of an offence against an industrial law (s 513(b) of the Act);[10]
·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;[11]
·not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Tracey 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 Tracey 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 Smith’s declaration on this question, which are outlined further below.[15]
Section 513(1)(d) and (e) of the Act
Sub-section 513(1)(d) and (e) of the Act relevantly provide 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;
(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;
…”
The declarations of Mr Tracey and Mr Smith disclose that Mr Tracey 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 Tracey as set out below:
Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232, in which the Court held Mr Tracey breached s 417(1) of the Act and imposed penalties of $3,630 on Mr Tracey and $13,200 on the MUA in relation to Mr Tracey’s conduct.[16] The Court noted at [29] that Mr Tracey’s conduct regarding the unlawful industrial action involved deliberate acts. Further, the Court noted at [31] a lack of contrition from Mr Tracey;
Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521, in which the Court held Mr Tracey breached s 494(1) of the WR Act and imposed penalties of $3,630 on Mr Tracey and $13,200 on the MUA in relation to Mr Tracey’s conduct;[17]
Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943 and Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275, in which the Court ordered the MUA to pay a $79,200 penalty, with consideration of Mr Tracey’s conduct;[18]
Fair Work Ombudsman v Maritime Union of Australia (includes Corrigendum dated 2 July 2014) [2014] FCA 440, (2014) 243 IR 312 and Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814, (2015) 252 IR 101, where the Court imposed penalties of $15,000 on Mr Tracey and $80,000 on the MUA in relation to Mr Tracey’s conduct;[19]
BHP Billiton Minerals Pty Ltd v Maritime Union of Australia [2014] FCA 1357, in which the Court held Mr Tracey breached s 417 of the Act and imposed penalties of $5,000 on Mr Tracey and $25,000 on the MUA in relation to Mr Tracey’s conduct;[20] and
Victorian International Container Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] VSC 794, (2018) 285 IR 28, in which the Supreme Court of Victoria imposed a penalty of $125,000 on the CFMMEU for civil contempt with consideration of conduct engaged in Mr Tracey.[21]
These matters are plainly relevant and weigh against a conclusion that Mr Tracey is a fit and proper person to hold a right of entry permit. Save for the civil contempt matter, they relate to contravening conduct that occurred before the 2013 decision to refuse Mr Tracey an entry permit.[22] The circumstances of each case should be examined so that each may be considered in its proper context in assessing whether Mr Tracey is now a fit and proper person to hold a right of entry permit.
In Fair Work Ombudsman v Maritime Union of Australia & Ors [2012] FCA 1521, Mr Tracey contravened s 494 of the WR Act because he organised a 24-hour strike with some of DP World’s employees its Fremantle site in Western Australia on 19 May 2009, which was unlawful industrial action because an in-term enterprise agreement was in operation. On 19 May 2009, Mr Tracey, together with Christopher Cain, secretary of the Western Australia branch of the MUA, convened a meeting of DP World employees at which a motion to the effect that the DP World employees should strike for 24 hours was proposed and passed. Neither Mr Tracey nor Mr Cain tried to stop the motion being put to a vote, nor did they make any attempt to dissuade the employees from taking strike action. Mr Tracey, Mr Cain and the MUA admitted the contraventions. Barker J concluded that the contravening conduct was motivated by concerns regarding possible involuntary redundancies of DP World employees and was not carried out for arbitrary or base motives, and His Honour acknowledged that Mr Tracey cooperated in the proceedings by admitting contraventions, agreeing to a statement of facts and to the proposed penalties.[23] The weight that is to be ascribed to this negative matter is to be informed by the following matters:
the contravening conduct occurred nearly 15 years ago; and
Mr Tracey admitted the contravention and cooperated with the regulator and by his statement of evidence in this application, which I accept, he has now shown some insight into the contravention and regrets his involvement in the unlawful industrial action. He says understands why his conduct was unlawful and is committed to ensuring he does not engage in similar conduct in the future.[24]
In Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232, Mr Tracey contravened s 417(1) of the Act because he organised a 24-hour strike with the employees of the Broome Port Authority (BPA) in Western Australia on 30 March 2010, which was unlawful industrial action as an in-term enterprise agreement was in operation. Mr Tracey and the MUA admitted the contraventions and agreed the industrial action was unlawful. Barker J observed that the conduct arose out of concerns for the treatment of the BPA employees, which was to be contrasted with conduct carried out for arbitrary or base motives, and His Honour acknowledged that Mr Tracey cooperated in the proceedings by admitting the contraventions, agreeing to a statement of facts and to the proposed penalties.[25] The weight that is to be ascribed to this negative matter is to be informed by the following matters:
the contravening conduct occurred more than 14 years ago;
Mr Tracey admitted the contravention and cooperated with the regulator; and
Mr Tracey has now shown some insight into the contravention and regrets his involvement in the unlawful industrial action. He says understands why his conduct was unlawful and is committed to ensuring he does not engage in similar conduct in the future.[26]
In Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943, MUA was involved in contraventions by Offshore Marine Services (OMS) of s 346(a) of the Act and s 792(1)(d) of the WR Act after OMS failed to offer employment to Bruce and Lynne Love (the Loves) because they were not members of the MUA.[27] The MUA was taken by operation of s 550 of the Act and s 728 of the WR Act to have committed the same contraventions. The Loves first applied for employment with OMS in January 2009 as cleaners and/or stewards on offshore vessels. For the balance of 2009 there existed within OMS an employment practice by which membership of the MUA was a prerequisite for employment with OMS in positions covered by the MUA. The MUA had a related practice of granting membership to persons offered employment with OMS only when there were no existing MUA members available to take up that offer of employment. Thus, MUA’s current members received preference in employment within OMS. Gilmour J found that these practices constituted a “closed shop”. At the time, Mr Tracey was a state organiser for the Western Australia Branch of MUA, he was not a party to the proceedings and was not found to have contravened the WR Act or FW Act. However, Mr Tracey participated in MUA’s monitoring of OMS’s employment practices. On 15 October 2008, Mr Tracey sent an email to Mr Cain and copied to an OMS employee concerning the issue. In the second half of October 2008, Mr Tracey, along with Mr Cain and Ian Bray (Assistant State Secretary), made telephone calls to OMS staff. The language used during these telephone calls was abusive. In some of these conversations, MUA officials threatened industrial action if OMS did not comply with their demands. Gilmour J found that these telephone calls were mainly from Mr Cain and Mr Bray, and that Mr Tracey had participated to a lesser extent.[28]
Although Mr Tracey’s participation in MUA’s contravention weighs against a finding that he is a fit and proper person, the weight accorded is not substantial because the conduct occurred more than 15 years ago and, as noted above, Mr Tracey now shows insight into the contraventions and regrets his actions in relation to the matter. He says he is committed to ensuring he does not engage in similar conduct in the future.[29]
In Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440, (2014) 243 IR 312, Mr Tracey and MUA contravened s 346(c) of the Act by taking adverse action against five employees who did not engage in industrial activity in December 2011. The contravening conduct involved Mr Tracey publishing and posters disseminating naming the five employees as scabs at the Freemantle Port Authority facilities in Fremantle and Kwinana, Western Australia. Siopis J concluded the language of the scab poster cast aspersions on the honesty, integrity and reputation of each of the named employees; was extreme, offensive, cruel, and abusive; was defamatory of the named employees, and invited the reader to treat each of the named employees as devoid of human dignity; caused the named employees to suffer emotional distress, anxiety and fear for themselves and their families; and intended to cause fear, emotional harm and distress to each of the named employees in their employment.[30]
Although these contraventions plainly weigh against a finding that Mr Tracey 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 more than 12 years ago, and Mr Tracey now understands that his conduct was unacceptable. As earlier noted, Mr Tracey has shown insight into why his conduct was unlawful and is committed to ensuring he does not engage in similar conduct in the future.[31]
In BHP Billiton Minerals Pty Ltd v Maritime Union of Australia & Ors [2014] FCA 1357, Mr Tracey contravened s 417 of the Act by organising a 4-hour strike among general-purpose hands of Teekay (Shipping) Australia Pty Ltd, a tugboat operator at Port Hedland, Western Australia on 9 March 2012, which was unlawful industrial action as there was an in-term enterprise agreement in operation. The circumstances were that a complaint was made in December 2011 by an MUA official about the conduct of a Teekay Shipping manager. The complaint alleged sexual harassment by the manager. On 3 March 2012, Mr Tracey sent an email to Teekay Shipping’s Director of Marine Human Resources stating, among other things, that the issue must be “fixed” or the MUA “will fix it for you”. Mr Tracey and the MUA were dissatisfied with Teekay Shipping’s handling of the complaint, so Mr Tracey organised a meeting of general-purpose hands and instructed them to stop working and the resumed work when Mr Tracey instructed them to do so. Mr Tracey and the MUA admitted the contravention and Buchanan J found that the circumstances of the stoppage did not represent the worst possible case.[32]
The weight ascribed to this contravention in assessing whether Mr Tracey is now a fit and proper person to hold an entry permit is to be determined having regard to the fact that the contravention occurred over 12 years ago, he admitted the contravention, has shown insight into the contravention and regrets his involvement in the unlawful industrial action. Mr Tracey says he understands why his conduct was unlawful and is committed to ensuring he does not engage in similar conduct in the future.[33]
There has been no further contravening by Mr Tracey of industrial law since the time of the last of the contravening conduct discussed above occurred. This might suggest that Mr Tracey has learned his lesson and has ensured that he complies with industrial law. Considered together and in the context set out above, I do not think any described matter above now weighs to any significant degree against a finding that Mr Tracey is today a fit and proper person to hold an entry permit. Nor do I consider that these matters taken together today lead to a conclusion that Mr Tracey is not a fit and proper person to hold an entry permit. This is because he has not contravened any further industrial laws for at least 12 years, he has taken steps to educate himself about why his conduct was found to be unlawful and he says he now understands that his conduct was unacceptable and is committed to ensuring he does not engage in similar conduct in the future. I accept Mr Tracey’s assurances and ascribe them appropriate weight.
The declarations of Mr Tracey and Mr Smith disclose that Mr Tracey had permits issued under Part IX of the WR Act revoked:
in BHP Iron Ore Pty Ltd v William Warren Tracey[2001] AIRC 552 (PR905041), when the Australian Industrial Relations Commission (AIRC) revoked Mr Tracey’s permit on 7 June 2001 and directed the Industrial Registrar to not issue him a permit for a period of six months.[34] Mr Tracey was employed by the Australian Workers’ Union (AWU) at the time.[35] The permit was revoked because Mr Tracey:
oentered BHP’s premises for purposes other than those set out in the WR Act;
obehaved in a manner inappropriate to the exercise of statutory right of entry powers while on the premises;
oentered BHP’s premises on multiple occasions on the same day after providing only one notice of entry; and
oon multiple occasions between 11 March and 3 May 2001, entered or remained on the premises without showing his permit as required by the WR Act,[36] and
in BHP Billiton Iron Ore Pty Ltd v William Warren Tracey and another[2002] AIRC 1378 (PR924632), when the AIRC revoked Mr Tracey’s permit on 13 November 2002 and directed the Industrial Registrar to not issue him a permit for a period of six weeks.[37] Mr Tracey was employed by the AWU at the time[38]. While exercising his right of entry powers on 12 June 2002, Mr Tracey acted in an inappropriate manner by raising an issue not within the scope of his powers, despite being informed by a representative of the affected employer that he did not wish to discuss it. Mr Tracey admitted he was out of order in raising the issue.[39]
The conduct the subject of these matters occurred more than two decades ago and I give each limited weight in assessing whether Mr Tracey is today a fit and proper person to hold an entry permit.
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.
Mr Tracey has also held three entry permits between 2006 and 2013, which have not been cancelled, suspended or had conditions imposed on them.[40] This record should also be accorded some weight in Mr Tracey’s favour.
As earlier noted, in Victoria International Container Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] VSC 794, (2018) 285 IR 28, the MUA was fined $125,000 for civil contempt in relation to the attendance of three MUA officials, including Mr Tracey, at the Webb Dock site in Port Melbourne during a picket. Between 27 November and 15 December 2017, obstructive pickets were continuously present at the Webb Dock site. On 1 December 2017, the Court restrained the MUA from preventing access to the Webb Dock site, but picketing activities continued.
On 14 December 2017, Mr Tracey, Mr Cain, and Joseph Italia (Secretary of the Victorian Branch of the MUA) attended the picket site in breach of the Court’s orders for approximately 35 minutes, during which Mr Tracey and Mr Cain gave speeches, and Mr Italia led the pickets in a series of chants. There was no police presence and there were no members of the public in the vicinity of the picket. McDonald J found, as I earlier noted, that the MUA engaged in serious civil contempt because the conduct was engaged in by three senior officials of the MUA in deliberate defiance of the Court’s order.
Mr Tracey’s conduct weighs against a finding that he is presently a fit and proper person to be issued an entry permit, but the following matters are relevant in assessing that weight that should be ascribed. The MUA’s contempt in which Mr Tracey was involved occurred over six years ago and Mr Tracey has not since engaged in any unlawful conduct. The MUA admitted liability for the conduct of its officials and as noted earlier, Mr Tracey says, and I have accepted, he has insight into and regrets his contravening conduct. He understands why his conduct was unacceptable and unlawful. And he is committed to not engaging in any contravening conduct again.[41]
As earlier noted, apart from generalised right of entry training, Mr Tracey received targeted training in August 2023 from Brian Lacy AO, a former Senior Deputy President of the AIRC, about his past conduct.[42] Further, Mr Tracey stated he has reflected on and regrets his past conduct and is committed to not repeating it and complying with the law generally.[43]
Mr Lacy’s report describes the methodology of the training provided to Mr Tracey, including training on the Act and other workplace relations laws.[44] Mr Lacy expresses his view that, based on Mr Tracey’s training, his participation and commitment to comply with the legislation hereunder consideration, that Mr Lacy is satisfied Mr Tracey would take steps to ensure that he does not contravene the Act again.[45]
Mr Tracey’s witness statement outlines that he now appreciates the importance of compliance with industrial law in order to retain an entry permit.[46] I accept the CFMEU’s submission that Mr Tracey’s participation in this training should be accorded some significance.[47] And it weighs in favour of a conclusion that Mr Tracey is today a fit and proper person to hold a right of entry permit.
The CFMEU contended, and I accept, that the circumstances of this application stand in contrast to the failed entry permit application in 2013 in several ways. First, over 12 years have elapsed since Mr Tracey last contravened industrial law and Mr Tracy has otherwise complied with the law since the civil contempt finding against the MUA. Second, having regard to the targeted training and his compliance with the law since 2017, Mr Tracey can be assumed to have left behind his past propensity to engage in unlawful conduct. Third, the evidence, which I accept, points to Mr Tracey being committed to compliance with his legal obligations under industrial law and the law more generally. Fourth, Mr Tracey has taken proactive steps to facilitate his compliance with the law by undertaking the training provided by Mr Lacy. Fifth, Mr Lacy’s view that Mr Tracey understands his historical contravening and is committed to complying with his obligations under law is not insignificant. Sixth, Mr Tracey has reflected on the consequences of not having an entry permit and is determined to comply with the law to ensure he does not put his entry permit in jeopardy if a new permit is granted by the Commission.
Taken together, although the contravening conduct in which Mr Tracey 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 Tracey is today a fit and proper person to hold a right of entry permit. Balancing the competing rights identified in s 480 of the Act, I consider Mr Tracey has taken corrective action by undertaking targeted training, accepting his wrongdoing and committing himself to not repeat his prior conduct. These considerations reduce the weight that might otherwise be ascribed to the permit qualification matters disclosed.
Mr Tracey’s record since 2017, his acceptance of 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 his past conduct, which is to his credit.
Conclusion
Taking into account the permit qualification matters, I am satisfied that William Warren Tracey 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 Tracey is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
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[1] The Maritime Union of Australia [2013] FWCD 8459
[2] Victoria International Container Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] VSC 794, (2018) 285 IR 28 at [43]
[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 William Warren Tracey dated 1 November 2023 at (a); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 4; ACTU Certificate of Completion of Mr William Tracey dated 25 August 2023
[9] Report dated 21 August 2023 by Mr Brian Lacy
[10] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (b); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(a)
[11] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (c); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(b)
[12] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (f); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(e)
[13] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (g); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(f)
[14] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (h)
[15] Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(g)
[16] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (d); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(c)
[17] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (d); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(c)
[18] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (d); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(c)
[19] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (d); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(c)
[20] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (d); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(c)
[21] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (h); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(g)
[22] The Maritime Union of Australia [2013] FWCD 8459 (29 November 2013)
[23] Fair Work Ombudsman v Maritime Union of Australia & Ors [2012] FCA 1521 at [25] and [32]
[24] Witness Statement of Mr William Warren Tracey at [22] and [37]
[25] Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 at [25] and [32]
[26] Witness Statement of Mr William Warren Tracey at [22] and [37]
[27] See Fair Work Ombudsman v Offshore Marine Services Pty Ltd (2012) 219 IR 435
[28] Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943 at [40], [47] and [165]
[29] Witness Statement of Mr William Warren Tracey at [22] and [37]
[30] Fair Work Ombudsman v Maritime Union of Australia at [163], [180], [185], [201]-[202], [209], [220], [245], [247], ]250]-[251]
[31] Witness Statement of Mr William Warren Tracey at [29] and [37]
[32] BHP Billiton Minerals Pty Ltd v Maritime Union of Australia & Ors [2014] FCA 1357 at [20]
[33] Witness Statement of Mr William Warren Tracey at [32] and [37]
[34] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (e); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(d)
[35] Witness Statement of Mr William Warren Tracey at [14]
[36] BHP Iron Ore Pty Ltd v William Warren Tracey [2001] AIRC 552 at [10]
[37] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (e); Amended Form F42, Declaration by Mr Warren Smith dated 1 November 2023 at 2(d)
[38] Witness Statement of Mr William Warren Tracey at [16]
[39] BHP Billiton Iron Ore v William Warren Tracey & Ors [2002] AIRC 1378 at [20]
[40] Applicant’s outline of submissions dated 27 November 2023 at [70]-[71]
[41] Witness Statement of Mr William Warren Tracey at [35]
[42] Amended Form F42, Declaration by Mr William Warren Tracey dated 1 November 2023 at (h)
[43] Ibid
[44] Report dated 21 August 2023 by Mr Brian Lacy at [16]
[45] Ibid at [36]
[46] Witness Statement of Mr William Warren Tracey at [37]
[47] Applicant’s outline of submissions dated 27 November 2023 at [16]
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