Construction, Forestry and Maritime Employees Union-Construction and General Division, New South Wales Divisional Branch

[2024] FWC 907

[2024] FWC 907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry and Maritime Employees Union-Construction and General Division, New South Wales Divisional Branch

(RE2024/145)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 9 APRIL 2024

Application by CFMEU for issue of right of entry permit for Rita Mallia – satisfied that fit and proper person – permit issued.

1. On 14 February 2024, the Construction, Forestry, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch (CFMEU) made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Ms Rita Georgette Stella Mallia, who holds the position of New South Wales Divisional Branch President of the CFMEU.

1. The right of entry permit held by Ms Mallia[1] expired on 18 March 2024. I extended the operation of Ms Mallia’s entry permit until the determination of the application for a new permit for Ms Mallia.

Statutory Framework

1. Part 3-4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

1. The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience.[2]

1. Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer.[3] The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.[4] Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.[5]

1. Section 512 of the Act provides that 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 the entry permit. The Commission’s discretion whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the “permit qualification matters” set out in s.513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose.[6]

1. Section 513 of the Act sets out the permit qualification matters as follows:

“513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.”

1. Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:

“515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).”

1. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,[7] Vice President Hatcher set out the following principles relevant to the interpretation and application of sections 512 and 513(1) of the Act as follows:

“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:

● A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

● The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.

● The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.

● The question of whether an official 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 those rights, and the responsibilities that must be discharged in the exercise of those rights.

● The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

● The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

● While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).

● Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.”

1. In Maritime Union of Australia v Fair Work Commission (MUA v FWC)[8], a Full Court of the Federal Court of Australia observed the following in relation to the phrase “a fit and proper person”:

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

‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’”[9]

1. In MUA v FWC, the Full Court ultimately concluded as follows:

“[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged ‘unreasonableness’.”[10]

Consideration

1. I will now take into account all of the permit qualification matters specified in s 513(1) of the Act in relation to the application for an entry permit for Ms Mallia.

Permit qualification matters – ss 513(1)(a), (b), (c), (e) and (f)

1. According to the declarations filed by the CFMEU in support of the application for the grant of an entry permit to Ms Mallia:

(a)Ms Mallia has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act). Ms Mallia completed an approved right of entry training course on 13 February 2024;

(b)Ms Mallia has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);

(c)Ms Mallia has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, or fraud or dishonesty, or intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c) of the Act);

(d)Ms Mallia has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions (s 513(1)(e) of the Act); and

(e)Ms Mallia has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has she been disqualified under such laws from exercising or applying for an entry permit (s 513(1)(f) of the Act).

1. I accept that the information set out in the previous paragraph, as disclosed in the declarations made by Mr Greenfield and Ms Mallia concerning these matters, is true and correct. The permit qualification matters set out in s 513(1)(a),(b),(c),(e) and (f) of the Act weigh in favour of a conclusion that Ms Mallia is a fit and proper person to hold an entry permit.

Permit qualification matter – s 513(1)(d)

1. In CFMMEU v Fair Work Ombudsman[11] (Botany Cranes Proceeding), Ms Mallia was ordered to pay $15,000 for her contravention of s 47(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) on 25 January 2019 and the CFMMEU was ordered to pay $190,000 for its contravention of s 47 of the BCIIP Act on 25 January 2019, based on the conduct of a number of individuals, including Ms Mallia. I considered Ms Mallia’s admitted contraventions of the BCIIP Act in the Botany Cranes Proceeding when I determined Ms Mallia’s previous application for a right of entry permit in March 2021,[12] but no penalties had been imposed at that time.

1. I made the following observations about Ms Mallia’s conduct in the Botany Cranes Proceedings when I decided to grant her right of entry permit in March 2021:

“[20]     Ms Mallia’s participation in the unlawful picket on 25 January 2019 did not involve the exercise by her of any right of entry powers. But her conduct on that day is very concerning and casts a real doubt about her fitness and propriety to hold a right of entry permit. Rather than pursue lawful means which were readily available to challenge the alleged unfair dismissal of a CFMMEU delegate, Ms Mallia chose to participate in an unlawful picket which resulted in an employee of Botany Cranes being fearful and access and egress to the yard of Botany Cranes being restricted. Ms Mallia’s conduct on 25 January 2019 causes me to have a real concern as to whether she will comply with her obligations as a permit holder if she is faced with a situation on an employer’s premises which she deems to be unfair. Ms Mallia’s participation in the unlawful picket on 25 January 2019 weighs against a conclusion that she is a fit and proper person to hold a right of entry permit.

[21]       Ms Mallia’s conduct on 25 January 2019 must, however, be considered in the context of her entire record. It is relevant to have regard to the fact that Ms Mallia has worked for the CFMEU for just over 24 years. Save for the incident on 25 January 2019, Ms Mallia has an unblemished record as a union official. Ms Mallia has held multiple entry permits under State and Commonwealth industrial and work health and safety legislation for over a decade. She has not been found to have contravened a law relating to the exercise of entry rights, nor have any of the entry permits issued to her been the subject of any adverse action. Putting to one side the Botany Cranes Proceeding (in which no findings have yet been made), no findings of contraventions of any industrial law have been made against Ms Mallia. These matters speak to her fitness and propriety to be a permit holder.

[22]       Ms Mallia admitted her conduct in the Botany Cranes Proceeding but has not expressed contrition for her conduct. The absence of such contrition is relevant but must be assessed in the context of her lengthy career with the CFMEU and the absence of any convictions against industrial laws during that time.

[23]       Ms Mallia’s conduct in relation to the Botany Crane Proceeding took place on a single day. I am not satisfied on the limited material before the Commission that Ms Mallia has encouraged or tolerated a general culture of non-compliance with the law, or that she has failed to take reasonable steps to ensure that others under her control generally comply with the law.”

1. These observations remain relevant to the present application for a right of entry permit for Ms Mallia. However, it is also necessary to have regard to the fact that Ms Mallia has not contravened any industrial laws since her contravening conduct on 25 January 2019.

1. There are no other relevant considerations (s 513(1)(g) of the Act).

Conclusion

1. After taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act, I am satisfied, on balance, that Ms Mallia is a fit and proper person to hold a right of entry permit.

1. I have considered whether any conditions should be imposed on any entry permit issued to Ms Mallia conjointly with my consideration of whether she is a fit and proper person to hold an entry permit. My conclusion on that score is that no conditions should be imposed.

1. In the circumstances, I am satisfied that it is appropriate to exercise the discretion conferred on me by s 512 of the Act in favour of issuing Ms Mallia with an entry permit.

DEPUTY PRESIDENT

[1] RE 2020/989

[2] Fair Work Act 2009 (Cth) s 480

[3] Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

[4] Ibid at 405 [56] per Flick J

[5] Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

[6] Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141

[7]  [2015] FWC 1522

[8] [2015] FCAFC 56

[9] Ibid at [17]

[10] Ibid at [42]

[11] [2023] FCAFC 40

[12] [2021] FWC 1484

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