Construction, Forestry, Maritime, Mining and Energy Union
[2022] FWC 101
| [2022] FWC 101 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry, Maritime, Mining and Energy Union
(RE2021/1162)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 18 FEBRUARY 2022 |
Application for a right of entry permit for Roland Cummins – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Cummins is a fit and proper person to hold a conditional permit – permit with conditions to issue.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied for the issue of a right of entry permit under s 512 of the Fair Work Act 2009 (Act) to its official, Mr Roland Cummins an organiser in its employ who is based in Cairns. Pursuant to s 112 of the Building and Construction Industry (Improving Productivity) Act 2016, the Australian Building and Construction Commissioner (Commissioner) was given notice of the application and has in turn given written notice on 22 October 2021 that he intervenes in the proceeding pursuant to s 110 of that Act. The Commissioner filed written submissions and subsequently made oral submissions during the hearing of the application.
I have decided to issue an entry permit to Mr Cummins. I have also decided that the following conditions will be imposed on the entry permit when it is issued:
a. Mr Cummins must not use this entry permit to exercise entry rights (unless he is accompanied by another CFMMEU official who holds an entry permit without conditions) until he undertakes and completes training provided by an independent legal practitioner experienced in industrial relations law in relation to the rights and obligations of a permit holder under Part 3-4 of the Fair Work Act 2009 (Act) and the following decisions of the Federal Court of Australia and the Fair Work Commission (Commission) about his conduct in the following matters:
i. Australian Building and Construction Commissioner v Arturo Menon & Ors [2020] FCA 1418; and
ii. JKC Australia LNG Pty Ltd v CFMEU & Ors[2016] FWC 536
b. At all times after completing the training above, and until this permit expires, Mr Cummins must:
i. Carry a certificate of competition signed by the independent legal practitioner whenever he is exercising entry rights under the Act; and
ii. Produce the certificate whenever he is asked to produce his entry permit for inspection under ss 489 or 497 of the Act.
c. Mr Cummins must:
i. Within 7 days of completing the training above, provide the Commission with a certificate of completion signed by the independent legal practitioner; and
ii. Promptly notify the Australian Building and Construction Commissioner and the Commission if any Court makes a finding that Mr Cummins has contravened an obligation imposed by the Act or if the Commission makes any adverse findings about his conduct while exercising entry rights under the Act.
My reasons for this decision follow.
The applicable principles for determining right of entry permit applications under s 512 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 of the Act, 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 to exercise the powers, functions and responsibilities attached to holding a permit.[1] 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 in s 513(1) 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’ and is a matter which the decision maker is bound to take into account.[2] 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[3] and to evaluate it and give it due weight, having regard to all other relevant factors.[4] All of the permit qualification matters identified in s 513(1) of the Act must be taken into account and the absence of, for example, a conviction of an official 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 the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight and not be merely noticed and disregarded.[5] In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualification, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.[6] 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.
The CFMMEU filed declarations dated 12 December 2021 made by Mr Michael Ravbar, Divisional Branch Secretary and Mr Cummins addressing the permit qualification matters. According to the declarations:
· Mr Cummins has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 20 August 2021 (s 513(1)(a) of the Act));[7]
· Mr Cummins has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[8]
· Mr Cummins has been convicted for trespass under s.70A(2) of the WA Criminal Code in January 2010 in relation to conduct in December 2009, but had not otherwise 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;[9]
· Mr Cummins has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s 513(1)(e) of the Act);[10]
· Mr Cummins has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that he 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);[11] and
· Mr Cummins has 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).[12]
The Commissioner accepts and does not challenge that which is disclosed above. I accept that the information disclosed in the declarations concerning these matters is accurate and correct. Save for the trespass conviction these matters weigh in favour of a conclusion that Mr Cummins is a fit and proper person to hold a right of entry permit. As to the trespass conviction, by itself it carries little weight. It was the subject of consideration in an earlier grant of an entry permit to Mr Cummins[13] and was given little weight given the passages of time, the isolated nature of the conduct and the fact that the conduct did not occur in “an industrial or employment-related context”.[14] For similar reasons and the additional time that has since elapsed the conviction is of little moment in assessing Mr Cummins’ fitness and propriety. The weight that I attach to the permit qualification matter in s 513(1)(a) is to be understood by reference to the additional training condition which I discuss later in this decision.
The declarations also disclose the following matters. First, in JKC Australia LNG Pty Ltd v CFMEU & Ors[15] the Commission dealt with an application under s 505 of the Act involving entries to a site by Mr Cummins and others in or about June 2015 and made findings in relation to Mr Cummins’ conduct, but no orders directed to him. Second, in Australian Building and Construction Commissioner v Arturo Menon & Ors (Palmerston Police Station case )[16] White J declared that Mr Cummins had contravened s 500 of the Act by acting in an improper manner on 14 and 15 May 2018 when exercising a right of entry at a site in the Northern Territory. The Court imposed penalties on Mr Cummins of $3,500 for the first contravention and $2,800 for the second contravention and imposed on the CFMMEU penalties of $35,000 in respect of each of Mr Cummins’ contraventions. Third, in Cummins v Guilfoyle[17] Mr Cummins successfully appealed an earlier finding of guilt and imposed fine of $5,000. The earlier finding was that he was guilty of criminal conduct in that he intimidated a WHSQ inspector on 4 April 2018 whilst exercising his right of entry contrary to s 190 of the Work Health and Safety Act 2011 (Qld). The guilty finding and sentence were set aside, and a retrial was not ordered. Fourthly, in Australian Building and Construction Commissioner v Roland Cummins & Anor[18] the Commissioner alleges that Mr Cummins contravened s 500 of the Act, relating to the same conduct that was the subject of the Cummins v Guilfoyle proceeding. The civil proceeding was stayed pending conclusion of the criminal proceeding. I deal with the significance of each of the disclosed matters in the assessment whether Mr Cummins is a fit and proper person to hold an entry permit below.
In the Palmerston Police Station case penalties were imposed on Mr Cummins and the CFMMEU which I have earlier described for the following contraventions of the Act. Mr Cummins was found to have contravened s 500 of the Act on two occasions by acting in an improper manner while exercising entry rights as a permit holder. The particulars of the two contraventions were that on:
· 14 May 2018 Mr Cummins acted in an improper manner while exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the Act by swearing at a Sitzler representative, behaving improperly towards two Northern Territory WorkSafe Inspectors, and demanding that those Inspectors shut the construction site down when they were not obligated to do so; and
· 15 May 2018 Mr Cummins acted in an improper manner while exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the Act by refusing to show a notice of entry when asked to do so by a Sitzler representative, swearing at the same Sitzler representative and threatening to “go through this whole site top to bottom again” if the Sitzler representative insisted on seeing the notice of entry.
The CFMMEU was, pursuant to ss 793 and 550 of the Act, found to have twice contravened s 500 of the Act by reason of the conduct of Mr Cummins constituting his two contraventions described above.
As to Mr Cummins’ contravening conduct in the Palmerston Police Station case and the significance of the consideration under s 513(1)(d) of the Act in respect of the penalties imposed by the Court, the CFMMEU contends that:
· Mr Cummins entered the site for a lawful purpose which, as White J found, was because Mr Cummins reasonably suspected that a contravention of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) was occurring on 14 and 15 May 2018;
· Mr Cummins cooperated in the proceedings and made extensive admissions;
· The contravening conduct did not involve any significant aggravating circumstances such as violence, abuse or property damage and the conduct was not premediated. Rather it was isolated and limited to brief outbursts by Mr Cummins;
· Mr Cummins’ conduct was regrettable but was informed by the unique circumstances at the relevant time – Mr Cummins’ serious concern about safety issues. His conduct was not capricious or nefarious but a genuine, albeit disproportionate and unlawful, response to the risk that he perceived to the safety of his members. This is advanced not to diminish the gravity of the conduct, but rather to place it in the necessary context;
· Mr Cummins has not been found to have contravened the Act before, or since;
· The conduct was in excess of 3 years ago and the lack of reoffending supports an inference that the sanction imposed by the Court has weighed on Mr Cummins and led him to developing insight into the serious nature of his conduct.
While Mr Cummins’ contravening conduct might not have involved abuse directed towards any individual, the improper conduct on 14 May 2018 nonetheless was comprised of foul-mouthed language to Sitzler’s Health, Safety and Environment Advisor and Sitzler’s Construction Site Manager after the site walk, and the loud and aggressive manner in which he spoke to two Northern Territory WorkSafe Inspectors while standing close to them demanding they needed to close the site.[19]
The conduct on 15 May 2018 shows that Mr Cummins paid little regard to the requirements for lawful entry although after a few minutes, he did not persist with his attempt to enter the site.[20]
Permit holders are required to comply with any condition precedent to entry to premises and must not act in an improper manner while exercising or seeking to exercise entry rights. Permit holders will from time to time respond genuinely to members’ concerns, be it about safety or about contraventions of applicable industrial instruments. As the Commissioner correctly points out this will always be the ‘context’. But such context will never justify improper conduct. One of the constraints on the exercise of entry rights and privileges is the prohibition on engaging in improper conduct while exercising those rights. Genuine concerns held by a permit holder about safety issues, as in the instant case, must be pursued in accordance with the law and recourse to improper conduct is neither justified nor explained by that context. And as the CFMMEU correctly observes, the context does not diminish the gravity of the conduct.
Although I accept that the contravening conduct occurred now over three and a half years ago, and that Mr Cummins has not since been found to have engaged in any contravening conduct, the two contraventions were serious in nature and Mr Cummins was or should have been aware of his obligations as a permit holder. He nevertheless engaged deliberately in unlawful conduct in disregard of his obligations as a permit holder. As White J observed, Mr Cummins’ conduct on 15 May 2018 paid little regard to the requirements for lawful entry. Moreover, the improper conduct on 14 May 2018 was directed towards Northern Territory WorkSafe Inspectors while the inspectors were themselves undertaking statutory functions. Permit holders must comply with entry requirements, and these cannot be ignored or “paid little regard” and a permit holder must not act in an improper manner when exercising entry rights.
Given the nature and seriousness of the contravening conduct discussed above, this permit qualification matter weighs against a conclusion that Mr Cummins is a fit and proper person to hold a permit.
There are next three other matters which require some consideration. The first concerns the adverse findings made by Commissioner Simpson in relation to Mr Cummins in JKC Australia. Commissioner Simpson found that Mr Cummins engaged in inappropriate conduct while exercising entry rights on 10 and 12 June 2015. The inappropriate conduct was constituted by the following:[21]
· Mr Cummins walked away from his escort having earlier agreed that it was a condition of entry on the site that he should not do so, on both 10 and 12 June 2015;
· He held discussions with employees other than those who industrial interests his union was entitled to represent on both 10 and 12 June 2015;
· He failed to comply with a reasonable request as to an occupational health and safety requirement on both 10 and 12 June 2015;
· He failed to comply with a reasonable request to take a particular route to reach a room on both 10 and 12 June 2015.
There can be little doubt that the conduct in which Mr Cummins was found to have engaged was conduct that was inconsistent with his obligations as a permit holder exercising entry rights under the Act. The significance of this conduct has also previously been assessed by Hamberger SDP in considering whether Mr Cummins was, in 2017, a fit and proper person to hold an entry permit.[22] On that occasion, it is evident that the weight assigned to this consideration did not prevent Hamberger SDP from concluding that Mr Cummins was a fit and proper person to hold a permit, in part because there was no evidence that Mr Cummins had misused his entry permit on any other occasion, or otherwise acted inconsistently with his obligations under industrial law.[23] The same assessment cannot now be made in light of Mr Cummins’ contravening conduct in the Palmerston Police Station case. Taken together the conduct in which Mr Cummins was found to have engaged in JKC Australia and the contravening conduct for which penalties were imposed in Palmerston Police Station case speak to Mr Cummins’ failure on several occasions, to adhere to the limitations imposed when exercising entry rights and to the standards of proper conduct expected of permit holders when exercising those rights. That conduct raises serious concerns about whether Mr Cummins properly understands the rights he may exercise as a permit holder, the limitations on the exercise of those rights and the kinds of conduct that he must avoid in exercising those rights. The matters thus raise reservations about whether Mr Cummins is a fit and proper person to hold an entry permit.
As to the conduct of Mr Cummins in Cummins v Guilfoyle the CFMMEU contends it should be given no weight. The Commissioner says that the conduct understood in context, is plainly a relevant matter to assessing Mr Cummins’ fitness and propriety to hold a permit under the Act.
On 17 March 2020, Mr Cummins was found guilty of intimidating a Work Health and Safety Queensland Inspector, an offence under s 190 of the Work Health and Safety Act 2011 (Qld). Mr Cummins’ conduct involved him attending the Cairns Performing Arts Centre construction site on 4 April 2018 and, while on the site, engaging in a dispute with the Inspector. The intimidation of the Inspector, as found, involved Mr Cummins standing at arm’s length from the Inspector and saying, “You’re a fucking dog”, shouting words to this effect three times in succession. Leading up to the verbal exchange, Mr Cummins tried to have the Inspector look at an iPad that was held in his hand and, in doing so, placed the iPad directly in front of the Inspector’s face.
As earlier noted, the guilty finding was overturned on appeal and no retrial ordered. The Commissioner contends that the key conduct on Mr Cummins’ part, including engaging in a verbal exchange with the Inspector and shouting, “You’re a fucking dog”, were agreed between the parties and not in dispute. He says that Mr Cummins also admitted in evidence that he was aggressive and that his conduct would intimidate someone (even if it did not intimidate the Inspector).
The conduct the subject of Cummins v Guilfoyle is in issue in Australian Building and Construction Commissioner v Roland Cummins & Anor.[24] Mr Cummins is a respondent who the Commissioner alleges contravened s 500 of the Act on 4 April 2018 by acting improperly towards the Inspector. Mr Cummins denies the allegations. In these circumstances I do not consider that it is appropriate to take into account the conduct which was the subject of Cummins v Guilfoyle. The very same conduct is the subject of the alleged contravention of s 500 in Australian Building and Construction Commissioner v Roland Cummins & Anor and is presently denied. Taking that conduct into account would in effect require me to make certain findings before Australian Building and Construction Commissioner v Roland Cummins & Anor is determined, without any evidence about the conduct, and based solely on findings in a decision which has since been overturned. I do not consider this is appropriate. Consequently, neither of the above matters will be taken into account.
During the hearing of this application, I asked the CFMMEU and the Commissioner to make further submissions about any conditions that might be appropriately imposed on any permit I might issue. The possibility of imposing a permit condition or conditions was raised because of concerns or reservations I have for Mr Cummins’ fitness and propriety to hold a permit set out in [18]. I had in mind an additional training condition so that Mr Cummins would undertake training about his rights and responsibilities as a permit holder conducted by someone other than the CFMMEU.[25]
The Commissioner primarily contends that no conditions imposed will address the deficiencies in Mr Cummins’ conduct such as to lead to the conclusion that Mr Cummins is a fit and proper person to hold an entry permit. In the alternative, the Commissioner proposes the following conditions:
Training condition
A. Mr Cummins must not use an entry permit to enter premises until he undertakes training provided by an independent legal practitioner experienced in industrial relations in relation to the decisions of the Federal Court of Australia and the Fair Work Commission about his conduct in the following matters:
i. Australian Building and Construction Commissioner v Arturo Menon & Ors [2020] FCA 1418 (“Palmerston Police Station Case”); and
ii. JKC Australia LNG Pty Ltd v CFMEU & Ors [2016] FWC 536;
B. Mr Cummins must undertake training provided by an independent legal practitioner experienced in industrial relations on an annual basis in relation to Part 3-4 of the Fair Work Act 2009 (Cth) for the duration of the permit.
C. Evidence of attendance at the training in conditions A and B and of its successful completion (or otherwise) shall be provided to the Fair Work Commission within 2 weeks of the training being undertaken by the permit holder each year that Mr Cummins holds a right of entry permit.
D. At all times after completing the training in conditions A and B above, and until this permit expires, Mr Cummins must:
i. Carry a certificate of competition signed by the training provider for the duration of the permit as evidence of satisfactory completion of the training whenever he is exercising entry rights under the Fair Work Act 2009 (Cth); and
ii. Produce the certificate whenever he is asked to produce his entry permit for inspection under sections 489 or 497 of the Fair Work Act 2009 (Cth).
Reporting condition
E. If any findings are made or penalties imposed that are relevant to the permit qualification matters at section 513 (a) – (f) of the Fair Work Act 2009 (Cth), or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at section 513 (a) – (f) of the Fair Work Act 2009 (Cth), Mr Cummins is to notify the Fair Work Commission within 72 hours of the finding being made, the penalty imposed or the proceeding commenced, along with a copy of any applicable and relevant documentation, or decision or judgment, as the case may be.
The CFMMEU maintains its primary position that Mr Cummins is a fit and proper person for the grant of a right of entry permit. However, to address any concerns I may have, it proposes conditions in the following terms:
a. Mr Cummins attending and participating in training about the rights and obligations of a permit holder pursuant to Part 3-4 of the Act conducted by Brian Lacy within two months of the date that this permit is issued; and
b. the CFMMEU promptly notify the ABCC and the Commission if any Court or Tribunal makes a finding that Mr Cummins has contravened an obligation imposed by the Act.
It is clear that conditions may be imposed on an entry permit pursuant to s 515 of the Act to remedy or address deficiencies or reservations I may have in respect to a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person was not “fit and proper”.[26] I am satisfied that the reservations I have expressed in [18] could lead to the conclusion that Mr Cummins is not a fit and proper person to hold an entry permit. I do not accept that there are no conditions which might be imposed which would allow or lead to the conclusion that Mr Cummins is a fit and proper person to hold an entry permit. Given the nature of my reservations, I consider that a condition imposing an additional training requirement, taking into account the permit qualification matters, each of which I have earlier discussed, satisfies my reservations. I agree with the Commissioner that additional training beyond that provided in the training undertaken on 20 August 2021 when completing a CFMMEU course is required. I also consider it is appropriate, given the nature of my reservations, that Mr Cummins does not exercise entry rights alone until the training is completed. He will be permitted to exercise entry rights in the company of another CFMMEU official who is the holder of an entry permit to which no conditions attach. As is evident from the CFMMEU’s proposal above, it has suggested that training be undertaken by a former Senior Deputy President of the Australian Industrial Relations Commission, Mr Brian Lacy. This is a proposal with which I have no difficulty, however as I intend to limit Mr Cummins’ capacity to exercise entry rights until training is completed, I will adopt the more general formulation proposed by the Commissioner as to the person who is to conduct the training. Plainly Mr Lacy meets that description.
I do not consider that further annual training is necessary to address my reservations. Both the CFMMEU and the Commissioner proposed a reporting requirement, and I will include a condition to that effect. As I propose to limit Mr Cummins’ capacity to exercise entry rights until training is completed, it is appropriate to include a condition as suggested by the Commissioner in paragraph D above. The condition will serve as a reminder to Mr Cummins that he was required to undertake and complete additional training and to deploy his learning in the exercise of entry rights.
For the reasons given above, taking into account the permit qualification matters and subject to the imposition pursuant to s 515 of the Act of the conditions set out below, I am satisfied that Mr Cummins is a fit and proper person to hold an entry permit.
Order
I order:
1. Pursuant to s 512 of the Act an entry permit will be issued to Mr Roland Cummins.
2. Pursuant to s 515 of the Act the following conditions are imposed on the entry permit when it is issued:
a. Mr Cummins must not use this entry permit to exercise entry rights (unless he is accompanied by another CFMMEU official who holds an entry permit without conditions) until he undertakes and completes training provided by an independent legal practitioner experienced in industrial relations law in relation to the rights and obligations of a permit holder under Part 3-4 of the Fair Work Act 2009 (Act) and the following decisions of the Federal Court of Australia and the Fair Work Commission (Commission) about his conduct in the following matters:
i. Australian Building and Construction Commissioner v Arturo Menon & Ors [2020] FCA 1418; and
ii. JKC Australia LNG Pty Ltd v CFMEU & Ors[2016] FWC 536
b. At all times after completing the training above, and until this permit expires, Mr Cummins must:
i. Carry a certificate of completion signed by the independent legal practitioner whenever he is exercising entry rights under the Act; and
ii. Produce the certificate whenever he is asked to produce his entry permit for inspection under ss 489 or 497 of the Act.
c. Mr Cummins must:
i. Within 7 days of completing the training above, provide the Commission with a certificate of competition signed by the independent legal practitioner; and
ii. Promptly notify the Australian Building and Construction Commissioner and the Commission if any Court makes a finding that Mr Cummins has contravened an obligation imposed by the Act or if the Commission makes any adverse findings about his conduct while exercising entry rights under the Act.
DEPUTY PRESIDENT
Appearances:
Mr C Massy of Counsel for the CFMMEU
Ms P Bindon of Counsel for the Commissioner
Hearing details:
2022
Melbourne (via video link)
24 January 2022
[1] 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]
[2] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (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]
[3] 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 and National Retail Association v Fair Work Commission [2014] FCAFC 118
[4] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184
[5] Ibid
[6] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]
[7] Form F42, Declaration by proposed permit holder dated 12 December 2021 at (a) and CFMMEU, Certificate of Achievement dated 20 August 2021
[8] Ibid at (b)
[9] Ibid at (c)
[10] Ibid at (e)
[11] Ibid at (f)
[12] Ibid at (g)
[13] Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch [2017] FWC 1390
[14] Ibid at [31]
[15] [2016] FWC 536
[16] [2020] FCA 1418
[17] [2021] QDC 127
[18] BRG1307/2018
[19] [2020] FCA 1418 at [112]
[20] Ibid at [113]
[21] See JKC Australia LNG Pty Ltd v CFMEU& Ors [2016] FWC536 at [130]-[131], [138], [140], [145]-[148]
[22] Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch [2017] FWC 1390
[23] Ibid at [32]-[34]
[24] BRG1307/2018
[25] Transcript PN128
[26] Maritime Union of Australia v Fair Work Commission and Anor [2015] FCAFC 56; (2015) 230 FCR 15 at [43]
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