Construction, Forestry, Maritime, Mining and Energy Union
[2020] FWC 1053
•28 FEBRUARY 2020
| [2020] FWC 1053 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.512 - Application for a right of entry permit
Construction, Forestry, Maritime, Mining and Energy Union
(RE2019/856)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 28 FEBRUARY 2020 |
Application for an Entry Permit for Michael Shane Smith– whether fit and proper person to hold an entry permit under the Act – satisfied that Mr Smith is a fit and proper person to hold a permit – permit issued.
[1] On 19 February 2020 I decided ex tempore that I was satisfied Mr Michael Shane Smith, an organiser in the employ of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), is a fit and proper person to hold an entry permit, and that a permit will be issued. These are my reasons for that decision.
[2] The CFMMEU applied for an entry permit to be issued under s.512 of the Fair Work Act 2009 (Act) to Mr Smith. The Australian Building and Construction Commissioner (ABC Commissioner) gave notice under s.110 of the Building and Construction Industry (Improving Productivity) Act 2016 that he will intervene in the matter. Consequently, the ABC Commissioner is taken to be a party to the proceeding and has all the rights, duties and liabilities of such party.1
[3] Mr Smith was issued an entry permit 5 October 2016, subject to a condition.2 The condition attaching to the permit is that the Construction, Forestry, Mining and Energy Union (as it was then known) is to provide a written report to the Regulatory Compliance Branch of the Fair Work Commission (Commission), one year after the date of issue of this permit, as to Mr Smith’s compliance with the obligations of an entry permit holder. It is uncontroversial that there has been compliance with the condition. The permit issued on 5 October 2016 was to expire before this application could be determined. Consequently, and having otherwise been satisfied that the requirements in s.516(2) of the Act had been met and that no matter in s.516(4) precluded an extension of the period of operation of the permit, I exercised my discretion to extend the period of operation. 3
[4] The applicable principles for determining right of entry permit applications under s.512 are now 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 someabstract sense. The inquiry is whether 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.4 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.
[5] The permit qualification matters contained 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’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend),5 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.6 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:7
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”.8
[6] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:9
“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which 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. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".”10
[7] Having regard to the structure and content of s.513, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all of 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 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.
[8] 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 pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.11
[9] In support of its application the CFMMEU relied on declarations filed in conjunction with the application, the oral evidence given by Mr Smith and a number of documents tendered without objection during the course of the hearing on 19 February 2019.12
[10] Turning then to the permit qualification matters and as relevant, to the matters raised by the ABC Commissioner.
[11] Apart from making general submissions about the weight that should attached to each of the permit qualification matters in s.513(1)(a), (b), (d), (e) and (f) of the Act the ABC Commissioner did not contend that any of these permit qualification matters when considered and appropriately weighed had the result of rendering Mr Smith a person who is not a fit and proper person to hold an entry permit under the Act.
[12] The ABC Commissioner took issue with the CFMMEU’s submissions that Mr Smith has “runs on the board” because it asserted that Mr Smith has conducted himself “without fault” since being issued with an entry permit. The ABC Commissioner contended that submissions overstate the weight to be attached to the lack of such adverse findings. The ABC Commissioner contended that if the submissions of the CFMMEU were to be accepted, it would effectively render compliance with the law as somehow deserving of merit rather than a norm of conduct expected of every person. The ABC Commissioner contended the correct approach to be taken in relation to the absence of such adverse findings is found in the decision of Fair Work Commission v Roberts13where O’Callaghan SDP observed that “[B]ehaviour, consistent with Part 3-4 of the FW Act must be regarded as the expected norm, rather than something which is, in effect, rewarded.”14
[13] It should first be observed that the decision in Roberts was not concerned with an application for a permit. Roberts concerned the question whether a permit should be revoked or suspended under s.510 of the Act. In the sentence which precedes the one extract above, the Senior Deputy President said “[I]t would thus be inconsistent with s.510, if Mr Roberts’ behaviour before or after the events of 2013 were applied so as to effectively ignore the requirements of this section”15 It is thus that the Senior Deputy President reasoned as earlier set out. Context is king.
[14] With all due respect to the ABC Commissioner’s reliance on the observation in Roberts about another statutory provision, the assessment of permit qualification matters and relevantly those which involve considerations of whether there has been a conviction for an offence or the imposition of a civil penalty, is not a question of “reward” for compliance with the law. Rather the assessment involves ascribing appropriate weight to the absence of a conviction or imposed penalty, just as the existence of a conviction or of the imposition of a penalty would require the ascribing of appropriate weight. It is to be remembered that each of the permit qualification matters commences with the conjunction “whether”, indicating that the legislature had in mind an inquiry about the existence or nonexistence of the relevant permit qualification matter. It seems to me self-evident that just as the absence of the proposed permit holder having received appropriate training about the rights and responsibilities of the permit holder, without more, would likely weigh against a conclusion that the proposed permit holder is a fit and proper person to hold the permit, so too will the absence of a relevant conviction or a relevantly imposed penalty, without more, likely weigh the other way. That this is so is not a “reward” for law-abiding behaviour, but rather simply involves the proper consideration of, and the attribution of appropriate weight to, each of the permit qualification matters. To the extent that the ABC Commissioner suggested that the approach in Roberts is the correct approach to the assessment of permit qualification matters, the suggestion is rejected. It plainly is not correct.
[15] Mr Smith has held a permit under the Act for more than three years. There is no evidence that in that time, Mr Smith has engaged in any conduct that might be said to be inconsistent with his rights and obligations as a permit holder. I would not use the term “runs on the board”, but the fact that Mr Smith has apparently exercised his rights and discharged his obligations as a permit holder without adverse incident speaks to his fitness and propriety and is relevant. It is a matter that I consider relevant under s.513(1)(g) of the Act and may also be relevant in assessing the weight that might attach to some other permit qualification matters.
[16] As to the permit qualification matters disclosed and which engage with s.513(1)(c) of the Act,whilst conceding that some time has elapsed since these criminal offences occurred, the ABC Commissioner submitted the disclosed convictions must be taken into account and considered as part of the evaluative exercise the Commission must undertake to assess whether Mr Smith is a fit and proper person to hold an entry permit. I accept this submission as it is plainly correct.
Section 513(1)(a) – received appropriate training?
[17] Mr Smith received training about the rights and responsibilities of a permit holder on 4 July 2019.16 The training was conducted by a senior legal officer of the CFMMEU. It was a structured course presented on an individual face to face basis. The training materials relied on had been approved by the Commission.17
[18] I consider the training undertaken by Mr Smith was appropriate training for the purposes of s.513(1)(a) and this permit qualification matter weighs in favour of a conclusion that he is a fit and proper person to hold an entry permit.
Section 513(1)(b) – convictions for offences against industrial law?
[19] Mr Smith has not been convicted of an offence against an industrial law.18 He has been a building industry participant since about 1992, having worked as a labourer and scaffolder, and conducted his own business. He has been employed as an organiser with the CFMMEU for over 3 years and for most of that period he has held a permit under the Act. Mr Smith has also held Work Health and Safety Permits issued pursuant to the Work Health and Safety Act 2011 (NSW) since August 2016.19
[20] As Mr Smith has not been convicted of any offence against industrial law and given the period of his involvement in the building industry, this permit qualification matter also weighs in favour of a conclusion that Mr Smith a fit and proper person to hold an entry permit.
Section 513(1)(c) – convictions for offences against relevant laws involving certain conduct?
[21] As disclosed in the material Mr Smith has been convicted of several offences against the laws of New South Wales which fall for consideration under the permit qualification matter described in s.513(1)(c) of the Act. The convictions in summary form are as follows:
• licence plates calculated to deceive, 23/8/1989, for which he was fined $150;
• stealing, 19/2/1991, for which he was released on a recognisance after payment of $1,500 and required to be of good behaviour for 18 months;
• licence plates calculated to deceive, 15/5/1991, for which he was fined $250;
• two counts of stating false particulars, 5/8/1991, for which he was fined $150 on each charge;
• possessing a prohibited drug, 1/6/1993, for which he was fined $300;
• supplying a prohibited drug, 1/6/1993, for which he was required to perform 150 hours of community service;
• receiving stolen good, 1/6/1993, for which he was required to perform 50 hours of community service; and
• common assault, 6/5/1996, for which he was released on a recognisance to be of good behaviour for 12 months.20
[22] These convictions though relevant were entered a significant time ago. The most recent conviction was entered more than 23 years ago. These convictions were disclosed to, and considered by Deputy President Lawrence before the Deputy President issued his decision to grant a permit with the condition to which reference has earlier been made.18 It is apparent that the Deputy President did not consider that these matters when weighed in the balance with other permit qualification matters, had the result that Mr Smith was not then a fit and proper person to hold an entry permit with a condition. I would agree. Taking into account the passage of time since the convictions, and the absence of any further convictions of the kind described in s.513(1)(c) of the Act, though the convictions weigh against a conclusion that Mr Smith is a fit and proper person to hold an entry permit, the weight that is to be attributed is small, and commensurate with the historical nature of convictions. Moreover, the assessment is as to Mr Smith’s fitness and propriety to hold an entry permit today, not more than two decades ago.
Section 513(1)(d) – ordered to pay a penalty under the Act any other industrial law?
[23] Neither Mr Smith, nor any other person has been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Mr Smith.21 Mr Smith has been a union official since 19 July 2016 and a permit holder under the Act since 5 October 2016. There is no suggestion that he has in that time conducted himself otherwise that lawfully and appropriately. A point of distinction with some of his colleagues. This permit qualification matter weighs in favour of a conclusion that Mr Smith is a fit and proper person to hold an entry permit.
Section 513(1)(e) – entry permit under the Act or similar Commonwealth law revoked, suspended or made subject to conditions?
[24] Mr Smith’s entry permit, which at the time of my decision, was current, has not been revoked or suspended since it was issued. He has not held any other permit under the Act or under a similar Commonwealth law. Such permit as he has held has not been revoked or suspended. As earlier noted, Mr Smith’s current permit was issued with a condition with which there has been compliance. The condition required Mr Smith’s employer to provide a report to the Commission’s regulatory board about his compliance with the obligations of an entry permit holder. The report, dated 5 October 2017, attest to the fact that the employer has monitored Mr Smith’s compliance with the right of entry provisions and that it is satisfied that Mr Smith understands his obligations as the permit holder and that he has conducted himself in a manner that is consistent with those obligations. The report also notes that the organisation had not received any complaints from employees in the industry about Mr Smith’s conduct while exercising his right of entry and that it has not received any complaints from the ABC Commissioner as to Mr Smith’s conduct while exercising those rights. Finally, the report notes that Mr Smith is not subject to any proceedings under the Act nor had he received any letters of caution from the ABC Commissioner.22
[25] Given the circumstances in which the condition attached to Mr Smith’s entry permit and the content of the report the subject of the condition, I consider that aspect of this permit qualification matter to be neutral. Taking into account the permit qualification matter as a whole I consider that it weighs in favour of a conclusion that Mr Smith is a fit and proper person to hold an entry permit.
Section 513(1)(f) – under state or territory law, condition imposed, cancellation or suspension or permit or relevant disqualification?
[26] As earlier noted, Mr Smith is the holder of a permit under s.134 of the Work Health and Safety Act 2011 (NSW). A permit was first issued on 26 August 2016. A further permit was issued to Mr Smith on 26 August 2019.23 That permit is current. No action of the kind described in s.513(1)(f) of the Act has been taken against Mr Smith. This permit qualification matter weighs in favour of a conclusion that Mr Smith is a fit and proper person to hold an entry permit.
Section 513(1)(g) – any other relevant matters?
[27] The declarations together with the national police check certificate24 tendered by the CFMMEU disclose a number of other convictions for various offending between January 2001 and October 2010 mainly related to unlicensed driving and speeding offences, but not exclusively so. These criminal convictions on Mr Smith’s record do not relate to the exercise by him of entry rights or relate to industrial relations matters and were disclosed to Deputy President Lawrence during proceedings in 2016 which resulted in the issuing of the aforementioned permit with a condition.
[28] The ABC Commissioner contended that the criminal offending disclosed above shows that Mr Smith has consistently and repeatedly broken the law even after several convictions and whilst this criminal conduct seems to have abated after 2010, the history nevertheless raises significant issues as to whether there can be confidence that Mr Smith is able to abide by the law.
[29] The point is well made and is clearly relevant in the assessment. Nonetheless there is the passage of time in relation to this offending and more relevantly the apparently unblemished conduct of Mr Smith as a permit holder exercising rights and meeting obligations under the Act as counterbalancing factors in the assessment.
[30] A further matter disclosed in the declarations and the national police check certificate is a conviction on 19 April 2019 for a drink driving offence which resulted in a disqualification of Mr Smith’s drivers licence for a period of 3 months, the imposition of a fine in the sum of $800 and an order that he participate in an alcohol interlock program.
[31] The ABC Commissioner contended that the most recent criminal conviction, taken together with Mr Smith’s previous extended criminal history calls into question whether Mr Smith is a fit and proper person to hold an entry permit. The CFMMEU contended that the most recent offence is not relevant, for the purposes of s.513(1)(g), to the question of whether Mr Smith is a fit and proper person to be issued an entry permit. The offence was committed on the weekend outside of work time. It did not relate to Mr Smith’s duties as an organiser or to his exercise of rights under Part 3-4 of the Act. The CFMMEU says that the offence cannot rationally affect the assessment of whether he is a fit and proper person to hold an entry permit. It is incapable of saying anything about Mr Smith’s personal characteristics which are pertinent to the discharge of the functions and exercise of the rights and privileges associated being an entry permit holder.
[32] If the most recent driving offence was the only example of offending conduct I might tend to agree with the CFMMEU’s contention, but it is not. The most recent offending taken together with his extensive history of offending rationally calls into question his judgement.
[33] I agree with the observations of Commissioner Saunders as he was then, expressed in Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch25in relation to a conviction for using offensive language in a public place, behaving in an offensive manner in a public place and resisting an officer in the execution of their duty, that such a conviction shows a lack of judgement on the part of a proposed permit holder and should be weighed in assessing whether a proposed permit holder is a fit and proper person to hold an entry permit.26 This is because a permit holder will have important rights and obligations under the Act and will be required to exercise judgement on a regular basis in exercising those rights and in complying with those obligations.
[34] Given Mr Smith’s previous criminal offending, the most recent offending shows poor judgement and is thus relevant.
[35] To his credit, Mr Smith gave evidence and was cross examined by the ABC Commissioner about the most recent offending. His evidence was that although he knew it was a criminal offence to drive a motor vehicle over the prescribed limit he did not know that he was over the limit.27 He recorded a reading of 0.08.
[36] Mr Smith said that it was poor judgement on his part to drive after having consumed alcohol during the course of that day.28 He said that he regretted the commission of the offence and that after undertaking a driver education program he understands the risks that he took for his own safety and for the safety of others, and that driving whilst under the influence of alcohol can have serious adverse consequences for himself and for others.29 Mr Smith said he will not drive at all if he has been drinking. 30
[37] Mr Smith’s evidence shows remorse for his conduct, acceptance of responsibility and acknowledging wrongdoing and is a matter that is also relevant to the assessment I need to make.
[38] Overall I consider that while the history of the mainly driving related offences are relevant, taking into account Mr Smith’s candour, remorse and acceptance of responsibility, and his record as a permit holder, that offending does not weigh so heavily as to support a conclusion that Mr Smith is not a fit and proper person to hold an entry permit under the Act.
Conclusion
[39] Taking into account the permit qualification matters and weighing them individually and together I am satisfied that Mr Smith is a fit and proper person to hold an entry permit.
[40] Pursuant to my decision recorded in the transcript on 19 February 2020, a permit has been issued.
DEPUTY PRESIDENT
Appearances:
P Boncardo of Counsel for the Applicant
B Vallence for the ABC Commissioner
Hearing details:
2020
Sydney
19 February
Printed by authority of the Commonwealth Government Printer
<PR717060>
1 Building and Construction Industry (Improving Productivity) Act 2016 s.110(2)
2 Construction, Forestry, Mining and Energy Union [2016] FWC 7106, Lawrence DP
3 Construction, Forestry, Maritime, Mining and Energy Union [2019] FWC 6814
4 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]
5 [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]
6 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
7 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in Construction, Forestry, Mining and Energy Unionv Hamberger and Another (2011) 195 FCR 74 at [103]
8 (1987) 16 FCR 167 at 184
9 [1986] HCA 40,(1986) 162 CLR 24
10 Ibid at [15], p 41
11 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 at [32]
12 Exhibits 1, 2, 3 4, 5 and 6
13 [2016] FWC 4052
14 Ibid at [34]
15 Ibid
16 Declarations filed with the application
17 See Exhibit 5
18 Declarations filed with the application
19 Exhibit 4
20 Exhibit 3
21 Declarations filed with the application
22 Exhibit 6
23 Exhibit 4
24 Exhibit 3
25 [2018] FWC 4489
26 Ibid at [27]
27 Transcript of Proceedings at PN155
28 Ibid at PN221, PN223
29 Ibid at PN256 - 262
30 Ibid at PN281
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