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

[2021] FWC 1484

[2021] FWC 1484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch
(RE2020/989)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 18 MARCH 2021

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

[1] On 9 November 2020 the Construction, Forestry, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch (CFMMEU) 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 CFMMEU.

[2] The right of entry permit held by Ms Mallia 1 expired on 17 January 2021. I extended the operation of Ms Mallia’s entry permit until the determination of the application for a new permit for Ms Mallia.

[3] The Australian Building and Construction Commissioner (ABCC) intervened in these proceedings and made submissions against the CFMMEU’s application for a right of entry permit for Ms Mallia.

[4] On 4 March 2021 I conducted a hearing, by video conference, to determine the application for a new right of entry permit for Ms Mallia. No witnesses were required for cross examination. Oral submissions were made on behalf of each of the CFMMEU and ABCC to supplement the written submissions filed by each party. As to the evidence, the CFMMEU relied on a declaration made by Mr Darren Greenfield, New South Wales Divisional Branch Secretary of the CFMMEU, dated 9 November 2020, and a declaration made by Ms Mallia on 9 November 2020 dealing with the permit qualification matters. The ABCC did not adduce any evidence. The CFMMEU also tendered a statement of agreed facts and admissions filed in the Federal Court proceedings to which I refer below.

Statutory Framework

[5] 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.

[6] 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

[7] 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

[8] 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

[9] 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.”

[10] 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).”

[11] 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.”

[12] 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

[13] 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

[14] 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), (d), (e) and (f)

[15] According to the declarations filed by the CFMMEU 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 5 November 2020;

(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) neither Ms Mallia nor any other person has ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Ms Mallia (s 513(1)(d) of the Act);

(e) 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

(f) 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).

[16] 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),(d),(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)(g)

[17] Pursuant to s 513(1)(g) of the Act, in deciding whether Ms Mallia is a fit and proper person I must take into account any other matters that I consider relevant. Any such matters must be relevant to whether Ms Mallia is a fit and proper person to hold a right of entry permit.

[18] Ms Mallia is a respondent to proceedings before the Federal Court of Australia (Botany Cranes Proceeding). 11 The ABCC is the applicant in those proceedings, and the CFMMEU is also a respondent. The statement of agreed facts and admissions filed in the Botany Cranes Proceeding was tendered to the Federal Court for the purposes of the Federal Court determining penalties to be ordered against the respondents, including Ms Mallia. So far as the statement of agreed facts and admissions contains admissions, those admissions are made, and are only intended to be made, for the purposes of those proceedings only. A penalty hearing was conducted before Justice Rares on 3 September 2020. His Honour has reserved his judgment on penalty.

[19] The CFMMEU accepts, rightly in my view, that the conduct of Ms Mallia, as disclosed in the statement of agreed facts and admissions filed in the Botany Cranes Proceeding, is relevant to my assessment of whether Ms Mallia is a fit and proper person to hold an entry permit. The statement of agreed facts and admissions contains the following relevant information:

“8. Mallia is and was at all material times:

(a) the President of the NSW Divisional Branch of the CFMMEU and a member of its Committee of Management;

(b) an official of the CFMMEU within the meaning of sections 94 and 95 of the BCIIP Act;

(c) an employee and member of the CFMMEU;

(d) a building industry participant within the meaning of section 5 of the BCIIP Act; and

(e) with regard to the actions taken by Mallia pleaded below, an official of the CFMMEU acting in that capacity and within the scope of her actual or apparent authority.

…

C. The Botany Cranes Enterprise Agreement

12.From 2012 Botany Cranes was covered by an enterprise agreement entered into with its employees and the CFMEU, called the Labour Services Pty Ltd/ t/as Botany Cranes & Employees & CFMEU Collective Agreement 2012-2015, which had a nominal expiry date of 31 May 2015 (the 2012 Enterprise Agreement).

13.From in or about February 2018 the CFMMEU on behalf of its members who were Botany Cranes employees, engaged in discussions with Botany Cranes with a view to agreeing the terms and conditions of an enterprise agreement to replace the 2012 Enterprise Agreement.

14.In February 2018 the CFMMEU provided Botany Cranes with a proposed CFMMEU enterprise agreement to be made between Botany Cranes, its employees and the CFMMEU.

15.In or around July 2018 the CFMMEU provided Botany Cranes with a further CFMMEU proposed EBA (CFMMEU Proposed EBA). On 23 August 2018, the employees of Botany Cranes voted to approve the proposed EBA.

16.Griffiths did not agree to or accept the CFMMEU Proposed EBA and in August 2018 Botany Cranes provided the CFMMEU with a copy of an enterprise agreement proposed by Botany Cranes.

17.In September 2018 the CFMMEU commenced proceedings in the Fair Work Commission for approval of the CFMMEU Proposed EBA pursuant to section 185 of the FWA, alleging that Botany Cranes had accepted the CFMMEU Proposed EBA, an allegation denied by Botany Cranes.

18.On 11 December 2018 the Fair Work Commission dismissed the CFMMEU's application for approval of the CFMMEU Proposed EBA (Construction, Forestry, Maritime, Mining and Energy Union [2018] FWC 6708). (Dismissal Decision)

19.On 24 January 2019, a Full Bench of the Fair Work Commission heard an appeal by the CFMMEU from the Dismissal Decision.

20. On 15 April 2019, a Full Bench of the Fair Work Commission upheld an appeal from the Dismissal Decision, quashed the primary decision and remitted the matter for re-hearing to the primary decision maker (CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717).

D. Botany Cranes's jobs and termination of Byrnes in January 2019

21.By 24 January 2019 Griffiths had formed the view that Byrnes was providing advance information to the CFMMEU about the locations of Botany Cranes's jobs, thereby assisting the CFMMEU to Conduct interference with Botany Cranes's business.

22.As a consequence of the view formed by Griffiths, at about 1pm on 24 January 2019 he met with Byrnes and told Byrnes someone was tipping off the CFMMEU, to which Byrnes responded with words to the effect: "Maybe sign the EBA and it will stop." Later that day Griffiths asked Byrnes if he was sabotaging the business, and not believing Byrnes's denial, terminated Byrnes's employment by Botany Cranes with immediate effect. Byrnes then said to the nearby employees "Don't worry boys, I'll be back."

E. CONTRAVENING CONDUCT —25 JANUARY 2019

23. After the termination of Byrnes on 24 January 2019, the CFMMEU circulated to all its members, including Botany Cranes employees, a text message calling on them to attend at the Botany Cranes Yard on 25 January 2019 to protest against the termination of Byrnes's employment. A copy of the text was received by Griffiths on 24 January 2019.

24. As a consequence of receiving the text, Hodges arranged for Botany Cranes to sub-contract or cancel some of its jobs scheduled for 25 January 2019, causing Botany Cranes to lose revenue of approximately $31,723.50 and an amount of profit.

25. Griffiths also instructed all Botany Cranes employees to attend for work at the Botany Cranes Yard at 7 am on 25 January 2019 to receive instructions for work on other jobs scheduled for that day.

26. From approximately 5:30 am on 25 January 2019 Kera, Mallia, M Greenfield, Byrnes, and other CFMMEU members attended the Botany Cranes Yard and congregated outside the main vehicle entrance of the Yard. By 6:45 am the group contained about 50 persons.

27. Some members of the group:

(a) wore CFMMEU branded clothing (including Kera, M Greenfield and Mallia);

(b) carried or affixed to the Botany Cranes Yard fence approximately 15 CFMMEU flags or banners;

(c) parked a square box trailer emblazoned with "CFMEU" in large letters adjacent to the driveway;

(d) positioned themselves as a group across the entry gate so that any person or vehicle entering or leaving the Yard had to pass through them as well as obstructing the public footpath outside the Yard in Hale Street and spilling out onto the roadway of Hale Street;

(e) stood with their arms folded across the entry gate;

(f) set up and sat in chairs on the driveway immediately outside the Yard gate in such a position that any vehicle leaving the Yard would have to collide with the chairs;

(g) were addressed by Kera who, inter alia, thanked the CFMMEU members for turning out, told them they were forming a picket, told them they were going to fight to the death to have Byrnes reinstated, told them the company had sacked the delegate before and that the union had got the delegate reinstated, told them Botany Cranes had picked a fight with the CFMEU, told them the workers hadn't had a pay rise in three and a half years, told them the company had double-crossed the CFMMEU on the CFMMEU Proposed EBA by refusing the sign it after agreeing to it, told them they were going to wipe the floor with Botany Cranes and accused Botany Cranes of double-crossing the CFMMEU on the CFMMEU proposed EBA;

(h) were addressed by M Greenfield and Mallia, who thanked the CFMMEU members for turning up at the Botany Cranes Yard;

(i) listened to an address by Byrnes who said words to the effect "Thank you for your support. I've worked for three owners of Botany Cranes. This has to be the worst owners (sic) I've ever witnessed in my whole life in the building industry" and thanked those present for turning up to support him;

(j) told Hall upon his arriving for work that he could not enter the Yard and no one could enter the Yard;

(k) Hodges heard upon her arriving for work to the effect "Here's one of them", "They're a bunch of dogs", "CFMEU" and "They shafted Howard for standing up for his men", making her feel fearful, ill and causing her to cry. The Applicant does not contend that the quoted statements were directed at

Hodges. A copy of video footage showing Hodges entering the Yard is annexed and marked "A";

(l) (including Mallia, M Greenfield, Kera and Byrnes) chanted aggressively "Union, Power!" and "Who are we — CFMEU!", "One day longer, one day stronger" and "The workers united will never be defeated" led by Byrnes on a megaphone, while some shook their fists in the air towards the Botany Cranes offices, which conduct was visible and audible from those offices; and

(m) shouted together from time to time words to the effect "CFMEU, one fight, stand together", "CFMEU", "We'll be here every day until our delegate is reinstated", "We 're here for Howard Byrnes" and "Our Brother Howard Byrnes".

28. At approximately 6 am members of the group identified to Police in attendance that Kera was the person in charge of the group.

29. In response to the conduct of the group:

(a) A number of NSW Police attended the Yard from approximately 6:00am onwards and monitored the group outside the Yard gate;

(b) Hodges was fearful and cried out: "someone get me inside the gate" and she requested Police assistance to enter the Yard and entered the Yard through the group;

(c) Hodges called the office receptionist, Tara Canin, and advised her not to attend work for fear of being intimated and distressed by the group;

(d) Hall did not attend for work;

(e) the NSW Police advised Griffiths that the picket would not allow any cranes to leave the Yard, that staff and management could leave, and that for their safety they should be escorted by Police due to the presence and conduct of the group;

(f) Griffiths decided that cranes could not be moved from the Yard that day and to close the office for the day and that the employees inside the Yard should leave.

30. At approximately 7:00 am Kera advised NSW Police that the management and staff of Botany Cranes could leave the Yard only in their personal cars.

31. At approximately 8:00 am Griffiths, Hodges, Ross Griffiths, Peterson and other staff of Botany Cranes, with the assistance of Police, left the Yard in their personal vehicles at which time members of the First Picket:

(a) formed groups close on either side of the leaving vehicles;

(b) shouted aggressively and in unison, led by M Greenfield, chants to the effect of and "CFMEU!" and words to the effect of "One day longer, one day stronger".

32. Each of Kera, M Greenfield, Mallia, and Byrnes joined in the conduct of the group, lent their aid to and associated themselves with the group by actively remaining in it until at least about 9:00 am, and participated in the activities of the group in restricting access and egress to the Yard, including blocking the egress of persons driving any cranes, and chanting slogans.

33. At approximately 8:45 am Kera advised Inspector Halliday of the NSW Police that the group would remain in place until 2 pm or possibly later.

34. Some members of the group, including M Greenfield, remained outside the Yard until approximately 4 pm.

35 At 8:45 pm the CFMMEU posted on its Facebook page a photograph of Byrnes, Bulley, McIvor, Anderson, Miller and Astrup standing on the pavement in Hale Street. The page stated: "Botany Cranes sacked this man for standing up for a fair go at work" and marked with an arrow pointing at the image of Byrnes, and further captioned, inter alia, "Reinstate CFMEU delegate Howard Byrnes who was unfairly sacked for standing up for his fellow workers. Sign the EBA that was agreed upon! Don't go back on your word!". A copy of that Facebook post is annexed to this Statement and marked "B". A copy of a Google Maps image depicting where the photograph was taken is annexed to this Statement and marked "C". A copy of a Google Streetview image depicting where the photograph was taken is annexed to this Statement and marked "D".

36. The actions of each of Kera, M Greenfield, Mallia and Byrnes in participating in the activities of the group set out in paragraphs 26 to 32 above constituted engaging in (and in the case of M Greenfield, organising) an unlawful picket within the meaning of section 47 of the BCIIP Act in that their actions:

(a) had the purpose of preventing or restricting persons from accessing or leaving the Botany Cranes Yard; or

(b) prevented Hall and persons driving cranes from leaving the Botany Cranes Yard, and restricted persons from accessing or leaving the Botany Cranes Yard; or

(c) would reasonably be expected to intimidate persons accessing or leaving the Botany Cranes Yard; and

(d) were motivated by the purpose of supporting or advancing claims against Botany Cranes in respect of employment of employees by Botany Cranes; or

(e) were motivated by the purpose of advancing industrial objectives of the CFMMEU, namely, the claim to reinstate Byrnes to his employment, and the securing of Botany Cranes's agreement to the EBA proposed by the CFMMEU.

37. By reason of the matters in paragraphs 23 to 36 above, each of Kera, M Greenfield, Mallia and Byrnes contravened section 47 of the BCIIP Act by engaging in (and, in the case of M Greenfield, organising) an unlawful picket.

38. The conduct and actions of each of Kera, M Greenfield, Mallia and Byrnes on 25 January 2019 at Botany Cranes Yard, as set out at 23 to 36 above, by reason of sections 94(1)(a) and 95(1)(b) of the BCIIP Act, was the conduct and actions of the CFMMEU, which thereby contravened section 47 on 25 January 2019.

39. The conduct of each of Kera, M Greenfield, Mallia and Byrnes on 25 January 2019 at the Botany Cranes Yard, referred to in paragraphs 23 to 36 above, constituted the taking of action against Botany Cranes with intent to coerce Botany Cranes to employ Byrnes as a building employee, that was unlawful, and contravened section 52 of the BCIIP Act.

40. For the purposes of "coercion" within the meaning of section 52, the conduct of Kera, M Greenfield, Mallia and Byrnes was unlawful in that it constituted an unlawful picket in contravention of section 47 of the BCIIP Act

41. The conduct and actions of each of Kera, M Greenfield, Mallia and Byrnes on 25 January 2019 at Botany Cranes Yard, as set out in paragraphs 23 to 36 and 39 to 40, by reason of sections 94(1)(a) and 95(1)(b) of the BCIIP Act, were the conduct and actions of the CFMMEU, which thereby contravened section 52 on 25 January 2019.

[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 CFMMEU 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. 12

[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 CFMMEU 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.

Conclusion

[24] 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.

[25] The admissions made by Ms Mallia in relation to her conduct in connection with the Botany Cranes Proceeding are matters which, in my view, ought be given appropriate weight because of the questions they raise in relation to whether there is a basis for confidence that Ms Mallia, who is clearly a senior office holder of the CFMMEU, would make proper and lawful use of a right of entry permit if she were issued with one. Balanced against these matters are the factors in s 513(1)(a),(b),(c),(d),(e) and (f) of the Act, which weigh in favour of a finding that Ms Mallia is a fit and proper person to hold a right of entry permit. In addition, it is relevant to have regard to the fact that Ms Mallia has worked for the CFMMEU for just over 24 years and, putting to one side her conduct in connection with the Botany Cranes Proceeding, no findings of contraventions of any industrial law have been made against Ms Mallia. The matters which weigh in favour of a finding that Ms Mallia is a fit and proper person to hold a right of entry permit outweigh those that weigh against such a conclusion. However, if Ms Mallia were to engage in any further contravention of an industrial law, I would find it difficult to have the necessary degree of confidence that Ms Mallia would make proper and lawful use of a right of entry permit.

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

[27] 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

Representation:

Mr P Boncardo, of counsel, forthe CFMMEU.
Mr D Mahendra, of counsel, on behalf of the ABCC.

Submissions:

ABCC, 21 December 2020
CFMMEU, 25 January 2021

Printed by authority of the Commonwealth Government Printer

<PR727900>

 1   RE2017/1374

 2 Section 480 of the Act

 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   NSD574 of 2019

 12   Construction, Forestry, Maritime, Mining and Energy Union [2020] FWC 1053 at [15]