Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch

[2021] FWC 6612

[2021] FWC 6612

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2021/1032)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 17 DECEMBER 2021

Application for a right of entry permit for Peter J D’Arcy – whether fit and proper person to hold an entry permit under the Act – satisfied that Mr D’Arcy is a fit and proper person to hold a permit – permit issued.

[1] Mr Peter Joseph D’Arcy is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) who was issued a right of entry permit with a condition under ss 512(1) and 515(1) of the Fair Work Act 2009 (Act) by decision on 14 November 2018.¹ Before that permit expired, the CFMMEU applied under s 512 of the Act for a new entry permit to be issued to Mr D’Arcy and under s 516 of the Act for Mr D’Arcy’s current entry permit to be extended, pending the determination of the s 512 application. I granted the latter application and by order I extended the expiry date of Mr D’Arcy’s right of entry permit (RE2018/1075) until 22 January 2022.² This decision deals with the substantive application.

[2] Pursuant to s 112 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) the Australian Building and Construction Commissioner (Commissioner) was given notice of the application and subsequently gave notice pursuant to s 110 of the BCIIP Act that he intervenes in the proceeding and that he wished to make submissions in relation to this application. I issued directions on 14 October 2021 for the orderly disposition of the application and fixed a tentative hearing date for 8 December 2021. Ultimately neither the CFMMEU nor the Commissioner pressed for an oral hearing and both were content for the application to be determined on the papers. I consider the application may be so determined and that it is appropriate in the circumstances to do so.

[3] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing relevantly with issuing entry permits to officials of registered organisations. Section 512 of the Act provides that the Commission may, on application, issue a right of entry permit to an official of an organisation if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the Act contains a number of matters described as permit qualification matters that the Commission must take into account in deciding whether an official is a fit and proper person to hold an entry permit. The matters are:

•  Whether the official has received appropriate training about the rights and responsibilities of a permit holder;

•  Whether the official has ever been convicted of an offence against an industrial law;

•  Whether the official has ever been convicted of an offence against a Federal, State/Territory or foreign law involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property;

•  Whether the official or any other person has even been ordered to pay a penalty under the Act or other industrial law in relation to the action taken by the official;

•  Whether a permit issued to the official under the Act or similar law of the Commonwealth has been revoked, suspended or made subject to conditions;

•  Whether a court or other person or body under State/Territory law or OHS law has cancelled, suspended or imposed conditions on a permit for industrial or OHS purposes or disqualified the official from exercising or applying for a right of entry for industrial or OHS purposes; and

•  Any other matters that the Commission considers relevant.

[4] Section 514 of the Act restricts the Commission’s power to issue a right of entry permit at a time when a suspension or disqualification imposed by a court or other person or body applies to the official’s exercise of or prevents the official from exercising or applying for a right of entry for industrial or OHS purposes under a State/Territory industrial or OHS law.

[5] Section 515 of the Act gives the Commission power to impose a condition on a right of entry permit when it is issued and in deciding whether to do so, the Commission must take into account the permit qualification matters to which earlier reference has been made.

[6] The relevant principles for determining applications of this kind in the context of the statutory framework are well settled. They are not in dispute and it is unnecessary to repeat them here.

[7] Mr D’Arcy is an organiser employed by the CFMMEU. As earlier noted, he currently holds an entry permit but before its issue he had not held a right of entry permit under the Act.

[8] Accompanying the application were declarations of the Divisional Branch Secretary of the CFMMEU and Mr D’Arcy directed to the permit qualification matters in s 513 of the Act. The Commissioner does not dispute any of the matters disclosed by the declarations. They disclose and I accept that Mr D’Arcy 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 by CFMMEU and successfully completed by Mr D’Arcy on 27 August 2021 (s 513(1)(a) of the Act);³

•  never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);⁴

•  never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s 513(1)(c) of the Act;⁵

•  had his current entry permit issued with a condition under Part 3 – 4 of the Act but has not otherwise had any entry permit issued under that part or a similar law of the Commonwealth revoked, suspended or had imposed conditions (s 513(1)(e) of the Act);⁶

•  has not had cancelled, suspended or conditions imposed by a court or other person or body under a State or Territory industrial or occupational health and safety law on any right of entry permit issued for industrial or occupational health and safety purposes and held by Mr D’Arcy (s 513(1)(f)(i) of the Act);⁷ and

•  has not been disqualified by a court or other person or body under a State or Territory industrial or occupational health and safety law 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 of the Act).⁸

[9] Since the materials do not disclose whether Mr D’Arcy has held a right of entry permit for industrial or occupational health and safety purposes issued under a State or Territory industrial law or a State or Territory occupational health and safety law, the permit qualification matters in s 513(1)(f)(i) and (ii) weigh neutrally as absent such a permit these permit qualification matters could never arise. The condition imposed on his current entry permit when issued does not tell against a conclusion that he is a fit and proper person, particularly as the condition assisted in attaining the requisite satisfaction on that occasion and the condition has since been met. The other matters discussed above all weigh in favour of a conclusions that Mr D’Arcy is a fit and proper person to hold an entry permit under the Act.

[10] At the time I considered the CFMMEU’s application to issue Mr D’Arcy his current permit, Mr D’Arcy disclosed that in a Federal Circuit Court proceeding in Australian Building and Construction Commissioner v Peter Joseph D’Arcy and Anor the Commissioner alleged that he had contravened ss 346, 348 and 349 of the Act. At that time Mr D’Arcy disclosed that he had agreed to admit to contravening s 349 on the basis that the other alleged contraventions are withdrawn. Although a penalty for the contravening conduct had not yet been imposed, I nevertheless considered the contravening conduct and its admission as relevant in my assessment. In assessing the conduct and the weight that should attach, I said:

“In relation to what this says about Mr D’Arcy’s fitness and proprietary to hold an entry permit, it says that he engaged in conduct in serious disregard for the Act by making misrepresentations and coercing a worker to join the union. Entry rights may be exercised for discussion and effectively recruitment purposes. The admission of the contravening conduct in the circumstances raises issues about Mr D’Arcy’s understanding of the rights of and regard for employees who may not wish or who may not be interested in joining the CFMMEU. Against this is to balance the fact the Mr D’Arcy has undertaken appropriate training about the rights and obligations of a permit holder under the Act, he will undertake further training and there is no evident repetition of the conduct which occurred in March 2017. In these circumstances, having regard to Mr D’Arcy’s admission of the contravening conduct, the matter does not weigh heavily against a conclusion that Mr D’Arcy is a fit and proper person to hold an entry permit.”9

[11] On 7 March 2019 the Federal Circuit Court delivered judgment on penalties in Australian Building and Construction Commissioner v D’Arcy and Anor.¹⁰ The Court imposed a penalty of $6,480.00 on Mr D’Arcy for his contravention of s 349 of the Act and a penalty of $48,600.00 on the CFMMEU for contravening s 349 by reason of Mr D’Arcy’s conduct. The circumstances in which the contravening conduct occurred are set out at [3] of the judgment and need not be repeated here. The contravening conduct which occurred on 27 March 2017, involved Mr D’Arcy recklessly making a false or misleading representation about the obligation of a worker to become a member of the then Construction, Forestry, Mining and Energy Union and to pay a membership fee to the union to work on the Grand Central Shopping Centre project construction site Toowoomba, in Queensland. In determining the appropriate penalty, the Court noted that Mr D’Arcy’s conduct which occurred during the course of the work induction process:

•  “had the effect of promoting a “closed union shop””;¹¹

•  offended against the object of the Act relating to a worker’s right to freedom of association;¹²

•  offended against s 336(1)(b)(i) of the Act, which protects the rights of a worker to become, or not to become, a member of a union;¹³

•  was “reckless” conduct with the representations having been made without any inquiry to ascertain the truth or accuracy of the representations and without any or any due care or regard to their truth or accuracy;¹⁴

•  was confrontational;¹⁵

•  was effectively, and practically, an element of coercion;¹⁶

•  was one of indifference to the plight of the worker;¹⁷

•  persisted despite another worker asking “Isn’t that illegal?”, or words to that effect;¹⁸ and

•  cannot be categorised as a low level contravention.¹⁹

[12] The Court also noted that Mr D’Arcy had not shown any remorse for the offending conduct nor had he apologised.²⁰ The Court took into account the admission by Mr D’Arcy at an early stage which saved considerable court time and costs.²¹

[13] The Commissioner submits that Mr D’Arcy’s conduct falls within a long-standing pattern of similar conduct by other site delegates and shop stewards of the CFMMEU, including in Queensland, and so I am entitled to find that Mr D’Arcy engaged in his conduct deliberately and in pursuance of the union’s objectives. This submission is rejected for two reason. First, there was no evidence led to establish “a long-standing pattern of similar conduct by other site delegates and shop stewards” or that Mr D’Arcy engaged in his conduct “in pursuance of the union’s objectives”. Absent any evidence such conclusions are simply not open. Second, concluding that Mr D’Arcy engaged in the conduct deliberately, would travel beyond the agreed facts before the Court and the finding made by the Court.

[14] As to the import of this permit qualification matter, the Commissioner submits in summary:

•  the Commission must be satisfied that Mr D’Arcy can demonstrate he will comply with the law in the future and that he has an adequate understanding of the law and the personal qualities necessary to act prudently rather than recklessly, so as to minimise the risk of “inadvertent” non-compliance in exercising his rights as a permit holder;

•  the fact that some time has elapsed since Mr D’Arcy engaged in the contravening conduct should be accorded appropriate weight, but the mere effluxion of time does not automatically lead to a conclusion that a person has reformed;

•  Mr D’Arcy deliberately implemented a policy of “no ticket, no start” on the site on 17 March 2017, engaged in coercive conduct towards a worker who was reluctant to join the union, and acted recklessly in making the misrepresentations in contravention of s 349 of the Act;

•  there is no evidence about Mr D’Arcy’s attitude to compliance with the law, whether he is remorseful for his contravening conduct or whether he now understands that a person cannot be prevented from working because they are not a member of a union;

•  Mr D’Arcy has not provided any evidence concerning his understanding of industrial laws subsequent to the training he undertook pursuant to the condition attached to his current permit and so a serious question remains as to whether Mr D’Arcy fully appreciates and understands his previous unlawful conduct and what he has done to ensure it will not be repeated;

•  Mr D’Arcy has not given any evidence that he paid the penalty imposed on him (as opposed to the CFMMEU or some other person making the payment for him). Consequently, there remains a question whether the penalty has had any substantial deterrent effect upon him or otherwise affected the way in which he will behave in the future;

•  a legitimate question arises as to whether the Commission can be satisfied that Mr D’Arcy possesses the requisite behaviours and qualities to exercise the privileges and powers bestowed on a permit holder.

[15] There can be little doubt that the contravening conduct in which Mr D’Arcy engaged on 27 March 2017 was serious. It was not a low-level contravention and was engaged in by Mr D’Arcy in reckless disregard for the rights of the worker the object of the conduct. It is true that no expression of remorse was given before the Court, or in the matter before me. It is also true that no statement is proffered by Mr D’Arcy about what he has learned from the contravening conduct and the penalty imposed or from the subsequent training. But as I have previously observed an expression of remorse for past wrongdoing is not a condition precedent to the issuing of a permit. The need for and the weight to be attached to any such expression is contextual and depends almost entirely on the individual circumstances pertaining to an application. As to what has been learned by Mr D’Arcy from participating in the court process and from training, articulation in a statement is one way of showing this, but not the only way. A good guide to what has been learned is Mr D’Arcy’s subsequent conduct, particularly and relevantly as a permit holder.

[16] It is to be remembered that the contravening conduct had occurred more than 19 months before his current entry permit was issued on 14 November 2018. Since Mr D’Arcy engaged in the contravening conduct on 27 March 2017, he has undertaken three courses of training. The first in support of his application for his current permit, the second in accordance with the condition I imposed and the third in support of his current application. Since the contravening conduct occurred, there is no evidence that Mr D’Arcy has engaged in any other contravening conduct (and no suggestion that he has), and there is no evidence or suggestion that as a permit holder he has conducted himself otherwise than in accordance with the law. This record speaks more eloquently of what he has learned and whether he is willing to comply with the law than any statement he might otherwise have chosen to proffer about these matters. In these circumstances I do not consider that the absence of an expression of remorse or a statement of evidence about what Mr D’Arcy has learned from the training undertaken or from his experience in participating in the court processes as raising questions about his fitness and propriety to hold an entry permit.

[17] As to the contravening conduct itself and the import of the penalty imposed as a permit qualification matter, I would make the following observations. As I have said, the contravening conduct was serious. It was engaged in during the induction process while holding discussions with workers. Subject to some limitations, discussions with employees on entry as a permit holder is one of the rights that a permit holder may exercise. It is a right that is often exercised by permit holders for the purposes of recruitment of members. This is the kind of conduct that Mr D’Arcy was engaged in, albeit not as a permit holder, when he contravened s 349 of the Act. This permit qualification matter plainly weighs against a conclusion that Mr D’Arcy is a fit and proper person to hold an entry permit. However, I do not consider that the weight to be attributed to this matter is so significant as to outweigh the other relevant permit qualification matters going the other way or to render Mr D’Arcy unfit to hold a permit. This is because:

•  the contravening conduct occurred over four and half years ago and there is no suggestion that Mr D’Arcy has engaged in contravening conduct of any kind since that contravention;

•  the conduct was reckless rather than deliberate;

•  there is no suggestion that before the contravening conduct Mr D’Arcy had engaged in any other relevant contravening conduct. To that extent having regard to the history preceding the conduct and his record since the conduct, the contravening conduct may properly be regarded as an aberration or a one-off;

•  Mr D’Arcy made an admission at an early stage of the court proceeding and thus may be taken to have accepted his wrongdoing;

•  Mr D’Arcy has undertaken and met the training condition imposed on his current permit. That training was specifically directed to rights and obligations conferred by Part 3-1 of the Act in which s 349 is to be found.

[18] Although I accept there is no evidence about whether Mr D’Arcy personally paid the penalty imposed by the Court it is also not apparent from the judgment whether an order that Mr D’Arcy personally pay the penalty was sought. Certainly such an order was not made. Ultimately whether the imposition of the penalty had any relevant deterrent effect cannot be known except to state the obvious – that Mr D’Arcy has not engaged in contravening conduct since the initial contravention or since the penalty was imposed by the Court. The Commissioner’s submission in this regard takes the matter no further.

[19] I also do not accept the Commissioner’s submission to the effect that a serious question remains as to whether Mr D’Arcy fully understands and appreciates his previous unlawful conduct because there was an absence of evidence about the nature of the training facilitated by Mr Lawrence that he undertook shortly after his current permit was issued. First, there is no proper basis for seeking to impugn the quality of the training that was provided by Mr Lawrence. Mr Lawrence is a former presidential member of the Commission and a former senior union official. While at the Commission, Mr Lawrence was a member of the organisations panel which involved amongst other things Mr Lawrence considering applications by organisations for the issuing of entry permits to officials. Mr Lawrence was in my view eminently qualified to deliver the training to Mr D’Arcy. Second, it may be inferred given Mr D’Arcy’s record since undertaking the training, that it had the desired and intended effect of educating Mr D’Arcy about the rights and obligations conferred by Part 3-1 of the Act.

Conclusion

[20] Taking into account the permit qualification matters, I am satisfied for the reasons stated that Mr D’Arcy is a fit and proper person to hold a right of entry permit. As I am so satisfied, it is not necessary to consider the Commissioner’s contention that a further training condition should be imposed (a course opposed by the CFMMEU) when a permit is issued to Mr D’Arcy.

[21] An entry permit will be separately issued to Mr D’Arcy.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736812>

¹ Application by Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Peter Joseph D’Arcy[2018] FWC 7283

2 See [2021] FWC 6149; PR735003.

3 Form F42 – Application for an entry permit, Declaration by Peter Joseph D’Arcy dated 13 September 2021 at (a)

4 Ibid at (b)

5 Ibid at (c)

6 Ibid at (e)

7 Ibid at (f)

8 Ibid at (g)

9 Application by Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Peter Joseph D’Arcy[2018] FWC 7283 at [25]

10 [2019] FCCA 563

11 Ibid at [4]

12 Ibid

13 Ibid at [5]

14 Ibid at [6]

15 Ibid at [11]

16 Ibid at [13]

17 Ibid at [14]

18 Ibid at [15]

19 Ibid at [16]

20 Ibid at [17]

21 Ibid at [21]