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

[2021] FWC 2587

[2021] FWC 2587

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
(RE2021/89)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 7 MAY 2021

Application by CFMMEU for issue of right of entry permit for Grant Raymond Harradine – satisfied that fit and proper person – permit issued.

[1] On 8 February 2021 the Construction, Forestry, Mining and Energy Union (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 Mr Grant Raymond Harradine, who is employed by the CFMMEU in the position of Official.

[2] The current right of entry permit held by Mr Harradine was to expire on 4 April 2021. 1 On 1 March 2021 I ordered the expiry of Mr Harradine’s current entry permit be extended until this matter was determined.2

[3] The CFMMEU relied on a declaration made by Mr Harradine on 8 February 2021 in support of the application, a declaration made by Mr Michael Ravbar, Divisional Branch Secretary of the CFMMEU, on 8 February 2021, a right of entry training certificate dated 4 February 2021, written submissions dated 22 March 2021 and 19 April 2021, and correspondence from the Commission dated 30 November 2016 to the AMWU regarding Mr Harradine’s right of entry permit issued in 2016. The Australian Building and Construction Commissioner (ABCC) intervened in these proceedings and filed written submissions dated 12 April 2021 opposing the CFMMEU’s application for a right of entry permit for Mr Harradine.

[4] On 1 March 2021 I made a direction that the matter would be determined on the papers unless either or both parties request a hearing. Neither the CFMMEU nor the ABCC requested a hearing. Accordingly, I have determined the application on the basis of the material filed by the parties.

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. 3

[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. 4 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.5 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.6

[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. 7

[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, 8 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) 9, 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.’” 10

[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’.” 11

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 Mr Harradine.

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

[15] According to the declarations filed by the CFMMEU in support of the application for the grant of an entry permit:

(a) Mr Harradine has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act). Mr Harradine completed an approved right of entry course on 4 February 2021.

I am not persuaded by the ABCC’s contention that this consideration should not be given significant weight because no meaningful detail has been provided as to the content or duration of the course and the Fair Work Commission Rules 2013 (FWC Rules) mandates the course as a requirement of making a right of entry permit application. First, because the course was conducted using training materials approved by the Commission, and so it is entirely appropriate and unsurprising that the applicant did not file any material as to the content or duration of the course. Second, because there is no logical basis for the significance of this statutorily mandated consideration being undermined by procedural rules about the making of a right of entry application.

(b) Mr Harradine has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act).

(c) Mr Harradine 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) Mr Harradine 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).

(e) Mr Harradine 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 he 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 Harradine and Mr Ravbar concerning these matters, is true and correct. The permit qualification matters set out in s 513(1)(a), (b), (c), (e) and (f) of the Act weigh in favour of a conclusion that Mr Harradine is a fit and proper person to hold an entry permit.

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

[17] Pursuant to s 513(1)(d) of the Act, in deciding whether Mr Harradine is a fit and proper person I must take into account whether Mr Harradine, or 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 Harradine.

[18] On 17 February 2021 Mr Harradine and the CFMMEU were ordered to pay penalties under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCI Act) in relation to action taken by Mr Harradine in 2019. 12 The BCI Act is an ‘industrial law’ within the meaning of s 513(1)(d) of the Act.

[19] The substantive decision of Justice Rangiah discloses the following relevant information: 13

“24. On 11 March 2019, Mr Harradine entered the NQS site area at about 6 am. The PJ Walsh Constructions employees appear to have taken their break at 10.30 am, and gathered in the lunch room (also called the smoko room). They were addressed by Mr Harradine.

25. Mr Walsh was informed that morning by PJ Walsh Constructions’ site manager, Nathan Smith, that the employees were refusing to work unless they were paid the higher rates under the Union’s Template Agreement. Mr Walsh told the employees that PJ Walsh Constructions was close to signing a Deed of Variation with Watpac which would result in higher rates being paid, and that the difference would be back-paid. The employees were not receptive to his explanation. Mr Smith instructed the employees to go back to work. Four returned to work, but fifteen refused.

26. That afternoon, Brian Hayes, Watpac’s project manager, told Mr Harradine that he needed some workers to finish working on a concrete slab that had been poured that morning. Mr Harradine said that he would allow four workers to complete the work. Four of the fifteen employees left the lunch room and helped to finish the slab. The eleven who remained in the lunch room were the third, fourth, sixth, ninth to fourteenth, seventeenth and eighteenth respondents. They remained in the lunch room and did not perform any further work from 11 am that day. They left the site at 2 pm. I will describe the eleven as the “11 March Employees”.

…

31. On 12 March 2019, fifteen of the Employees attended the NQS Project site and went straight to the lunch room and remained there. Those employees were the 11 March Employees, other than the fourteenth respondent, as well as the fifth, seventh, eighth, fifteenth and sixteenth respondents. I will refer to these employees as the “12 March Employees”.

32. Mr Harradine remained with the 12 March Employees throughout the day. Mr Walsh told the employees that the Deed of Variation was close to being signed off and that he would pay them the increased rate, including back pay, once the variation had been approved. Mr Harradine said, “I’ve got my people in State Parliament telling me different, that it won’t be paid until this project agreement is signed”. Mr Walsh understood that agreement to be the Template Agreement.

33. The Foreman’s Weekly Report shows that the 12 March Employees all signed in at the NQS site at 6 am and that most signed out at 1.30 pm, although some did not sign out at all.

34. In the evening of 12 March 2019, Mr Walsh sent a message by SMS to PJ Walsh Constructions’ employees engaged on the NQS project directing them to attend a meeting at the PJ Walsh Constructions yard at 6.30 am the following day, prior to commencing work at the NQS project. The PJ Walsh Constructions yard was at a different location to the NQS project.

35. On 13 March 2019, fourteen of the Employees did not attend the PJ Walsh Constructions yard, but instead attended the NQS site. Those employees were the 11 March Employees, other than the fourteenth and eighteenth respondents, as well as the fifth, seventh, eighth, fifteenth and sixteenth respondents. I will refer to these fourteen employees as the “13 March Employees”. They did not sign in or out. At about 9.30 or 10 am, they left the NQS site and went to the Union’s office. They did not perform any work that day.

36. On 14 March 2019, thirteen of the Employees did not attend the NQS site and did not perform any work that day. Those employees were the 11 March Employees, other than the thirteenth, fourteenth and eighteenth respondents, as well as the fifth, seventh, eighth, fifteenth and sixteenth respondents. I will refer to these employees as the “14 March Employees”.

37. On 14 March 2019, the Fair Work Commission made an order that all employees employed by PJ Walsh Constructions pursuant to the Enterprise Agreement at the NQS site stop, not engage in and/or not organise industrial action while the order remained in place. On 15 March 2019, the PJ Walsh Constructions’ employees returned to work.

…

57. However, the evidence allows an inference to be drawn that the 11 March Employees were offered work from 6 am to 2 pm on that date. Mr Walsh deposes that the ordinary hours of work for PJ Walsh Constructions’ employees at the NQS site, which I understand to refer to the hours during which they ordinarily carried out work, were from 6 am to 2.30 pm on weekdays. The 11 March Employees signed in for work in the Foreman’s Weekly Report at 6 am. I infer that they had been offered work by SMS message in accordance with the usual practice — otherwise they would not have attended the site and signed in. They signed off at 2 pm. If they were not rostered until 2 pm, it is improbable that they would have remained at the site until that time. I infer that the 11 March Employees had been offered work from 6 am to 2 pm that day. I find that they refused to work from 11 am to 2 pm.

58. The 12 March Employees attended the NQS project site and signed in at 6 am. I infer that they did so because they had been offered work for that day. They did not perform any work, but remained in the lunch room until 2 pm. Messrs Bryant, Crannaford, Duck, Renwick and Roach signed in at 6 am, but did not sign out. I infer, having regard to cl 6.2.3 of the Enterprise Agreement, that they had been offered at least four hours’ work from 6 am. The remainder of the 12 March Employees signed in at 6 am and signed out at 1.30 pm. I infer that they had been offered work from 6 am to 1.30 pm. I find that they refused to perform that work.

59. The 13 March Employees were sent an SMS message on 12 March 2019, directing them to attend a meeting at the PJ Walsh Constructions’ yard at 6.30 am the following day, prior to commencing work at the NQS project. The 13 March Employees went straight to the NQS site, arriving at 6.30 am. They remained in the lunchroom at the NQS site until 9.30 or 10 am before leaving for the Union’s office. As the 13 March Employees did not sign in or sign out, and as they were directed to attend the PJ Walsh Constructions’ yard at 6.30 am, I am unable to determine precisely what hours they were rostered for. However, the respondents admit on the pleadings that an SMS message was sent directing the 13 March Employees to attend at the PJ Walsh Constructions’ yard “prior to commencing work at the NQS Project”, so it is apparent that they must have been offered at least four hours’ work at the NQS project that day. The 13 March Employees did not perform any work that day, and I find that they refused to work.

60. The 14 March Employees did not attend the NQS site at all and did not perform any work that day. The ZenShifts roster in evidence does not establish that the employees were offered work. However, Mr Walsh directly deposes that they were rostered to work on that day. I accept that the 14 March Employees were offered work for at least four hours’ work that day. I find that they refused to work.

61. I reject the respondents’ submission that the evidence fails to demonstrate that the Employees were offered work from 11 to 14 March 2019.

…

108. In my opinion, under the Enterprise Agreement, casual employees are not obliged to accept work offered to them by the employer. Further, even if they accept an offer of employment, they are not obliged to remain at work for the minimum four hours that must be offered.

…

121. The 11 March Employees were offered work from 11 am on that date but refused to work. The 12 March Employees, the 13 March Employees and the 14 March Employees were offered work on those respective dates but refused to work. It is apparent that the relevant employees took collective action on each occasion. They remained together in the lunch room on 11 and 12 March 2019. On 13 March 2019, they remained together in the lunch room and then left for the Union’s office together. On 14 March 2019, none of them attended the NQS site at all, and that non-attendance must be seen in light of the collective action taken on the previous days.

122. The refusal to work arose against the background that, since November 2018, Union officials had applied pressure upon PJ Walsh Constructions to make an enterprise agreement with the Union. Evidence was admitted without objection that on 11 March 2019, PJ Walsh Constructions’ site manager, Mr Smith, was told that the employees were refusing to work unless they were paid the higher rates under the Union’s Template Agreement. That is consistent with evidence that the 12 March Employees were unreceptive to Mr Walsh’s assurances that the higher rates would be paid without the need for a new enterprise agreement, and Mr Harradine’s statement to the effect that his information was that the higher rates would not be paid until the Template Agreement was signed. There was no work performed by any of the Employees from 11 am on 11 March until they recommenced on 15 March 2019 following the orders of the Fair Work Commission.

123. It is apparent from these matters that the Employees refused to work from 11 am on 11 March 2019 because PJ Walsh Constructions was refusing to make an enterprise agreement with the Union. I infer that the Employees made a collective decision that none of them would work for PJ Walsh Constructions until it agreed to do so. This was a “ban” within s 7(1)(b).

124. I find that the 11 March Employees placed a collective, “ban...on the performance of building work by an employee” within s 7(1)(b) of the BCI Act from 11 am on that day. At the same time, they placed a collective, “ban...on the acceptance of ...building work”.

125. The way the Commissioner has pleaded the case is that there was a ban imposed on each of 11, 12, 13 and 14 March 2019. That would require evidence that a separate collective decision to impose a ban was made each day. The evidence demonstrates that the ban was imposed by the 11 March Employees, which was joined in by an additional five employees (the fifth, seventh, eighth, fifteenth and sixteenth respondents) on 12 March 2019. I infer that those five employees made a collective decision to join in the ban on the performance or acceptance of work until PJ Walsh Constructions agreed to make a building enterprise agreement with the Union. I do not accept that the evidence establishes that any further decisions to impose a ban were made on 13 or 14 March 2019. Rather, the ban already imposed continued in force.

126. I find that the relevant employees took “industrial action” within the meaning of s 7(1)(b) on 11 and 12 March 2019.

…

150. I am satisfied that the 11 March and 12 March Employees collectively imposed a ban on the performance and acceptance of work on those dates, which continued in force until 14 March 2019. I am satisfied that the 11 March Employees collectively refused to perform any building work at all from 11 am to 2 pm on that date. I am also satisfied that the 12 March Employees collectively refused to perform any building work at all on that date. Accordingly, they each knew that the others were engaging in industrial action and they themselves engaged in industrial action.

151. Therefore, I am satisfied that each of the Employees engaged in industrial action in contravention of s 46 of the BCI Act.

152. Mr Harradine concedes that if the Employees are found to have taken industrial action, he organised such action. Therefore, I find that Mr Harradine organised industrial action in contravention of s 46 of the BCI Act on 11 and 12 March 2019.

153. The Union concedes that if Mr Harradine is found to have contravened s 46 of the BCI Act, the Union will also have contravened that provision. Therefore, I find that the Union organised industrial action in contravention of s 46 of the BCI Act on 11 and 12 March 2019.

…

164. It is sufficient to conclude that the organisation of actions of the Employees and the actions themselves were illegal. I find that on 11 and 12 March 2019, Mr Harradine organised those actions with intent to coerce PJ Walsh Constructions into making a building enterprise agreement with the Union. That was a contravention of s 54(1) of the BCI Act.

165. The Union concedes that if Mr Harradine contravened s 54 of the BCI Act, the Union is taken to also have contravened that provision on 11 and 12 March 2019.”

[20] The penalty decision of Justice Rangiah discloses the following relevant information: 14

“5. In 2019, the third to eighteenth respondents (the Employees) were employed by PJ Walsh Constructions Pty Ltd (PJ Walsh Constructions) at the site of the NQS under construction. At that time, the Union was engaged in a campaign to persuade PJ Walsh Constructions to make an enterprise agreement with the Union.

6. Mr Harradine is a Union official. I infer that he is employed by the Union as an organiser. On 11 March 2019, Mr Harradine attended the NQS site and addressed a number of PJ Walsh Constructions’ employees. The third, fourth, sixth, ninth to fourteenth, seventeenth and eighteenth respondents refused to perform any work between 11 am and the finishing time of 2 pm. I will describe those eleven employees as the “11 March Employees”.

7. On 12 March 2019, the 11 March Employees (other than the fourteenth respondent), as well as the fifth, seventh, eighth, fifteenth and sixteenth respondents, attended the NQS project site, but refused to work. I will describe those fifteen employees as the “12 March Employees”.

8. None of the Employees performed any work on 13 or 14 March 2019.

9. On 14 March 2019, the Fair Work Commission ordered that relevant employees of PJ Walsh Constructions stop, not engage in and/or not organise industrial action. On 15 March 2019, the Employees returned to work.

10. I found that the 11 March Employees placed a ban on the performance and acceptance of building work, within s 7(1)(b) of the BCI Act, from 11 am on 11 March 2019. I found that the 12 March Employees also placed a ban on the performance and acceptance of building work from 12 March 2019. I held that the Employees had engaged in unlawful industrial action in contravention of s 46 of the BCI Act.

11. I found that Mr Harradine organised the industrial action taken by the Employees and, by doing so, contravened s 46 of the BCI Act on 11 and 12 March 2019. I also held that, by reason of Mr Harradine’s conduct, the Union organised industrial action in contravention of s 46 of the BCI Act.

12. I also held that Mr Harradine contravened s 54(1) of the BCI Act on 11 and 12 March 2019 by organising the actions of the Employees with intent to coerce PJ Walsh Constructions into making a building enterprise agreement with the Union. Further, I held that, by reason of Mr Harradine’s conduct, the Union contravened s 54(1).

31. The contraventions must be regarded as very serious. Mr Harradine and the Union organised the bans imposed by the Employees in order to coerce PJ Walsh Constructions into entering a building enterprise agreement with the Union. It has been recognised that, “coercion is a particularly serious form of industrial conduct”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 at [97], Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case)(No 2) (2018) 358 ALR 725; [2018] FCA 163 at [33].

32. The bans themselves involved most of PJ Walsh Constructions’ building employees at the NQS site. PJ Walsh Constructions was only able to carry out limited work at the NQS site on 11 March 2019, and none on 12, 13 and 14 March 2019.

33. The Commissioner submits that the fact that the NQS project was the largest building project ever undertaken in North Queensland makes the conduct more serious. I do not accept that the mere size of the project affects the seriousness of the conduct. What is relevant is the nature and extent of the relevant conduct and its effects, including disruption of the project. The work affected was described by the Commissioner as, “critical path work”, and the respondents have not demurred from that description.

34. There is no specific evidence that PJ Walsh Constructions was caused economic loss. However, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 at [80], the Full Court observed that where work cannot be performed at a major building site because of industrial disruption, economic loss is an inevitable consequence. I infer that some loss of unknown magnitude was caused to PJ Walsh Constructions.

35. The respondents submit that, “the fact that there was a respectable basis for the contention that the [E]mployees were entitled to stop work counts against the suggestion that [Mr Harradine’s] conduct was objectively serious”. This submission appears related, in part, to the submission that the Employees, being casuals, were under no obligation to accept offers of work from PJ Walsh Constructions, so that the contraventions arose merely because the refusal to work was undertaken collectively, rather than individually. The point seems to be that because the Employees might lawfully have refused to work, their unlawful conduct on the relevant days should be regarded as less serious.

36. I do not accept these submissions. There is no evidence that the Employees would have refused work for legitimate reasons if the ban had not been imposed. I am satisfied that the reason the Employees did not perform work on the relevant dates was that they had imposed bans upon the performance of work. The seriousness of the conduct must be assessed on the basis of what the Employees, Mr Harradine and the Union did, not on the basis of what they might have been able to do lawfully in other circumstances.

37. The respondents also submit that the conduct is less serious because they had an arguable case that the conduct was not unlawful. There is no evidence from Mr Harradine or the Employees that their conduct was undertaken under a mistaken belief that it was lawful. I do not accept the submission.

38 The respondents submit that the unlawfulness of the conduct stems merely from the Union’s failure to obtain a protected industrial action ballot and give appropriate notice, and if those steps had been taken, the action would have been lawful. The conduct was unlawful. The respondents must be sentenced on the basis of what they did, not what they might have been able to do.

39 Although the conduct of Mr Harradine and the Union was very serious, the contraventions cannot be regarded as being in the most serious category of contraventions. The contraventions would have been more serious if, for example, they had extended over a lengthier time, or caused substantial demonstrated loss, or involved all the building employees at the NQS site.

…

43. The respondents contested the proceeding and cannot be penalised for doing so. However, that means there is a lack of evidence of contrition.

44. The Commissioner submits that the Union’s history of prior contraventions demonstrates that the conduct in the present case was condoned by the senior leadership of the Union. I do not accept that evidence led in other cases can be used to establish the facts and circumstances of the present case. The Commissioner has only pleaded and proved that Mr Harradine organised the bans, not that they were organised or condoned by the senior leadership. It has not been suggested that Mr Harradine held a position of seniority within the Union.

45. There was substantial argument about whether the common law course of conduct principle ought to be applied to the contraventions. However, in light of s 84(1) of the BCI Act, it is unnecessary to consider whether the common law course of conduct principle has any application and, if it does, whether it should be applied in the circumstances.

46. Under s 84(1) of the BCI Act, a Court may make a single civil penalty order against a person for multiple contraventions of a civil remedy provision, “if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character”. The conduct of Mr Harradine consisted of organising the unlawful industrial action taken by some of the Employees on 11 March 2019 and some on 12 March 2019. The conduct was engaged in against the same entity, PJ Walsh Constructions, with the single object of coercing that entity into entering an enterprise agreement with the Union. The nature of the unlawful industrial action that was organised was the same. In these circumstances, I am satisfied that the two contraventions of s 54 committed by Mr Harradine form a series of contraventions of a similar character.

47. The third, fourth, sixth, ninth to thirteenth, seventeenth and eighteenth respondents committed two contraventions of s 46 of the BCI Act by imposing bans on 11 and 12 March 2019. I am also satisfied that their contraventions form a series of contraventions of a similar character.

48. Section 84(1) of the BCI Act provides that a court “may” make a single civil penalty order against a person for multiple contraventions of a civil remedy provision if the relevant conditions are satisfied. The Court is not required to impose a single civil penalty. The overriding requirement under s 81(1) is to impose an appropriate penalty for each contravention of a civil remedy provision.

49. Section 84(2) requires that if a single pecuniary penalty is imposed for multiple contraventions, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate pecuniary penalty were imposed for each contravention. The maximum penalty that may be imposed for the two contraventions by each of the individual respondents is $84,000 and for the contraventions by the Union is $420,000.

50. The Commissioner submits that two penalties of close to $210,000 should be imposed upon the Union. In my opinion, to accede to that submission would be to introduce an element of double punishment for what is very similar conduct constituting the two contraventions.

51. Taking into account all the circumstances, it is appropriate to impose a single penalty of $190,000 upon the Union.

52 There is no evidence that Mr Harradine has previously contravened any industrial legislation. It is appropriate to impose a single penalty of $20,000 upon Mr Harradine.”

[21] I do not accept the CFMMEU’s contention that Mr Harradine’s organisation of unlawful industrial action should be considered less serious because it was taken in the context of a dispute about enterprise bargaining. That the conduct may have been lawful if other parts of the Act were complied with does not diminish its seriousness. The conduct is serious because of its unlawfulness, that it was taken with the intent to coerce the employer, and that it caused the employer loss. Nonetheless, I accept that the conduct is not of the most serious kind because it did not involve aggravating factors, such as the use of violence, threats of harm, or property damage, or lengthy periods of unlawful industrial action.

[22] I accept the ABCC’s submission that there is no material before me that establishes Mr Harradine feels contrition or remorse for his actions in contravening the BCI Act. Further, I am not persuaded by the CFMMEU’s contention that ‘self-serving expressions of remorse by a proposed permit holder are of little if any value in applications of this nature’. Expressions of remorse made directly to the Commission in support of an application for a right of entry permit where the applicant has previously contravened industrial laws may give a decision maker some comfort that the person recognises the faults in their prior conduct and has reformed. Nonetheless, the significant penalty against Mr Harradine and the intervening period of two years without any other contravening conduct gives me some comfort that Mr Harradine appreciates the seriousness of his conduct and is motivated not to contravene any industrial law in the future.

[23] I accept the CFMMEU’s submission that the contravening conduct is limited to Mr Harradine’s actions on 11 and 12 March 2019. However, although no contraventions were declared or penalties imposed for his conduct on 13 and 14 March 2019, the substantive decision of Justice Rangiah makes it clear that the employees’ ban on work on 13 and 14 March 2019 was a direct result of Mr Harradine’s conduct on 11 and 12 March 2019. Those consequences are relevant to my consideration of Mr Harradine’s actions on 11 and 12 March 2019.

[24] Mr Harradine’s conduct on 11 and 12 March 2019 is very concerning and casts real doubt about his fitness and propriety to hold a right of entry permit. Rather than encourage the employees to go about pursuing lawful means to engage in protected industrial action which were readily available, Mr Harradine chose to organise unlawful industrial action with the intent to coerce an employer to make an enterprise agreement with the CFMMEU. Mr Harradine’s actions resulted in the employer being able to carry out only limited work at the site on 11 March 2019, and no work on 12, 13 and 14 March 2019 with the inevitable consequence that the employer suffered losses. Having regard to all of the circumstances, Mr Harradine’s conduct on 11 and 12 March 2019 weighs against a conclusion that he is a fit and proper person to hold such a permit.

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

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

[26] The ABCC submitted that, absent evidence to the contrary, it is clear Mr Harradine does not possess a willingness to pursue grievances through lawful means. I do not accept that submission. Mr Harradine has been found to have contravened the BCI Act on one occasion. He has held a right of entry permit for approximately four and a half years and there is no material establishing that Mr Harradine has committed any other relevant contraventions of industrial laws, or any other laws, during that time. Since early 2018, he has held a right of entry permit as a CFMMEU official, in what the ABCC describes as a “conflict ridden world”. Those circumstances suggest Mr Harradine usually complies with his legal obligations when faced with conflict. Mr Harradine’s time holding a right of entry permit without any other relevant contraventions of any industrial or other law weighs in favour of a conclusion that he is a fit and proper person to hold a right of entry permit.

[27] I accept the ABCC’s submission that there is no direct evidence regarding Mr Harradine’s understanding of the Act’s right of entry scheme. However, that he received appropriate training about the rights and responsibilities of a permit holder since his contravening conduct and that he has not contravened the Act since that time supports an inference that he does understand, and in all but one circumstance has complied with, his rights and responsibilities as a permit holder under the Act.

[28] Mr Harradine disclosed in his declaration that he is a respondent to proceedings involving Townsville City Council and the CFMMEU. The statement of claim in those proceedings alleges that Mr Harradine contravened s 285 of the Industrial Relations Act 2016 (Qld). Those proceedings remain on foot. There are presently no findings or penalties imposed against Mr Harradine in connection with those proceedings. In those circumstances, I do not give any weight to the fact that allegations have been made against Mr Harradine of contraventions of s 285 of the Industrial Relations Act 2016 (Qld) in determining whether Mr Harradine is a fit and proper person to hold a right of entry permit.

Conclusion

[29] Ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Harradine for his past wrongdoing.

[30] 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 Mr Harradine is a fit and proper person to hold a right of entry permit. The matters which weigh in favour of a finding that Mr Harradine is a fit and proper person to hold a right of entry permit outweigh those that weigh against such a conclusion. However, if Mr Harradine were to engage in any further contravention of an industrial law, I would find it difficult to have the necessary degree of confidence that Mr Harradine would make proper and lawful use of a right of entry permit.

[31] I have considered whether any conditions should be imposed on any entry permit issued to Mr Harradine 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.

[32] 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 Mr Harradine with an entry permit.

DEPUTY PRESIDENT

Submissions:

CFMMEU, 22 March and 19 April 2021
ABCC, 12 April 2021

Printed by authority of the Commonwealth Government Printer

<PR729629>

 1   RE2018/182

 2   RE2021/211, PR727390

 3 Section 480 of the Act

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

 5   Ibid at 405 [56] per Flick J

 6   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]

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

 8   [2015] FWC 1522

 9 [2015] FCAFC 56

 10   Ibid at [17]

 11   Ibid at [42]

 12   Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) [2020] FCA 947; The North Queensland Stadium Case (No 2) [2021] FCA 105

 13   The North Queensland Stadium Case [2020] FCA 947

 14   The North Queensland Stadium Case (No 2) [2021] FCA 105