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

[2021] FWC 6008

[2021] FWC 6008

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 (Re Clark)
(RE2021/810)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 30 SEPTEMBER 2021

Application for a right of entry permit for Matthew John Clark (formerly Parfitt) – whether fit and proper person to hold an entry permit under the Act – satisfied that Mr Clark is a fit and proper person to hold a permit – permit issued.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied under s 512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Matthew John Clark (formerly Parfitt). Mr Clark is employed by the CFMMEU as an organiser and has held two previous entry permits issued in September 2015 and June 2019 respectively, the latter having been returned to the Commission in August 2020 upon Mr Clark ceasing employment with the CFMMEU as required by s 517(2) of the Act.

[2] Pursuant to s 112 of the Building and Construction Industry (Improving Productivity) Act 2016, the Australian Building and Construction Commissioner was given notice of the application and has in turn given written notice that he intervenes in the proceeding pursuant to s 110 of that Act.

[3] The CFMMEU and the Commissioner have filed submissions pursuant to my directions and they agree the matter can be determined on the papers, a course with which I concur.

[4] The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s 513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.¹ The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

[5] In an application for a permit under s 512 the permit qualification matters in s 513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and is a matter which the decision maker is bound to take into account.² To take into account the matters set out at s 513 means that each of the matters must be treated as a matter of significance in the decision-making process³ and to evaluate it and give it due weight, having regard to all other relevant factors.⁴ All of the permit qualification matters identified in s 513(1) of the Act must be taken into account and the absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight and not be merely noticed and disregarded.⁵ In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualification, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.⁶

[6] Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s 513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.

[7] I turn to consider the application.

[8] In support of its application the CFMMEU filed amended declarations dated 21 July 2021 by Mr Clark and Mr Michael Ravbar, Divisional Branch Secretary (the Declarations).

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

[9] According to the Declarations:

•  Mr Clark has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 1 July 2021 (s.513(1)(a) of the Act));⁷

•  Mr Clark has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);⁸

•  Mr Clark has 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;⁹

•  Mr Clark has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s 513(1)(e) of the Act);¹⁰

•  Mr Clark has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Clark held under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(i) of the Act);¹¹ and

•  Mr Clark has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(ii) of the Act).¹²

[10] Save for the appropriateness of the training received by Mr Clark about the rights and responsibilities of a permit holder, the other permit qualification matters mentioned above were not contested by the Commissioner and I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Mr Clark is a fit and proper person to hold a right of entry permit.

[11] As to the training received, the Commissioner contends that this factor does not weigh significantly in favour of a conclusion that Mr Clark is a fit and proper person for the following reasons. This is because the Commissioner contends that no meaningful detail has been provided about the training undertaken or Mr Clark’s engagement with it or understanding of the rights and obligations of an entry permit holder. The Commissioner contends that in light of Mr Clark’s history of past contravention of industrial laws, the limited detail about the training in the statutory declaration does not provide the Commission with any assurance that Mr Clark has real insight into his rights and obligations as a permit holder.

[12] These contentions are rejected for the following reasons. First, the training provided by the CFMMEU is training approved by the Commission. Second, that Mr Clark completed the training after the relevant contravening conduct, which is discussed further below, is an objective factor that is to be weighed in his favour. Third, the matters raised by the Commissioner could readily have been put to Mr Clark in an oral hearing. The Commissioner could have requested that Mr Clark attend a hearing and be cross-examined on his declaration. However, the Commissioner instead consented to the application being determined on the papers and made no such request. There is therefore no reason in the circumstances to assign other than appropriate weight to this permit qualification matter as I propose to so do. This permit qualification matter also weighs in favour of a conclusion that Mr Clark is a fit and proper person to hold an entry permit.

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

[13] The only relevant matter which engages with this permit qualification matter arises from the judgment in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3)¹³ in which pecuniary penalties were imposed on Mr Clark and the CFMMEU in relation to Mr Clark’s actions. The significance of this proceeding was assessed by Deputy President Saunders in Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch¹⁴ in the context of an application by the CFMMEU to issue a permit to Mr Clark considered in June 2019. Therein the Deputy President said:

[17] On 22 May 2017, the Federal Court made declarations that Mr Parfitt contravened sections 346, 355 and 417 of the Act by taking adverse action against J Hutchinson Pty Ltd (Hutchinson), organising a strike and thereby coercing Hutchinson. The breaches by Mr Parfitt took place at one site on two different occasions (25 August 2016 and 13 September 2016). Mr Parfitt was fined a total of $10,000 and the CFMMEU was fined a total of $578,000 in relation to the conduct of Mr Parfitt and a number of its other officers and employees.  I have read and considered the reasons for judgment of Justice Collier in the Nine Brisbane Sites Case.

[18] Mr Parfitt admitted his wrongdoing in advance of the trial in the Nine Brisbane Sites Case. Justice Collier took into account Mr Parfitt’s co-operation by making relevant admissions in assessing the quantum of the penalty to be imposed on him.  There was no allegation in that case that Mr Parfitt had misused his right to enter premises, nor was it alleged that his conduct was occasioned by aggravating factors such as threatened or actual violence or damage to property. However, Mr Parfitt’s conduct which constituted contraventions of sections 346, 355 and 417 of the Act was serious. Justice Collier observed that “it is proper to describe the conduct of the individual respondents [including Mr Parfitt] as contributing to a deliberate, premeditated and sustained campaign of unlawful industrial behaviour orchestrated by the CFMMEU… I am prepared to infer that the respondents intended that loss be suffered by Hutchinson, as well as sub-contractors, at the various sites as a result of the disruptive conduct of the respondents, and that consequential loss was suffered.”

[19] Mr Parfitt’s conduct which resulted in a penalty of $10,000 being imposed on him and contributed to a penalty of $578,000 being imposed on the CFMMEU by the Federal Court in the Nine Brisbane Sites Case weighs against his fitness and propriety to hold a right of entry permit.¹⁵ [Endnotes omitted]

[14] Like the Deputy President I have also reviewed and considered the reasons for judgment of Justice Collier in the Nine Brisbane Sites Case and I agree with the Deputy President’s summary and assessment. That a penalty was imposed on Mr Clark and on the CFMMEU by reason of Mr Clark’s contravening conduct is a matter that weighs against a conclusion that he is a fit and proper person to hold an entry permit.

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

[15] The Declarations disclosed that Mr Clark is a respondent to Federal Court proceedings in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union & Ors.¹⁶

[16] Relevantly, in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union & Ors (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2)¹⁷ Collier J found that in relation to conduct occurring on 13 and 17 April 2018, Mr Clark contravened ss 497 and 500 of the Act. By order made on 7 November 2019, Collier J made the following declarations in relation to the earlier findings:

The Seventh Respondent – Matthew Parfitt

22. On each of 13 April 2018 and 17 April 2018, the seventh respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 497 of the FW Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the Site to produce his Federal entry permit for inspection.

. . .

24. On 13 April 2018, the seventh respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:

(a) refusing numerous requests by the occupier of the Site to leave the Site; and

(b) failing to comply with an occupational health and safety requirement of the Site, imposed by the occupier, by walking around the work area on the Site and not remaining with a vehicle.

25. On 17 April 2018, the seventh respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:

(a) refusing requests by the occupier of the Site to produce his Federal entry permit for inspection;

(b) refusing requests by the occupier of the Site to leave the Site;

(c) entering a work area, causing a representative of the occupier of the Site to instruct workers to stop work because the representative was concerned that the seventh respondent's presence would create a safety hazard; and

(d) failing to comply with requests from the Queensland Police Service to leave the Site.

[17] On 18 November 2019 Mr Clark and other respondents filed a notice of appeal against the judgment and orders made by Collier J. On 24 November 2020 in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case)¹⁸ a Full Court of the Federal Court dismissed the appeal. Thereafter an application for special leave in the High Court was made and on 8 April 2021 the special leave application was refused.

[18] Penalties have yet to be imposed on Mr Clark or on the CFMMEU in relation to Mr Clark’s contravening conduct. The proceeding is ongoing and is listed for hearing before Collier J as to penalty on 29 October 2021.

[19] As noted in the extract of the orders above Collier J declared that Mr Clark contravened s 497 of the Act on 13 April 2018 by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the relevant site to produce his Federal entry permit for inspection. Collier J also declared that Mr Clark contravened s 500 of the Act on two separate occasions (on 13 and on 17 April 2018) when attending and entering the site and when exercising a State or Territory OHS right, by acting in an improper manner. On 13 April 2018 this was because Mr Clark:

•  refused numerous requests by the occupier of the site to leave the site; and

•  failed to comply with an occupational health and safety requirement of the site, imposed by the occupier, by walking around the work area on the site and not remaining with a vehicle.

[20] Collier J assessed this conduct as “a breach of the standards of conduct that would be expected of a person in his position by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case”.¹⁹

[21] On 17 April 2018 the s 500 contravening conduct constituted Mr Clark:

•  refusing requests by the occupier of the Site to produce his Federal entry permit for inspection;

•  refusing requests by the occupier of the Site to leave the site;

•  entering a work area, causing a representative of the occupier of the site to instruct workers to stop work because the representative was concerned that the seventh respondent's presence would create a safety hazard; and

•  failing to comply with requests from the Queensland Police Service to leave the site.

[22] Collier J similarly assessed this conduct as “a breach of the standards of conduct that would be expected of persons in their position by reasonable persons with knowledge of the duties, powers and authority of the position”.²⁰

[23] Mr Clark purported to enter the site on both 13 and 17 April 2018 pursuant to s 81(3) of the Work Health and Safety Act 2011 (Qld) (WHS Act). Section 494 of the Act provides that an official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder. At the time of the contravention Mr Clark was a permit holder. Section 497 of the Act provides that a permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer. On 13 April 2018 Mr Clark entered the site with a colleague. After attending the site office Mr Clark and his colleague were told by a representative of the occupier that they were not permitted to enter the site without producing entry permits and were requested to each produce their entry permits for inspection. Relevantly Mr Clark refused and did not produce his entry permit. He and his colleague subsequently entered, walked and drove around parts of the site. The contravening conduct in which Mr Clark has been found to have engaged occurred in circumstances where he and the other CFMMEU officials contended that they were not exercising a State or Territory OHS right in that s 81(3) of the WHS Act is no more than facilitative and does not create a legal authority or legal entitlement to enter premises.

[24] Section 81 of the WHS Act provides:

Resolution of health and safety issues

(1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue.

(2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations.

(3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.

[25] Although the contravening conduct in which Mr Clark has been found to have engaged is contrary to the rights and obligations afforded a permit holder and is relevant in assessing whether he is a fit and proper person to hold an entry permit, I accept that his conduct was not an act of deliberate contravening in the sense that he knew that he was exercising a State or Territory OHS right and could not do so without producing his entry permit requested. Instead, he held the erroneous view that the entry that he sought was not the exercise of a State or Territory OHS right.

[26] As I observed in Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch²¹I accept that this point of view was at least arguable at the time, although in light of the consideration of s 494 of the Act by the Full Court in Australian Building and Construction Commissioner v Powell²² which concerned the effect of s 58(1)(f) of the Occupational Health and Safety Act 2004 (Vic) and whether it conferred a State or Territory OHS right, in my view not strongly arguable. The Full Court concluded that a relevant provision conferred a right on a union official to enter premises for the purposes of s 494 of the Act.

[27] Save for that aspect of the contravening conduct as constituted Mr Clark’s failure on 13 April 2018 to comply with an occupational health and safety requirement of the site, imposed by the occupier, by walking around the work area on the site and not remaining with a vehicle, the remaining conduct needs to be assessed in the context and not in the abstract. That context is the erroneous view held by Mr Clark as to the effect of s 81 of the WHS Act. However, the failure to comply with a site OHS requirement is of a different character. The irony of Mr Clark purporting to enter the workplace as representative of a party to a work health and safety issue requiring resolution pursuant to an agreed or default resolution procedure for the purpose of attending discussions with a view to resolving the issue, then himself contravening a site OHS requirement is not lost. Plainly, had Clark’s purported entry under s 81 of the WHS Act been unincumbered by s 494 of the Act, the conduct would still have been improper, although perhaps not in the s 500 sense since he would not have been seeking to exercise rights under the Act. However, the site OHS requirements are not swept aside by the manner of the entry. Nor does attendance pursuant to s 81 of the WHS Act, which is for the purpose of attending discussions, contemplate free range access to the site or licence to walk and drive around parts of the site in disregard for the site OHS requirements.

[28] I therefore consider these findings of contraventions against Mr Clark as weighing against a conclusion that he is a fit and proper person to hold an entry permit.

[29] That said, factors which militate against the weight which might otherwise be attributed include that penalties for the contravening conduct are yet to be fixed by the Court; that there has been no finding of contravening conduct in relation to Mr Clark since the conduct in April 2018; and that he has recently received training about the rights and responsibilities of a permit holder under the Act.

[30] As to the issue of contrition or remorse raised by the Commissioner, I would reiterate what I said in CFMMEU Re Robinson²³namely that although an indication of remorse is a factor that in many cases may be weighed in the balance, the absence of such an indication needs to be assessed in context of a given application. A need to show contrition in respect of past wrongdoing by proposed permit holders in entry permit applications is not a decision rule. Both the need for and the context of any expression of contrition is to be assessed in the context of the circumstances that pertain to each application.²⁴

[31] Mr Clark did not prepare a statement beyond the declaration in support of his application. He did not offer any indication of contrition or remorse for past wrongdoing. As to the absence of contrition in respect of the Bruce Highway Caloundra to Sunshine Upgrade Case contravening conduct, I well understand why no contrition is expressed in the sense that the case largely turns on a question of law surrounding the proper construction and effect of s 81 of the WHS Act vis à vis s 494 of the Act. The improper conduct contraventions also flowed largely from the erroneous assertion of particular rights. In these circumstances I place little store in the absence of an expression of remorse or contrition.

[32] As to the absence of an expression of contrition or remorse in respect of the Nine Brisbane Sites Case, it is to be remembered that in that case Mr Clark made admissions of his wrongdoing and by so doing, he co-operated and avoided the need for a contested trial on liability. Moreover, the contravening conduct occurred five years ago, and apart from the Bruce Highway Caloundra to Sunshine Upgrade Case, which as I have noted has a particular context, Mr Clark has not since been found to have engaged in similar or any other contravening conduct.

[33] In the circumstances I do not consider the absence of an indication of contrition or remorse to be a material factor weighing against a conclusion that Mr Clark is a fit and proper person to hold an entry permit.

[34] Mr Clark has also disclosed two other proceedings in which he has been or is currently involved. The first matter did not involve any adverse finding against him. The second matter is contested and is yet to be fixed for hearing. Neither matter can be relevantly taken into account in the assessment of Mr Clark’s fitness and propriety to hold a permit.

Conclusion

[35] In the circumstances I accept the CFMMEU’s submission that Mr Clark has acknowledged and accepted the nature and seriousness of his contravening conduct in the Nine Brisbane Sites Case, in the sense that I have described earlier. In addition, the Bruce Highway Caloundra to Sunshine Upgrade Case contravening conduct, though not justified must be assessed in the context of an erroneous understanding of the effect of s 81(3) of the WHS Act. There have been no other established contraventions since April 2018 and Mr Clark has undertaken recent relevant training. I do not consider that Mr Clark’s past contraventions establish a disregard for industrial law or for the limits imposed by the Act on permit holders. Balanced against the penalties imposed for the contravening conduct in 2016 and the contravening conduct in 2018 in respect of which penalties are yet to be imposed are the permit qualification matters which weigh in Mr Clark’s favour and which must be accorded appropriate weight. Taken together I consider the matters that weigh against a conclusion that Mr Clark is not a fit a proper person to hold an entry permit do not in the circumstances outweigh the permit qualification matters which weigh in the opposite direction.

[36] It is therefore unnecessary for me to consider whether any conditions should be imposed on any entry permit issued to Mr Clark because, for the reasons given above, I have reached the necessary state of satisfaction that Mr Clark is a fit and proper person to hold an entry permit without any conditions being imposed.

[37] A permit will issue.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR734385>

1 Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]

2 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

3 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

4 Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184

5 Ibid

6 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]

7 Form F42, Declaration by proposed permit holder dated 29 July 2021 at (a) and CFMMEU, Certificate of Achievement dated 1 July 2021

8 Ibid at (b)

9 Ibid at (c)

10 Ibid at €

11 Ibid at (f)

12 Ibid at (g)

13 [2018] FCA 564

14 [2019] FWC 4166

15 Ibid at [17]-[19]

16 QUD238/2018

17 [2019] FCA 1737

18 [2020] FCAFC 203

19 Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union & Ors (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737 at [133]

20 Ibid at [137]

21 [2021] FWC 5066

22 [2017] FCAFC 89; (2017) 251 FCR 470

23 [2018] FWC 1777

24 Ibid at [36]