Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch
[2020] FWC 6880
•21 DECEMBER 2020
| [2020] FWC 6880 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch
(RE2020/833)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 21 DECEMBER 2020 |
Application for a right of entry permit for Mr Paul James Tzimas – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Tzimas is a fit and proper person to hold a permit – permit issued.
Introduction
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for a right of entry permit to be issued to its official, Mr Paul James Tzimas.
[2] Mr Tzimas holds a current entry permit which was issued on 26 October 2017. It was to expire before this application could be determined. Consequently, and having otherwise been satisfied that the requirements in s.516(2) of the Act had been met and that no matter in s.516(4) precluded an extension of the period of operation of the permit, I exercised my discretion to extend the period of operation of the permit until 31 December 2020.1
[3] On 29 September 2020, the Australian Building and Construction Commissioner (ABC Commissioner) gave notice pursuant to s.110 of the Building and Construction Industry (Improving Productivity) Act 2016 that he intervenes in the proceeding and that he wished to be heard in relation to the application. On 7 October 2020 (amended on 8 October 2020) I directed that the parties file outlines of submissions and other materials by specified dates. A hearing of the application proceeded on 10 December 2020.
[4] The applicable principles for determining right of entry permit applications under s.512 are now well settled and were not controversial in this case. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in someabstract sense. The inquiry is whether 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.2 The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.
[5] The permit qualification matters in s.513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend),3 that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the permit qualification matters in s.513 (1) in deciding whether an official is a fit and proper person means that each matter must be treated as a matter of significance in the decision-making process.4 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:5
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”.6
[6] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:
“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.”7
[7] There is no indication in the right of entry permit provisions of the Act nor in the more general right of entry scheme established by the Act that any particular permit qualification matter should be given more weight than any other. Each matter must be accorded appropriate weight. The absence, for example, of a conviction of an official for an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.
[8] Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s.513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.
[9] I turn to consider the application.
Consideration
[10] In support of its application the CFMMEU filed declarations by Mr Tzimas and Mr Ralph Edwards, Divisional President of the Construction & General Division of the Victorian/Tasmanian Divisional Branch of the CFMMEU, in conjunction with the application (the Declarations). At the hearing the CFMMEU relied on the witness statement of Mr Brian Lacy8 whose evidence addresses training he provided to Mr Tzimas on 6 October 2020 at the behest of the CFMMEU, addressing inter alia the law pertaining to each of the admitted contraventions in VID300/2019, and on section 500 of the Act. It also relied on a statement of Ms Elyane Palmer9 which addressed matters relevant to the admitted contraventions. I will return to the admitted contraventions later in this decision. Mr Tzimas also gave evidence and was cross-examined.10
[11] Mr Tzimas is employed as an Organiser by the CFMMEU. As mentioned above, Mr Tzimas currently holds a right of entry permit, issued on 26 October 2017. That permit was issued without any conditions.
Permit qualification matters – s.513(1)(a)
[12] According to the Declarations, Mr Tzimas 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 27 August 2020.11 Additional training has been provided to Mr Tzimas by Mr Lacy. Mr Lacy is a former presidential member of the Australian Industrial Relations Commission. On reaching statutory retirement age and since, Mr Lacy has returned to the Victorian bar where he practices as a barrister primarily in the areas of employment and industrial law. Mr Lacy’s evidence about the training he provided to Mr Tzimas was as follows:
“The purpose of the training was to ensure that Tzimas has a good knowledge and understanding of his responsibilities and obligations under industrial and occupational health and safety laws with respect to entry onto premises, unlawful industrial action, unlawful picketing, hindering and obstructing, improper conduct and coercion.
My brief included copies of the amended pleadings in the Federal Court of Australia proceedings VID300/2019 in which each of Kane Pearson (Pearson) and Dario Maloni (Maloni) have admitted contravening section 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act). Tzimas has admitted that he was knowingly concerned in industrial action in contravention of section 46 of the BCIIP Act. Maloni’s conduct may be held to have contravened section 348 of the Fair Work Act 2009 (Cth) (FW Act). I have read the amended pleadings.
As part of the training I was asked to include specific instruction on law pertaining to each of the admitted contraventions in VID300/2019, and on section 500 of the FW Act. I was specifically asked to focus on:
a. why Tzimas’ conduct on 26 July contravened section 46 of the BCIIP Act, including the manner in which a person may be held liable for involvement in another’s contravention under section 92 of the BCIIP Act and it analogues;
b. what steps he needs to take in future to ensure that a contravention of section 46 of the FW Act does not occur;
c. conduct that has been held to contravene section 500 of the FW Act.
The training was conducted virtually on Microsoft Teams on the morning of 6 October 2020.
The training consisted of a PowerPoint presentation, questions and answers and general discussion on relevant aspects of the FW Act, the BCIIP Act and the Occupational Health and Safety Act 2004 (Vic) (OHS Act).
The discussions included consideration of the incident that is the subject of the proceedings in VID 300/2019 and of provisions of the BCIIP Act, FW Act and the OHS Act generally. Particular regard was had to sections 46 and 92 of the BCIIP Act and 500 and 550 of the FW Act.
Preliminary discussions with Tzimas involved identification and explanation of his role. Tzimas has worked in the building and construction industry since starting as an apprentice in 2010. He has been employed as an organiser with the CFMMEU since 2017. Tzimas holds a permit under section 512 of the FW Act.
The preliminary discussion was followed by discussions about his understanding of the contravention he has admitted in respect of the incidents the subject of the proceedings VID300/2019, in which I reviewed his knowledge and understanding of his involvement in the admitted contraventions in VID300/2019.
I discussed with Tzimas his involvement in the events on 26 July 2018. He acknowledged and understood that his admitted contravention was being knowingly concerned in or party to the unlawful industrial action organised by Pearson and Maloni at the U-Vet site.
Following a review of the facts pertaining to Tzimas’ contravention in VID300/2019 and an explanation of the nature of the contravention, I took him through a PowerPoint presentation. A copy of the PowerPoint presentation is marked BL-3 and attached to this witness statement.
I spent about 15 minutes taking Tzimas through right of entry and the duties, responsibilities and obligations in the exercise of the powers associated with the right. Following the discussion about the right of entry I spent 10 minutes discussing the concept of impropriety, 5 minutes talking about adverse action and finally about 35 minutes talking about unlawful industrial action and accessorial contravention of the Act.
In the course of this discussion, I confirmed with Tzimas that he understood:
a) the rights and responsibilities of the holder of permits under Part 8 of the OHS Act and section 512 of the FW Act;
b) section 500 of the FW Act;
c) sections 46 of the BCIIP Act and 417 of the FW Act;
d) sections 92 of the BCIIP Act and 550 of the FW Act;
e) section 342 of the FW Act; and
f) section 340 of the FW Act.” 12
[13] Mr Lacy was not required for cross-examination. I consider that by reason of his qualification as a lawyer, his practice as a barrister in the fields of employment and industrial law, and his tenure as a senior member of the AIRC, Mr Lacy was well placed and qualified to deliver the training. I accept his evidence. Taken together with the right of entry training delivered to Mr Tzimas through the Australian Trade Union Institute Online, which is approved by the Commission, I am satisfied that the training provided to Mr Tzimas was appropriate training for the purposes of s.513(1)(a) of the Act.
[14] That Mr Tzimas has received appropriate training about the rights and obligations of a permit holder is a matter that weighs in favour of a conclusion that he is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s.513(1)(b), (c), (d), (e) and (f)
[15] According to the Declarations
• Mr Tzimas has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);13
• Mr Tzimas 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;14
• Neither Mr Tzimas nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s.513(1)(d) of the Act);15
• Mr Tzimas 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);16
• Mr Tzimas has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Tzimas 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);17 and
• Mr Tzimas 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).18
[16] The ABC Commissioner accepted that the absence of any convictions of an official for offences must be accorded appropriate weight and that the Commission should take each of the permit qualification matters in sub-sections (a), (b), (c), (d), (e) and (f) into account and accord them appropriate weight.19
[17] I accept that the information as disclosed in the Declarations concerning these matters is accurate and correct. These matters all weigh in favour of a conclusion that Mr Tzimas is a fit and proper person to hold a right of entry permit.
Permit qualification matters – s.513(1)(g)
[18] The Declarations disclose that Mr Tzimas is currently a named respondent in two Federal Court proceedings in VID300/2019 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors involving conduct at the Melbourne University Vet School construction project and in VID625/2020 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors involving conduct at the West Gate Tunnel Project.
[19] Dealing first with West Gate Tunnel Project proceeding, the ABC Commissioner did not submit that the allegations of contraventions by Mr Tzimas of s.500 of the Act on 3 and 4 December 2019 should be taken into account for the purpose of determining this application.20 I do not propose to take the allegations into account. The allegations are untested. Mr Tzimas has not made any admissions about the allegations nor has the Court made any finding about the allegations.
[20] Turning next to the Melbourne University Vet School proceeding, which involves the construction of a four-storey building, comprising an extension of the existing veterinary hospital at the Melbourne University School. Mr Tzimas has filed an amended defence admitting that he was directly or indirectly, knowingly concerned in or party to two others to organise certain workers to engage in organising unlawful industrial action and thus is taken to have contravened s 46 of the BCIIP Act by reason of s 92(2) of that Act.
[21] Mr Tzimas gave the following evidence in relation to the contravention to which he has made an admission:
“In Federal Court proceedings brought by the Building and Construction Commissioner, you admitted to one contravention of the BCII Act on 26 July 2018. Are you familiar with the matter that I'm talking about?---I am, yes.
Yes, what's your attitude to your involvement in that contravention?---I would say that it was a learning experience. I've had - I was only six months in the role. However, I only had my entry permit and area(?) permit for I think it may be three or four months, if I'm not mistaken, because by the time you start it takes some time to actually get the permit, go through the process so I was very new to the role. I was there under guidance of a senior official so I mean looking back now with the experience that I have now, I can see that obviously there's things I would probably have done differently especially with the further training. I mean, I've done training now with New South Wales permit and South Australian permit as well so obviously we've learnt a lot since then also so - but it was a learning curve and I have not repeated that action again.
If you found yourself in the same situation today, would you conduct yourself differently?---Yes. With the knowledge I have now, I'd probably remove myself from the situation and follow the - follow protocol which is to contact the regulator and try and get an outcome through that process.”21
[22] During cross-examination Mr Tzimas gave the following evidence:
“MR DENTON: Do we take it from the statement, Mr Tzimas, that you do not hold any remorse or contrition about your contravention at the Melbourne Uni vet school?---So what - can you just repeat the question because I don't understand what you're asking me.
Is it true to say that you do not have any remorse or contrition for your contravention?---No, I wouldn't say that's true.
What would you say?---I would say that I tried to follow the law to the best of my ability and understanding every day and the way that the law is written, it is quite easily interpreted in a way to make out that we breach it constantly so in that effect, I do try to comply with it every single day that I get up and do my job so I respect what I - what my obligations are legally.
I'm asking you particularly about the contravention that you've admitted at the Melbourne Uni vet school. Are you sorry for that contravention?---I'd say my actions would speak louder because I haven't repeated that action since that time but I think that speaks for itself.
. . .
MR DENTON: Thank you, Deputy President. Thank you for the indication. Mr Tzimas, do you agree with the industrial laws in this country?---I would say not fully but that doesn't change the fact that I don't still apply myself to follow them to the letter of their written law to my understanding.”22
[23] Having listened to Mr Tzimas give evidence, the reference in the last paragraph extracted above to “don’t” in the context of the evidence he was giving should be taken to be a reference to “do” and I treat is as such. Mr Tzimas also gave the following evidence during cross-examination:
“Well, in answer to Ms Saunders' questions when you first gave evidence, you said that it was a learning experience for you and that in future, you know not to put yourself in that situation again?---Yes.
Are you saying that you don't stand around while there's discussions happening in sheds anymore?---I would say that - just trying to understand exactly what you're asking me. Like standing in the sheds, sometimes my contraventions are in regards to sheds, so I do stand in sheds and have conversations. So, it's sort of a broad question what you're asking me; I don't quite understand it.
Okay, well there's been evidence filed by Mr Brian Lacey which says that in his opinion, you understand why your conduct was a contravention. Can you explain why your conduct was a contravention?---Out of what I know now is obviously, as you mentioned, Cane Pearson wasn't an entry permit holder at the time. So, like I wouldn't enter - so, like to begin with, I probably wouldn't attend a site or enter a site if someone else is there without a permit. That was one of the main things - the learning curve.
So, do you know who all the permit holders in the union are?---Not off the top of my head.
Is it now part of your practice to ask someone whether they're a permit holder when you see them at a site?---Yes.
Is that the only thing that you've changed?---I wouldn't say that. I would say, as I've said if there were safety issues and if I was having discussion with management and management aren't agreeing and they're threatening industrial action and they're muddying the waters between industrial legislation and OH&S legislation, I would remove myself and then just call the regulator and wait on them. That's the other one.
So, you're saying that if a union official was threatening industrial action you would remove yourself from the area?---That's not what I'm saying. What I'm saying is employees every day, mix and threaten workers and union officials that by inspecting or carrying out their role as a permit holder, that it potentially is illegal industrial action. They muddy the waters between OH&S and Fair Work. So, if I was present to that happening again, I would then remove myself and call in the regulator to assist me in the safety matters that I've enquired about.
Right, so if the employer suggests that what is happening is industrial action, you would remove yourself and call the regulator?---Yes, that way I can't be falsely accused of being a party to illegal industrial action.
Well, you're not saying you were falsely accused in the Beth School case, though?---What's that?
You're not saying you were falsely accused in the U-Vet School case though, are you?---No, I'm just saying that's what I will do differently. Like that happens quite often, so.
So, which regulator are you referring to?---Work Safe.
. . .
Where you will be on site, the occupier or the relevant employer will allege that what you are doing is unlawful. You then remove yourself from that situation and you call Work Safe?---Yes, if discussions, if amicable discussions break down with management, that's correct. A lot of times management are receptive to the issues and they fix the issues and we resolve the contravention - in respect of contravention and we move on. However, there are employers that don't want to have an amicable discussion or relationship in terms of fixing these safety issues and then do anything they can, whether it's call the police, threaten us with industrial action, threaten to take our permits away. So, I've learnt skills and the tools to now remove myself and then follow the process of calling the regulator in to help me with dealing with those matters.
I assume the other difference will be that you'd wait for Work Safe to attend before you left?---In an ideal world, yes, but however it has happened before where I've got a report of something for imminent risk. I've put the service request through. Work Safe don't always, or are able to always attend on that exact day, so therefore, there's no reason for me to remain there. I remove myself and then go to attend the site on another day or at a later time.”23
[24] Given the admission by Mr Tzimas of contravening conduct in the Melbourne University Vet School proceeding, I consider that the admitted conduct is relevant because it rationally affects the assessment of whether Mr Tzimas is a fit and proper person to hold an entry permit. The admitted contravening conduct occurred in the course of Mr Tzimas exercising entry rights as a permit holder at the Melbourne University Vet School site. It is a matter that weighs against such a conclusion. The contravening conduct admitted is not insignificant and constitutes an admitted contravention of industrial law. In ascribing appropriate weight, I take into account:
• that he has made an admission;
• that on his evidence as set out above and which I accept:
• he has learned from his experience; and
• with that knowledge will deal with similar circumstances differently and more productively; and
• that he has received specific additional training directed to, inter alia, his admitted contravening conduct.
[25] All of these matters have an ameliorating effect on the weight which might otherwise have been ascribed to this matter. In addition, I consider that Mr Tzimas’ evidence establishes that although he may not agree with some industrial laws with which he will from time to time be required to comply, he will nevertheless comply. This is also both an ameliorating factor in assessing the weight to attach to the admitted contravention and a positive factor weighing in favour of a conclusion that he is a fit and proper person to hold an entry permit.
[26] While I accept the ABC Commissioner’s submission that a permit holder who has demonstrated a disregard for the law should give the Commission significant cause for concern as to whether he is ‘fit and proper’ to enjoy the privilege and extensive power entrusted to such a position, I do not accept that Mr Tzimas’ conduct constituting the admitted contravention can fairly be characterised in this way.
[27] The only matter of weight which tells against a conclusion that Mr Tzimas is a fit and proper person to hold a right of entry permit is the admitted contravention in the Melbourne University Vet School proceeding. While the conduct constituting the admitted contravention is not insignificant and constitutes a contravention on an industrial law, I do not consider, taking into account the matters articulated above, the admitted contravention so weighty in the assessment as to disqualify Mr Tzimas from holding an entry permit. Balanced against the admitted contraventions are also factors in ss.513(1)(a), (b), (c), (d), (e) and (f) of the Act, each of which weigh in favour of a conclusion that Mr Tzimas is a fit and proper person to hold a right of entry permit. I am satisfied that Mr Tzimas is a fit and proper person to hold a right of entry permit. There are no matters about which I am aware which would otherwise suggest that the discretion to issue a permit to Mr Tzimas under s.512 of the Act should not be exercised. I propose therefore to issue a permit to Mr Tzimas.
[28] A permit will be separately issued.
DEPUTY PRESIDENT
Appearances:
Ms Lucy Saunders of counsel for the Appellant
Mr Andrew Denton of counsel for the ABCC
Hearing details:
2020
Melbourne (via video)
10 December
Final written submissions:
Appellant, 30 November 2020
ABCC, 20 November 2020
Printed by authority of the Commonwealth Government Printer
<PR725610>
1 PR723368
2 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]
3 [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]
4 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
5 (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74 at [103]
6 (1987) 16 FCR 167 at 184
7 [1986] HCA 40, (1986) 162 CLR 24 at at [15], 41
8 Exhibit 1
9 Exhibit 2
10 Transcript PN88-PN181
11 Form F42, Declaration by member of Committee of Managment dated 22 September 2020 at 5/9 and ‘Australian Trade Union Institute Online Statement of Completion’
12 Witness statement of Brian Lacy dated 29 October 2020 at [5] to [16]
13 Form F42, declaration by proposed permit holder dated 22 September 2020 at (b)
14 Ibid at (c)
15 Ibid at (d)
16 Ibid at (e)
17 Ibid at (f)
18 Ibid at (g)
19 Submissions of Australian Building and Construction Commissioner dated 20 November 2020 at [23]-[24]
20 Ibid at [33]
21 Transcript PN108-PN110
22 Transcript PN142-PN154
23 Transcript PN293-PN308
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