Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch
[2023] FWC 287
•31 MARCH 2023
| [2023] FWC 287 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch
(RE2022/1408)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 31 MARCH 2023 |
Application for a right of entry permit for John Anthony Windus – whether fit and proper person to hold an entry permit under the Act – satisfied Mr John Anthony Windus is a fit and proper person to hold a permit
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 the issue of a right of entry permit to its official, John Anthony Windus. Mr Windus is employed by the CFMMEU as an Organiser.
Mr Windus was issued an entry permit on 31 December 2018.[1] The expiry date of the permit was 31 December 2021 but the permit was returned on 7 February 2020.
To issue a new permit to Mr Windus, I need to be satisfied that he is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters.
Relevant statutory provisions and application
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.[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.
The permit qualification matters contained 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,[3] that is, it is a matter which the decision maker is bound to take into account. The obligation 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 process,[4] which must be evaluated and accorded appropriate weight.[5]
The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.[6]
Having regard to the structure and content of 513, in deciding whether a proposed permit holder is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s 513(1) of the Act must be taken into account. 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.
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.
I turn to consider the application.
Consideration
In support of its application the CFMMEU filed declarations by Mr Windus and Mr Michael (Mick) Buchan, CFMMEU Western Australia Branch Secretary (the Declarations).
Permit qualification matters – s 513(1)(a), (b), (c), (d), (e) and (f)
According to the Declarations:
· Mr Windus 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 6 December 2022 (s 513(1)(a) of the Act));[7]
· Mr Windus has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);[8]
· Mr Windus 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]
· The CFMMEU has once been ordered to pay a penalty under this Act in relation to action taken by Mr Windus (s 513(1)(d) of the Act);[10]
· Mr Windus 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);[11]
· Mr Windus has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Windus 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);[12] and
· Mr Windus 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).[13]
I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. Most of these matters weigh in favour of a conclusion that Mr Windus is a fit and proper person to hold a right of entry permit.
The permit qualification matter in s 513(1)(d) of the Act does not. The Declarations disclose that the CFMMEU has been ordered to pay a penalty in relation to action taken by Mr Windus. In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union,[14] the CFMMEU was ordered to pay a pecuniary penalty of $23,000 in respect of the declared contravention (penalty judgment). Mr Windus’ actions that lead to the penalty judgment the CFMMEU admitted were in contravention of s 500 of the Act as Mr Windus acted in an improper manner.[15]
The circumstances which lead to the contravening conduct were as follows:
On 15 February 2019 Mr Windus was exercising rights at the Hilton Hotel under Part 3-4 of the Act with another official Stephen Parker. Mr Parker and Mr Windus entered the site for a safety-related purpose concerning scaffolding. They complied with the site requirements and signed their attendance. The site safety supervisor requested the officials follow him to observe the scaffolding;
The officials did not follow the site safety supervisor and instead attended to trip hazards Mr Parker had identified;
Mr Windus raised the safety concern, became frustrated and raised his voice. He made a reference to the ‘third world’ connected to the materials on the floor.
The conduct constituting the exercise of entry rights in an improper manner concerned Mr Windus not complying with requests of the site safety supervisor’s reasonable requests; acting unreasonably and disrespectfully by raising his voice; being insensitive and inconsiderate of the site safety supervisor in making a reference to the “third world”, which was interpreted as a racial slur; and by using foul language in the site safety supervisor’s presence.
Mr Windus acknowledges he was insensitive and inconsiderate in saying what he did without thinking of the implications. Mr Windus’ statements were interpreted by the site safety supervisor as a racial slur, but Mr Windus says did not intend for there to be a racial imputation to what he said. In the site safety supervisor’s presence, Mr Windus used foul language which did not cause any offence, but which he accepts was inappropriate. Mr Windus says he regrets his conduct and accepts it was unacceptable and inexcusable.[16]
Mr Windus says he committed to ensuring that this kind of conduct never occurs again and that he understands the importance of following reasonable requests when exercising rights of entry and being considerate and courteous when he expresses himself no matter how frustrated he feels.[17] He says he has reflected on the previous contravention and that he is committed to not repeating any contravening conduct.[18]
I accept Mr Windus’ statements as genuine.
In assessing the gravity of the conduct, the Court observed:
the contravention of s 500 is explained, contextualised, and localised, and did not manifest any attitude of indifference or deliberate non-compliance with right of entry requirements;[19]
the conduct which gave rise to the admitted contravention was of short duration and is undoubtedly at the lower or less serious end of the spectrum of conceivable contraventions of the statutory norm;[20] and
on the spectrum of seriousness, the contraventions of the individual permit holders were below the mid-point (broadly in the range of the intersection of low and medium).[21]
Taking into account the seriousness of the contravening conduct in which Mr Windus engaged, his statement of regret, his reflection on that conduct and his commitment not to engage in any further contravening conduct, although this permit qualification matter weighs against a conclusion that Mr Windus is a fit and proper person to hold an entry permit, it does not weigh so heavily as to outweigh the other considerations in his favour.
There are no other matters of which I am aware that I consider relevant to the determination of whether Mr Windus is a fit and proper person to hold an entry permit.
Conclusion
Taking into account the permit qualification matters, for the reasons stated I am satisfied that John Anthony Windus is a fit and proper person to hold an entry permit. The application by the CFMMEU for an entry permit to be issued to Mr Windus is granted.
A permit will be separately issued.
DEPUTY PRESIDENT
[1] RE2018/1372
[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] Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184; (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] Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15], p 41
[7] Form F42
[8] Ibid at (b)
[9] Ibid at (c)
[10] Ibid at (d); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468
[11] Ibid at (e)
[12] Ibid at (f)
[13] Ibid at (g)
[14] [2021] FCA 1468
[15] Ibid at [12]-[13]
[16] Witness statement of John Anthony Windus date 17 March 2023 at [22]
[17] Ibid at [23]
[18] Ibid at [25]
[19] [2021] FCA 1468 at [62]
[20] Ibid at [58]
[21] Ibid at [31]
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