Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, WA Divisional Branch
[2021] FWC 3419
•18 AUGUST 2021
| [2021] FWC 3419 |
| 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
(RE2021/485)
DEPUTY PRESIDENT BINET | PERTH, 18 AUGUST 2021 |
Walter Vinicio Molina.
[1] On 23 April 2021, the Construction, Forestry, Maritime, Mining and Energy Union – Construction and General Division, Western Australian Divisional Branch (CFMMEU) filed an application (Permit Application) pursuant to section 512 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) for a right of entry permit for Mr Walter Molina (Mr Molina).
[2] On 23 April 2021, the CFMMEU filed an application, pursuant to section 516 of the FW Act, to extend Mr Molina’s current right of entry permit (Old Permit) until the Permit Application is determined (Extension Application). The Old Permit was issued on 25 May 2018 (RE2018/116) and was due to expire on 25 May 2021. 1
[3] The Extension Application and the Permit Application were allocated to my Chambers on 7 May 2021.
[4] On 13 May 2021, the Australian Building and Construction Commissioner (ABCC Commissioner) gave notice that he intended to intervene in the Permit Application pursuant to section 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).
[5] On 14 May 2021 an order (PR729842) was issued granting an extension of the Old Permit until 25 September 2021 or such earlier time as the Permit Application is heard and determined.
[6] Directions were issued on 14 May 2021 (Directions) requiring the CFMMEU to file submissions, witness statements and evidence in support of the Application by close of business, Thursday 27 May 2021. The Directions required the ABCC Commissioner to file submissions, witness statements and evidence in response to the CFMMEU submissions by close of business, Thursday 3 June 2021.
[7] The Application was heard on 17 June 2021 (Hearing). No witness statement was filed on behalf of Mr Molina and Mr Molina did not give oral evidence on his own behalf. The CFMMEU did not call any other witnesses and did not tender any witness statements.
[8] At the Hearing the CFMMEU were granted a further opportunity to file a witness statement on behalf of Mr Molina and/or make Mr Molina available for cross examination. The CFMMEU declined to do so and indicated that they wished to have the Application determined solely on the materials then before me.
Background
[9] Mr Molina is employed by the CFMMEU as full-time Organiser. 2
[10] Mr Molina has been issued a number of entry permits in the past, and presently holds an entry permit numbered RE2018/116. 3
[11] In January 2017 he was elected as President of the Western Australian Divisional Branch of the CFMMEU. In the proceedings for his current entry permit Mr Molina gave evidence that the role of President is the highest elected position within the branch structure. He also gave evidence that in addition to undertaking training specifically in relation to right of entry, he has completed a Certificate IV in Union Organising, a Bachelor of Arts in Legal Studies and a postgraduate certificate in Occupational Health, Safety and the Environment.
[12] Mr Molina’s current entry permit was granted subject to the following conditions:
a. Mr Molina must undertake training approved by the FWC in relation to emotion management. Evidence of attendance at such training and of its successful completion shall be provided to the FWC within three months of the issuing of an entry permit.
b. If any findings are made or penalties imposed that are relevant to matters mentioned in section 510(1) of the FW Act then Mr Molina must notify the FWC within two weeks of the finding being made or penalty imposed.
Relevant Statutory Provisions
[13] The provisions concerning entry permits are found in Part 3-4 of the FW Act. The object of Part 3-4 is set out in section 480 of the FW Act:
“480 Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”
[14] In Maritime Union of Australia v Fair Work Commission, 4 the Full Court of the Federal Court (North, Flick and Bromberg JJ) observed that:
“[15] Section 480 … sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, 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. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 at 540 per Mason J.” 5
[15] Section 512 of the FW Act states that:
“512 FWC may issue entry permits
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.”
[16] In The Maritime Union of Australia 6 a Full Bench of the FWC (Deputy President Gostencnik, Deputy President Wells and Commissioner Blair) considered the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3–4 of the FW Act and observed that:
“[23] …the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s 512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally, though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. Taking into account context, the structure of s.512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”. 7
[17] The focus of the FWC’s inquiry is therefore not whether the proposed permit holder is a fit and proper person per se. Rather, it is whether the proposed permit holder is a fit and proper person to hold an entry permit. 8
[18] Whether a proposed permit holder is a fit and proper person to hold an entry permit will require consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attached to the exercise of those rights and the responsibilities that must be discharged in the exercise of those rights. 9
[19] Section 513(1) of the FW Act sets out the matters that are to be taken into account in determining whether a proposed permit holder is a fit and proper person to hold a right of entry permit (Permanent 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.”
[20] The Permit Qualification Matters delineated by section 513(1) of the FW Act are mandatory considerations. Each of the Permit Qualification Matters must be considered and given appropriate weight. There is no statutory indication that any particular Permit Qualification Matter should be given more weight than any other. 10
[21] The question of whether a proposed permit holder is a fit and proper person to hold an entry permit will require consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attached to the exercise of those rights and the responsibilities that must be discharged in the exercise of those rights. 11
[22] Consideration of Permit Qualification Matters is to be directed to the personal characteristics of the proposed permit holder pertinent to the discharge of the functions and the exercise of the rights associated with holding a permit.12
[23] The permit qualification matters must be considered in the context of whether the proposed permit holder is a fit and proper person to hold an entry permit, not whether the proposed permit holder is a fit and proper person per se. 13
Consideration
[24] The FWC may issue a permit to a proposed permit holder if the FWC is satisfied that the proposed permit holder is a fit and proper person to hold an entry permit. In deciding whether the official is a fit and proper person, the FWC must take into account the Permit Qualification Matters. 14
[25] In relation to the Permit Qualification Matter set out in section 512(1)(a) of the FW Act, Mr Molina produced evidence that he completed the Australian Council of Trade Unions Right of Entry Training Course on 14 April 2021. 15 On 19 February 2021, Mr Molina attended an information session conducted by Eureka Lawyers which ran for one-hour in length, entitled “Right of Entry: A practical guide for union officials” (Right of Entry Information Session). The Right of Entry Information Session was part of a half-day information session entitled “Organisers and Industrial Officers Information Session” conducted by Eureka Lawyers.16 I am satisfied that Mr Molina has completed training about the rights and responsibilities of a permit holder in accordance with section 512(1)(a) of the FW Act.
[26] In relation to the Permit Qualification Matter set out in section 512(1)(b) of the FW Act it is agreed, 17 and I am satisfied, that Mr Molina has never been convicted of an offence against an industrial law. The fact that Mr Molina has never committed an offence against an industrial law weighs in favour of his fitness and proprietary to hold an entry permit.
[27] In relation to the Permit Qualification Matter set out in section 512(1)(c) of the FW Act it is agreed, 18 and I am satisfied, that Mr Molina has never been convicted of an offence against the law of the Commonwealth, a State, a territory or a foreign country, involving:
a. entry onto premises, fraud or dishonesty;
b. intentional use of violence against another person; or
c. intentional damage or destruction of property.
[28] The fact that Mr Molina has never committed an offence of this type weighs in favour of his fitness and proprietary to hold an entry permit.
[29] In relation to the Permit Qualification Matter set out in section 512(1)(d) of the FW Act it is agreed, 19 and I am satisfied, that Mr Molina has not been ordered to pay a penalty under the FW Act or any other industrial law in relation to action taken by him, other than:
a. being ordered to pay a penalty of $660 for one contravention of section 790(1)(a) of the Workplace Relations Act 1996 (Cth) (WR Act) which was found to have occurred on 19 March 2008 (Perth Airport Case); 20
b. being ordered to pay a penalty of $7,000 for six contraventions of section 348 and three contraventions of section 417 of the FW Act which was found to have occurred between 25 March 2013 and 27 March 2013 (Mundaring Water Treatment Case); 21
c. being ordered to pay a penalty of $9,000 for one contravention of section 348 of the FW Act which occurred on 22 October 2013 (Broad Airport Case); 22 and
d. being ordered to pay a penalty of $20,000 for one contravention of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) which occurred on 10 December 2018 (Salini Case). 23
[30] I note for the purposes of section 519(1)(d) that penalties were also imposed on the CFMMEU as a consequence of Mr Molina’s conduct in the Perth Airport Case, the Mundaring Water Treatment Case, the Broad Airport Case and the Salini Case.
[31] In the Perth Airport Case, Lucev FM found that Mr Molina, at that time an organiser employed by the CFMMEU, made false and misleading statements to workers employed by Southern Wire Pty Ltd at the Coles Myer Regional Distribution Centre at Perth Airport when he informed workers that they had to be members of the CFMMEU to work on the site. In determining an appropriate penalty Lucev FM held that:
“Molina’s false and misleading statements were no doubt deliberate in the sense that he intended to make them at the time they were made. However, they were not part of a deliberate design or pre-planned course of deliberate conduct … the conduct is at the lower end of the spectrum of deliberate conduct.” 24
[32] In addition to the penalty of $660 imposed on Mr Molina, penalties of $3,960 and $4,620 were imposed by Lucev FM on the CFMEUW and the CFMMEU respectively. 25
[33] In the Mundaring Water Treatment Case, Mr Molina, at that time an organiser employed by the CFMMEU, was found to have taken action to coerce Brookfield Multiplex Engineering and Infrastructure Pty Ltd (Multiplex) to undertake a safety inspection of a site upon which two days earlier an employee of a subcontractor had lost control of a water cart. The action taken to coerce Multiplex was found to have involved Mr Molina, along with the then interim National President of the CFMMEU Mr Joseph McDonald (Mr McDonald), calling and/or addressing mass meetings held on 25 March 2013 and 26 March 2013 which led to strike action. In addition Mr Molina was found to have stood beside Mr McDonald and failed to disassociate himself from Mr McDonald’s conduct at a third mass meeting arranged by Mr McDonald and held on 27 March 2013 at which Mr McDonald called for further industrial action. The subject matter of this third meeting was the right of the CFMMEU to enter various workplaces and not the safety incident which triggered the previous two mass meetings. 26
[34] In addition to the penalty of $7,000 imposed on Mr Molina, penalties of $21,000 and $95,000 were imposed on Mr McDonald and the CFMMEU respectively. Pursuant to consent orders between the parties the CFMMEU also paid Multiplex $250,000 compensation. 27
[35] Justice North held that the motivation for the strike action to procure a safety inspection of the site was:
“… relevant to the decision the Court must ultimately make and to the severity of the civil penalty imposed, and should be taken into account. It demonstrates that the contravention is of a lower magnitude of wrong-doing than a contravention in which the motivation for the industrial action was for some entirely self-interested purpose” 28
[36] The penalty ultimately imposed by Justice North on Mr McDonald and the CFMMEU was at the higher end of the scale because of Mr McDonald’s physical obstruction of workers (to which Mr Molina was not a party) and to statements expressing defiance of the system of industrial law made by Mr McDonald at the third mass meeting at which Mr Molina did not speak. 29
[37] In the Broad Airport Case, Mr Molina, at that time an organiser employed by the CFMMEU, was found to have taken action to coerce the payment of outstanding wages which the CFMMEU believed to have been unpaid for a number of weeks. The blockade of the site undertaken by Mr Molina, Mr McDonald (at that time the Assistant Secretary of the Western Australian CFMMEU Construction and General Division (Division)), Mr Michael Buchan (the then Secretary of the Division) (Mr Buchan), Mr McCullough (the then President of the Division) (Mr McCullough), Mr Tawa Harris (then an organiser employed by the CFMMEU) (Mr Harris) and Mr Peter Joshua (then an organiser employed by the CFMMEU) (Mr Joshua). The blockade lasted for 3.5 hours with the purpose of coercing the payment of the outstanding wages affected 22 sub-contractors, of which only one was believed to have underpaid its workers. 30
[38] A majority of the Federal Court (Justice North, Justice Dowsett and Justice Rares), overturning a decision of the primary judge and imposing more severe penalties, found that the conduct of Mr Molina, Mr Buchan, Mr McDonald, Mr McCullough, Mr Harris and Mr Joshua was:
“.. a clear instance of them taking the law into their own hands and flouting the protection from coercion that s 348 is intended to provide. On the agreed facts, the respondents deliberately engaged in coercion, knowing that their conduct was unlawful. They intended to bully each of the 22 businesses working at the site until their demands were met, as exemplified by the attitude of Mr Buchan when he said, “we don’t care where it comes from”. The conduct was premediated and orchestrated, as it is plain from the organisation required to ensure that 100 people were present to conduct the blockage.” 31
[39] In addition to the penalty of $9,000 imposed on Mr Molina, penalties of $17,500, $9,000, $5,000, $4,000, $2,500 and $195,000 were imposed on Mr McDonald, Mr Buchan, Mr Joshua, Mr Harris, Mr McCullough and the CFMMEU respectively. 32 $40,000 of the $195,000 penalty imposed on the CFMMEU was attributed to Mr Molina’s conduct. Comparatively more severe penalties were imposed by the Federal Court on Mr McDonald and Mr Molina, as opposed to the other CFMMEU officials, because of Mr McDonald’s and Mr Molina’s histories of prior contraventions of section 348 of the FW Act.33
[40] In the Salini Case Mr Molina, by that time President of the Western Australian Branch of the CFMMEU, was found to have organised unlawful industrial action at three Perth Airport Rail Link Project Sites. 34
[41] The factual background to the finding is set out at [19]-[32] of the decision of Colvin J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 1662. In summary at around 5:30am on 10 December 2018 Mr Molina attended the Forrestfield worksite and set up a table in the parking area. When approached by a senior supervisor for the site Mr Molina informed him that he was “having a chat to the guys this morning as they walk up.” During the morning a number of employees of Salini Australia Pty Ltd (Salini) employed at the site queried whether they would be entitled to severance pay. At around noon the senior supervisor received text messages from a number of employees saying that they were unwell and were leaving work. Similar queries were raised by employees at the Bayswater site who also indicated that they may attend a meeting at the Salini head office at midday. At around noon a number of the employees at the Bayswater site ceased work and left the site. Similarly, around the same time a number of employees at the Redcliffe site ceased work and left the site.
[42] A number of the employees from the three sites gathered outside the Salini head office at around 12.30pm. Mr Molina and two other CFMMEU organisers addressed the meeting. Mr Molina then asked to meet with Salini management. The outcome of those discussions were reported to the employees waiting outside and they dispersed shortly afterwards. The employees returned to work the following day. 35
[43] The relevant employees admitted contravention of, and were found to have contravened, the BCIIP Act prohibition on taking industrial action. Three union officials, including Mr Molina, admitted to having been ‘involved’ in the taking of that industrial action. The basis for the officials’ admissions and those findings of ‘involvement’ were the agreed facts that the officials had organised the meeting outside Salini’s head office, addressed the meeting and encouraged the employees to continue their industrial action. 36
[44] Having regard to the whole of the circumstances of the admitted contraventions, of all of the respondents, the Court characterised the nature and quality of those circumstances as being of ‘moderate’ seriousness. 37
[45] In addition to a penalty of $20,000 imposed on Mr Molina, penalties of $20,000 and $15,000 were imposed on the other organisers and a penalty of $125,000 was imposed on the CFMMEU. Under s 81(2)(a) of the BCIIP Act, pecuniary penalties for contravention of section 46 by a defendant other than a body corporate were available in amounts of up to $42,000. In determining the penalty imposed on Mr Molina, Judge Colvin noted that Mr Molina had not contravened the FW Act since 2013 and accepted that the conduct was not premediated however given that Mr Molina was an experienced union official who held a senior leadership role in the union, that he had assumed a coordinating role in the action and the seriousness of the contravention a penalty of the amount imposed was appropriate.
[46] The CFMMEU submit that Mr Molina’s contravening conduct in the Salini Case was not of a nature or quality which directly concerns his fitness or propriety of his holding an entry permit. Rather the CFMMEU try to rely on the events which occurred as evidence of his suitability to be a permit holder.
[47] The conduct which the CFMMEU identify is the type of professional and courteous behaviour that is expected of industrial parties. Such conduct should not be viewed as exceptional or surprising. In any event it was tainted by conduct in contravention of industrial laws.
[48] The legislature has indicated by its inclusion of section 513(1)(d) among the Permit Qualification Matters that it takes the view that contraventions of ‘other industrial laws’ by an official is a matter relevant to an official’s fitness to hold and exercise the rights of a permit holder.
[49] Furthermore, the nature and quality of Mr Molina’s contravening conduct in the Salini Case was such that it must inevitably impact on his propriety to hold a permit.
[50] Judge Colvin characterised the incident as follows:
“The circumstances of the present case manifest a willingness on the part of the Union to disobey the requirements of the Act. The strike was plainly unlawful. The action was taken without any attempt to negotiate. It was encouraged by very senior officials of the Union. It was taken in circumstances where Salini had asked for time to consider the claim and where there was an agreed mechanism for resolution of disputes as to entitlements under the EA such as a claim to redundancy pay. The issue was raised with Salini on a Friday and the walk-off occurred on the following Monday. There is no suggestion of any immediacy to the issue raised that was of a kind that might provide some semblance of explanation for the conduct. In particular, there was no issue about safety or ongoing physical work conditions or present payments. There was no suggestion that Salini was not engaging with the issue. A formal response was provided to the employees on the Monday.” 38
[51] Judge Colvin noted that there was no indication that the admissions made by the CFMMEU or the officials including Mr Molina were indicative of contrition or recognition of wrongdoing on their part and there was otherwise no hint of remorse, regret or contrition, such as training or steps taken to avoid future conduct of a similar kind. In fact, he accepted the ABCC submission that the admission may have been made simply to spare the CFMMEU the cost and burden of a trial rather than as a demonstration of cooperation of a kind that indicates a likelihood of compliance in the future. 39
[52] The contraventions of legislation by Mr Molina in the Perth Airport Case, the Mundaring Water Treatment Case, the Broad Airport Case and the Salini Case weigh against his fitness and proprietary to hold an entry permit.
[53] With respect to the Permit Qualification Matter set out in section 512(1)(e) of the FW Act it is agreed 40 and I am satisfied that Mr Molina has not had an entry permit under the FW Act, or under a similar law of the Commonwealth, revoked, suspended, or made subject to conditions except on 18 November 2008 and 25 May 2018.
[54] On 18 November 2008 Mr Molina’s then entry permit was suspended for a period of two months and conditions were placed on that permit for twelve months in Jeff Radisich v Michael Buchan, Doug Heath, Walter Molina and Construction, Forestry Mining and Energy Union[2008] AIRC 896 (Permit Suspension Case). 41
[55] In the Permit Suspension Case, Senior Deputy President Lacy issued consent orders in relation to allegations that Mr Molina:
a. entered the Doric construction site at Armadale Shopping Centre in the company of Mr McDonald who was purporting to exercise a right of entry which he did not have;
b. failed to exercise that purported right with due diligence, reasonable civility and avoided of unnecessary obstruction by repeatedly making offensive statements to site personnel;
c. threatened to disrupt the site;
d. untruthfully asserted to the police that he had a right to be on the site when he knew that he had no such right and was unlawfully on the site;
e. failed to produce his entry permit for inspection when request to do so; and
f. used an occupational health and safety right of entry for a collateral purpose, namely to promote the CFMMEU by distributing union paraphernalia to workers.
[56] The orders issued by the Senior Deputy President in PR984581 provided that Mr Molina’s permit be immediately suspended for a period of two months from 18 November 2008. The orders also provided that a further suspension of one month would be imposed if Mr Molina breached any provision of Part 15 of the WR Act during the period from 18 November 2008 until 18 November 2009. Senior Deputy President Lacy also imposed a condition on Mr Molina’s right of entry permit that Mr Molina not enter or remain on a site with Mr McDonald, except where Mr McDonald had received a prior invitation to the premises by a site owner.
[57] The condition not to enter or remain on a site with Mr McDonald was imposed on all CFMMEU permit holders, not just Mr Molina. Mr Molina complied with the condition until its expiry in 2010. Mr Molina did not breach any provision of Part 15 of the WR Act during the period from 18 November 2008 until 18 November 2009 and consequently did not have any further suspensions imposed on him pursuant to the orders issued by the Senior Deputy President. 42
[58] On 25 May 2018 I imposed the following conditions on Mr Molina’s current permit:
a. Mr Molina shall undertake training approved by the FWC in relation to emotional management, and evidence of Mr Molina’s attendance at such training and of its successful completion shall be provided to the FWC within three months of the issuing of a right of entry permit; and
b. if any findings are made or penalties imposed that are relevant to matters mentioned in section 510(1) of the FW Act, then Mr Molina must notify the FWC within two weeks of the finding being made or penalty imposed.
[59] I am satisfied that Mr Molina has complied with the conditions I imposed on his current permit. Evidence had been provided to the FWC that on 17 August 2018, Mr Molina undertook training entitled ‘Leading with Emotional Intelligence’ conducted by Konnect Learning. 43
[60] It is agreed 44 and I am satisfied that since I imposed conditions on Mr Molina’s permit no findings have been made in relation to Mr Molina or penalties imposed on Mr Molina that are relevant to matters mentioned in section 510(1) of the FW Act.
[61] With respect to the Permit Qualification Matters set out in section 512(1)(f) it is agreed 45 and I am satisfied that Mr Molina has not:
a. had an entry permit for industrial or occupational health and safety purposes cancelled or suspended or had conditions imposed by any court, or other person or body, under a State or Territory industrial law or a State or Territory occupational health and safety law; and
b. been disqualified, by any court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes under such law.
[62] In relation to the Permit Qualification Matter contained in section 513(1)(g) of the FW Act, the ABCC Commissioner also submits that Mr Molina is susceptible to direction by his employer, the CFMMEU, to engage in further unlawful conduct and that this is an additional relevant consideration for the purposes of subsection 513(1)(g) of the FW Act.
[63] Past contraventions of industrial and other relevant laws by an organisation can be relevant to the consideration of a proposed permit holder’s fitness to hold an entry permit. This may be the case even where such contraventions do not involve conduct on the part of that proposed permit holder, if it is demonstrated that there is a susceptibility on the part of the proposed permit holder to comply with a direction from his or her employing organisation to contravene industrial and other relevant laws.46
[64] It is a matter of public record that the CFMMEU has a long and extensive history of contravention of industrial and other relevant laws. According to the ABCC, within the last five years, the CFMMEU and its officials have had penalties totalling $1,301,480 imposed for contraventions of industrial laws (including penalties for contempt of court) in Western Australia alone. 47
[65] The ABCC Commissioner says that a susceptibility on the part of Mr Molina to comply with directions on the part of his employer to contravene industrial law is evidenced by the fact that Mr Molina was in the company of the CFMMEU WA former Assistant State Secretary, Mr Joseph McDonald and/or the CFMMEU WA State Secretary, Mr Buchan, during the events that were the subject of the Broad Airport Case, Mundaring Water Treatment Case and the Permit Suspension Case. 48
[66] It is unsurprising that Mr Molina was accompanied by his colleagues when he was performing his duties as a union organiser. The mere fact that Mr Molina was accompanied by other CFMMEU officials does not of itself establish that Mr Molina is susceptible to direction by the CFMMEU to engage in unlawful conduct in the future. Evidence of such susceptibility would need to be identified. See for example Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2017] FWC 5824 at [28].
[67] Mr Molina was appointed as President of the Western Australian Divisional Branch of the CFMMEU in January 2017. Mr Molina has previously given evidence that the role of President is the highest elected position within the branch structure. The CFMMEU in the proceedings for Mr Molina’s current permit submitted that Mr Molina’s subsequent elevation within the organisation from Convenor to President of the Western Australian Divisional Branch of the CFMMEU combined with the departure of Mr McDonald from the CFMMEU would remove any susceptibility on Mr Molina’s part to direction from Mr McDonald, Mr Buchan or the CFMMEU more broadly, to engage in future unlawful conduct. Sadly that has not proven to be the case. 49
Conclusion
[68] The CFMMEU submit that as Mr Molina’s previous permit was granted and that the only new adverse matter requiring the FWC’s consideration in this Application is the conduct of Mr Molina in the Salini Case I should be satisfied that Mr Molina is a fit and proper purpose because the contravening conduct in the Salini Case was found to be only of moderate seriousness and did not involve conduct directly related to the exercise of rights as permit holder.
[69] Firstly, Judge Colvin characterised the conduct as moderately serious and he imposed a penalty in the middle of the range of penalties available to him. The conduct was not of a minor nature. There is no suggestion that it occurred in the heat of the moment as was the case in relation to previous contraventions. Mr Molina admitted organising the meeting in the car park, addressing the meeting in the car park and encouraging the Employees to continue to engage in the action. Given Mr Molina’s training and experience and his attendance at the worksite prior to the meeting it seems unlikely that he was unaware that at least some of those employees gathering outside the Salini head office should have been at work and that their conduct and his was in contravention of the BCCI.
[70] Secondly, the legislature has indicated by its inclusion of section 513(1)(d) among the Permit Qualification Matters that it takes the view that contraventions of other industrial laws by an official is a matter relevant to an official’s fitness to hold and exercise the rights of a permit holder.
[71] Finally, the CFMMEU’s submission fails to properly understand the basis upon which I was satisfied that Mr Molina was a fit and proper person to grant his existing permit. My decision to grant the previous application notwithstanding Mr Molina’s contraventions in the Perth Airport Case, Mundaring Water Treatment Case and Broad Airport Case was based on consideration of all the Permit Qualification Matters and the totality of the evidence then before me.
[72] Mr Molina has had penalties totalling $36,660 imposed on him in relation to 12 contraventions of the FW Act and other industrial laws which are relevant to the Permit Qualification Matters contained in section 513(1)(d) of the FW Act. He has also had a previous permit suspended for a period of two months and conditions imposed on his current permit.
[73] The contraventions which led to these penalties and to the suspension of his permit occurred in 2008 and 2013. At the time that I granted Mr Molina’s current permit he had not contravened any right of entry provision under the FW Act or any similar law of the Commonwealth or any other industrial law since 2013, that changed with the Salini Case.
[74] Mr Molina’s previous contraventions appeared to have occurred because he had become highly emotionally agitated about matters which he believed constituted a grave injustice. For example, the Mundaring Water Treatment Case, in which a worker had been involved in a truck crash leading to serious injuries and the near fatality of two other workers 50, in the Permit Suspension Case, in which an employee had broken their leg51 and in the Broad Airport Case, in which Mr Molina believed that an employer had failed to pay employees for many weeks52. In the Salini Case as Judge Colvin pointed out, the employer had indicated a willingness to consider the matters raised by and on behalf of employees and was doing so in a timely manner. Furthermore, alternative mechanisms to resolve the dispute in timely manner had not been explored by the union.
[75] Given Mr Molina’s specific right of entry training and his additional tertiary qualifications, Mr Molina ought to be well placed to both familiarise himself with the relevant laws and to properly comprehend them. Mr Molina’s past contraventions are not generally of a complex or technical nature such that Mr Molina might reasonably submit the contravention occurred inadvertently as a result of the complexity of the relevant laws and/or any lack of capacity on his part to understand them. 53
[76] Mr Molina candidly conceded at the hearing in relation to his current permit that his past contraventions were influenced by the presence of then more senior officials of the CFMMEU, Mr McDonald and Mr Buchan. Mr Molina assured me at that hearing that because Mr McDonald has now left the CFMMEU and Mr Molina has been appointed the President of the Western Australian Branch of the CFMMEU he would be capable of resisting direction which might result in further contraventions. Clearly that is not the case.
[77] Also weighing on my assessment of his suitability to hold a permit was testimony provided by senior participants in the construction industry that Mr Molina complies with his obligations as a permit holder and behaves appropriately and professionally when on worksites for which they are responsible. All expressed confidence in Mr Molina’s suitability to be issued with a new entry permit. On this occasion no written or oral testimony was given in support of Mr Molina’s suitability to hold a permit by any witness including Mr Molina.
[78] Even more compelling in support of the granting of Mr Molina’s previous permit was Mr Molina’s evidence under oath that it was his intention:
a. To lead by example and demonstrate to organisers and other officials how they should represent their members and the industry more generally.
b. To instil in those whom he leads the importance of conducting themselves in a professional manner and comply with their legislative obligations.
c. To comply with the law and instruct those whom he leads to do the same. 54
[79] Mr Molina explained that he was honoured by his election and that it was an enormously important milestone in his life. Mr Molina said that it had brought to bear on him a far greater level of responsibility, including a responsibility to represent the union internationally, which he took very seriously and which he was committed to discharging in a professional manner.
[80] Relevantly Mr Molina apologised for his conduct in the past and was able to articulate what he had learnt from those incidents. 55
[81] On this occasion Mr Molina did not give oral testimony. In fact he did not even provide a witness statement. When warned that I was considering refusing to grant his permit and given the opportunity to adjourn the proceedings so that Mr Molina might speak in support of the application the CFMMEU declined the opportunity for Mr Molina to do so.
[82] On this occasion the balance has tipped.
[83] I have considered the Permit Qualification Matters and have given weight to each.56 Taking into account the totality of the material and for the reasons already given, on this occasion I am not satisfied that Mr Molina is a fit and proper person to hold an entry permit.
[84] I explored with the CFMMEU and the ABCC whether there might be a condition I could impose on Mr Molina’s permit which might assist in me reaching the requisite satisfaction that Mr Molina is a fit and proper person to hold an entry permit. Having considered the submissions made by both the CFMMEU and the ABCC I am not satisfied that the condition proposed might achieve that goal.
[85] Pursuant to section 515(1) of the FW Act, the application for a right of entry permit is refused. An order 57 to this effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Mr T Borgeest appeared on behalf of the Applicant
Mr S Pemberton appeared on behalf of the Respondent
Hearing details:
2021
Perth
17 June
Printed by authority of the Commonwealth Government Printer
<PR730712>
1 Construction, Forestry Mining and Energy Union – Construction and General Division, WA Divisional Branch [2015] FWC 1786.
2 Digital Court Book at page 13.
3 Digital Court Book at page 13.
4 [2015] FCAFC 56.
5 Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [15].
6 [2014] FWCFB 1973.
7 The Maritime Union of Australia [2014] FWCFB 1973 at [23].
8 Construction, Forestry, Mining and Energy Union – Construction and General Division, Victoria and Tasmanian Divisional Branch [2018] FWC 1325 at [27].
9 Construction, Forestry, Mining and Energy Union – Construction and General Division [2018] FWC 3525 at [12].
10 Construction, Forestry, Mining and Energy Union – Construction and General Division, Victoria and Tasmanian Divisional Branch [2018] FWC 1325 at [27]; Construction, Forestry, Mining, Maritime and Energy Union for a right of entry permit to be issued to Mr Michael Kenneth Robinson [2018] FWC 1777 at [39].
11 Re Australian Salaried Medical Officers Federation[2017] FWC 3282 at [11] citing Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWC 1522 at [32].
12 Ibid.
13 Ibid.
14 Australian Salaried Medical Officers Federation [2017] FWC 3282 at [12].
15 Digital Court Book at page 11.
16 Digital Court Book at page 16.
17 Digital Court Book at page 13.
18 Digital Court Book at page 13.
19 Digital Court Book at page 13.
20 Radisich v Molina & Ors (No.3) [2012] FMCA 419.
21 Brookfield Multiplex Engineering and Infrastructure Pty Ltd v McDonald [2014] FCA 389.
22 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53.
23 Digital Court Book at [15].
24 Radisich v Molina & Ors (No.3) [2012] FMCA 419 at [32].
25 Radisich v Molina & Ors (No.3) [2012] FMCA 419.
26 Brookfield Multiplex Engineering and Infrastructure Pty Ltd v McDonald [2014] FCA 389.
27 Ibid at [33].
28 Ibid at [28].
29 Ibid at [32].
30 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53.
31 Ibid at [86].
32 Ibid at [103].
33 Ibid at [94].
34 [2020] FCA 1662 at [69].
35 [2020] 302 IR 139 at [19]-[32].
36 Digital Court Book at page 69 and 96.
37 [2020] FCA 1662 at [76].
38 [2020] FCA 1662 at [93].
39 [2020] FCA 1662 at [78].
40 Digital Court Book at page 14.
41 [2018] FWC 2817 at [30].
42 [2018] FWC 2817 at [33].
43 Digital Court Book at page 14.
44 Digital Court Book at pages 14-15.
45 Digital Court Book at page 15.
46 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[2014] FWCFB 5947 at [26] – [27]; Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141 at [37].
47 $2,000 in Australian Building and Construction Commissioner v Harris [2017] FCA 733; $277,000 in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 491; $242,000 in Radisich v Molina & Ors (No. 3) [2012] FMCA 419; $61,000 in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798; $24,000 in Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672; $123,000 in Brookfield Multiplex Engineering and Infrastructure Pty Ltd v McDonald [2014] FCA 389; $61,000 in Brookfield Multiplex FSH Contractor Pty Ltd v McDonald [2014] FCA 359; $35,640 in Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors [2014] FCA 126; $193,600 in Director, Fair Work Building Industry Inspectorate v Joseph McDonald & Ors [2013] FCA 1431; $40,000 in Brookfield Multiplex FSH Contractor Pty Ltd v McDonald [2013] FCA 1380; $ 7,260 in Director of Fair Work Building Industry Inspectorate v CFMEU, CFMEUW and McDonald [2013] FCCA 1255; $34,980 in Radisich v McDonald and CFMEU [2012] FMCA 919 and $200,000 in Director of the Fair Work Building Industry Inspectorate v CFMEU, McDonald & Buchan [2012] FCA 966.
48 Digital Court Book at page 147.
49 [2018] FWC 2817 at [41].
50 [2018] FWC 2817 at [63].
51 Ibid.
52 Ibid.
53 [2018] FWC 2817 at [54].
54 [2018] FWC 2817 at [60].
55 [2018] FWC 2817 at [62].
56 Australian Salaried Medical Officers Federation [2017] FWC 3282 at [12].
57 PR731336.
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