Construction, Forestry, Maritime, Mining and Energy Union - Manufacturing Division National Branch

[2018] FWC 2041

[2018] FWC 2041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Construction, Forestry, Maritime, Mining and Energy Union - Manufacturing Division National Branch
(RE2018/98)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 11 APRIL 2018

Application for issue of right of entry permit to Mr David John Kirner; satisfied that Mr Kirner is a fit and proper person to hold an entry permit; application granted; permit to issue.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) now known as the Construction, Forestry, 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, Mr David John Kiner. Mr Kirner currently holds the offices of South Australian District Secretary and National Vice President in the Forestry, Furnishing, Building Products and Manufacturing Division of the CFMMEU.

[2] The Australian Building and Construction Commissioner (Commissioner) did not wish to make a submission in relation to this application. I have decided to determine the application on the papers without a hearing.

Relevant statutory provisions and application

[3] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as it is relevant for present purposes these provide as follows:

“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.

513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

514 When the FWC must not issue permit

The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official’s exercise of; or

(b) prevents the official from exercising or applying for; a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.

515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).

(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.

(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).”

[4] The operation of these provisions and their application is now well settled. In previous decisions I summarised the relevant principles and without repetition I adopt what is therein said. 1

[5] I turn to consider the application.

Consideration

[6] Mr Kirner currently holds the offices of South Australian District Secretary and National Vice President in the Forestry, Furnishing, Building Products and Manufacturing Division (FFPD) of the CFMMEU. 2 He began his work in Unions in 1987 where he was employed as a Membership Officer with the Furnishing Trade Union, he continued that role until 1991 and from 1991 to 1993 Mr Kirner was employed as an Enterprise Bargaining Officer with the Painters Union, which was then a part of the CFMEU.3 Mr Kirner moved to South Australia in 1994 and was engaged by what was then the Furnishing Trades Division of the CFMEU as an Organiser and he later became the Assistant Secretary of the Furnishing Trades Union.4 In 2000, the Forestry Division of the CFMEU and the Furnishing Trades Division of the CFMEU amalgamated nationally and Mr Kirner became the South Australian Branch Secretary.

[7] Mr Kirner cannot recall when he obtained his first federal right of entry permit but his current permit was issued on 18 December 2015 and expired on 17 February 2018. 5 Since the issuing of his first permit, Mr Kirner has held consecutive Federal and a State right of entry permits.6

Section 1.01 Permit qualification matters – s.513(1)(a) and (f)

[8] According to the declarations filed by the CFMMEU in support of the application for the grant of a permit to Mr Kirner (the Declarations):

•  Mr Kirner has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of federal right of entry conducted online by the ACTU on 22 January 2018 7 (s.513(1)(a) of the Act);

•  He has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Kirner held under a State or Territory industrial law or a State or Territory occupational health and safety law 8 (s.513(1)(f)(i) of the Act); and

•  He 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 9 (s.513(1)(f)(ii) of the Act).

[9] I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. These matters all weigh in favour of a conclusion that Mr Kirner is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(b), (c), (d), (e)and (g)

Sections.513(1)(b), (c) and (d)

[10] Mr Kirner’s application lodged on 2 February 2018 disclosed that he had never been convicted of an offence against an industrial law pursuant to s.513(1)(b) of the Act. 10 The submissions lodged by the CFMMEU in support of Mr Kirner’s application disclose that there was an error in not properly disclosing convictions of an offence against an industrial law as the application was prepared by a non-legally trained industrial assistant.11 The CFMMEU now discloses that Mr Kirner has been convicted of an offence against an industrial law.12

[11] On 20 November 2015, Justice White of the Federal Court of Australia in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 13 (Liability Judgement)found that Mr Kirner contravened s.500 of the Act on 22 November 2013 by acting in an improper manner, while seeking to exercise rights in accordance with Part 3–4 of the Act. On 22 April 2016, Justice White ordered Mr Kirner to pay a pecuniary penalty of $70014 and the CFMEU to pay a pecuniary penalty of $18,00015 in relation to the contravention by Mr Kirner of s.500 of the Act on 22 November 2013.16

[12] Mr Kirner’s contravening conduct is described at [40]-[58] and [175]-[179] of the Penalty Judgement. Essentially, Mr Kirner entered the construction area of the South Australian Health and Medical Research Institute Construction Site on North Terrace, Adelaide (SAHMRI site) at about 11 am on 22 November 2013. Having been told (in effect) that Mr Bickerdike, Senior Project Manager on the SAHMRI site was coming, he waited for about five minutes in a position some 8 meters or so inside the perimeter fence. Initially, Mr Kirner refused Mr Bickerdike’s request that he leave and an unpleasant exchange between Mr Bickerdike and Mr Kirner then occurred. Mr Kirner then decided to leave, but did not give Mr Bickerdike an indication of what he was doing. Instead, Mr Kirner walked further into the SAHMRI site to ask a Hindmarsh employee (Hindmarsh Construction Australia Pty Ltd, the head contractor and occupier of the SAHMRI site) to let the Ausrise employees know that the Enterprise Bargaining Agreement (EBA) ballot would now take place on the North Terrace footpath. All in all, it is likely that Mr Kirner was on the site at this stage for about 10-15 minutes. 17

[13] On 17 May 2017, the Full Court of the Federal Court (North, Besanko and Flick JJ) dismissed appeals by Mr Kirner and the CFMEU against the earlier decisions by Justice White. 18

[14] The CFMMEU say that the finding of improper conduct was, however, much more limited and related to Mr Kirner’s failure to produce to provide notice of his entry, his failure to complete all details in the visitor’s book and not complying with the request to leave immediately. The CFMMEU says that Mr Kirner’s reasons for wanting to be on site were not in issue, that being to conduct an EBA ballot (that was eventually conducted shortly after his entry, off site, and to attend to workers who were to assist a worker who Mr Kirner believed was at risk of self-harm. The conduct giving rise to the contravention did not result in loss or any significant disruption to work. The CFMMEU say that as reflected by the penalty imposed the contravention it is properly to be regarded as a very low level contravention when regard is had to the potential range of seriousness of offences. 19

[15] Mr Kirner says that prior to 22 November 2013 he has regularly and routinely exercised a right of entry onto construction sites in South Australia and says that he has not contravened the right of entry provisions of the Act, or any other prior Acts. 20 His evidence is that he has never been asked to serve Right of Entry notices on any sites when he has been attending on the basis to conduct a ballot of workers for an enterprise agreement. Further, he says that he has been a Union official for approximately 30 years, and has conducted many enterprise ballots. He says that prior to 22 November 2013, he had never been asked to provide a notice of entry to visit a site for suicide prevention.21

[16] Mr Kirner acknowledges and accepts that his conduct of not providing a notice of entry, and not completing all the formalities in the visitor's book, and not leaving the SAHMRI site immediately when asked was improper within the meaning of the Act as found by Justice White. Mr Kirner apologises for his improper conduct and says that since these findings were made he has endeavoured to behave at all times in a proper manner in accordance with the Act. 22 Further, Mr Kirner says that he has not been subject to any other proceedings in relation to any conduct since 22 November 2013.23

Sections.513(1)(e)

[17] The submissions lodged by the CFMMEU in support of Mr Kirner’s application again disclose that there was an error in not properly disclosing that Mr Kirner’s permit had been suspended. 24 The Commission initiated proceedings on its own initiative to establish whether Mr Kirner’s entry permit should be revoked or suspended in light of the judgements discussed above at [11] and [13]. On 26 October 2017, Commissioner Saunders in Fair Work Commission v David Kirner25 suspended Mr Kirner’s permit and banned the issue of any further entry permit to Mr Kirner for a period of 3 months commencing 1 November 2017.26 The reasons for his decision is as follows:

“[19] I accept that a suspension of Mr Kirner’s entry permit will have an impact on the CFMEU’s ability to service its members in the region in which Mr Kirner ordinarily operates. However, there is no suggestion that a suspension would have an impact on Mr Kirner’s employment with the CFMEU and the CFMEU could, no doubt at some inconvenience and cost, move one of its other permit holders to the region in which Mr Kirner works to cover his period of suspension. Further, the suspension of a permit holder is an ordinary effect of s.510 of the Act and is perhaps something to which Mr Kirner should have turned his mind before acting in an improper manner on 22 November 2013. For these reasons, I will only give limited weight to the factor referred to in paragraph [18(g)] above in deciding whether or not a suspension of Mr Kirner’s entry permit would be unreasonable or harsh.

[20] I do not accept the characterisation given by Mr Kirner and the CFMEU to his contravention as being a “very low level contravention”. Mr Kirner’s conduct in initially refusing to leave the work site after being given a lawful direction to do so was deliberate conduct on his part. Further, Justice White found that “Mr Kirner knew that a notice of entry was required but thought that he could get away without providing such a notice on this occasion” and Mr Kirner was the cause of the unpleasant interchange with Mr Bickerdike at the site. These matters go to the seriousness of the contravention. In the result, I agree with Justice White’s assessment that Mr Kirner’s improper conduct was “far from being the most egregious conduct of that kind”, but it did not represent “the least serious, on a scale of seriousness, of s 500 contraventions”. I am satisfied that Mr Kirner’s conduct the subject of the contravention was deliberate and serious, although toward the lower end of the range of seriousness of contraventions of s.500 of the Act.

[21] Mr Kirner made no expressions of regret or contrition in the proceedings before Justice White. However, I accept that Mr Kirner has in connection with the present proceedings acknowledged that his conduct the subject of the contravention on 22 November 2013 was improper, apologised for his improper conduct, and, since the findings by the Federal Court were made, has “endeavoured to behave at all times in a proper manner in accordance with the FW Act”. These matters weigh in favour of Mr Kirner’s argument that a suspension of his entry permit would be unreasonable and/or harsh.

[22] I also accept that the matters referred to in paragraphs [18(a), (c), (d) and (f)] above, considered together and with the other matters to which I have referred to in paragraphs [19] and [21] above, weigh in favour of Mr Kirner’s argument that a suspension of his entry permit would be unreasonable and/or harsh. However, having regard to all the circumstances, including the deliberate and serious nature of the improper conduct the subject of Mr Kirner’s contravention of s.500 of the Act, and balancing the rights of organisations to represent their members in the workplace with the rights of the occupiers of premises to go about their business without undue inconvenience, I am satisfied that a suspension of Mr Kirner’s right of entry would not be unreasonable or harsh in the circumstances. Having regard to the same considerations, I am satisfied that a suspension and ban for a period of three months would be appropriate in the circumstances.” [Endnotes omitted]

Sections.513(1)(g)

[18] On 11 November 2013, Senior Deputy President O’Callaghan instituted proceedings of his own motion under s.508 of the Act (RE2013/1710). The proceedings arose out of an application by Lendlease for orders pursuant to s.418 of the Act. In his decision of 23 December 2013, Senior Deputy President O’Callaghan found that officials of the CFMEU misused their entry rights with respect to sites occupied by Lendlease and set down further proceedings regarding the action to be taken under s. 508(2) of the Act. 27 A Full Bench of the Commission subsequently quashed the above decision on 24 April 201428 however, the Full Bench made its own findings that misuse of entry rights had occurred and remitted the matter back to the Senior Deputy President to determine what action should be taken under s.508(2) of the Act. Beyond Mr Kirner being present when a particular instance of misuse occurred on 30 October 2013, no findings regarding the particular conduct of Mr Kirner were made29

[19] In Orders issued on 13 June 2014 30 Senior Deputy President O’Callaghan essentially suspended all entry rights exercised by all officials of the CFMEU with respect to sites controlled by Lendlease until proof of further right of entry training was filed with respect to particular officials. He made further Orders with respect to further particular officials of the CFMEU not including Mr Kirner; and proof of further training undertaken by Mr Kirner was subsequently provided and, in further Orders issued on 14 July 201431, the Senior Deputy President revoked the suspension against him and several other officials of the CFMEU.

[20] The CFMMEU says that in deciding to issue Mr Kirner a permit, the Commission should take into account the following factors 32:

a) Mr Kirner has continuously held a Federal right of entry permit since the first scheme of legislative permits was introduced. He has only once been found to have engaged in conduct in breach of his right of entry obligations;

b) Mr Kirner has undergone further right of entry training since the events of 22 November 2013, 1 August 2017 and 22 January 2018. The contravention objectively viewed was a low level contravention. Mr Kirner was and has been of good behaviour for a considerable period of time before and after the contravention (having been a union employee or officer since 1987 Mr Kirner has no contraventions of any industrial laws against his name). Mr Kirner is contrite for the incident in 2013. Mr Kirner accepts that his conduct on 22 November 2013 was improper and he has apologised for it. Mr Kirner has promised that he will not engage in contravening conduct again;

c) On 8 March 2018 the Australian Building and Construction Commission advised it would not making submissions in this matter, meaning ABCC does not have issue with Mr. Kirner having a new permit;

[21] The CFMMEU says that for the reasons above, and under s.512 of the Act the Commission should be satisfied that Mr Kirner is a fit and proper person to hold a permit under Part 3-4 of the Act taking into account the factors in s.513 as outlined in these submissions. It says that in the event that the Commission is not minded to grant Mr Kirner a permit based on the above submissions, it is prepared to have the matter listed for a hearing. 33

[22] Mr Kirner says that there are currently four FFPD officials in South Australia (including myself) who hold a current federal right of entry permit. Two of these four officials work in the 'Greater Green Triangle' district, which extends from Mount Gambier to Keith, some 400kms from Adelaide. The remaining two (Mr Kirner and one other), work in the SA District, and service the remaining parts of South Australia. He says that of the two SA District officials, one has just joined the Division last year and has limited but growing experience in the industry areas. His evidence is that of the two SA District officials with right of entry permits, he is the most experienced. 34

[23] Mr Kirner says that work health and safety is a priority for the CFMMEU. He says that he uses his entry permit to investigate suspected work health and safety contraventions about two to three times per fortnight. He says that he also regularly uses his entry permit to investigate underpayments of wages and entitlements, and to facilitate enterprise bargaining discussions with workers, to enable collective bargaining. Mr Kirner submits that since the new SA official came on board, he has also been using his right of entry permit to accompany the new official onto sites where the official is exercising his right of entry, to join discussions or assist with investigations and teach the official about our various industry sectors along the way. 35

[24] Mr Kirner says that if he is unable to hold a right of entry permit, this will have a detrimental effect on the Union and its ability to service members. He says that if there is effectively only one somewhat inexperienced local SA FFPD official able to exercise a right of entry onto work sites across South Australia, then potentially hundreds of members will miss out on representation and support, and sites will ultimately be less safe. 36

[25] Lastly, Mr Kirner says that he considers that he has a good understanding of the right of entry regime and the obligations placed upon him and upon officials that he is in charge of and submits that his overall history as a permit holder shows that he understands and will continue to review his obligations as a permit holder. 37

Conclusion

[26] As I have stated on more than one occasion, it would seem to me self-evident, having regard to the structure and content of s.513, that in deciding whether an official of a registered organisation 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. Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. 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.

[27] I have already noted the permit qualification matters which weigh in favour of a conclusion that Mr Kirner is a fit and proper person to hold a right of entry permit under the Act. The contravening conduct in the Liability Judgement was considered by Commissioner Saunders in Fair Work Commission v David Kirner and resulted in a suspension of Mr Kirner’s entry permit for a period of three months. I note that both before Commissioner Saunders and in the material before me Mr Kirner has acknowledged and accepted his conduct was improper and apologises for it. Moreover, he says that he would endeavour to behave at all times in a proper manner in accordance with the Act. There have been no further instances of wrongdoing or contravening conduct of which I am aware. In these circumstances although not insignificant I do not consider that the contravening conduct is of such magnitude as to weigh so heavily against a conclusion that Mr Kirner is a fit and proper person to hold an entry permit. In addition, I do not consider that I should give any particular weight to the conduct disclosed in proceedings before Deputy President O’Callaghan. These matters have been appropriately dealt with.

[28] For these reasons and taking into account the permit qualification matters, I am satisfied that Mr Kirner is a fit and proper person to hold an entry permit under the Act. The permit will separately be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR601861>

 1   See for example [2017] FWC 666 at [4] – [8].

 2 Witness Statement of David John Kirner dated 19 March 2018 at [1].

 3 Ibid at [2].

 4 Ibid at [3].

 5 Ibid at [6].

 6   Ibid.

 7 CFMMEU’s Outline of Submissions dated 19 March 2018 at [3], Witness Statement of David John Kirner dated 19 March 2018 at [22].

 8 CFMMEU’s Outline of Submissions dated 19 March 2018 at [13].

 9   Ibid.

 10 F42 Application lodged on 2 February 2018 at question 1.

 11 CFMMEU’s Outline of Submissions dated 19 March 2018 at [4].

 12 Ibid at [5].

 13 [2015] FCA 1287.

 14   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 414 at [47] (Penalty Judgement).

 15 Ibid at [57].

 16   CFMMEU’s Outline of Submissions dated 19 March 2018 at [5], Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 414 at [31] – [36].

 17   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 414 at [31].

 18   Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77.

 19 CFMMEU’s Outline of Submissions dated 19 March 2018 at [8].

 20 Witness Statement of David John Kirner dated 19 March 2018 at [7].

 21 Ibid at [8].

 22 Ibid at [10].

 23 Ibid at [12].

 24 CFMMEU’s Outline of Submissions dated 19 March 2018 at [12].

 25   [2017] FWC 5514.

 26   PR597160.

 27   [2013] FWC 10168.

 28   [2014] FWCFB 2709.

 29 See paragraphs [200] - [204] and endnote 170 of [2014] FWCFB 2709.

 30   PR551967.

 31   PR553054.

 32   CFMMEU’s Outline of Submissions dated 19 March 2018 at [14(a)] – [14(c)].

 33   Ibid at [14(d)] – [14(e)].

 34   Witness Statement of David John Kirner dated 19 March 2018 at [13] – [14].

 35   Ibid at [15] – [16].

 36 Ibid at [17].

 37 Ibid at [24].