Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
[2018] FWC 6518
•23 OCTOBER 2018
| [2018] FWC 6518 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
(RE2018/967)
| Commissioner Saunders | NEWCASTLE, 23 OCTOBER 2018 |
Application for right of entry permit - Robert Michael Carnegie.
On 27 August 2018, the Construction, Forestry, Maritime, Mining and Energy Union – Maritime Union of Australia Divisional (CFMMEU) made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Robert Michael Carnegie, who holds the position of Divisional Branch Secretary of the Queensland Divisional Branch of the CFMMEU, Maritime Union of Australia Division.
The previous right of entry permit held by Mr Carnegie[1] was issued to him on 22 July 2015. It has expired and was returned to the Commission on about 10 July 2018.
The Australian Building and Construction Commission (ABCC) advised the Commission that it does not intend to intervene or lodge submissions in respect of this application pursuant to s 110 of the Building and Construction Industry (Improving Productivity)Act 2016 (Cth) or otherwise.
On 21 September 2018, a directions hearing was conducted by telephone. Mr David Greene appeared for the CFMMEU and Mr Carnegie also appeared. The CFMMEU was directed to file any statutory declarations, submissions and other documents it wished to reply on in support of its application by 4pm on 12 October 2018, following which I would, absent any need for a hearing, decide the application in chambers ‘on the papers’.
On 8 October 2018, the CFMMEU filed submissions and a statutory declaration made by Mr Carnegie on 8 October 2018. I have had regard to those submissions and Mr Carnegie’s 8 October 2018 statutory declaration, together with the earlier declarations made by Mr Carnegie and Mr William Tracey on 29 August 2018, in deciding the present application ‘on the papers’.
Statutory Framework
Part 3-4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.
The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, 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.[2]
Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer.[3] The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.[4] Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.[5]
Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold the entry permit. The Commission’s discretion whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the “permit qualification matters” set out in s.513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose.[6]
Section 513 of the Act sets out the permit 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.
(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.”
Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:
“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).”
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,[7] Vice President Hatcher set out the following principles relevant to the interpretation and application of sections 512 and 513(1) of the Act as follows:
“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:
● A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.
● The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.
● The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.
● The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.
● The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.
● The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.
● While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).
● Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.”
In Maritime Union of Australia v Fair Work Commission (MUA v FWC)[8], a Full Court of the Federal Court of Australia observed the following in relation to the phrase “a fit and proper person”:
“[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:
‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’”[9]
In MUA v FWC, the Full Court ultimately concluded as follows:
“[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged ‘unreasonableness’.”[10]
Consideration
I will now take into account all of the permit qualification matters specified in s 513(1) of the Act in relation to the application for an entry permit for Mr Carnegie.
Has the official received appropriate training about the rights and responsibilities of a permit holder? (s 513(1)(a))
Mr Carnegie has received training concerning his rights and responsibilities as a permit holder under the Act. Mr Carnegie undertook that training on 2 August 2018.
By reason of the matters set out in the previous paragraph, I am satisfied that Mr Carnegie has received appropriate training about the rights and responsibilities of a permit holder. This weighs in favour of a finding that Mr Carnegie is a fit and proper person to hold a right of entry permit.
Has the official been convicted of an offence against an industrial law? (s 513(1)(b))
Mr Carnegie has never been convicted of an offence against an industrial law. This weighs in favour of a finding that Mr Carnegie is a fit and proper person to hold a right of entry permit.
Has the official been convicted of an offence against a law involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property? (s 513(1)(c))
Mr Carnegie has not been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. This weighs in favour of a finding that Mr Carnegie is a fit and proper person to hold a right of entry permit.
Has the official, or any other person, ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by the official? (s 513(1)(d))
Mr Carnegie has never been ordered to pay a penalty under the Act or any other industrial law. However, there is an issue as to whether another person (the CFFMEU) has been ordered to pay a penalty under the Act in relation to action taken by Mr Carnegie.
In Fair Work Ombudsman v Maritime Union of Australia[11] (Hutchison proceedings), Justice Jagot found that the CFMMEU (then known as the MUA) organised and was involved in the unlawful industrial action of employees at Sydney and Brisbane port terminals between 7 and 14 August 2015 and, thereby, contravened s 417(1) of the Act. Her Honour ordered the CFMMEU to pay a penalty of $38,000 in respect of its contravention of s 417(1) of the Act.[12]
The CFMMEU and Mr Carnegie contend that the CFMMEU was not ordered to pay the $38,000 penalty “in relation to action taken by” Mr Carnegie. In particular, they contend that Justice Jagot’s reasons for judgment in the Hutchison proceedings refer to Mr Carnegie, but her Honour does not make any findings in relation to his conduct, nor does her Honour make any comment in relation to his character. They contend that the Hutchison proceedings were concerned solely with the conduct of the CFMMEU (then known as the MUA) and the $38,000 penalty was not applied in relation to any action taken by Mr Carnegie.
Contrary to the submissions made by the CFMMEU and Mr Carnegie, I am satisfied that the order imposed on the CFMMEU to pay a $38,000 penalty in the Hutchison proceedings was “in relation to action taken by” Mr Carnegie within the meaning of s 512(1)(d) of the Act. The expression “in relation to” is one of “wide and general import, [which] should not be read down in the absence of some compelling reason to do so”.[13] In the Hutchinson proceedings, Justice Jagot did not identify with precision each and every act or omission on the part of particular officers of the CFMMEU which led to her finding that the CFMMEU organised and was involved in the employees’ conduct in ceasing work and thereby taking unlawful industrial action. However, her Honour did find (at [24]) that various officers of the CFMMEU, including the Branch Secretary for Queensland (Mr Carnegie), were acting for and on behalf of the CFMMEU and their actions and statements were attributable to the CFMMEU. Her Honour then traversed in some detail the relevant chronology of events and the involvement of a range of CFMMEU officers in organising the unlawful industrial action. Mr Carnegie was one of the CFMMEU officers whose conduct Justice Jagot considered in some detail in that context.[14] Read as a whole, it is clear from the reasons for judgment in the Hutchison proceedings that Justice Jagot relied on the conduct of the CFMMEU officers to whom she referred, including Mr Carnegie, in order to find that the CFMMEU (then known as the MUA) organised and was involved in the unlawful industrial action of employees at Sydney and Brisbane port terminals between 7 and 14 August 2015 and, thereby, contravened s 417(1) of the Act. It follows that the order imposed on the CFMMEU to pay a $38,000 penalty in the Hutchison proceedings was, in part, “in relation to action taken by” Mr Carnegie. Accordingly, it is appropriate to have regard to the $38,000 penalty imposed on the CFMMEU in the context of s 513(1)(d) of the Act.
The conduct of Mr Carnegie which, in part, gave rise to the penalties imposed on the CFMMEU in the Hutchison proceedings, albeit not in contravention of Part 3-4 of the Act, is relevant and weighs against a finding that Mr Carnegie is a fit and proper person to hold right of entry permit. That is because the organisation of, and involvement in, unlawful industrial action shows a willingness to ignore or breach a law if it does not suit the interests of the official at the time. However, it is relevant to have regard to the fact that Mr Carnegie was not solely responsible for the conduct which resulted in the CFMMEU being fined $38,000 by Justice Jagot in connection with the Hutchison proceedings. There were at least about nine officers of the CFMMEU who were involved in the conduct which led to Justice Jagot making a finding of contravention of s 417(1) against the CFMMEU.
Putting the Hutchison proceedings to one side, there is no suggestion on the material before me that Mr Carnegie has taken any other action in relation to which he or any other person has been ordered to pay a penalty under the Act or any other industrial law.
Has any entry permit issued to the official under Part 3-4 of the Act, or under a similar law of the Commonwealth, been revoked, suspended or made subject to conditions? (s 513(1)(e))
Mr Carnegie has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked or suspended. Nor has he had conditions imposed on any such permit. This weighs in favour of a finding that Mr Carnegie is a fit and proper person to hold a right of entry permit.
Has any relevant action been taken against the official under a State or Territory industrial law or a State or Territory OHS law? (s 513(1)(f))
Mr Carnegie has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit. This weighs in favour of a finding that Mr Carnegie is a fit and proper person to hold a right of entry permit.
Are there any other relevant matters? (s 513(1)(g))
There are no other matters that I consider relevant to the present application.
Conclusion
Taking into account and weighing each of the permit qualification matters, I am satisfied that Mr Carnegie is a fit and proper person to hold an entry permit. In my assessment, the permit qualification matters which support a finding that Mr Carnegie is a fit and proper person to hold a right of entry permit (s 513(1)(a), (b), (c), (e) and (f)) outweigh the sole permit qualification matter which tells against such a conclusion (s 513(1)(d)).
It is significant that the unlawful industrial action which Mr Carnegie played a part in organising in August 2015 is the first time Mr Carnegie has been found to have been involved in such conduct. There is no suggestion on the material before me that he has engaged in such conduct, or has contravened any other industrial law, at any time since August 2015. If Mr Carnegie were to organise unlawful industrial action or contravene any other industrial law in the future, there would be a significant issue as to whether he remained a fit and proper person to hold an entry permit.
For the reasons given, I exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Carnegie with an entry permit.
COMMISSIONER
<PR701651>
[1] RE 2015/989
[2] Section 480 of the Act
[3] Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J
[4] Ibid at 405 [56] per Flick J
[5] Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]
[6] Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141
[7] [2015] FWC 1522
[8] [2015] FCAFC 56
[9] Ibid at [17]
[10] Ibid at [42]
[11] [2017] FCA 1363
[12] Fair Work Ombudsman v CFMMEU [2018] FCA 934
[13] Fountain v Alexander (1982) 150 CLR 615 at 629
[14] See, for example, Hutchision proceedings at [28], [29], [38], [47], [50], [51], [59] & [89]
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