Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division

[2019] FWC 7850

[2019] FWC 7850

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
(RE2019/872)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 18 NOVEMBER 2019

Application by CFMMEU for issue of right of entry permit for Paul McAleer – not a fit and proper person to hold an entry permit – application for entry permit dismissed

Introduction and background

[1] On 5 September 2019, 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 Paul Patrick McAleer, who holds the position of Divisional Branch Secretary of the Sydney Branch of the Maritime Union of Australia Division of the CFMMEU. Mr McAleer also holds the position of National Vice President of the Maritime Union of Australia Division of the CFMMEU.

[2] The previous right of entry permit held by Mr McAleer 1 expired on 6 September 2019 and was returned to the Commission.

[3] The Australian Building and Construction Commission 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.

[4] On 15 October 2019, a directions hearing was conducted by telephone. 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 29 October 2019, following which I would, absent any need for a hearing, decide the application in chambers ‘on the papers’.

[5] On 25 October 2019, the CFMMEU filed submissions, together with a statement by Mr McAleer erroneously dated 25 October 2016; it should obviously have been dated 25 October 2019 and I will treat it as though it were so dated. I have read and had regard to Mr McAleer’s 230 page statement, including each of the Federal Court judgments annexed to the statement. I have also read and had regard to the CFMMEU’s submissions, together with the declaration made by Mr McAleer on 4 September 2019 and the declaration made by Mr William Tracey on 5 September 2019.

[6] Mr McAleer has held the position of Divisional Branch Secretary of the Sydney Branch of the Maritime Union of Australia Division of the CFMMEU since about August 2009. Prior to that time, he was Assistant Secretary of the Sydney Branch of the Maritime Union of Australia (MUA) from 2007, and prior to that time he worked as a stevedore at DP World Australia Pty Ltd (DP World). At DP World Mr McAleer was a workplace delegate and Branch Committee Representative.

[7] Mr McAleer has held right of entry permits under Commonwealth industrial laws since about 2007.

[8] I accept Mr McAleer’s evidence that he needs a right of entry permit in order to undertake parts of his role with the CFMMEU, including meeting with union members in their workplaces for a variety of reasons, negotiating enterprise agreements or providing updates to employees on enterprise agreement negotiations, and carrying out his duties and functions under the MUA Rules. 2

Statutory Framework

[9] 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.

[10] 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. 3

[11] 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. 4 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.5 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.6

[12] 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. 7

[13] 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.”

[14] 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).”

[15] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 8 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.”

[16] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 9, 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.’” 10

[17] 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’.” 11

Consideration

[18] 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 McAleer.

Has the official received appropriate training about the rights and responsibilities of a permit holder? (s 513(1)(a))

[19] Mr McAleer has received training concerning his rights and responsibilities as a permit holder under the Act. Mr McAleer undertook that training on 12 August 2019. I am therefore satisfied that Mr McAleer has received appropriate training about the rights and responsibilities of a permit holder. This weighs in favour of a finding that Mr McAleer 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))

[20] Mr McAleer has never been convicted of an offence against an industrial law. This weighs in favour of a finding that Mr McAleer 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))

[21] Mr McAleer 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 McAleer 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))

[22] In DP World Sydney Limited v Maritime Union of Australia (No 2) 12 (DP World), Mr McAleer was ordered to pay a pecuniary penalty of $8,000 for contravening s 417 of the Act. The MUA was ordered to pay a pecuniary penalty of $30,000 for contravening s 417 of the Act, arising in part from Mr McAleer’s conduct. There were no findings of breaches relating to right of entry in these proceedings.

[23] In DP World, it was found that Mr McAleer organised industrial action at Port Botany, New South Wales between 10:30am and 2pm on 18 December 2012, 2pm and 10pm on 18 December 2012, and between 10pm on 18 December 2012 and 6am on 19 December 2012, before the nominal expiry date of the applicable enterprise agreement. The agreed facts which gave rise to the findings of contraventions in DP World include the following:

“13. One employee, Mr Darrell Wills, had been off work for approximately 18 months having suffered an ocular occlusion. DP World had decided that some action was required. It was at 9.00 am on 18 December 2012 that a meeting was held to discuss the issue. In attendance were Messrs McAleer and Wills. Also in attendance was Ms Seta Samimi (the Human Resources Manager) and Mr Brendan Bilston (the Operations Manager).

14. Because the events of that meeting provided the catalyst for the industrial disruption that later followed, it is necessary to set forth the substance of what was said. At the meeting it is agreed that the following conversation and events took place:

Ms Samimi: ‘I don’t think that it is safe for him [Mr Wills], to drive an IT vehicle or a forklift. We want a safe workplace.’

Mr McAleer [raised voice]: ‘Don’t talk to me about safety, I can close this site, this meeting is finished...’

Ms Samimi: ‘We need to talk about this.’

Mr McAleer and Mr Wills then stood up.

Ms Samimi: ‘We will send you a letter.’

Mr Wills: ‘I will wait for the letter then.’

Mr McAleer and Mr Wills left the room.

Mr McAleer and Mr Wills left the meeting. Mr Bilston observed that Mr McAleer and Mr Wills were in an agitated state. Mr Bilston followed them out of the room and they walked up the corridor outside the employee change rooms. Mr McAleer still appeared to be in an agitated state and he said words to the following effect:

Mr McAleer: “It’s time to take action.”

Approximately five minutes later, Mr Bilston sought out Mr McAleer, who was located in the canteen at the Port Botany Terminal. Mr Bilston indicated their earlier discussion had not been concluded, and invited Mr McAleer and Mr Wills back to the meeting. Mr McAleer and Mr Bilston had a conversation with words said to the effect of:

Mr Bilston: We haven’t finished the meeting and would like you both to come back to the meeting with HR [Human Resources] to continue discussions.

Mr McAleer: Today’s meeting should not be going down the path of termination, The decision was made prior to Darrell [Wills] or me coming onto the site. I don’t understand why you need to terminate this employment, it is not costing the company any money – Darrell has income protection.

Mr Bilston: This isn’t about Darrel [Wills] having income insurance or not, it is about his long-term absence and doctor’s report that states that he is not fit to return to work any time soon.

Mr McAleer: Then we won’t be coming back. DP World is treating the MUA with contempt, especially HR.

Mr Bilston: If you [Mr Wills] are not prepared to sit down with the company and continue the meeting, I will be sending you a termination letter.

Mr Wills: I understand but I’m not prepraed to go to a meeting just to get sacked.

Mr McAleer: We will not be coming back into any meeting with HR if it is about him [Mr Wills] getting the sack.

Mr Bilston: The decision and the termination stands, you [Mr Wills] will receive a termination letter outlining the decision.

Mr McAleer: I am going to explain the outcome of this morning’s meeting to the workforce and I’ll let you know the outcome of that.

Mr Bilston then left, and Mr McAleer and Mr Wills remained in the canteen.

15. It is unnecessary to set forth the balance of the conversations that took place on 18 and 19 December 2012. It is sufficient, for present purposes and given the agreement between the parties, to simply note that there was disruption to each of the three shifts. Mr McAleer took a more prominent role than did Mr Keating.”

[24] In deciding the question of penalty in DP World, Justice Flick characterised the relevant conduct as follows:

“28. Although it must be recognised at the outset that each of the contraventions involved deliberate conduct which had the consequence that there was some disruption to work during each of the three shifts on 18/19 December 2012, the contraventions were, in essence, an over-reaction on the part of the Respondents to the decision to dismiss Mr Wills. Although the response on the part of the Respondents was unjustified, it was certainly not conduct warranting the imposition of a penalty at anything other than the “lower range”.

29. In reaching that conclusion, two aspects of the Respondents’ conduct warrant separate attention, namely:

•  the fact that the Respondents only reached agreement as to the terms of the settlement of the proceeding immediately preceding the commencement of the hearing; and

•  the fact that the Maritime Union has previously been found to have contravened s 417 of the Fair Work Act.

…

39. The events as they unfolded on 18/19 December 2012 merely exposed what was in all probability an overreaction on the part of Mr McAleer. Contraventions nevertheless followed and there were disruptions to the business activities of DP World. Penalties at the “lower end” of the spectrum were clearly appropriate. The involvement of Mr McAleer was clearly much greater than that of Mr Keating and the larger penalty imposed upon Mr McAleer reflects this greater involvement.”

[25] In Patrick Stevedores Holdings Pty Ltd v CFMMEU 13 (Patricks No. 1), Mr McAleer was ordered to pay a pecuniary penalty of $6,000 for contravening s 417 of the Act. The CFMMEU was ordered to pay a pecuniary penalty of $30,000 for contravening s 417 of the Act, arising in part from Mr McAleer’s conduct. There were no findings of breaches relating to right of entry in these proceedings.

[26] In Patricks No. 1, it was found that Mr McAleer organised industrial action taken by employees of Patricks at Port Botany, New South Wales, in the form of a refusal to perform work on the day, evening and night shifts of 14 April 2018, and on the night shift ending on 16 April 2018, prior to the nominal expiry date of the applicable enterprise agreement. The agreed facts which gave rise to the findings of contraventions in Patricks No. 1 include the following:

“17. …in April 2018 Kalmar was engaged in enterprise bargaining with its employees who worked at the Terminal. Its employees were represented by the CFMMEU.

18. The CFMMEU notified Kalmar that the Kalmar employees would be engaging in protected stoppage of work for 24 hours commencing at 5.30am on 14 April 2018. This stoppage of work by the Kalmar employees represented by the CFMMEU occurred as notified. Further, on 15 April 2018, there were no electrical tradesmen provided by Kalmar to work the night shift.

19. Having received the CFMMEU notice, Kalmar made arrangements to supply maintenance coverage, consisting of alternative labour, to perform maintenance for the 24 hours commencing at 5.30am on 14 April 2018. In the early hours of 16 April 2018, Kalmar also provided replacement electrical tradesmen after none had been provided for the 15 April 2018 night shift.

20. Despite these arrangements being put in place, whenever these replacement maintenance employees were employees other than the usual Kalmar employees, the employees of Patrick Stevedores refused to perform work on the quay cranes. This occurred during the 24 hours on both 14 and 15 April 2018 and again on the night shift commencing on 15 April 2018 and ending on 16 April 2018.

The admissions made – three issues no longer in need of resolution

21. The admissions made by the Respondents, albeit belatedly and at the very start of the hearing, as to liability removed the necessity for the Court to resolve a series of legal and factual complexities arising out of the background facts.

22. Without attempting to be exhaustive, the issues no longer in need of resolution include the following.

23. First, one issue was whether the action taken by the Respondents fell within cl 4.10 of Pt B, Sch 4 of the Enterprise Agreement. That clause provided as follows:

Maintenance employees will be available at all times to ensure safety support. Without adequate maintenance coverage including a qualified breakdown crew, no work will be performed in the Terminal.

24. Second, a further issue no longer in need of resolution was whether an email sent by Mr McAleer on 13 April 2018 to Mr Bruce Guy, the Terminal Manager at the Port Botany Terminal (and also sent to a number of other persons) constituted the organising of “industrial action” within the meaning of the definition in s 19(1)(b) of the Fair Work Act. That email provided as follows (without alteration):

Bruce,

The email below appears to fly in the face of the facts related by Kalmar today at the Fair Work Commission hearing in Melbourne.

Kalmar have indicated they have two relocated tech specialists from interstate who cannot perform any maintenance functions grade 1-6 as set out in the Enterprise Agreement, as well as six contractors, three each on two twelve hour shifts, who are not qualified to the minimum standard as set out in the Kalmar Agreement.

As you can imagine, this is an unacceptable safety risk to Patrick employees who are entitled to the following in addition to other clauses in the EA including 1.3 of Part B and various clauses related to safety throughout the document and legislation:

Clause 4.10. of Part B states that:

Maintenance employees will be available at all times to ensure safety support. Without adequate maintenance coverage including a qualified breakdown crew, no work will be performed in the Terminal.

Not having available a maintenance breakdown crew that are minimally skilled to support the Terminal workers is a change to an accepted practice as well as fundamentally unsafe and therefore employees will not be performing work in the Terminal tomorrow commencing 5:30am for 24 hours or until such time as maintenance workers supporting the Terminal are qualified to the minimum requirement as set out in the Kalmar Agreement.

The Branch is willing to discuss the matter at a time convenient to the Parties, we look forward to you adhering to Clause 1.3 of Part B of the current Enterprise Agreement.

1.3. Where a dispute arises in the workplace as a consequence of the Company directing employees to work different to accepted practice/s or a suspected breach of the Enterprise Agreement, work shall continue as existed prior to the dispute arising for a period of 72 hours, and a discussion has taken place between the MUA Branch Secretary and General Manager of Terminal Operations or their nominated representatives. Where the company proceed with directing employee/s to carry out work contrary to the terms of this Agreement or accepted practice, work shall continue as existed prior to the dispute arising until the matter has been determined through the Dispute Resolution Procedure. It is the intention of the Parties that clause 1.3 will not apply where there has been genuine consultation under the consultation and change clause.

Paul

Mr McAleer (it may be noted) maintained in his affidavit affirmed 21 September 2018 that the email was “not a direction not to work, but a reflection of the views expressed to me by employees that there was inadequate maintenance coverage, a breach of the Enterprise Agreement and a change to accepted practice, and the consequence required by the Agreement in that situation that no work is to be performed until the issue is resolved.”

[27] In deciding the question of penalty in Patricks No. 1, Justice Flick observed that:

“37. … it has been concluded that the agreed penalties should be imposed when consideration is given to (in particular) the following factors:

•  the prior contraventions by the former Maritime Union of Australia, being contraventions in 2010 and 2012 and the prior contraventions by the CFMMEU in 2015 and 2017 in respect to activities at container terminals;

•  the prior contraventions of s 417 by Mr McAleer in 2012 and 2017 and the fact that he occupies a senior position within the Sydney Branch of the CFMMEU;

•  the fact that the unlawful industrial action in the present case was deliberate, insofar as the conduct was itself a conscious decision to cease work;

•  the absence of contrition; and

•  the need for the quantum of the penalties imposed to act as both a general and specific deterrence and not to be regarded as merely the “cost of doing business” (cf. Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [110], (2015) 258 CLR at 523 to 524 per Keane J; Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 at [35] per Barker J).

The fact that:

•  the agreement between the parties came only shortly before the commencement of the proceeding, assumes a more neutral relevance – the contraventions being alleged were, over time, narrowed by the Applicant and (in particular) involved the abandonment in the Further Amended Statement of Claim of the previously alleged contravention of s 421 of the Fair Work Act.

Uninformed by the agreement between the parties, penalties greater than those agreed may have been imposed. But no conclusion can be reached that the penalties as agreed are not “appropriate”.

[28] That Mr McAleer and the CFMMEU have been ordered to pay penalties under the Act in relation to action taken by Mr McAleer weighs against a finding that Mr McAleer is a fit and proper person to hold a right of entry permit. This is so notwithstanding Mr McAleer’s belief, expressed in his affidavit of 21 September 2018, that the conduct in Patricks No. 1 was a consequence “required by the Agreement in that situation”.

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))

[29] Mr McAleer has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit. This weighs in favour of a finding that Mr McAleer 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))

[30] Mr McAleer has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been 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 McAleer is a fit and proper person to hold a right of entry permit.

Are there any other relevant matters? (s 513(1)(g))

[31] In Fair Work Ombudsman v Maritime Union of Australia 14 (Hutchison Ports), Justice Jagot of the Federal Court of Australia determined that the MUA organised, and was involved in, the industrial action of employees, in contravention of s 417 of the Act. This arose from the conduct of Mr McAleer and other officials of the MUA. Justice Jagot imposed a penalty of $38,000 on the MUA, but declined to make any order for compensation against the MUA and in favour of various Hutchison entities.15 The Fair Work Ombudsman (FWO) appealed against Justice Jagot’s decision not to order compensation and the quantum of the penalty ordered against the MUA. In particular, the FWO contended that the primary judge erred in her application of the “course of conduct” principle as prescribed in s 557(3) of the Act and in relation to whether a compensation order should have been made. The Full Court of the Federal Court upheld the appeal insofar as it related to the “course of conduct” principle and dismissed all other grounds of appeal.16 The Full Court set aside the primary judge’s orders and remitted the issue of penalty to the primary judge for further hearing. The primary judge has not yet redetermined the penalty. There were no findings of breaches relating to right of entry in these proceedings.

[32] In Hutchison Ports, Justice Jagot summarised the relevant conduct and contraventions as follows:

“1. Between 7 and 14 August 2015 work effectively ceased at the Brisbane and Sydney terminals of the port operator Hutchison Ports Australia (or HPA). Immediately before the employees ceased work, HPA gave notice sacking nearly 100 of its employees with effect from 14 August 2015. The Fair Work Ombudsman (or FWO) contends that the Maritime Union of Australia (or MUA) organised and was involved in the employees’ conduct in ceasing work which was unlawful industrial action and, as a result, itself contravened s 417(1) of the Fair Work Act 2009 (Cth), which is a civil penalty provision.

2. For the reasons set out below the FWO’s case must be accepted. The cessation of work at the two terminals between 7 and 14 August 2015 involved the employees taking industrial action. The MUA organised that industrial action and was involved in it by reason of counselling or procuring the action and being a knowing participant in the action. The MUA, accordingly, contravened s 417(1) of the Fair Work Act between 7 and 14 August 2015 and is liable to the imposition of a pecuniary penalty as a result.”

[33] Justice Jagot’s reasons for judgment in Hutchison Ports include the following, none of which have been disturbed on appeal given the confined nature of the issues raised in the appeal by the FWO:

“61. In an email to an international colleague on 11 August 2015 Mr Carnegie described Mr McAleer as the MUA person who was “leading the fight in Sydney against Hutchison”. I consider this statement was accurate and was not intended to mean only that Mr McAleer was simply arranging the picket, community support, and public relations exercise in Sydney, as opposed to doing all of those things and also having ensured or ensuring the employees continued their industrial action.

…

79. Whether the conduct of HPA was lawful or unlawful is not the point. Nor is it the point whether or not the HPA wanted to break the power of the MUA by discriminating against MUA delegates in the redundancies and introduce automation on the wharfs by stealth. Equally, it is not to the point that it might be considered that the employees honestly believed they had no option other than the withdrawal of labour to prevent what they perceived as a gross injustice. The issues are, were the employees engaged in industrial action and, if so, did the MUA organise that action and/or was the MUA involved in that action? It seems to me that the inescapable answer to these questions must be yes.

80. The evidence leads overwhelmingly to the inference that the MUA intended to and did in fact organise the industrial action in the required sense. In Australian Building and Construction Commissioner v Huddy[2017] FCA 739 at [147] this was said to involve “acts of positive and intentional conduct bringing about or maintaining, or contributing in a material way to the bringing about or maintenance, of industrial action”. The FWO accepted in its submissions that:

To “organise” industrial action involves positive conduct which is intended to, and does in fact, induce or procure others to engage in conduct by “marshalling” “rallying” or “co-ordinating” employees to bring about or maintain the industrial action: Director of the Fair Work Building Industry Inspectorate v Robinson[2016] FCA 525 at [53]; Australian Building and Construction Commissioner v Huddy[2017] FCA 739 at [66] - [72]; [147].

81. The inference that the MUA intended to and did in fact co-ordinate the employees to engage in the industrial action between 7 and 14 August 2015 must be drawn on the evidence. The MUA’s own statements are inconsistent with the submission that it did no more than “encourage” or “enable” the employees to take industrial action. To the contrary, the MUA, confronted with sackings it saw as union busting, was determined that the employees would take industrial action and must be inferred to have done all in its power to ensure the employees did so, having recognised that it needed to “win” the employees over and industrially “mobilise” them in the MUA’s perceived “war” with HPA. As the FWO submitted, it is necessary in the present case never to lose sight of the fact that this was not merely the MUA acting to protect employees. It was the MUA in what it perceived to be a war for its own existence, protecting the MUA’s own interests. In this context, the inferences which must be drawn on the evidence do not depend, as the MUA would have it, on conjecture or speculation. They depend on the MUA’s own words, taken with the events as they occurred.”

[34] In Patrick Stevedores Holdings Pty Ltd v CFMMEU 17 (Patricks No. 2), Justice Lee determined that Mr McAleer and the CFMMEU (arising in part from Mr McAleer’s conduct) contravened sections 417, 421 and 340 of the Act. Declarations have been made reflecting these contraventions, but the proceedings are still before the Federal Court and no penalties have yet been determined or ordered.

[35] Patricks No. 2 concerned allegations, inter alia, that the CFMMEU and Mr McAleer organised and were involved in industrial action that took place at Port Botany, New South Wales during various shifts in April and May 2017. Justice Lee’s reasons for judgment in Patricks No. 2 include the following:

“41. … A good illustration of the view taken as to the use of the Sublease Area, and the suspicions harboured as to the motives of Patricks and Qube within the Union branch around this time, is recorded in the MUA National Office Report of March 2017 (Exhibit N 346–347), where the following was noted under the topic “Patrick and Qube attack stevedoring work”:

The Sydney Branch reports that Patrick Terminals are in the process of undermining the definition of stevedoring work and attacking wharfie’s jobs at [the Terminal]. With the support of the National Office, the Sydney branch is developing a domestic and international campaign to stop these moves and seeks the support and vigilance of all other MUA branches.

The branch believes this attack is the first front in Qube’s reorganisation of Patrick Terminals since their 50% purchase of the terminals in August 2016 and the appointment of Qube management and directors, such as Chris Corrigan, Maurice James, Paul Digney and Michael Jovicic to the Patrick board and management. Qube has a well-established tactic of undermining stevedoring work in other ports through the use of subsidiary companies.

Patrick have cordoned-off area an area which they say they are not using and are simply leasing to Qube Logistics to use for empty containers for the next 2–3 years. However, the location of the area means that it is also inextricably connected to work processes in the terminal, and it will in all likelihood remove work form the terminal. The area in question is also adjacent to an underused railway line. The use of the rail line is critical to Qube’s business strategy, which involves linking all aspects of the container supply chain and in particular, development of Australia’s largest intermodal container terminal at Moorebank near Liverpool NSW. Due to protests by local residents, containers will only be able to travel from the port to the 1.5 million TEU terminal by rail. The branch believes that establishing the separation of the land near the rail line from the work processes in the terminal is part of Qube and Patrick’s longer-term strategy to remove wharfies from the future rail work at the Port Botany terminal.

The branch is determined to see off this challenge for Qube and Patrick, as we did in 1998, again in 2012 with the automation of Port Botany, and again in 2016 when Qube sought to break up their national agreement with the MUA.

(emphasis added)

42. One might be tempted to dismiss some of these comments as hyperbole but I do not find that this was the case. The issue of the use by Qube of the Sublease Area was obviously regarded by the branch with intense suspicion and as a harbinger of further actions to be taken by Patricks and Qube adverse to the interests of employees. Although the authorship of the MUA National Office Report was not established, I am satisfied it is appropriate to infer that the views of the branch reflected in that document were an accurate reflection of the view of not only Mr McAleer (who had communicated his serious concerns) but also of Mr Keating, in the absence of evidence to the contrary. Additionally, there does not appear to be any suggestion in the evidence that the actions of the branch were in conflict, in any way, with the wishes or views of the Union at national level. Indeed, the early involvement of Mr Tracey (see the preceding paragraph), rather suggests to the contrary.

43. On 17 March 2017, the Union filed with the FWC an “Application for the Commission to Deal with a Dispute in Accordance with a Dispute Resolution Procedure” (Exhibit N 367), by which it alleged that Patricks had not complied with its consultation obligations (First FWC Application). In the dispute notification, the Union made clear its position that “the work being performed by Qube is stevedoring, and is either work that could be performed by stevedore employees at the Terminal or is work currently being performed by stevedore employees at the Terminal”. Accordingly, it was alleged that Patricks had failed to consult with employees in respect of the work which it considered to be the same work as that undertaken by the employees. Consistently with what was noted as to national level involvement, the same day, Mr Tracey wrote to Patricks advising that unless the decision to implement Qube’s use of the Sublease Area was suspended, the Union reserved its rights to sue for damages (Exhibit N 382-383). On any view of it, a dispute about the nature of the work to be performed in the Terminal had now arisen between the Union (at both branch and national level) and Patricks.

44. On 23 March 2017, Mr McAleer wrote to Mr Paddy Crumlin, the national secretary of the Union, that the Sydney Branch was “heading into a significant dispute with Patricks” and was intending on “campaigning in the biggest way possible”, and that “numerous partners” were “already committing to a community, political and industrial response around the world” (Exhibit N 388). Consistently with this, on 7 April 2017, the Union sent correspondence to Australian and international trade unions and organisations, whereby recipients were requested to assist in what was described as its “major dispute with Patrick Port Botany” and requested, in solidarity, that these organisations send a letter to Patricks in a form provided (Exhibit N 441–507).

…

53. Returning to the chronological narrative and my findings, on 12 April 2017, a Qube Narrabri train was loaded with empty containers which arrived at the Rail Yard on trucks from the Sublease Area. Mr McAleer was aware that Qube was “running boxes into the rail”, and his reaction was to “escalate this”. He emailed Mr Bonner and stated that he should “accept this as advice of a dispute at a branch level as well” (Exhibit N 843, 892, 2929–2931 and 2964–2967). In truth, what was occurring was that the pre-existing dispute had been escalated. Notwithstanding tensions were rising, on the following day, the Qube Narromine train was loaded with empty containers and until 19 April 2017, on two more occasions, the rail employees unloaded empty containers from trucks operated by Qube (Exhibit C at [60]).

54. On 18 April 2017, a meeting was held which was attended by representatives of Patricks, Qube and the Union. At the meeting, the Union representatives reiterated the Union’s position that the work being undertaken by Qube in connexion with its use of the Sublease Area was stevedoring work and that it should be covered by an agreement with the Union on the basis of the Stevedoring Industry Award 2010 (Exhibit C at [49]–[51]; T181, 201-202).

55. On 19 April 2017, Mr McAleer informed Mr Guy that the rail employees would no longer unload the trucks operated by Qube carrying empty containers and that the matter relating to the Sublease Area “would be put into dispute” (Exhibit C at [52]–[56]).

…

59. At approximately 11:30 am, Mr Balzan called Mr McAleer and there was a conversation in excess of two minutes and Mr McAleer then called Mr Keating at 11:39 am for a 32 minute conversation, immediately followed up by a conversation in which Mr McAleer spoke to Mr Keating for a further two and a half minutes. In the absence of any evidence to the contrary, it is reasonable to infer that Mr McAleer had been apprised of the fact that the escalation of the dispute by the refusal to unload the empty containers had taken place – a course taken with his knowledge, approval and encouragement.

…

63. The position taken by the Union (through the actions of Mr McAleer), was persisted in and indeed became more widespread and extended beyond the Ban.

64. The evening shift commenced at 2:00pm on 20 April 2017. Following a “toolbox” meeting at the commencement of the shift, all of the employees waited in the crib room and did not commence work. The employees subsequently confirmed that they were supporting “the guys in rail” (that is, the rail employees) and that they would call Mr McAleer to ask him to come down and “tell us what to do” (Exhibit C at [83]–[93]).

65. At around 3.30pm Mr McAleer was standing close to the yellow fence that divides the open area of the Terminal’s meal room from the carpark. A number of workers were gathered together on the meal room side of the fence and Mr McAleer was talking to the workers through the fence from the carpark (Exhibit J [25]-[26]). After he had a conversation with a security supervisor, Mr David Fox, during which Mr Fox asked Mr McAleer to leave the premises, Mr McAleer turned to the workers who were gathered on the other side of the fence and said words to the effect of “C’mon guys, let’s go”. Mr Fox then had a conversation with Mr May and Mr Guy and said to them that “McAleer will be going and the guys might be going with him”. Shortly thereafter a large number of workers left the Terminal (Fox affidavit, sworn 30 August 2018 at [16]–[25]). Following this activity, the employees on the evening shift on 20 April did not return to work (Exhibit C at [102]). I am satisfied this action was taken because of Mr McAleer’s entreaties, which were designed by him to marshal or rally the employees and were directed at achieving the result of a large number of workers leaving the Terminal.

66. Matters then escalated quickly. An application was made by Patricks to stop what was contended to be unprotected industrial action in accordance with Part 3–3 of the FW Act (Second FWC Application). The order was sought against employees who were members of the Union pursuant to s 418(2)(b). Employees, including rail employees, maintained the refusal to work (Exhibit C at [106]–[145]) and very late in the evening of 20 April, Deputy President Booth of the FWC issued interim orders. These orders required, in effect, that the employees not engage in industrial action in the form of a ban on the loading or unloading of trucks arriving at the Rail Yard, or in a stoppage or refusal to attend for or perform work (General Stoppage of Work).

67. On the night shift of 20 April, leading into 21 April, the General Stoppage of Work at the Terminal continued. At that time, the employees on shift were represented by Mr Matthew Bonner (Exhibit H at [40]-[46]). That night, Mr Bonner placed telephone calls to Mr McAleer, lasting 67 seconds, at 10:36pm; and Mr Keating, lasting 143 seconds, at 10:37pm.

68. Despite the order, the General Stoppage of Work continued the following day. During the day shift on 21 April, the employees on shift were represented by Mr Dean Harris (Exhibit H [55], [62], [64]). That morning, Mr Harris made two telephone calls to Mr Keating at 11:55am and 11:56am (seemingly without success as each call lasted only a few seconds); and then made a further telephone call lasting 29 seconds to Mr McAleer at 12:29 pm. At 1:48pm Mr McAleer was at the entrance of the Terminal carpark addressing employees who were due to commence their shift (Denham affidavit Annexure JPD-10 [101]–[104]). In the absence of any countervailing evidence, it is necessary to conclude that it was more likely than not that Mr McAleer was aware of precisely what was occurring concerning the General Stoppage of Work and it conformed to his wishes as to the appropriate industrial strategy to undertake to escalate the dispute.

…

77. It might be thought to be a considerable understatement to remark that Mr McAleer continued to feel strongly about the matter. On 29 April, in responding to an email sent by Mr Keating to Patricks criticising the issuing of warning letters, he stated “[t]he company will be broken or broke” (Exhibit N 1693)

78. At about 10.30am on 1 May, Mr McAleer and Mr Keating arrived at the Terminal and waited near the security office. Around five minutes later, the rail employees scheduled to work on the 1 May day shift met with Mr McAleer and Mr Keating. A meeting then took place between Mr Higham, a Union delegate and employee, Mr Tony Micic, an employee, Mr Michael UpCroft, another employee and the WHS Committee Chairman, Mr Frawley and Mr Guy. At this meeting, Mr Guy indicated that he would be happy to have a discussion regarding the Qube trucks after the train was loaded. Mr Micic asserted that the employees did not need to load the empty containers because there were other containers that could be loaded. Mr Guy responded by re-iterating that the Qube trucks were loaded, and needed to be unloaded. Mr Keating then raised the issue that there had been no risk assessment or standard operating activity done for the loading of empty containers (Exhibit C at [204]-[208]). Shortly after this meeting concluded, Mr Frawley and Mr Guy presented warning letters to those 1 May rail employees who had not previously received them (Exhibit G at [202]-[219]).

79. There were multiple subsequent meetings between Mr Frawley, Mr Guy, Mr McAleer, Mr Keating and various rail employees throughout the day. In particular, not long after 12.30pm, Mr Guy provided Mr McAleer with a copy of an unsealed Federal Court order. At this meeting, Mr McAleer asserted the argument made by the Union which was persisted in at the hearing in greater amplitude: Patricks’ direction to load empty containers from the sub-lease onto trains in the Rail Yard was in breach of clause 1.3, there had been no consultation regarding the change to accepted practice; as a consequence, there had not been industrial action, and the receival and delivery process within the Terminal had changed dramatically (Exhibit C at [226]–[223]). Mr Keating was present at this meeting, saying words to the effect: “you show utter contempt for your employees”, and requesting that the meeting be recorded (Exhibit C at [226]-[232]). Following this meeting, Mr Keating and Mr McAleer gathered again with the rail employees in the carpark. At around 1pm, Mr Guy approached the group and indicated he would give the employees five minutes to get advice from Mr McAleer and Mr Keating. Less than ten minutes later, the employees, Mr Keating and Mr McAleer moved into the meeting room near the security office. Mr Guy proceeded to read the pre-prepared script which directed the employees to work the Qube trucks. After reading the script, Mr Guy gave the employees a further five minutes to discuss what they had just been told. Shortly thereafter, Mr McAleer said that they had contacted the workers’ legal representatives and were awaiting advice. Mr McAleer and Mr Keating then returned to the carpark. At 1.20pm, Mr Frawley and Mr Guy again approached the group which had gathered in carpark; Mr Guy telling the employees that they needed to return to work and he attempted to read the script again. While reading the script, Mr McAleer and Mr Keating approached him, Mr McAleer swearing. As this took place, the employees began to walk away. Mr Guy followed them and warned that they were in breach of Federal Court orders. Five minutes later, the group remained in the carpark. Mr Guy asked if they had a response to his direction. Three employees contended that they were sick because of stress, and went home. The remaining rail employees did not perform any work for the remainder of the day. I accept Mr Laroche’s evidence that he directed the rail employees to work and that they refused. In the absence of any evidence to the contrary, I consider it is far more likely than not that the rail employees did so because both Mr McAleer and Mr Keating had both encouraged them to refuse to act in accordance with the direction made and, in doing so, entreated them to conform with the strategy that they had agreed upon on behalf of the branch.

80. On 2 May, another official of the branch, Mr Warren Smith, sent an email indicating that “[w]e are campaigning in an attempt to sway the company through leverage on ships that call into the port and have contracts with Patrick” (Exhibit N 1940). Mr Graham gave evidence, which I accept, that Patricks was required to cancel the day shift on 2 May because there were not enough skilled employees to perform the work due to the number stood down the previous day (Exhibit A at [118]–[119]; Exhibit QA at [11]–[13]).

…

116. In the absence of any countervailing evidence from either Mr McAleer or Mr Keating or any employees, the record of communications between them and their roles as secretary and deputy secretary of the branch in the conduct of what was clearly subjectively considered by both of them to be a “major dispute”, establishes that the branch officials were taking a coordinated and tactical course in putting the Ban in place. This was evidently thought by both Mr McAleer and Mr Keating to be a proportionate and appropriate remedial response to an action which was perceived to be a broader plan by Patricks and contrary to the interests of the Union and its members. Although it seems that both Mr McAleer and Mr Keating were the most passionate officials advocating and organising the escalation of the dispute, there is no evidence anyone within the Union acted to countermand them or put in place an alternative strategy. The organisation of the escalation of the dispute and the putting in place the Ban, consistently with the wishes of Mr McAleer in particular, was actioned. After reviewing the contemporaneous material and in the absence of any evidence to the contrary, I have reached a state of satisfaction or actual persuasion that Mr McAleer was not mere passive observer but was involved in positive conduct which was intended to and did induce and rally employees to participate in the Ban and those acts were directed to achieving a cohesiveness in result in ensuring the Ban took place in accordance with the industrial strategy settled upon by him. To the extent relevant, I am also satisfied that Mr McAleer counselled and procured the employees to participate in the Ban while having knowledge of the fact that this would amount to disputation during the currency of the Enterprise Agreement.

117. As to Mr Keating, it is only necessary to make findings as to the day shift on 1 May. I am comfortably satisfied that there was no relevant difference between the views of Mr McAleer and Mr Keating as at that date. Mr Keating as at 1 May was also involved in positive conduct which was intended to and did induce and rally employees to participate in the Ban on the day shift and those acts were directed to achieving a cohesiveness in result in ensuring the Ban took place that day in accordance with the industrial strategy he had agreed with Mr McAleer. Mr Keating counselled and procured the employees to participate in the Ban on 1 May while having knowledge of the fact that this would amount to disputation during the currency of the Enterprise Agreement.

118. I should expressly note, however, that I am not satisfied that either Mr Keating or Mr McAleer subjectively believed that they were engaging in a contravention of the law but rather that they had knowledge of the essential ingredients that made up the contravention. Needless to say, this finding is one which will be relevant if one comes to considering the issue of any appropriate pecuniary penalty.

…

127. I am conscious of the email that Mr McAleer wrote the following day, noting he felt “massively let down by the National Office” and that there was evidently at least some tension between the National Office and the branch in “the way [the issue] has been handled since December” the previous year. But the reality as revealed in the evidence is that the organisation of a response was left to the branch officials. The branch was intent on pursuing what Mr McAleer considered to be appropriate and the evidence allows me to be comfortably satisfied that Mr McAleer, as at 20 April, wanted, encouraged and successfully organised an escalation of the dispute and a means designed to achieve that end was putting in place the General Stoppage of Work. By application of s 793(1), the conduct of Mc McAleer in organising the General Stoppage of Work should also be attributed to the Union.

…

G.3 A Summary of Contraventions of s 417(1) and s 421(1)

I The s 417 Contraventions

186. It is evident from my findings that I have found that the Union and Mr McAleer organised both the Ban and the General Stoppage of Work (and that Mr Keating also organised the Ban on 1 May). Mr McAleer and Mr Keating (to the limited extent pleaded) were also involved in the employees’ contraventions of s 417. As I note below, I propose to stand the matter over in order for the parties, with the benefit of these reasons, to bring in orders which will identify the appropriate declaratory relief.

II Breach of the FWC Order – the s 421 Case

187. Section 421(1) of the FW Act provides that:

A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order.

188. As my findings make clear, the organisation of industrial action at the Terminal extended to contravention of the interim order made pursuant to s 420 of the FW Act made on 20 April 2017 following the making of the Second FWC Application. The order, obviously enough, was binding on the employees and the respondents and the organisation of industrial action, as I have found, continued after the making of the Interim Order. The organised industrial action thereby contravened s 421(1).

189. Moreover, the respondents had knowledge of the Interim Order and its terms. They also knew that employees would and did take industrial action of the type proscribed by the Interim Order (being the contraventions of s 421(1) by the employees who engaged in industrial action from the night shift on 20 April 2017 onwards). The terms of the order binding all employees were plain and by taking that industrial action, those employees contravened s 421(1). Consistently with my earlier findings, the respondents abetted, counselled and advised the employees to engage in the contravening conduct of the employees and are taken to have contravened s 421(1). In relation to Mr Keating, this is, of course, restricted to conduct in relation to the 1 May day shift.

190. The only answer to this case advanced by the respondents was that there was “no contravention of ... s 421 ... each of which are conditioned on the taking of industrial action by employees, or the organising of same” (RS [48]). For reasons already explained, this contention is misconceived and the contraventions have been established.

H ADDITIONAL PATRICKS ALLEGATIONS

H.1 Alleged contraventions of s 340(1)

191. As noted above, Patricks also ran an adverse action case. Section 340(1) of the FW Act provides:

A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

192. It is asserted that in organising the industrial action, Mr McAleer and Mr Keating took “adverse action” as a means to place pressure on Patricks not to direct employees to perform work connected to the Sublease Area, as part of its campaign against those developments: s 342 Item 7(2)(a). It is further asserted that pursuant to s 363(1), the action taken by Mr McAleer and, to more limited extent, Mr Keating, is taken to be an action of the Union, such that all three respondents have contravened s 340.

193. Clause 8.4 of the Enterprise Agreement provided that:

The Company Management has rights and responsibilities and nothing within this Agreement shall be taken to diminish these in any manner. In accordance with clause 15, the Company at any time may determine which positions, structures and work practices shall exist and the manner in which employees placed by the Company to those positions and structures carry out their duties.

194. Clause 15.2 of the Enterprise Agreement, provided that:

An employee of the Company shall perform any work as the Company may reasonably require including any function for which the employee is qualified including work of a higher or lower grade provided that the employee is remunerated in accordance with the Award and this Agreement.

195. The Enterprise Agreement also incorporated clause 9.7.1 of the Stevedoring Industry Award 1999, which provided that:

An employee will perform such work under this award as the employer, from time to time, reasonably requires.

196. These provisions allowed Patricks the right to have employees perform work Patricks reasonably required. I accept the submissions of Patricks that this is a benefit under a “workplace instrument” (that is, the Enterprise Agreement) and hence a “workplace right” within the meaning of s 341(1)(a) of the FW Act. The only answer advanced to this case is the contention of the respondents that they did not organise the ban or limitation because of the exercise of a workplace right by Patricks, but rather the campaign against Patricks was “connected with its restructuring of its operations”.

197. The difficulty for the respondents is that they bear the onus to disprove that they organised industrial action with the alleged intent: FW Act s 361(1). The respondents would appear to submit that the presumption under s 361 that the respondents organised industrial action for the reason that Patricks exercised or proposed to exercise a workplace right has been displaced. Although I accept that the material in evidence demonstrates that the Union had an ongoing community and social media campaign against Patricks connected with its “restructuring of its operation”, this is not to the point. In the absence of any evidence in relation to the respondents’ intentions, the respondents have failed to discharge that onus insofar as the allegation is advanced against them: see, for example, Seymour v Saint-Gobain Abrasives Pty Ltd[2006] FCA 1452; (2006) 161 IR 9 at 14 [29].

198. My finding is that the industrial action commenced on 20 April, following the “escalation” of the dispute and communications between Mr Balzan, Mr Keating and Mr McAleer. Mr McAleer intended “escalation” once aware, the day after the 11 April Direction, that Qube was “running boxes into the rail”. It was just before a Qube train was to be unloaded at 10:30am on 20 April that the phone calls between Mr Balzan, Mr Keating and Mr McAleer took place. The ban on unloading the Qube truck then was put in place and the General Stoppage of Work, in which Mr McAleer was particularly instrumental, followed. As noted above, the industrial action was manifestly directed towards stopping the work pursuant to the 11 April Direction and because Patricks maintained the requirement that the Qube trucks be unloaded in the Rail Yard.

199. Moreover, as Patricks submit, the FW Act recognises that there may be multiple reasons for which adverse action is taken and it is enough to establish a contravention that one such reason be unlawful. Patricks alleged that each respondent took adverse action for reasons including reasons proscribed by the FW Act, and as my finding reflects, all the evidence points to the correctness of that allegation. No evidence has been led explaining why the respondents acted as they did. Accordingly, I am satisfied, in the absence of any relevant evidence from the respondents, that they contravened s 340(1) of the FW Act as pleaded.

200. In addition to having organised the employees’ contraventions of s 340, it was submitted that by reason of s 550 of the FW Act the respondents were also “involved” and “knowingly concerned” in either all (or in the case of Mr Keating, only some) of the employees’ contraventions. On each occasion that an employee engaged in industrial action, “adverse action” was taken: FW Act s 342(1), item 5(b). The employees did so for the same reasons as the respondents and by taking adverse action for those reasons, the employees contravened s 340(1).

201. As my findings indicate, the respondents had knowledge that the employees would and did engage in industrial action; that Patricks had workplace rights under the Enterprise Agreement and were exercising rights by requiring the employees to do the relevant work. They also knew the reason for the employees taking industrial action was Patricks’ actual and proposed exercise of its workplace rights. The evidence establishes that each of the respondents (to the extent pleaded) abetted, counselled and advised the employees to engage in the conduct which constituted the contraventions and that they procured it. It follows inexorably, that they were each “involved” in the employees’ contraventions, and hence are taken to have contravened s 340(1) in this respect.

202. Finally, for completeness, the submission that Mr McAleer (and therefore presumably the Union) acted in accordance with their view of the Enterprise Agreement and clause 1.3 is no defence. Whether or not that is so (and again, there is no evidence that it is), they have not disproved that they also acted in part for the reasons alleged by the applicants. Mr McAleer’s belief that his conduct was lawful does not make it so: see Esso Australia Pty Ltd v Australian Workers’ Union[2017] HCA 54; (2017) 92 ALJR 106 at 111 [2], 124-125 [61] (Kiefel CJ, Keane, Nettle and Edelman JJ)…”

[36] The conduct of Mr McAleer in connection with the Hutchison Ports proceedingand the Patricks No.2 proceeding, albeit not in relation to the exercise of a right of entry in accordance with Part 3–4 of the Act, is relevant and weighs against a finding that Mr McAleer is a fit and proper person to hold a right of entry permit. It is also relevant to have regard to the fact that Mr McAleer was not solely responsible for the conduct which resulted in the findings being made against the CFMMEU in the Hutchison Ports proceedingand the Patricks No.2 proceeding. There were other officers of the CFMMEU who were involved in the conduct which led to the findings of contravention of the Act against the CFMMEU in those proceedings.

[37] I accept Mr McAleer’s evidence that, apart from the proceedings referred to above, there have been no further complaints about his conduct as an MUA or CFMMEU official and there have never been any complaints made by any employers in relation to Mr McAleer exercising his rights of entry. 18 I have taken these matters into account in determining whether Mr McAleer is a fit and proper person to hold an entry permit under the Act.

[38] There are no other relevant matters that I consider relevant to the present application.

Conclusion

[39] In my view, Mr McAleer is not a fit and proper person to hold a right of entry permit. I have reached this conclusion after taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act and addressed in paragraphs [19] to [38] above.

[40] Although there are a number of permit qualification matters which support a finding that Mr McAleer is a fit and proper person to hold a right of entry permit, they are outweighed by the permit qualification matters which tell against such a conclusion. A permit holder under the Act has important rights and obligations which non-permit holders do not have. One important consideration when undertaking the evaluative assessment of whether a person is a fit and proper person to hold an entry permit is the personal characteristics of the individual concerned in relation to the activities of a permit holder. Past conduct is relevant to the assessment of such personal characteristics. It is apparent from Mr McAleer’s conduct in the Patricks No.1 proceedings, Patricks No.2 proceedings, DP World proceedings, and Hutchison Ports proceedings that he has repeatedly been involved in organising unlawful industrial action. Even in the context of his lengthy period since 2007 as a union official and prior to that time as a workplace delegate, Mr McAleer’s conduct in organising unlawful industrial action has taken place over a considerable period of time (2012, 19 2015,20 201721 and 201822). Further, there is no evidence to suggest that Mr McAleer will conduct himself differently in the future.

[41] As demonstrated in the Federal Court proceedings to which I have referred, Mr McAleer has repeatedly preferred the interests of his union and/or its members over compliance with industrial laws. That was particularly the case in the DP World proceedings and the Hutchison Ports proceedings. In DP World, Mr McAleer’s actions in organising unlawful industrial action involved “deliberate conduct which had the consequence that there was some disruption to work during each of the three shifts on 18/19 December 2012 [and] the contraventions were, in essence, an over-reaction on the part of the Respondents [including Mr McAleer] to the decision to dismiss Mr Wills”. 23 In Hutchison Ports, Mr McAleer was one of the MUA officials who, in what the MUA “perceived to be a war for its own existence”, organised unlawful industrial action and thereby preferred the interests of his union and its members over his interest in complying with the law.

[42] I recognise and have taken account of the fact that Mr McAleer’s conduct the subject of the proceedings in Patricks No. 1 and Patricks No. 2 was somewhat different. In Patricks No. 1, Mr McAleer admitted to organising unlawful industrial action, but it is clear from the extracts from the judgment of Justice Flick in paragraph [26] above that Mr McAleer believed that the employees concerned had the right under clause 4.10 of Part B of the applicable enterprise agreement to engage in “no work”. In Patricks No.2, Mr McAleer and another MUA official took a “coordinated and tactical course in putting the Ban in place”, which they thought was a “proportionate and appropriate remedial response to an action which was perceived to be a broader plan by Patricks and contrary to the interests of the Union and its members”. 24 Justice Lee was “not satisfied that… Mr McAleer subjectively believed that [he was] engaging in a contravention of the law…”25 Nonetheless, as Justice Lee noted “Mr McAleer’s belief that his conduct was lawful does not make it so”.26

[43] I understand and have given appropriate weight to the fact that the Federal Court proceedings to which I have referred have not involved breaches of Mr McAleer’s obligations under Part 3–4 of the Act.

[44] For the reasons given, I do not have confidence that Mr McAleer would, if granted a right of entry permit, comply with his obligations under Part 3–4 of the Act when faced with the competing interests between his union and/or its members and compliance with his legal obligations as a permit holder.

[45] I have considered whether any conditions should be imposed on any entry permit issued to Mr McAleer conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. 27 No conditions have been proposed. My conclusion in relation to this issue is that I cannot reach the necessary state of satisfaction that Mr McAleer is a fit and proper person to hold such a permit, regardless of any conditions which may be imposed.

[46] In light of my conclusion that Mr McAleer is not a fit and proper person to hold a right of entry permit, the CFMMEU’s application under s 512 of the Act is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR714365>

 1   RE 2016/1093

 2   Mr McAleer’s witness statement dated 25 October 2019 at [7]-[10]

 3 Section 480 of the Act

 4   Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

 5   Ibid at 405 [56] per Flick J

 6   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 McAleer and Others (2010) 189 FCR 1 at 13 [44]

 7   Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141

 8   [2015] FWC 1522

 9 [2015] FCAFC 56

 10   Ibid at [17]

 11   Ibid at [42]

 12 [2014] FCA 596

 13 [2019] FCA 1647

 14 [2017] FCA 1363

 15   Fair Work Ombudsman v CFMMEU [2018] FCA 934

 16   Fair Work Ombudsman v CFMMEU [2019] FCAFC 69

 17 [2019] FCA 451

 18   Mr McAleer’s witness statement dated 25 October 2019 at [20]-[21]

 19   DP World

 20   Hutchison Ports

 21   Patricks No. 2

 22   Patricks No. 1

 23   See paragraph [24] above

 24   See paragraph [35(116)] above

 25   See paragraph [35(118)] above

 26   See paragraph [35(202)] above

 27   MUA v FWC at [32] & [43]