Construction, Forestry, Mining and Energy Union
[2014] FWCFB 6497
•22 SEPTEMBER 2014
[2014] FWCFB 6497
The attached document replaces the document previously issued with the above code on 22 September 2014.
By deleting the decision number “[2014] FWCD 243” appearing in the catchwords and inserting “[2014] FWCD 2437”.
Associate to Senior Deputy President Acton
22 September 2014
| [2014] FWCFB 6497 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decision
(C2014/713)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 22 SEPTEMBER 2014 |
Appeal against decision [[2014] FWCD 2437] of Mr Enright in matter number RE2013/1638 - right of entry permit.
Introduction
[1] This decision deals with an appeal by the Construction, Forestry, Mining and Energy Union (CFMEU) against a decision 1 of Mr Enright, as delegate of the Fair Work Commission (FWC), on 11 April 2014 declining to issue an entry permit to Mr Kane Pearson, an official of the CFMEU. The CFMEU had made an application to the FWC for the issuing of such a permit on 18 October 2013.
[2] At the commencement of the proceedings we granted the CFMEU and the Director of the Fair Work Building Industry Inspectorate permission to be represented by a lawyer having regard to the provisions of s.596(2)(a) of the FW Act. We were satisfied it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter as the appeal raised issues of statutory construction. Further, there was no objection to such representation.
Statutory provisions
[3] Sections 512, 513 and 515 are the provisions of the Fair Work Act 2009 (Cth) (FW Act) relevant to this appeal. They are as follows:
“512 FWC may issue entry permits
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.
513 Considering application
(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:
(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;
(b) whether the official has ever been convicted of an offence against an industrial law;
(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:
(i) entry onto premises; or
(ii) fraud or dishonesty; or
(iii) intentional use of violence against another person or intentional damage or destruction of property;
(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;
(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;
(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:
(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or
(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;
(g) any other matters that the FWC considers relevant.
(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.
Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them...
515 Conditions on entry permit
(1) The FWC may impose conditions on an entry permit when it is issued.
(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.
(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).
(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.
(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).”
Section 513 matters
[4] In his decision, the delegate pointed out he had declarations from Mr Pearson and Mr David Hanna, a member of the relevant Committee of Management of the CFMEU. At the time, Mr Hanna was the State Secretary of the Queensland Builders’ Labourers’ Divisional Branch (the Divisional Branch) of the Construction and General Division (the General Division) of the CFMEU. Mr Pearson was the Assistant State Secretary of the Divisional Branch of the General Division of the CFMEU at the relevant time.
[5] The delegate considered each of the permit qualification matters in s.513 of the FW Act as set out below.
Training about rights and responsibilities - s.513(1)(a)
[6] The delegate found that Mr Pearson had last received appropriate training about the rights and responsibilities of a permit holder on 18 October 2013.
Convictions against industrial law - s.513(1)(b)
[7] The delegate found that no convictions by Mr Pearson of an offence against industrial law had been disclosed or were evident.
Convictions involving fraud, dishonesty or intentional use of violence - s.513(1)(c)
[8] The delegate found that no convictions by Mr Pearson 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 had been disclosed or were evident.
Orders to pay a penalty under an industrial law in relation to action taken by the official - s.513(1)(d)
[9] The delegate found that Mr Pearson, the Australian Building Construction Employees’ and Builders Labourers’ Federation (Queensland Branch) Union of Employees (the BLFQ) and/or the CFMEU were ordered to pay penalties under the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) in Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 5) 2 and Director, Fair Work Building Industry Inspectorate v Sutherland and Ors3and under the Workplace Relations Act 1996 (Cth) (the WR Act) in Lovewell v Pearson and Anor.4 He also found that both Mr Pearson and the CFMEU were ordered to pay penalties under the FW Act in the Director, Fair Work Building Industry Inspectorate v Myles & Ors.5
[10] The delegate also considered the penalties imposed on Mr Pearson and the BLFQ as a result of the conduct of Mr Pearson in Lovewell and the reasoning of Jarrett FM in deciding to order the penalties; the penalty imposed on the CFMEU in Sutherland and the statement of agreed facts in that matter; the penalty imposed on Mr Pearson and the CFMEU in Lend Lease, the statements of agreed facts and the reasoning of Collier J in deciding to order the penalties; and the penalties imposed on Mr Pearson and the CFMEU as a result of the conduct of Mr Pearson and others in Myles and the reasoning of Burnett J in deciding to order the penalties.
Permits revoked, suspended or made subject to conditions under Commonwealth law - s.513(1)(e)
[11] The delegate found that the declarations before him did not disclose, and there was no evidence, that a permit issued to Mr Pearson under Part 3–4 of the FW Act, or under a similar law of the Commonwealth (no matter when in force) had been revoked, suspended or made subject to conditions.
Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law - s.513(1)(f)
[12] The delegate found that the declarations before him did not disclose, and there was no evidence, that a court, or other person or body, under State or Territory industrial law or a State or Territory OHS law had cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that Mr Pearson had under that law, or disqualified Mr Pearson from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law.
Other relevant matters - s.513(1)(g)
[13] The delegate also found that the CFMEU was the subject of further injunctive relief on 16 November 2012 in Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 6) 6 in which Mr Pearson gave an undertaking to the Federal Court to the effect that he would not intentionally hinder or obstruct any other person when exercising or seeking to exercise statutory right of entry powers under Part 3-4 of the FW Act until the completion of the law courts and the hospital projects.
[14] Further, the delegate found Mr Pearson’s leadership role within the CFMEU at the time of certain contraventions to be another relevant matter for the purposes of s.513(1)(g) of the FW Act.
[15] In addition, the delegate found the objects of Part 3-4 of the FW Act to be relevant to the exercise of his discretion under s.512 of the FW Act. In this regard he took into account the role Mr Pearson performs as an official of the CFMEU and the importance of him holding an entry permit in fulfilling that role in terms of holding discussions with employees and members, investigating suspected contraventions and ensuring workplace health and safety.
Taking the matters into account
[16] Having considered each of the s.513 matters and made findings in respect of them, the delegate then turned to taking them into account in the context of deciding whether Mr Pearson is a “fit and proper person” to hold the entry permit for which application had been made.
[17] The delegate said:
“[126] My task in the present matter is to determine whether Mr Pearson is a ‘fit and proper person’ to hold the entry permit for which application is made... In order to make this determination, I must take into account the ‘permit qualification matters’ set out in paragraphs (a) to (g) of section 513(1) of the Act. Those matters are to be taken into account and applied in a way that assists me in determining whether Mr Pearson is a ‘fit and proper person to hold the entry permit’.
[127] The issues referred to in the application raise particular concerns regarding the permit qualification matters set out in paragraphs (d) and (g) of section 513(1) of the Act.
[128] The total quantum of penalties imposed upon Mr Pearson in Lovewell v Pearson, Lend Lease v CFMEU and FWBC v Myles amounts to $15,900. In Lovewell v Pearson, a penalty of $16,500 was imposed upon the BLFQ as a result of the conduct of Mr Pearson. Penalties of $50,000 and $26,400 were imposed upon the CFMEU in FWBC v Sutherland and FWBC v Myles respectively as a result of the conduct of Mr Pearson and several other officials of the CFMEU. Finally, a penalty of $550,000 was imposed upon the CFMEU, CFMEUQ and CEPU in which each was jointly and severally liable as a result of the conduct of several officials from each of those entities including Mr Pearson in the matter of Lend Lease v CFMEU. I have taken into account that the penalties imposed in FWBC v Sutherland, FWBC v Myles and Lend Lease v CFMEU were attributable to Mr Pearson only in part. However, it is not possible to precisely quantify or approximate the share of the penalties which is directly attributable to Mr Pearson, and the penalties are substantial. The total quantum of penalties imposed upon Mr Pearson and the penalty imposed upon BLFQ are also substantial.
[129] In my view, as noted above, I am also entitled to take into account the conduct of Mr Pearson found to have occurred in those matters under either paragraph (d) or (g) of subsection 513(1) of the Act...
[132] In Lovewell v Pearson, it was found that Mr Pearson intentionally hindered or obstructed a contractor engaged in a construction project by parking a motor vehicle in a manner which prevented a scheduled concrete pour from proceeding on 5 June 2009 Jarrett FM commented that Mr Pearson ‘clearly misused the powers of entry granted to him’, demonstrated ‘a flagrant disregard for, and a lack of appreciation of, the rights and obligations imposed upon him’ and that his conduct was a ‘serious departure from the standards of behaviour expected of those who are clothed with statutory power to enter premises’.
[133] Similarly in FWBC v Myles, it was found that Mr Pearson, whilst exercising statutory right of entry powers under Part 3-4 of the Act, entered the site of a construction project on 11 February 2010 and intentionally hindered, obstructed or otherwise acted in an improper manner on three separate occasions. Mr Pearson’s conduct included swearing at and insulting a foreman at the site of the project, soliciting business and imploring workers to down tools and stop work. Burnett J found Mr Pearson’s conduct was contrary to the standards of conduct expected of a reasonable person in the position of Mr Pearson and that the distraction caused by Mr Pearson’s conduct was of a kind that would be ‘hazardous and unwelcome and thereby constitute an appreciable obstruction or hindrance’.
[134] In the matter of FWBC v Sutherland, the CFMEU admitted to contraventions of s.38 of the BCII Act which occurred on 28 February and 1 March 2011. As noted above, I will not take into account the relevant conduct of Mr Pearson as contained in the admissions of the CFMEU beyond noting the penalty imposed and the date that the contraventions occurred.
[135] In Lend Lease v CFMEU, it was found that Mr Pearson had engaged in and organised, in concert with other officials of the CFMEU, the unlawful industrial action which occurred at the site of a major public construction project on 24, 25, 26 and 27 May 2011. Collier J observed that the unlawful industrial action committed by the respondents in the matter was protracted, taken despite orders from the then Fair Work Australia that it should not occur and caused serious disruption and loss to Lend Lease.
[136] Given the substantial penalties imposed, and the conduct of Mr Pearson found to have occurred, in the above matters, I have serious reservations regarding Mr Pearson’s status as a ‘fit and proper person’ to hold an entry permit bearing in the mind the rights, conditions, limitations and responsibilities attaching to the exercise of entry permits set out in Part 3-4 of the Act.
[137] In particular, the contraventions of the right of entry provisions of the WR Act and the Act found to have occurred in the matters of Lovewell v Pearson and FWBC v Myles are matters of serious concern as they directly relate to Mr Pearson’s demonstrated adherence to the duties and obligations imposed upon permit holders. The ‘permit qualification matters’ set out in subsection 513(1) of the Act are not to be taken into account only to the extent that they are relevant to the exercise of right of entry powers under Part 3-4 of the Act. However, in my view, if those matters are enlivened due to the conduct of a particular official when exercising such powers, then this is a relevant consideration for the weight to be given to such matters when determining whether he or she is a ‘fit and proper person to hold the entry permit’.
[138] The subsequent penalties imposed in FWBC v Sutherland and Lend Lease v CFMEU heightens this concern.
[139] In my view, the penalties imposed in the above matters, and the conduct found to have occurred in Lovewell v Pearson, FWBC v Myles and Lend Lease v CFMEU, demonstrate a lack of regard for the provisions of industrial legislation on the part of Mr Pearson. This disregard, particularly as it relates to the contraventions of the statutory right of entry regime set out in the WR Act and the Act, directly bears upon the assessment of whether he is a ‘fit and proper person’ to hold an entry permit given the rights, conditions, limitations and responsibilities attaching to the exercise of such permits set out in Part 3-4 of the Act.
[140] This is compounded by considering that Mr Pearson held the senior leadership position of Branch Assistant Secretary of the Divisional Branch at the time that the contraventions in FWBC v Sutherland and Lend Lease v CFMEU occurred. That he may not hold this office upon a restructure within the Division does not diminish this concern.
[141] On the other hand, I have also taken into account that there is no evidence before me that indicates that Mr Pearson has ever had any adverse findings made against him regarding the permit qualification matters set out in paragraphs (b), (c), (e) and (f) of subsection 513(1) of the Act and that he has received appropriate training for the purposes of subsection 513(1)(a) of the Act.
[142] In accordance with CFMEU’s submissions, I further note that Mr Pearson has not been found to have contravened the Act or any other industrial law since May 2011.
[143] Another relevant consideration includes the role Mr Pearson performs as an official of the CFMEU including the provision of advice, support and assistance to its members. This is relevant to the objects set out in sections 480(a) and (b) of the Act and the absence of an entry permit will obviously affect Mr Pearson’s capacity to effectively undertake such activities.
[144] In my view, the further injunctive relief granted in the matter of Lend Lease v CFMEU and the interlocutory orders issued in John Holland v CFMEU are neutral considerations for the purposes of assessing Mr Pearson’s status as a ‘fit and proper person’ to hold an entry permit.” 7 [Endnotes omitted]
Conclusion on “fit and proper person”
[18] The delegate concluded in respect of whether Mr Pearson is a “fit and proper person” to hold an entry permit as follows:
“[145] I have carefully considered all of the available circumstances of this matter and have had particular regard to the permit qualification matters for the purposes of s.512 of the Act.
[146] I have also had particular regard to the lack of any adverse findings made against Mr Pearson regarding the permit qualification matters set out in paragraphs (b), (c), (e) and (f) of subsection 513(1) of the Act, the length of time that has elapsed since he was last found to have committed a relevant contravention, the relevant training he has received and a consideration of his important role to the CFMEU membership as an official of that organisation.
[147] However, I cannot disregard the various relevant and compelling findings referred to throughout this decision such as those by Jarrett FM in Lovewell v Pearson that Mr Pearson ‘clearly misused the powers of entry granted to him by the [WR Act]’, that he ‘demonstrated a flagrant disregard for, and a lack of appreciation of, the rights and obligations imposed on him under the [WR Act]’ and that ‘the behaviour on the part of Mr Pearson was [a] serious departure from the standards of behaviour expected of those who are clothed with statutory power to enter premises’. Similarly, Collier J commented in Lend Lease v CFMEU that the unlawful industrial action Mr Pearson engaged in and organised in concert with other officials ‘was protracted, conspicuously public and co-ordinated across the two project sites’ which ‘caused serious disruption to Lend Lease’, who suffered loss and damage totalling $1,210,770.65. Further, in relation to the three contraventions of s.500 of the Act found to have been committed by Mr Pearson in FWBC v Myles whilst exercising right of entry powers, Burnett J observed that Mr Pearson’s conduct was ‘in breach of the standards of conduct that would be expected of a reasonable person in the position of Mr Pearson....’.
[148] These findings and each of the facts and circumstances to which I have referred, and the substantial nature of the penalties imposed as a consequence, have raised serious concerns regarding Mr Pearson’s demonstrable lack of regard for provisions of industrial legislation, particularly as it pertains to the statutory right of entry regime. The senior leadership role Mr Pearson held within the Divisional Branch at the time the contraventions in FWBC v Sutherland and Lend Lease v CFMEU occurred is a matter I have also taken into account.
[149] I cannot be satisfied that Mr Pearson will exercise the powers derived from the issue of an entry permit in a manner expected of permit holders exercising a public right in conformity with the duties, conditions and limitations imposed by Part 3-4 of the Act. Therefore, on balance I have concluded that I am not satisfied that Mr Pearson is a ‘fit and proper person’ to hold an entry permit and accordingly, I must refuse the application to issue a permit...
[151] As I have determined not to issue a permit to Mr Pearson, it is not necessary for me to consider imposing any conditions pursuant to section 515 of the Act or the submissions of the FWBC and the CFMEU in that regard.” 8 [Endnotes omitted]
Grounds of appeal
[19] The CFMEU’s grounds of appeal against the delegate’s decision are as follows:
(a) The delegate failed to give real and genuine consideration to several matters in not being satisfied Mr Pearson is “fit and proper person” to hold an entry permit. This had the effect that the delegate reached a view as to whether Mr Pearson is a “fit and proper person” as at May 2011 when the last contravention occurred, rather than as at 11 April 2014 when he made his decision. The matters the delegate failed to give real and genuine consideration to were:
- the passage of time of about three to five years since the contraventions;
- the subsequent training regarding right of entry Mr Pearson had undertaken in February 2013 and October 2013;
- the likely deterrent effect of the prosecution of Mr Pearson and the penalties imposed upon him, or the operation of the undertaking given by Mr Pearson in 2012;
- the fact that Mr Pearson had made admissions and concessions in relation to some of the contraventions; and
- the fact that some of the contraventions had nothing at all to do with right of entry breaches and therefore should not have any significant or substantial role in the determination of the issues before the delegate.
(b) The delegate gave no consideration to the question of whether a right of entry permit subject to conditions might be issued to Mr Pearson.
Consideration of the appeal
[20] We consider the CFMEU’s first basis of appeal concerning the delegate failing to give real and genuine consideration to certain matters is without merit.
[21] It is apparent the delegate took into account the passage of time since Mr Pearson’s contraventions and Mr Pearson’s training. In the course of his reasoning leading to his conclusion that he was not satisfied Mr Pearson is a “fit and proper person” to hold an entry permit, the delegate said that he had “also had particular regard to ... the length of time that has elapsed since he [Mr Pearson] was last found to have committed a relevant contravention, the relevant training he has received”. 9 They were part of the matters that led him “on balance”10 to conclude that he was not satisfied that Mr Pearson is a “fit and proper person” to hold an entry permit.
[22] The likely deterrent effect of the prosecution of Mr Pearson and the penalties imposed on him, and the operation of the undertaking given by Mr Pearson in 2012 are manifest in the length of time that has elapsed since Mr Pearson was last found to have committed a relevant contravention. That manifestation was a matter, as we have indicated, that the delegate took into account in the course of his reasoning leading to his conclusion that he was not satisfied that Mr Pearson is a “fit and proper person” to hold an entry permit.
[23] Mr Pearson’s admissions and concessions in relation to some of the contraventions were matters taken into account in the judgments in respect of the contraventions. It is apparent, from for example paragraphs [147] and [148] of his decision, that the delegate took into account those judgments and their reasoning in the course of his reasoning leading to his conclusion that he was not satisfied that Mr Pearson is a “fit and proper person” to hold an entry permit. Thereby, the delegate took into account Mr Pearson’s admissions and concessions.
[24] Section 513 of the FW Act requires the taking into account of various contraventions, not just right of entry breaches. Therefore, the delegate cannot have erred because he took into account contraventions in respect of other than right of entry breaches.
[25] In Nestle Australia Ltd v Federal Commissioner of Taxation (Cth), 11 Wilcox J stated that:
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.” 12
[26] Further, it is generally for the decision-maker to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. 13
[27] In our view, the weight the delegate evidently gave to contraventions, other than right of entry breaches, has not resulted in his decision being manifestly unreasonable. 14
[28] Nor do we think the weight the delegate gave to the other matters raised by the CFMEU resulted in his decision being manifestly unreasonable.
[29] The CFMEU’s second basis of appeal concerning the delegate not considering a right of entry permit with conditions is also without merit.
[30] In this regard, we respectfully concur with the statement of the Full Bench of the FWC in The Maritime Union of Australia 15that:
“[43] It is firstly to be observed that the exercise of the power to impose a condition on an entry permit when it is issued is discretionary. Secondly, an entry permit will only be issued if the Commission is satisfied that the officer of the applicant for a permit is a fit and proper person to hold an entry permit. If the Commission is not satisfied that the officer is a fit and proper person to hold an entry permit, there is no power in s.512 to issue the permit. It must follow that the question of whether the Commission will impose a condition on an entry permit when it is issued will only arise after the Commission is first satisfied that the officer of the applicant for a permit is a fit and proper person to hold the permit.
[44] As s.512 makes clear, entry permits may only be issued to a person whom the Commission is satisfied is a fit and proper person to hold an entry permit. It would undermine the legislative intent that underpins s.512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions. The power to impose a condition under s.512 seems to us to be exercisable usually after the Commission is satisfied that a relevant official is a fit and proper person to hold an entry permit but there is some concern, for example about the past conduct of the official having regard to the permit qualification requirements in s.513(1), which falls short of rendering that official unsuitable to hold an entry permit… Here the Delegate concluded that he was not satisfied that Mr Tracey was a fit and proper person to hold a permit. Having so concluded, the Delegate did not have power to issue a permit (whether with or without conditions), and so the question of whether to impose conditions on the permit did not arise. Consequently we do not discern any appellable error in this regard.”
[31] In The Maritime Union of Australia, the Full Bench also said in passing that:
“It may also be the case that in an appropriate application the question whether a person is a fit and proper person to hold an entry permit is very finely balanced and the imposition of a condition might tip the balance in favour of the level of satisfaction required.” 16
[32] We think there is a potential tension between this sentence and the other reasoning of the Full Bench with which we concur.
[33] Further, we do not accept that the satisfaction under s.512 of the FW Act includes satisfaction that the official is a “fit and proper person” to hold an entry permit with conditions. There is no reference to conditions in s.512 of the FW Act. In addition, s.515 of the FW Act refers to the imposition of conditions on an issued permit and, pursuant to s.512 of the FW Act, that can only occur if there is the requisite satisfaction that the official is a “fit and proper person”. Moreover, s.515(2) of the FW Act requires the permit qualification matters in s.513(1) of the FW Act to be taken into account in deciding whether to impose conditions on an entry permit. Section 515(2) of the FW Act would be unnecessary if the imposition of conditions was to be considered as part of the decision as to whether the official is a “fit and proper person”.
[34] Accordingly, since the delegate was not satisfied that Mr Pearson is a “fit and proper person” to hold an entry permit, he did not err in not considering a right of entry permit with conditions.
Conclusion
[35] For the foregoing reasons, we are not persuaded the delegate made an appealable error in refusing the CFMEU’s application for an entry permit for Mr Pearson. We are also not satisfied it is in the public interest for us to grant permission to appeal. The CFMEU is not precluded from making another s.512 application in respect of Mr Pearson. We therefore decline to grant permission to appeal and, to the extent necessary, dismiss the appeal. An order 17 to that effect is being issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
E. White, counsel, for the Construction, Forestry, Mining and Energy Union.
A. Herbert, counsel, for the Director of the Fair Work Building Industry Inspectorate.
Hearing details:
2014.
Brisbane:
July 2.
1 Construction, Forestry, Mining and Energy Union, [2014] FWCD 2437.
2 [2012] FCA 1144.
3 (P)BRG1008/2011.
4 [2011] FMCA 102.
5 (P)BRG961/2011.
6 [2012] FCA 1273.
7 Construction, Forestry, Mining and Energy Union, [2014] FWCD 2437.
8 Ibid.
9 [2014] FWCD 2437 at [146].
10 Construction, Forestry, Mining and Energy Union, [2014] FWCD 2437 at [149].
11 (1987) 16 FCR 167.
12 Ibid at 184. See also Telstra Corporation Ltd v ACCC, [2008] FCA 1758 at [103]-[112], referred to with approval in Telstra Corporation Limited v Australian Competition Tribunal, [2009] FCAFC 23 at [267].
13 Minister for Aboriginal Affairs v Peko-Wallsend Ltd, (1986) 162 CLR 24 at 41.
14 Ibid.
15 [2014] FWCFB 1973.
16 Ibid at [44].
17 Construction, Forestry, Mining and Energy Union, PR555575.
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