Construction, Forestry, Mining and Energy Union
[2016] FWC 161
•28 JANUARY 2016
[2016] FWC 161
The attached document replaces the document previously issued with the above code on 28 January 2016.
In the first sentence in paragraph [8] the words “by him on” has been replaced with “on him by”.
Associate to Vice President Hatcher
Dated 29 January 2016
| [2016] FWC 161 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.512 - Application for a right of entry permit
Construction, Forestry, Mining and Energy Union
(RE2015/1336)
VICE PRESIDENT HATCHER | SYDNEY, 28 JANUARY 2016 |
Application for a right of entry permit - Jacobus Merkx.
Introduction
[1] By an application lodged on 8 September 2015 under s.512 of the Fair Work Act 2009 (FW Act) the Construction, Forestry, Mining and Energy Union (CFMEU) seeks that an entry permit be issued to Mr Jacobus Merkx, an organiser employed in the South Australian Branch of the CFMEU. Mr Merkx has not previously been issued with an entry permit under the FW Act, having only commenced employment as an organiser on 2 November 2015. Prior to this Mr Merkx worked in the construction industry, was the CFMEU workplace delegate at Hansen Yuncken Pty Ltd from about 7 May 2012 to 23 September 2015 (as well as the Employee Health and Safety Representative), and was the honorary President of the CFMEU’s South Australian Branch from 18 March 2014 until the commencement of his employment as an organiser.
[2] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 the Director of the Fair Work Building Industry Inspectorate (Director) was notified of the lodgement of the application. Having been so notified, the Director elected to exercise his right under s.72 of that Act to make submissions in relation to the matter. There was a dispute between the CFMEU and the Director as to whether the Director’s entitlement under s.72 included the right to cross-examine the CFMEU’s witnesses or do anything else in the matter beyond actually making submissions. It was not necessary for me to resolve this legal question because, in the interests of having an effective contradictor in the proceeding, I made a procedural determination under ss.589 and 590 of the FW Act that the Director should have the right to cross-examine and, if necessary, adduce evidence.
[3] Under s.512 of the FW Act the Commission may issue an entry permit to an official if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the FW Act sets out the matters that the Commission must take into account in deciding whether the official is a fit and proper person and provides 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.
[4] Section 515 of the FW Act sets out the circumstances in which the Commission may impose conditions on an entry permit.
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).
[5] The CFMEU’s application was accompanied by declarations made by Mr Aaron Cartledge, the Secretary of the Construction and General Division of the South Australian branch of the CFMEU, and Mr Merkx. The following matters were disclosed in those declarations:
(1) On 2 April 2015 Mr Merkx was ordered by the Federal Court (Besanko J) to pay a penalty of $1,000 for a contravention of s.417(1) of the FW Act in Director of the Fair Work Building Industry Inspectorate v Merkx. 1
(2) Mr Merkx is currently a named respondent in an application filed in the Federal Court of Australia by the Director in matter SAD 253/2014 in relation to alleged breaches of ss.348 and 355 of the FW Act.
Evidence
[7] Mr Merkx made two statements of evidence dated 22 October 2015 and 19 November 2015. He was the subject of cross-examination by the Director. In his first statement he said that he had undertaken the ACTU online training course on right of entry, and summarised the matters he had learned as a result of this training. His evidence about this included the following:
“I learned that if a permit holder does not comply with the requirements of the Act in exercising right of entry powers, the permit holder could be subject to civil penalties and have their right of entry stripped from them.
As a committed unionist who has been afforded the opportunity to work as an organiser, I understand the necessity for me to ensure that I comply strictly with the legislation when exercising my right of entry permit. In short, I know that if I do not, I will lose my permit and may not be able to continue performing a job that I have been passionate about performing for some time now.”
[8] In relation to the penalty imposed on him by the Federal Court, Mr Merkx said that this concerned a contravention of s.417 of the FW Act which occurred on 25 June 2013 (that is, during the period when he was the CFMEU delegate at Hansen Yuncken). He also said in his first statement:
“My conduct on that day was motivated to ensure the safety of the workers on site at the new Royal Adelaide Hospital. I made an error of judgment in acting as I did, for which I am sorry. I accept that the decision that I made was wrong and contrary to the Act. I accept full responsibility for my actions.”
[9] Mr Merkx was closely cross-examined by the Director about this contravention. The salient aspects of the evidence given by Mr Merkx in cross-examination about the matter were:
- As a CFMEU delegate he had a basic understanding of his obligations under the FW Act, including that he could not engage in unlawful industrial action.
- Over his four years as a delegate he acquired a better understanding of what was required by him and the CFMEU under the FW Act.
- He took a leading role in the events which immediately preceded the vote to take industrial action (on 25 June 2013).
- He did not personally pay the $1,000 fine imposed on him; it was paid by the CFMEU.
- Prior to his statement in this matter on 22 October 2015 he had never apologised for engaging in unlawful industrial action on 25 June 2013.
- He did not give evidence to the Federal Court that the action was an error of judgment.
- He learnt his lesson about the incident when he was called before the Court in relation to the matter.
- He understood “to a certain extent” at the time of the contravention that industrial action could not be taken while he was covered by an approved enterprise agreement which had not yet reached its nominal expiry date unless there was authorisation from the employer to do so or he had a reasonable concern about an imminent risk to health and safety. However he only subsequently became aware of the significance of the requirement that a reasonable concern about health and safety had to be based on an imminent risk.
[10] Mr Merkx was also cross-examined, and re-examined, in relation to findings made by this Commission (O’Callaghan SDP) in a decision issued on 26 September 2013 in relation to an application for an order under s.418 of the FW Act (Hansen Yuncken Pty Ltd v Gareth Deegan and Ors 2). During cross-examination he gave the following evidence:
- He had engaged, after 25 June 2013, in unprotected industrial action while employed by Hansen Yuncken on the Royal Adelaide Hospital site on three separate occasions.
- He had taken a leading role in discussions that preceded unprotected industrial action which occurred on 10 September 2013. He did so in his capacity as a Health and Safety Representative acting as a conduit between the workforce and management in trying to resolve the issues.
- At the time, and not understanding the requirement for there to be an imminent risk to health and safety, he considered himself to be acting in the best interests of the workforce on the basis that there were health and safety concerns at the site.
[11] In re-examination Mr Merkx gave the following evidence about these instances of industrial action:
“Now sir, you gave an answer that you learned your lesson about unprotected industrial action in relation to work health and safety matters in September 2013. Can you tell his Honour, what you mean by you learned a lesson about work health and safety matters and when industrial action is protected and unprotected in September 2013?---Yes your Honour, so in September 2013 when I was taken before the Commission I learned a pretty valuable lesson on the word imminent and when you can stop work, when action is unprotected and when it's legal. That lesson was learned by having a great personal sort of stress, and knowing the seriousness of it at that point that I had been brought before the Commission.
THE VICE PRESIDENT: Sorry, this is when you came before O'Callaghan SDP, was it?---Yes.
What were the safety issues which gave rise to that industrial action?---Your Honour, there was lack of toilets, water - general water on site. There was crane collisions on site. There was evacuation plans that weren't adhered to on site, trying to get injured workers out of areas that were taken in the back of utes, back to the job. There was numerous issues.
MR BONCARDO: Mr Merkx, what lessons in particular, did you learn about dealing with those kind of issues after O'Callaghan SDP had given his judgment in September 2013?---So the Fair Work Act allows for dispute resolution, so not always the builder is right or not always the worker is right and there needs to be a dispute resolution process where we can find, or get to some sort of agreement without having to take industrial action. There is also the Fair Work Court that we can come to, to make sure that these things get adhered to, make sure the safety program is adhered to on site.”
[12] Mr Merkx was cross-examined at some length, without objection, as to his knowledge of various aspects of the requirements of the FW Act concerning rights of entry. He was able to answer those questions more or less correctly. He was also asked for his view about the CFMEU’s extensive history of penalisation for contraventions of the FW Act and other industrial legislation. He gave the following evidence in this connection:
“MR KELLEHER: But you accept that there's been a long history of non-compliance with industrial laws, you accepted that didn't you?---Yes, there's been non-compliance, yes.
Mr Merkx, what do you generally think about those fines and that history of unlawful conduct? Do you endorse it?---I don't think it benefits the members.
Mr Merkx, do you think it's acceptable in certain circumstances to, for example, organise unprotected industrial action to achieve an industrial outcome for the CFMEU's members?---If it's negotiating an EBA to protect industrial action.
If it's protected industrial action, did you say?---Yes.
But if it's unprotected industrial action?---No, you can't do it under the law, no.”
[13] Mr Merkx also gave the following evidence in answer to a question from me:
“THE VICE PRESIDENT: Thank you. Mr Merkx, can I just ask you a couple of questions? Who do you report to at work as an organiser?--- Aaron Cartledge, the Secretary, your Honour.
Without casting any aspersions on him as an individual, if any more senior CFMEU official instructed you to do something which you considered to be unlawful, what would your reaction to the instruction be?---Your Honour, my reaction to the instruction would be the same as a worker. If someone asked me to do an unsafe act, I have got the right to say no. So if someone asked me to break the law, I would say no.”
[14] Mr Dean Pinyon, the sole director of Access Crane and Rigging Hire Pty Ltd, a crane and rigging business, affirmed an affidavit on 21 October 2015 in which he attested to Mr Merkx’s good character.
Submissions
[15] The Director submitted that Mr Merkx was not a fit and proper person to hold an entry permit. In relation to the permit qualification matters the Director submitted:
● In relation to s.513(1)(a), Mr Merkx had provided insufficient detail about his right of entry training, the time taken to complete the course or the results achieved.
● In relation to s.513(1)(d), the Federal Court finding in DFWBII v Merkx that Mr Merkx had engaged in unlawful industrial action weighed against him being considered to be a fit and proper person. The Court found that there was no evidence of contrition or any other corrective action other than the admission of guilt. The admission was only made because it was clear that a contravention had occurred. His apology in the current proceeding was an empty one. The findings against him in Hansen Yuncken tell against any remorse and expression of responsibility for his conduct on 25 June 2013, as do findings against him in Director of the Fair Work Building Industry Inspectorate v Cartledge 3.
[16] In relation to s.513(g), the Director submitted that the findings against Mr Merkx in Hansen Yuncken needed to be taken into account, as did the findings in DFWBII v Cartledge and the serious allegations made against Mr Merkx of breaches of ss.348 and 355 of the FW Act in the pending Federal Court matter SAD 253/2014. The Director also said that Mr Merkx’s failure to disclose the decision in DFWBII v Cartledge was a matter adverse to his fitness and propriety.
[17] The CFMEU submitted that the evidence was demonstrative of Mr Merkx’s fitness and propriety to hold a right of entry permit and, in response to the Director’s submissions, submitted:
- The ACTU training course completed by Mr Merkx was one approved by the Commission itself, and completion of that course had been held to constitute satisfaction of the s.513(1)(a) permit qualification matter in numerous decisions.
- The utilitarian value of Mr Merkx’s admission of liability in DFWBII v Merkx was recognised in the Court’s decision.
- The relevant time for the Commission to assess Mr Merkx’s contrition in respect of the contravention on 25 June 2013 is now, not when the matter was before the Court. Mr Merkx’s explanation of his apology and acceptance of responsibility were detailed and should be accepted.
- Hansen Yuncken, DFWBII v Cartledge and the pending proceedings in SAD 253/2014 were not matters capable of being considered relevant under s.513(1)(g). Paragraphs (b)-(f) of s.513(1) delineate findings of conduct by a relevant court or authority as a result of finalised proceedings, and were to be treated as a class or genus which excluded matters in which rights and obligations have not been the subject of final determination. This evinced a legislative intention that such matters could not be considered relevant for the purposes of s.513(1)(g). Additionally, the treatment of pending penalty proceedings in a court as relevant may mean that a person for whom a permit is sought may be questioned about the pleaded allegations, which would tend to undermine and subvert the operation of the privilege against exposure to penalties. There was also the potential for an issue estoppel to arise if the Commission made findings of fact about a matter that was also before a court.
- Alternatively, DFWBII v Cartledge should not be taken into account because Mr Merkx was not a party to that matter, he was not called as a witness, and there was no adverse finding against him. In those circumstances it could not reasonably be expected that the decision needed to be disclosed in the application or Mr Merkx’s supporting declaration. The proceedings in SAD 253/2014 otherwise at this stage only involved untested allegations. Hansen Yuncken did not involve a determination of existing rights and obligations, but only conclusions about what appeared to be the case in an application for a s.418 order. In any event honest but mistaken withdrawals of labour for health and safety reasons are of no or minimal relevance in determining fitness or propriety to hold a right of entry permit.
Consideration
[18] I will deal with the permit qualification matters specified in s.513(1) in turn. In relation to s.513(1)(a), I am satisfied that Mr Merkx has received appropriate training about the rights and responsibilities of a permit holder. I do not consider that Mr Merkx was required to provide the additional detail about his training referred to in the Director’s submissions. In this connection I agree with and adopt what was said about the ACTU online training course by Gostencnik DP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch 4:
“[32] ... The course of training is one of a number of training packages that is approved by a delegate of the Commission to whom the power to issue an entry permit pursuant to s. 512 the Act has been delegated (Delegate). Accordingly, there does not seem to me to be any basis to question the appropriateness or adequacy of that course of training....”
[19] In any event, I consider that Mr Merkx’s success in answering questions from the Director in cross-examination about various aspects of the rights of entry conferred by the FW Act is demonstrative of the efficacy of the training he had undertaken.
[20] In relation to s.513(1)(b) and (c), I am satisfied that Mr Merkx has never been convicted of an offence against an industrial law or an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty, intentional use of violence against another person or intentional destruction of property.
[21] In relation to s.513(1)(d), it is necessary to take into account the decision in DFWBII v Merkx. That decision demonstrates that on 25 June 2013 Mr Merkx, along with 22 other employee respondents, participated in unlawful industrial action in contravention of s.417 of the FW Act. The weight to be given to this matter depends upon the extent to which it bears upon Mr Merkx’s current fitness and propriety to hold an entry permit. I consider that the principal issue in this respect is whether Mr Merkx’s conduct showed a demonstrable lack of regard for the provisions of industrial legislation such as to call into question whether there can be a proper basis for confidence that he would properly and lawfully exercise the rights attaching to an entry permit with the attendant conditions, limitations and responsibilities. 5
[22] The court’s judgment itself shows that the following matters were taking into account in setting the penalty to be imposed on Mr Merkx (and the other employees respondents who participated in the industrial action):
- The industrial action occurred in the context of a reasonable concern for the health of the respondents arising from a problem with water pressure affecting showers, hand basins and lavatories in the employees’ amenities area. In particular, the lavatories became difficult to flush. 6
- The identified concern did not amount to a reasonable concern about an imminent risk to the respondents within the meaning of s.19(2)(c)(i) of the FW Act. 7
- There was no evidence whether the contraventions did or did not cause any loss or damage. 8
- There was no allegation that there was any previous similar conduct by the respondents or that the contravention was part of a broader course of conduct. 9
- The industrial action was initiated by a vote of the respondent and other employees, and was therefore deliberate. 10
- The respondents admitted the contravention at an early stage of the proceedings, but there was otherwise no evidence of contrition or corrective action. 11
- The conduct arose from a unique set of circumstances that were unlikely to recur, and the gravity of the conduct was pressed on the respondents through the bringing of the proceedings and the associated threat of pecuniary penalty. 12
[23] It is clear that the penalty imposed was at the low end of the range. I am satisfied, having regard to the findings stated above and Mr Merkx’s evidence that he did not at the time appreciate the significance of the requirement (in s.19(2)(c)(i) of the FW Act) that in order for action based on a concern to risk to health or safety not to constitute industrial action the risk had to be an imminent one, that Mr Merkx did not fully comprehend that he was contravening the FW Act when he participated in the industrial action on 25 June 2013. I am further satisfied, notwithstanding that no expression of contrition for the contravention was communicated to the court on behalf of the respondents, that Mr Merkx is now genuinely contrite about what occurred and understands the importance of compliance with obligations applicable to him as a union official under the FW Act, particularly those relating to the exercise of rights of entry. The penalty imposed in DFWBII v Merkx does not therefore cause me to conclude that Mr Merkx would not be a fit and proper person to hold a right of entry permit.
[24] In relation to s.513(1)(e), I am satisfied that on no occasion has an entry permit issued to Mr Merkx under the FW Act or a similar law of the Commonwealth been revoked or suspended or made subject to conditions.
[25] In relation to s.513(1)(f), I find that no court, person or other body under a State or Territory industrial law or OHS law has ever cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes which Mr Merkx had under that law or disqualified Mr Merkx from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.
[26] In relation to s.513(1)(g), I reject at the outset the construction of the provision advanced by the CFMEU that it was to be read as confined to findings of conduct by a relevant court or authority as a result of finalised proceedings. This submission appeared to be an attempt to invoke the eiusdem generis rule of statutory construction. That rule, under which a general expression appearing at the end of a list of specific matters may be read to be confined to the same genus or class as the specific matters, presupposes that the specific matters all fall within a genus - that is, that they “possess some common and dominant feature”. 13 The CFMEU submission fails at the outset because paragraph (a) of s.513(1) clearly does not fall within the postulated genus. Further, because the “fit and proper person” standard established by s.512 for the holding of an entry permit is one which gives “the widest scope for judgment and indeed for rejection” in the assessment of the relevant personal characteristics of the individual concerned14, I do not consider that there is any contextual basis for reading down s.513(1)(g). On its ordinary language, it requires the Commission to take into account any matter which it considers relevant to deciding whether a particular official is a fit and proper person to hold an entry permit. Of course, the requirement in s.513(1) to take particular matters into account does not dictate the weight that must be assigned to each matter or the relationship each matter is to have to the outcome of the application. That is up to the decision maker to assess in the exercise of his or her discretion.15
[27] I consider the decision in Hansen Yuncken to be relevant because it contained findings that Mr Merkx participated on three occasions in non-protected industrial action in June- September 2013 16 at a time when he and his employer were covered by an enterprise agreement that had not reached its nominal expiry date. Although there was no express finding to this effect in Hansen Yuncken, the inescapable inference must be that the conduct was in contravention of s.417 of the FW Act. Mr Merkx’s evidence before me involved an acceptance that he had engaged in the conduct the subject of the findings in Hansen Yuncken, and there was no submission before me which advanced any alternative conclusion about the legal consequence of that conduct. Such past contraventions are, again, relevant because they raise the question of whether there can be confidence as to the official’s capacity or willingness to comply with right of entry obligations under the FW Act if issued with an entry permit.
[28] For similar reasons as stated earlier with respect to DFWBII v Merkx, I do not consider that much weight can be attached to Hansen Yuncken in the assessment of Mr Merkx’s fitness and propriety. The conduct the subject of consideration in Hansen Yuncken appears to have involved the continuation of the dispute at the Royal Adelaide Hospital site concerning health and safety issues which underlay the industrial action considered in DFWBII v Merkx. Indeed one instance of industrial action occurring on 25 June 2013 which was considered in Hansen Yuncken 17 appears to have been the same as that dealt with in DFWBII v Merkx, and it is not clear whether the three instances of non-protected industrial action in which Mr Merkx was found to have participated included this one. The specific safety issues identified in Hansen Yuncken “included concerns over safety evacuation procedures for employees who may be injured, toilet cleanliness and water pressure issues”.18 The Senior Deputy President accepted that employees had concerns about health and safety issues19, but found that the concerns were not reasonable ones based on an imminent risk to health and safety and that the concerns could have been dealt with through normal consultation or dispute resolution procedures.20 The Senior Deputy President specifically stated that he was not satisfied that Mr Merkx had organised any of the industrial action.21
[29] The Senior Deputy President made an order under s.418 of the FW Act that industrial action not be engaged in for a period of six months. There is no evidence that Mr Merkx contravened this order, or has at any time since engaged in non-protected industrial action. His evidence that he did not understand at the time the significance of the requirement that a reasonable concern about health and safety had to be founded on an imminent risk is equally applicable to the events dealt with in Hansen Yuncken. At the time of these events the Director had not yet instituted proceedings in DFWBII v Merkx, so the salutary effect of that matter had not yet occurred. For these reasons the decision does not therefore cause me to conclude that Mr Merkx would not be a fit and proper person to hold a right of entry permit.
[30] Next, it is necessary to consider the Federal Court decision (Mansfield J) in DFWBII v Cartledge 22. This matterarose out of an interlocutory injunction ordered by Mansfield J on 25 March 2014 against the CFMEU, five specifically-named officials, and the CFMEU’s organisers generally. The Director alleged that one of the named officials, Mr Jim O’Connor, was in contempt of that injunction and should be subject to a monetary penalty. The injunction restrained the named officials and the organisers attending the Royal Adelaide Hospital site unless they were lawfully exercising or seeking to exercise rights in accordance with Part 3-4 of the FW Act. In DFWBII v Cartledge the Director alleged, and the court found, that Mr O’Connor had attended the Royal Adelaide Hospital site on 13 May 2014 and threatened the manager of a subcontractor, Mr Nicholas Bleasdale, with industrial action if the business did not employ a Mr Jason Clark, who was an officer of the CFMEU. This was found to contravene the injunction because it was unlawful conduct in breach of ss.348, 355(a) and/or 500 of the FW Act.
[31] Mr Merkx was not a party to these proceedings and was not bound by the injunction, but in the course of the decision findings were made about events in which he was involved. The Director referred me to paragraphs [104] and [138] of that decision as constituting findings adverse to Mr Merkx. Paragraph [104] needs to be read together with paragraph [103]:
“[103] It is clear from the evidence of N Bleasdale, supported to a degree by that of Nunweek, that early in May 2014 O’Connor had asked N Bleasdale to find a job for Jason Clark, a member of the CFMEU Executive. At that time, N Bleasdale knew both Merkx and O’Connor, and understood their roles as officers of the CFMEU.
[104] In his evidence in chief, N Bleasdale said Merkx had also asked him to do so on more than one occasion, and had suggested he dispense with the services of Hylands who was employed by Bleasdale and who (Merkx said) was not a member of the CFMEU.”
[32] It is apparent that what is stated in paragraph [104] is not a finding but rather a recitation of evidence given by Mr Bleasdale. Elsewhere in the decision Mansfield J expressed “significant reservations” about the evidence of Mr Bleasdale 23, and the “firm findings” which his Honour made on the basis of Mr Bleasdale’s evidence in paragraph [138] excluded anything based upon the evidence recited in paragraph [104]. Specifically in relation to conduct attributed to Mr Merkx, Mansfield J stated the following conclusions:
“[147] In making those findings, I have also taken into account the submissions, based on certain parts of the evidence of N Bleasdale, that the complaint made by N Bleasdale concerned the conduct of Merkx at the second conversation. I do not accept that. Nor do I accept the evidence of N Bleasdale about that. I think the material on which he was questioned (including by the Director) indicates that his evidence on that topic is unreliable, as well as confirming my impression about his evidence on that topic from his demeanour. At the conclusion of the cross-examination of N Bleasdale on the first day, he was asked – and agreed – that there was nothing wrong with the requests of Merkx and/or O’Connor to sack Hylands or to find work for Clark, or to pay the union fees directly and debit wages (with the agreement of the employees). Apart from the robust expression of wishes or expectations in relation to getting Clark a job, the only comment which conveyed a risk of industrial action was that which I have found was made by O’Connor. It is, in my view, clear that N Bleasdale following the second conversation had not insignificant concerns as a result of what was said, and I am satisfied that it was the reference to the risk of going to war that prompted his concern. There was nothing said and attributed to Merkx which might have provoked his concern. Such a concern ties in with the subsequent events referred to above.”
[33] I do not consider that DFWBII v Cartledge contains any finding concerning Mr Merkx’s conduct which could be relevant to an assessment of his fitness and propriety to hold an entry permit. There was in particular no finding of any unlawful conduct on his part. Therefore it is not a matter which I intend to take into account under s.513(1)(g). Nor was it a matter which I consider Mr Merkx was obliged to disclose in his declaration supporting the application before me.
[34] In relation to pending proceedings in SAD 253/2014, all I have before me is the originating application filed by the Director dated 9 October 2014. That application alleges that Mr O’Connor, Mr Merkx and the CFMEU committed contraventions of ss.348 and 355 of the FW Act on 13 May 2014 at the Royal Adelaide Hospital site and seeks the imposition of pecuniary penalties on them. It is apparent that the pleaded allegations concern the same events which were the subject of consideration in DFWBII v Cartledge.The affidavit which accompanied the application when it was filed was not placed before me. No evidence in support of the application has yet been filed in the court. Probative evidence that Mr Merkx had committed contraventions of ss.348 and 355 would clearly be a relevant matter required to be considered under s.513(1)(g), but there was no such evidence before me, only a series of untested allegations which have not been admitted. The Director was unable to articulate any basis upon which I could give the allegations in the originating application any weight beyond saying they were serious in nature. It may be accepted that the allegations are serious, but at this stage they are only allegations at least so far as Mr Merkx is concerned. For this reason I cannot give them any weight in my consideration of the CFMEU’s application.
[35] I regard the following matters as relevant for the purpose of s.513(1)(g) and bearing in favour of the conclusion that Mr Merkx is a fit and proper person to hold an entry permit:
- Mr Pinyon’s affidavit attesting to Mr Merkx’s good character;
- the knowledge which Mr Merkx displayed in answers given in cross-examination concerning the obligations of an entry permit holder under Part 3-4 of the FW Act;
- Mr Merkx’s evidence, which I accept, that he regarded the CFMEU’s history of unlawful conduct and monetary penalties as not beneficial to its members, that he understood the importance of following dispute resolution procedures, and that he would not comply with any direction from a more senior official to engage in unlawful conduct.
[36] On the basis of the above consideration of the permit qualification matters, I am satisfied that Mr Merkx is a fit and proper person to hold an entry permit. In particular I am satisfied that Mr Merkx understands both the content of the obligations that would be applicable to him as an entry permit holder under Part 3-4 of the FW Act and the need to comply with them.
[37] The Director suggested that any entry permit issued to Mr Merkx carry with it a condition that he inform the Commission of any outcome in the proceedings in SAD 253/2014 that is adverse to him. I do not think that is necessary because Mr Merkx has undertaken to do this and, in any event, the Director is a party to those proceedings and has standing under the FW Act to make any application concerning the entry permit to be issued to Mr Merkx which he considers appropriate in the light of the outcome of those proceedings.
Conclusion
[38] I am satisfied that Mr Merkx is a fit and proper person to hold an entry permit under the FW Act. I grant the CFMEU’s application for him to be issued with an entry permit. I order that such a permit be issued as soon as practicable.
VICE PRESIDENT
Appearances:
P. Boncardo for the Construction, Forestry, Mining and Energy Union.
M. Kelleher solicitor for the Director of the Fair Work Building Industry Inspectorate.
Hearing details:
2015.
Adelaide:
23 December.
1 [2015] FCA 316
2 [2013] FWC 7505
3 [2015] FCA 453
4 [2015] FWC 4450
5 See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWC 1522 at [35]
6 [2015] FCA 316 at [8], [23]
7 Ibid at [23]
8 Ibid at [24]
9 Ibid at [25]
10 Ibid at [26]
11 Ibid at [27]
12 Ibid at [28]
13 R v Regos and Morgan (1947) 74 CLR 613 at 624 per Latham CJ
14 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FWCFB 5947 at [23]
15 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2014] FWCFB 4397 at [24]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 at [32]
16 [2013] FWC 7505 at [40]
17 Ibid at [27]
18 Ibid at [7]
19 Ibid at [50]
20 Ibid at [34]
21 Ibid at [44]
22 [2015] FCA 453
23 Ibid at [136]
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