Construction, Forestry, Mining and Energy Union

[2015] FWC 7565

[2015] FWC 7565

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(RE2015/1043)

Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland
(RE2015/1044)

VICE PRESIDENT HATCHER SYDNEY, 4 DECEMBER 2015

Applications for right of entry permits - William Kane Lowth.

Introduction and background

[1] By applications filed on 20 July 2015 and subsequently amended on 31 August 2015 the Construction, Forestry, Mining and Energy Union (CFMEU) and the Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland (CFMEUQ) have applied under s.512 of the Fair Work Act 2009 (Cth) (FW Act) for the issue of entry permits to Mr William Lowth, who is an official of both organisations. Mr Lowth is employed by the CFMEU and the CFMEUQ as an Organiser. Mr Lowth has held entry permits with his current and previous employers since 2003.

[2] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 the Director of the Fair Work Building Industry Inspectorate was notified of the lodgement of the two applications. 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.

[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] Mr Lowth’s statutory declarations which accompanied each application relevantly notified the Commission of the following:

“(i) I have small laminated copies of my right of entry permits which are about the size of a business card but the fine print on these is hard to read and does not reveal the expiry dates for those permits.

(j) From time to time I have also had A4 copies of my permits except during the period from March 2015 until 13 July 2015.
…
(p) I am informed by Michelle and I believe that:

(a) I do not currently hold right of entry permits under the Fair Work Act;

(b) the permits that I held previously expired in April 2015;

(c) there is a spreadsheet at the Brisbane office of the Union which records the expiry dates of the right of entry permits for all of the Union’s organisers;

(d) the spreadsheet erroneously recorded the expiry date of my permit as April 2016 not April 2015; and

(e) as a result of that error, no application was made to renew my right of entry permits before their expiry.

(q) I have not intentionally misled any employer or site occupier about the fact that I have not had right of entry permits under the Fair Work Act since April 2015. I had been issuing right of entry notices under the misapprehension that I was the holder of permits.

(r) On May 7 2015, I mistakenly used or attempted to use my former permit to enter a site on that date. Other than in the foregoing circumstances, I have not used or attempted to use my expired permit. I have not used or attempted to use my former permit since becoming aware of its expiry. I would not have used or attempted to use my former permit at any time had I realised it was expired.”

Submissions

[6] The Director did not submit that Mr Lowth was not a fit and proper person to hold an entry permit. Rather the Director sought that a condition be imposed on any entry permit issued to Mr Lowth in the following terms:

“This permit holder must not enter or attempt to enter a premises for the purposes referred to in sections 481, 483A, 484 and 497 of the Fair Work Act 2009 unless they are at that time in possession of a right of the entry permit issued by the FWC.”

[7] The Director submitted that a condition was necessary because Mr Lowth had attended sites without an authorised copy of his permit, was using a smaller version in which the expiry date could not be detected and had used or attempted to use his expired permit to enter a site on 7 May 2015.

[8] The CFMEU submitted that the condition proposed by the Director was simply a restatement of the current legislative provisions and in circumstances where there was no submission regarding fitness and propriety it was not appropriate. The CFMEU referred to the Federal Court Full Court decision in Maritime Union of Australia v Fair Work Commission 1 to support a submission that a condition may only be imposed under s.515 to remedy a deficiency in the officer going to fitness and propriety. It was submitted by the CFMEU that the condition sought by the Director was not in that category because the Director had not made a submission regarding Mr Lowth’s fitness and propriety.

Consideration

[9] I will deal with the permit qualification matters specified in s.513(1) in turn. In relation to paragraph (a), I am satisfied that Mr Lowth has received appropriate training about the rights and responsibilities of a permit holder. In relation to paragraphs (b) and (c), I am satisfied that Mr Lowth 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.

[10] In relation to paragraph (d), the statutory declarations accompanying the two applications make the following disclosure:

“(f) On 13 August 2009 civil penalties were imposed upon my then employer the AMWU in John Holland Pty Ltd (ACN 004 282 268) v Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 865 as a result of my conduct however those penalties were later quashed on appeal by a Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (includes Corrigendum dated 27 July 2010) [2010] FCAFC 90 and later dismissed in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 770.”

[11] The last decision referred to in the above disclosure makes it clear that, ultimately, there was no adverse finding against Mr Lowth 2 and no penalties were imposed on him or the organisation which then employed him. Therefore I am satisfied that neither Mr Lowth nor any other person has ever been ordered to pay a penalty under an Act or any other industrial law in relation to action taken by the official.

[12] In relation to paragraph (e), the following disclosure was made:

“(g) On 18 September 2014 findings were made against me and my right of entry permit was suspended for one month in Bechtel Construction (Australia) Pty Ltd and another[2014] FWC 5900 but the suspension was later quashed on appeal by a Full Bench of the Fair Work Commission in Construction, Forestry, Mining and Energy Union and others v Bechtel Construction (Australia) Pty Ltd and another[2015] FWCFB 946.”

[13] Because the suspension imposed by the Commission in Bechtel Construction (Australia) Pty Ltd and another 3was quashed on appeal, it is not a matter relevant to s.513(e). I am satisfied that on no occasion has an entry permit issued to Mr Lowth under the FW Act or a similar law of the Commonwealth been revoked or suspended or made subject to conditions. However it must be noted that adverse findings which were made by the Commission concerning Mr Lowth’s exercise (or purported exercise) of rights of entry to the Curtis Island LNG projects in Bechtel Construction (Australia) Pty Ltd were not affected by the appeal decision quashing the suspension of his entry permit. I will take those findings into account under s.513(g).

[14] In relation to paragraph (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 Lowth had under that law or disqualified Mr Lowth from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.

[15] I consider two matters to be relevant under paragraph (g). The first is the findings made concerning Mr Lowth’s conduct in Bechtel Construction (Australia) Pty Ltd. The findings were made in the context of a right of entry dispute concerning six occasions in 2012-13 in which officials of the CFMEU entered the Bechtel LNG projects construction sites. The findings were as follows:

“[126] Mr Lowth participated in the third and fourth entries. He refused to show his entry permit when asked and responded abusively and untruthfully that he had shown his permit to another Bechtel officer. Mr Lowth appears to have conducted a general safety walk rather than having any particular safety issues. Such conduct is disruptive and potentially inconsistent with the right of an employer to go about their business without undue inconvenience. Bechtel seeks orders suspending Mr Lowth’s permit for 1 month. I find his conduct gave rise to a dispute with Bechtel. In order to deal with the dispute, I order pursuant to s.505(2)(a) that the permit is suspended for a period of 1 month.”

[16] The entry to the Bechtel sites on both occasions were pursuant to s.484 of the FW Act and s.117 of the Work Health and Safety Act 2011 (Qld). 4 When exercising such entry rights, a permit holder must produce his or her authority documents at the request of the occupier of the premises or, in the latter case, at the request of an affected employer (see s.489(2) and s.497 respectively). It is apparent that Bechtel was at least an affected employer, if not the occupier of the premises. The findings above identify conduct amounting to a contravention of at least s.497 if not s.489(2). That is a matter adverse to a conclusion that Mr Lowth is a fit and proper person to be issued with an entry permit.

[17] There is also an indication that by undertaking “a general safety walk” Mr Lowth engaged in “disruptive” conduct. The decision does not provide any real detail about Mr Lowth’s conduct in this respect; in particular the nature of the disruption referred to is unclear. It is not suggested that Mr Lowth hindered or obstructed any person in breach of s.500. There is an insufficient basis to draw a further conclusion adverse to Mr Lowth in relation to these applications.

[18] The second matter is Mr Lowth’s disclosure reproduced in paragraph [5] above. Consistent with the submissions of the applicants and the Director, I do not consider that Mr Lowth’s conduct in purporting to exercise rights of entry without a current entry permit was intentional or reckless. Nevertheless it demonstrates a lack of diligence on his part to ensure that he conducted himself in accordance with the relevant requirements of the FW Act.

[19] Taking all the permit qualification matters into account, I conclude that Mr Lowth is a fit and proper person to hold an entry permit, and that the discretion should be exercised in favour of him being issued with the permits applied for, subject to those permits being issued with conditions intended to ensure that the conduct which I have discussed in relation to s.513(g) does not repeat itself. Without necessarily accepting the applicants’ characterisation of the Federal Court Full Court’s ratio in Maritime Union of Australia v Fair Work Commission, I consider that conditions are necessary in this case to remedy a deficiency in Mr Lowth’s history going to fitness and propriety. I do not think the condition suggested by the Director is sufficient, because it does not fully address the problematic aspects of Mr Lowth’s previous conduct. I will therefore attach the following conditions to the entry permits to be issued to Mr Lowth:

(1) Mr Lowth must take steps to verify that his entry permit is current before he issues any entry notice under the Fair Work Act 2009.

(2) Mr Lowth must have his entry permit on his person at any time he exercises entry rights under Part 3-4 of the Fair Work Act 2009, and must produce that entry permit in accordance with the requirements of ss.489 and 497 (as applicable).

Conclusion

[20] I am satisfied that Mr Lowth is a fit and proper person to hold an entry permit under the FW Act and should be issued with the permits applied for subject to the conditions set out in paragraph [19] being imposed under s.515(1) of the FW Act. Separate orders 5 will be issued to give effect to this decision.

VICE PRESIDENT

Appearances:

E. White of counsel with L. Tiley solicitor for the Construction, Forestry, Mining and Energy Union and the Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland.

A. Herbert of counsel with M. Kriewaldt for the Director of the Fair Work Building Industry Inspectorate.

Hearing details:

2015.

Brisbane:

3 November.

 1 [2015] FCAFC 56 at [43]

 2 [2011] FCA 770 at [99]-[107]

 3   [2014] FWC 5900

 4   Ibid at [9]

 5   PR574699, PR574700

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