Construction, Forestry, Mining and Energy Union - Adam Hall

[2016] FWC 4151

[2016] FWC 4151

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union - Adam Hall
(RE2016/392)

VICE PRESIDENT HATCHER SYDNEY, 15 JULY 2016

Application for a right of entry permit - Adam Hall.

Introduction and background

[1] On 9 March 2016 the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application under s.512 of the Fair Work Act 2009 (Cth) (FW Act) for the issue of an entry permit to Mr Adam Hall. Mr Hall is employed by the CFMEU as an organiser. In that capacity he has continuously held entry permits (first under the Workplace Relations Act 1996 and then under the FW Act) from 25 March 2009 until the expiry of his most recent permit on 10 April 2016.

[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 application. Having been so notified, the Director has not 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] The main issue in relation to the application arose from the disclosure of the following matters included in a declaration made by Mr John Setka, the Secretary of the Victorian/Tasmanian Branch of the Construction and General Division of the CFMEU, which formed part of the application:

“In Australian Building and Construction Commission (ABCC) v Adam Hall & Anor, matter number MLG259/2011, Federal Magistrate Hartnett made the following orders by consent:

• The First Respondent (''Hall") contravened s. 500 of the Fair Work Act 2009 (Cth) on 21 January 2010 when…Hall hindered and obstructed another person when seeking to exercise rights under Part 3-4 of the Fair Work Act 2009.



• Hall contravened s.500 of the Fair Work Act 2009 (Cth) on 21 January 2012 when he acted in an improper manner when seeking to exercise rights under Part 3-4 of the Fair Work Act 2009.



• There were no orders as to costs.



• The application was otherwise be dismissed (sic).

On 24 June 2015 the Director of the Fair Work Building Industry Inspectorate commenced proceedings in the Federal Court, Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors, matter number VID333/2015.

• The proposed permit holder (Hall) is named as a respondent in this proceeding. At the time of lodging this application there has been no findings made against the Respondents.

On 19 February 2016 the Director of the Fair Work Building Industry Inspectorate commenced proceedings in the Federal Court, Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors, matter number VID164/2016.

• At the time of lodging this application there has been no findings made against the Respondents.”

[6] Mr Hall confirmed the correctness of the above disclosure in his declaration dated 8 March 2016 which accompanied the application.

[7] In relation to 2010 findings of contravention against Mr Hall (2010 matter), no judgment was issued by the Federal Magistrates Court, only a consent order. The disclosure in Mr Setka’s statement quoted above accurately reproduces the terms of that order. No monetary penalty was imposed on Mr Hall or the CFMEU in the matter.

[8] The 2010 matter arose for consideration when an application for Mr Hall to be re-issued with an entry permit was made in 2013. That application was dealt with by Delegate Furlong in a decision issued on 25 March 2013. 1 The Delegate considered the 2010 matter under s.513(1)(g), and relevantly stated (emphasis added):

“[26] The contraventions by Mr Hall and the CFMEU on 21 January 2010 are clearly a concern as they relate to the purposes of Part 3–4, specifically the right of occupiers of premises and employers to “go about their business without undue inconvenience”. I am particularly concerned about any conduct that is a contravention in the exercise of the rights and responsibilities as a permit holder under Part 3–4. Any such contravention, in my opinion, is to be taken very seriously in assessing whether the proposed permit holder is a ‘fit and proper person’.
...
[28] Section 513 states that I ‘must’ consider a penalty imposed on a party under… an ‘industrial law’. Section 12 is clear that an ‘industrial law’ includes the Act. I note that the Explanatory Memorandum does not provide guidance on the scope of s.513(1)(g). 2 It is apparent that Parliament was specifically concerned with penalties arising out of proceedings against a permit holder under an industrial law. I do not believe the Parliament intended to exclude the consideration of contraventions of an ‘industrial law’ simply because a penalty was not imposed. For this reason, I regard a contravention of s.500 as a very important and relevant consideration under s.513(1)(g). However, the conduct of the relevant organisation and proposed permit holder, and any alternative relief granted in any proceedings, are relevant in giving due weight to a contravention.

[29] Mr Hall has been a permit holder under the Act and its predecessor legislation since March 2009 and an official of the CFMEU for approximately 4 years. The conduct in ABCC v Hall occurred in January 2010 and Mr Hall has since undertaken appropriate training about his rights and responsibilities under Part 3–4 of the Act on 23 May 2012.

[30] In the absence of published reasons for the Order it is not possible to evaluate the conduct of Mr Hall. However, there being no other findings relevant to the permit qualification matters, I am of the view that, in the circumstances, a single contravention of the Act for which a penalty was not imposed does not outweigh the purposes of Part 3–4 at s.480(a)–(b).
...
[31] Having regard to the permit qualification matters at s.513(1) of the Act, I am satisfied that Mr Hall is a ‘fit and proper’ person and to hold an entry permit.”

[9] Pursuant to a request by me for further information about the 2010 matter at the hearing of the application, the CFMEU supplied me with a document entitled “Statement of Agreed Facts, Admissions and Proposed Orders Between the Applicant and Respondents” (Statement). The Statement, which was entered into by the parties to the proceedings (the Australian Building and Construction Commissioner, Mr Hall and the CFMEU) pursuant to s.191 of the Evidence Act 1995 (Cth), was evidently placed before the court and was the basis upon which the court made the consent orders disclosed in Mr Setka’s declaration. The background facts described in the Statement refer to two building sites controlled by a construction contractor, Akron Roads Pty Ltd. The Statement then described Mr Hall’s conduct in the following terms:

“21 January 2010 -Entry to the Sites

8. At or about 7.30 am on 21 January 2010, Coates Hire removed from the Kristini Place site, a power generator (Coates generator).

9. The Respondent then arrived at the Kristini Place site after the removal of the Coates generator to inspect a suspected breach of the OHS Act (the First Entry).

10. The Respondent subsequently entered the Sayers Road site to inspect a suspected breach of the OHS Act (the Second Entry).

11. In executing the First and Second Entries, the Respondent acted in his capacity as a person with sufficient knowledge of occupational health and safety as provided for under section 70 of the OHS Act, and considered there were genuine safety issues at the Sites and sought to inspect suspected breaches of the OHS Act.

12. In making the First and Second Entries, the Respondent exercised or sought to exercise a State or Territory OHS right in accordance with Part 3-4 of the FW Act.

13. In making the First and Second Entries, the Respondent sought to investigate a suspected breach of the OHS Act pursuant to section 87(1)(a) and/or section 87(1)(b) of the OHS Act.

The First Entry: Kristini Place

14. During the course of the First Entry, the Respondent:

14.1 displayed his right of entry permit at the oral request of Gonzalo Callegari (Callegari), a representative of Akron, and Project Manager of the Sites;

14.2 told Callegari that he was at the site to inspect a suspected breach of the OHS Act;

14.3 raised concerns with Callegari about an absence of air conditioning, microwaves and pie warmers on site before raising concerns about a small generator that was being set up to provide power;

14.4 convened an onsite meeting during the Employees’ break in the site shed between approximately 9.30 am and 10.30 am on 21 January 2010 with the Employees;

14.5 used abusive language towards Callegari because Callegari refused to leave the meeting when asked;

14.6 told the Employees that the toilets were not clean, the power supply being used was not safe and the site was not up to standard;

14.7 encouraged the Employees to pack up and leave the site without first attempting to resolve his concerns with any member of Akron's management representatives; and

14.8 told Callegari that work would need to cease at the site because of the safety issues.

15. The Respondent engaged in the conduct referred to at paragraph 14 intentionally.

16. As a result of the meeting, on 21 January 2010, approximately six to eight Employees abandoned work at Kristini Place between approximately 10.00 am and 11.00 am and did not return to work until the following day.

17. Work was not scheduled to conclude until 3.30 pm.

The Second Entry: Sayers Road

18. During the course of the Second Entry, the Respondent:

18.1 displayed his right of entry permit on request from David Meyzis, a representative of Akron and Works Manager at Sayers Road (Meyzis);

18.2 told Meyzis that he was at the site to speak with all site personnel;

18.3 convened, in the site compound, between 10.30 am and 11.30 am on 21 January 2010, a meeting with Employees;

18.4 encouraged the Employees to pack up and leave the Sayers Road site without first attempting to resolve his concerns with any member of Akron's management representatives; and

18.5 said to Meyzis words to the effect of “I have told the blokes to leave site until the power is operational again…the blokes are concerned about this safety issue, and it is a requirement that all personnel have access to hot water, air conditioning, lighting and the sheds require power”.

19. The Respondent engaged in the conduct referred to at paragraph 18 intentionally.

20. By reason of sub-paragraphs 18.3 and 18.4, a number of Employees abandoned work at the site between 11.00 am and 12.00 pm, and did not return to work until the following day.

21. Work was not scheduled to conclude at the site until 3.30 pm.

Admitted contravention by the Respondent of section 500 of the FW Act (Hinder and Obstruct)

22. By his conduct on 21 January 2010, at the Sites, the Respondent hindered and obstructed Akron.

23. The Respondent was aware that the departure of the Employees from the Sites would result in Akron being left without a full complement of workers at Kristini Place and Sayers Road from approximately 10.30 am to 3.30 pm on 21 January 2010.

24. The Respondent was also aware that his conduct would prevent:

24.1 the Employees discharging their responsibilities pursuant to the Akron Roads EA and their contracts of employment; and/or

24.2 Akron discharging its obligations under the Akron Roads EA and its contractual responsibilities with respect to the Sites generally.

25. By reason of paragraphs 8 to 21, the Respondent contravened section 500 of the FW Act (Hinder and Obstruct contravention).

26. The Respondent's conduct, with respect to the Hinder and Obstruct contravention on 21 January 2010, was a course of conduct that properly ought to be treated as a single contravention of section 500 of the FW Act.

Admitted contravention by Hall of section 500 of the FW Act (Act in an Improper Manner)

27. By his conduct on 21 January 2010 and in particular that conduct referred to at sub-paragraphs 14.5, 14.7 and 18.4 above, the Respondent acted in an improper manner and therefore contravened section 500 of the FW Act (Act in an Improper Manner contravention).

28. The Respondent's conduct, with respect to the Act in an Improper Manner contravention was a course of conduct that properly ought to be treated as a separate and distinct contravention of section 500 of the FW Act.”

[10] There is nothing in the material before me which clearly explains why the Australian Building and Construction Commissioner did not seek, and the court did not impose, any monetary penalties in relation to the admitted contraventions except for the obvious fact that the parties agreed that this should not happen. The most likely explanation is that the belief held by Mr Hall in effecting entry that there were “genuine safety issues” at the sites (as identified in paragraph 11 of the Statement) was regarded as a significant factor mitigating the seriousness of his conduct. However no clear conclusion can be reached about this.

[11] The two current proceedings before the Federal Court in which Mr Hall is a respondent involve allegations that he contravened ss.343, 340, 346 and 348 of the FW Act. I was advised that Mr Hall denies the allegations, and that the matters are some distance away from being heard.

Submissions

[12] It is only necessary to refer to the CFMEU’s submission concerning the matters disclosed in its application which have earlier been referred to. It submitted:

• given the conclusion reached by the Delegate in his 2013 decision in relation to the 2010 matter, it could only be relevant if there had been some further contravening conduct since that time, which has not occurred;



• in any event the conduct involved in the 2010 matter was at the low end of the spectrum because there was no violence, threat of violence, personal injury or damage to property, Mr Hall was acting in pursuit of the legitimate interests of CFMEU members, and no penalty was imposed;



• there has been a significant passage of time since the 2010 matter without any further contraventions, and Mr Hall has been issued with a further permit since that time;



• viewed in the perspective of Mr Hall having held entry permits for over seven years, two contraventions over that period did not evidence an unwillingness to comply with industrial laws;



• the current matters before the Federal Court are not relevant because no findings have yet been made against Mr Hall in relation to allegations of contravention which he has denied; and



• it would be an injustice to deny Mr Hall an entry permit, which would have the practical effect of invalidating the permit which he holds under the Occupational Health and Safety Act 2004 (Vic) by reason of s.494(1) of the FW Act.

Consideration

[13] I will deal with the permit qualification matters specified in s.513(1) in turn.

Paragraph 513(1)(a)

[14] I am satisfied that Mr Hall has received appropriate training about the rights and responsibilities of a permit holder. He completed the approved ACTU course concerning federal right of entry on 11 February 2016.

Paragraphs 513(1)(b) and (c)

[15] I am satisfied that Mr Hall 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.

Paragraph 513(1)(d)

[16] I am satisfied that neither Mr Hall 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 him.

Paragraph 513(1)(e)

[17] I am satisfied that on no occasion has an entry permit issued to Mr Hall under the FW Act or a similar law of the Commonwealth been revoked or suspended or made subject to conditions.

Paragraph 513(1)(f)

[18] I am satisfied 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 Hall had under that law or disqualified Mr Hall from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.

Paragraph 513(1)(g)

[19] The 2010 matter did not, as earlier explained, result in any monetary penalty being imposed upon Mr Hall or the CFMEU and for that reason did not fall to be considered under paragraph 513(1)(d). However, the declarations made by the court in the 2010 matter are plainly relevant to be considered under paragraph 513(1)(g). They concerned two contraventions of s.500 of the FW Act, a provision which governs the exercise of entry rights by the holder of an entry permit. I do not accept that they have become irrelevant merely because they were taken into account in the decision to issue an entry permit to Mr Hall in 2013. In this connection, having been supplied with a copy of the Statement, I am in a better position than was the Delegate in 2013 to assess the seriousness of the contraventions.

[20] The 2010 matter must be given weight, given that Mr Hall was found to have hindered and obstructed a person (Akron Roads Pty Ltd, the principal construction contractors on the two sites) and to have acted improperly by using abusive language to an Akron representative at the site and encouraging employees to cease work and leave the site without first attempting to resolve the issue of concern. However, I also note the following mitigating factors:

• Mr Hall acted out of a genuine concern about health and safety issues;



• he admitted the contraventions before the court; and



• he has not been found to have committed any further contravention of industrial laws in the period of over six years since these contraventions occurred.

[21] I also place particular weight on the fact that the Australian Building and Construction Commissioner did not seek, and the court did not impose, any monetary penalty against Mr Hall in relation to the contraventions in the 2010 matter. The conclusion which must be drawn from this is that the contraventions were perceived to be at the low end of the range of culpability.

[22] In relation to the current matters before the Federal Court, while they are potentially relevant, it is not possible to give them any weight at the current time in circumstances where no finding of contravention has yet been made and the allegations of contravention are denied.

Conclusion

[23] Having identified the matters required to be taken into account under s.513(1), it is necessary to weigh those matters and arrive at an overall conclusion as to whether Mr Hall is, for the purpose of s.512, a fit and proper person to hold an entry permit. The only matter of weight which is adverse to the conclusion that he is a fit and proper person are the contraventions found in the 2010 matter. While those contraventions constituted a significant failure by Mr Hall to uphold his legal obligations as the holder of an entry permit, I do not consider that they are sufficient to disqualify him from holding an entry permit in circumstances where the contraventions were subject to the mitigating circumstances earlier described, including that no penalty was imposed and over six years have passed without there being any further finding of contravention.

[24] On an overall balance of the matters I have taken into account, I am satisfied that Mr Hall is a fit and proper person to hold the entry permit applied for. I am further satisfied that I should exercise the discretion conferred by s.512 in favour of issuing Mr Hall with an entry permit. I do not consider, taking into account the permit qualification matters I have identified, that there is any reason to consider the imposition of conditions under s.515 on the entry permits to be issued.

[25] I order that an entry permit be issued to Mr Hall as soon as practicable.

VICE PRESIDENT

Appearances:

S. Kelly of counsel with K. Reid for the Construction, Forestry, Mining and Energy Union.

Hearing details:

2016.

Melbourne:

5 May.

 1   [2013] FWCD 497

 2   Explanatory Memorandum, Fair Work Bill 2008, 2040–2044.

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