Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch

[2018] FWC 379

[2018] FWC 379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

Construction, Forestry, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch

(RE2017/1109)

COMMISSIONER SAUNDERS NEWCASTLE, 18 JANUARY 2018

Application by CFMEU for issue of right of entry permit for Brian Parker – applicant not a fit and proper person to hold an entry permit – application for entry permit dismissed.

1. On 8 September 2017, the Construction, Forestry, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch (CFMEU) made an application to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Brian Parker, who holds the position of NSW Divisional Branch State Secretary of the CFMEU.

1. The previous right of entry permit held by Mr Parker[1] expired on 2 October 2017. I am not aware of any application being made to extend Mr Parker’s previous right of entry permit pursuant to s.516(2) of the Act.

1. A hearing in relation to the CFMEU’s application for a right of entry permit for Mr Parker was held on 29 November 2017. In support of its application, the CFMEU made written and oral submissions and tendered the following documents:

• a declaration made by Mr Parker on 8 September 2017;
• a declaration made by Ms Rita Malia, NSW Divisional Branch President of the CFMEU on 8 September 2017;
• a letter from the CFMEU to Mr Parker dated 29 August 2017 in relation to Mr Parker’s participation in a right of entry training course;
• an affidavit made by Mr Timothy McCauley, solicitor, on 21 November 2017 in relation to an appeal filed on behalf of Mr Parker to the Full Court of the Federal Court of Australia against orders made by Justice Flick;
• a copy of orders made by Justice Flick;
• a copy of applications made by the CFMEU for a right of entry permit for Mr Parker in 2011 and 2014, together with copies of the right of entry permits issued to Mr Parker in 2011 and 2014; and
• references from Mr John Burns, Mr Stephen Costigan, Mr Larry Valesini, Ms Wendy Waller, Mr Michael Finnane RFD QC, and Mr Michael Pechy. No witnesses were called to give oral evidence.

1. The Australian Building and Construction Commissioner (ABCC) intervened in these proceedings and made submissions against the CFMEU’s application for a right of entry permit for Mr Parker. The ABCC also tendered copies of pleadings filed in the Federal Court of Australia and the Federal Circuit Court in relation to proceedings in which Mr Parker is involved.

1. I have had regard to all the evidence filed and submissions made by the CFMEU and the ABCC in determining this application.

Statutory Framework

1. Part 3-4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

1. The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience.[2]

1. Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer.[3] The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.[4] Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.[5]

1. Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold the entry permit. The Commission’s discretion whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the “permit qualification matters” set out in s.513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose.[6]

1. Section 513 of the Act sets out the permit qualification matters as follows:

“513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.”

1. Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:

“515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).”

1. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,[7] Vice President Hatcher set out the following principles relevant to the interpretation and application of sections 512 and 513(1) of the Act as follows:

“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:

● A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

● The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.

● The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.

● The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.

● The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

● The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

● While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).

● Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.”

1. In Maritime Union of Australia v Fair Work Commission (MUA v FWC)[8], a Full Court of the Federal Court of Australia observed the following in relation to the phrase “a fit and proper person”:

“[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’”[9]

1. In MUA v FWC, the Full Court ultimately concluded as follows:

“[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged ‘unreasonableness’.”[10]

Consideration

1. I will now take into account all of the permit qualification matters specified in s 513(1) of the Act in relation to the application for an entry permit for Mr Parker.

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

1. Mr Parker has received training concerning his rights and responsibilities as a permit holder under the Act. Mr Parker undertook that training on 29 August 2017. The training was provided to Mr Parker by way of a structured course delivered face to face by Ms Sherri Hayward, Legal/Industrial Officer of the CFMEU. The training materials used to provide the training to Mr Parker were approved by the Commission on 24 October 2013. At the conclusion of the training provided to Mr Parker he undertook a multiple choice test and answered 19 out of 20 questions correctly.

1. I do not accept the ABCC’s argument that the training provided to Mr Parker was not “appropriate” for the purposes of s.513(1)(a) of the Act on the basis that there is no evidence the training was tailored to his circumstances or that it specifically addressed the unacceptability of Mr Parker’s past conduct, to which reference is made elsewhere in this decision.

1. By reason of the matters set out in the paragraph [16] above, I am satisfied that Mr Parker has received appropriate training about the rights and responsibilities of a permit holder. This weighs in favour of a finding that Mr Parker is a fit and proper person to hold a right of entry permit.

Has the official been convicted of an offence against an industrial law? (s.513(1)(b))

1. Mr Parker has never been convicted of an offence against an industrial law. This weighs in favour of a finding that Mr Parker is a fit and proper person to hold a right of entry permit.

Has the official been convicted of an offence against a law involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property? (s.513(1)(c))

1. Mr Parker has not been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. This weighs in favour of a finding that Mr Parker is a fit and proper person to hold a right of entry permit.

Has the official, or any other person, ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by the official? (s.513(1)(d))

Darlaston proceedings

1. In Darlaston v Parker (No 2)[11] (Darlaston), Justice Flick ordered that:

·Mr Parker pay a penalty of $3,000 for his contravention of s.758(3) of the Workplace Relations Act 1996 (Cth) (WR Act) that occurred on 3 December 2008;

·Mr Parker pay a penalty of $3,000 for his contravention of s.767(1) of the WR Act that occurred on 3 December 2008;

·Mr Parker pay a penalty of $2,000 for his contravention of s.758(3) of the WR Act that occurred on 4 December 2008; and

·each of the CFMEU and CFMEU (NSW Branch) pay penalties of $15,000 for the unlawful conduct that Mr Parker and a number of other CFMEU officials engaged in on 3 and 4 December 2008.

1. The WR Act is an “industrial law” within the meaning of s.12 of the Act. Accordingly, it is appropriate to have regard to the penalties referred to in the previous paragraph in the context of s.513(1)(d) of the Act.

1. The conduct on the part of Mr Parker which gave rise to the penalties imposed on him, the CFMEU and the CFMEU (NSW Branch) in Darlaston may be summarised as follows:

(a)At approximately 8:30am on 3 December 2008, Mr Parker, together with two other CFMEU officials, attended the site office of a Lend Lease Development Pty Ltd (Lend Lease) building site in Manly, New South Wales, at which time they were asked to undertake an induction. In response, Mr Parker said, “We don’t need to be inducted…” and shortly thereafter proceeded to enter the site, without undergoing the requested induction;

(b)Whilst on the Lend Lease site, Mr Parker had conversations with a number of subcontractors and told them to “pack up and leave” and “we’re shutting [down] the site”. Justice Flick found that Mr Parker’s conduct was intentional and his conduct both hindered and obstructed Lend Lease, various subcontractors, and their employees in the discharge of their functions; and

(c)At approximately 7:30am on 4 December 2008, Mr Parker arrived at the Lend Lease site and parked his motor vehicle in the vicinity of a crane that was being prepared to be dismantled. Mr Parker was asked on a number of occasions to move his motor vehicle and it took Mr Parker about half an hour to do so.

1. When considering the appropriate penalties to be imposed on Mr Parker in respect of his conduct at the Lend Lease site on 3 and 4 December 2008, Justice Flick made the following comments:[12]

“Any question as to imposing any lesser penalty than $3,000 in the present proceeding is dispelled when attention is given to the contemptuous manner in which Mr Parker treated the offices of Lend Lease. There was a serious departure on the part of Mr Parker from the standards of behaviour to be expected of those who are clothed with statutory power to enter premises. Even in an industry which has been described as ‘robust’, the conduct of Mr Parker was blatantly unacceptable. There has been no acknowledgement on the part of Mr Parker, given the findings made against him, of the unacceptability of his conduct. The absence of any apology or acceptance of excess of power being exercised before or after findings were made, only reinforces the appropriateness of imposing a penalty of $3,000 which will act as a deterrent to Mr Parker in particular and, more generally, to those who may otherwise engage in like conduct.”

1. As a result of the imposition of the penalties on Mr Parker in the Darlaston proceedings, Mr Parker’s right of entry permit was suspended in 2011 for a period of three months and an order was made banning the issue of any further entry permit to Mr Parker for the three month suspension period.[13]

1. The Darlaston proceedings were disclosed by Mr Parker and considered by the Commission when it came to determine if Mr Parker was a fit and proper person to be issued a right of entry permit in 2011 and again in 2014.

1. Given the period of time which has lapsed since Mr Parker’s conduct at the Lend Lease site on 3 and 4 December 2008, together with the fact that he has been penalised for the conduct and it has been taken into account in determining the applications for a right of entry permit for Mr Parker in 2011 and 2014, I will give Mr Parker’s conduct which gave rise to the penalties imposed on him, the CFMEU and the CFMEU (NSW Branch) in the Darlaston proceedings less weight than would otherwise be the case. However, Mr Parker’s conduct in this regard does, to some extent, weigh against a finding that Mr Parker is a fit and proper person to hold right of entry permit.

Barangaroo proceedings[14]

1. On 24 November 2017, in relation to the Barangaroo proceedings, Justice Flick:

·declared that Mr Parker contravened s.348 of the Act twice, once on each of 24 and 25 July 2014 at the Barangaroo building site in Millers Point, Sydney, by organising and taking stop work action and enforcement action against site employees, Lend Lease and the Police with intent to coerce site employees to engage in unprotected industrial action;

·declared that Mr Parker contravened s.355 of the Act twice, once on each of 24 and 25 July 2014 at the Barangaroo site, by organising and taking stop work action and enforcement action against Lend Lease with intent to coerce Lend Lease Building Pty Ltd to reinstate Mr Genovese to his duties;

·declared that Mr Parker contravened s.417 of the Act on 24 and 25 July 2014 by organising industrial action by employees that was taken on 24 and 25 July 2014 at the Barangaroo site when those employees were covered by enterprise agreements which had not passed their nominal expiry dates;

·ordered Mr Parker to pay a penalty of $45,400 in respect of his contraventions of the Act;

·ordered the CFMEU to pay a penalty of $1,326,000 for its contraventions of the Act, including the unlawful conduct that Mr Parker and a number of other CFMEU officials engaged in at the Barangaroo site;

·ordered the CFMEU (NSW Branch) to pay a penalty of $956,250 for its contraventions of the Act, including the unlawful conduct that Mr Parker and a number of other CFMEU officials engaged in at the Barangaroo site; and

·by consent, stayed the orders made on 24 November 2017 pending an appeal that seeks to have such orders varied or set aside.

1. On 15 December 2017, a notice of appeal was filed in the Federal Court of Australia against the “whole of the judgments and all of the orders” made by Justice Flick on 24 May 2017, 13 September 2017 and 24 November 2017, including the declarations and orders referred to in the previous paragraph. That appeal has not yet been heard by the Full Court of the Federal Court.

1. The penalties imposed by Justice Flick on Mr Parker, the CFMEU and the CFMEU (NSW Branch) in the Barangaroo proceedings do not relate to contraventions of Part 3-4 of the Act, but they are plainly orders for the payment of “a penalty under the Act … in relation to action taken by” Mr Parker within the meaning of s.513(1)(d) of the Act.

1. The CFMEU submits that it would not be appropriate for the Commission to consider or give weight to the findings made by Justice Flick in the Barangaroo proceedings because the findings of contraventions against Mr Parker are the subject of an appeal to the Full Court of the Federal Court and the orders made consequent upon those findings have been stayed by Justice Flick.

1. The CFMEU also submits that the stay granted by Justice Flick “entails … that Mr Parker has not been ordered to pay a penalty, or neither has the CFMEU been ordered to pay a penalty relation to Mr Parker’s conduct, for the purposes of section 513(1)(d) of the Act. That means that to be a permit qualification matter, they must be relevant under section 513(1)(g)…”[15] I reject that submission. A stay pending an appeal does not operate to quash, set aside or vary the orders made at first instance; it prevents enforcement of the orders until the appeal is heard and determined. Accordingly, the stay granted by Justice Flick does not alter the fact that in the Barangaroo proceedings Mr Parker, the CFMEU and the CFMEU (NSW Branch) have been ordered to pay penalties under the Act in relation to action taken by Mr Parker in his capacity as an official.

1. As to the CFMEU’s argument that it would not be appropriate for the Commission to consider or give weight to the findings made by Justice Flick in the Barangaroo proceedings because the findings of contraventions against Mr Parker are the subject of an appeal to the Full Court of the Federal Court, neither party was able to direct my attention to a decision or judgment in which this issue has been considered. A number of decisions of the Commission are authority for the proposition that untested allegations in other proceedings which have not been admitted and are not the subject of evidence before the Commission are not relevant to an application for a right of entry permit under s.512 of the Act,[16] but the impact on such an application of an appeal against an order to pay a penalty under the Act has not, to my knowledge, been considered by the Commission or a court.

1. Although the following comments by Mahony JA in Re Middle Harbour Investment Ltd (in liquidation)[17] were made in the context of an application for a stay pending an appeal, the general principles concerning the status of a judgment in respect of which an appeal has been filed are relevant to the present issue:

“Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principal and the court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but is left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.” [emphasis added]

1. A comprehensive notice of appeal has been filed on behalf of Mr Parker and others in the Barangaroo proceedings. The grounds of appeal articulated in the notice of appeal challenge Justice Flick’s relevant findings against Mr Parker which resulted in declarations and orders being made against Mr Parker. No submissions have been made by either party in these proceedings as to the strengths or merits of the grounds of appeal being pursued by Mr Parker against Justice Flick’s orders in the Barangaroo proceedings. No doubt those matters will be traversed in detail in the appeal before the Full Court of the Federal Court of Australia. In light of those matters, it would not be appropriate for me to make any comment or finding in these proceedings about Mr Parker’s prospects of success in his appeal in the Barangaroo proceedings.

1. The stay granted by Justice Flick was consented to by the ABCC. As a result, Justice Flick did not give any reasons for his decision to grant the stay. The practical effect of the stay is that Mr Parker and the other respondents to the Barangaroo proceedings will not have to pay the substantial penalties imposed on them, at least until the appeal has been heard and determined. In the circumstances, it is not surprising that the ABCC consented to the stay and Justice Flick granted it. That a stay has been granted in such circumstances does not, in my view, give any indication as to the likelihood of success of Mr Parker’s appeal in the Barangaroo proceedings, nor is it a matter that alters the weight I propose to give to Justice Flick’s findings and orders against Mr Parker in the Barangaroo proceedings.

1. Also relevant is the fact that findings were made by Justice Flick in the Barangaroo proceedings in circumstances where Mr Parker was represented by solicitors and counsel, witnesses were cross examined and detailed submissions were made. The situation might be different in a case where an unrepresented person had little or no involvement in proceedings at first instance before another court.

1. Having regard to the considerations to which I have referred in the previous six paragraphs, I consider it appropriate in this case to give weight to the findings and orders made by Justice Flick against Mr Parker in the Barangaroo proceedings, notwithstanding an appeal has been filed. In the event that Mr Parker is successful, in whole or part, in his appeal to the Full Court of the Federal Court in the Barangaroo proceedings, it would be open to the CFMEU to then make a fresh application to the Commission for a right of entry permit for Mr Parker under s.512 of the Act.

1. The conduct of Mr Parker found by Justice Flick to have occurred in the Barangaroo proceedings may be summarised as follows:

(a)Mr Parker, together with another CFMEU official, organised CFMEU persons to attend the Barangaroo site early on the morning of 24 July 2014. Mr Parker and others directed workers attending for work on 24 July 2014 to participate in a meeting that was to be held across the road from the site entrance. As a result, approximately 500 to 600 workers stood outside the main entrance gate to the Barangaroo site;

(b)A number of the CFMEU officials at the meeting, including Mr Parker, addressed the workers with a loud speaker, urging them to support a former employee. Mr Parker took a prominent role in leading the meeting, including by saying:[18]

·“Enough is enough. We going to take on Lend Lease”;

·“Who will walk out of the gate until Pete G is reinstated? It will take more than just today to send that message to Lend Lease”;

·“You have to start standing up for people like Peter”; and

·“I have no problem going to [gaol] for it”.

(c)At the meeting Mr Parker called for a show of hands in support of the notion of walking off the job until Monday, 28 July 2014;[19]

(d)Mr Parker misrepresented to the workers at the meeting the outcome of an internal Lend Lease investigation in relation to an employee. In particular, Mr Parker told the workers that the findings made by Lend Lease in respect of the employee revealed that the employee had “done nothing wrong”, whereas Lend Lease had made a finding that the employee had engaged in “inappropriate” behaviour;[20]

(e)Mr Parker failed to advise the workers at the meeting that their strike constituted unlawful industrial action;[21]

(f)Mr Parker intimidated a female police officer who attended the Barangaroo site;[22]

(g)On 25 July 2014, Mr Parker and a number of other CFMEU officials held a meeting with workers outside the main access to the Barangaroo site. The meeting commenced prior to 6am;

(h)Whilst addressing the workers at the meeting on 25 July 2014, Mr Parker referred to the presence of Fair Work Building Industry Inspectors at the meeting and said “They are dogs”;[23] and

(i)Mr Parker urged the workers at the meeting on 25 July 2014 to continue their strike action.[24]

1. Justice Flick made the following comments in relation to Mr Parker’s conduct at the Barangaroo site in the context of deciding the penalties to be imposed on him:[25]

“The penalties imposed on Mr Parker in respect to his contraventions, it is considered, properly reflect the position he occupies as State Secretary of the CFMEU and the prominent role he assumed during the course of the events on 24 and 25 July 2014. That conduct included not only his intention to “stir up” the workers and his setting out to create “an atmosphere of defiance”, particularly “towards the FWBC inspectors”; but also included his objective of getting the workers on 25 July 2014 to continue their strike action from the previous day in defiance of the Fair Work Commission’s order. Mr Parker’s conduct also included misrepresenting facts when addressing the workers on 24 July 2014 (including misrepresenting the facts to members of the CFMEU) and a willingness to take on the police if they stood in the way of achieving his objectives. Such conduct exhibits a willingness to misrepresent facts even to the CFMEU’s own members, contempt for the police and a contempt for those administering the Fair Work Act. To urge workers to continue their strike on 25 July 2014 in the face of the orders made by the Commission the previous day and in creating an “atmosphere of defiance” goes well beyond the conduct that should be expected of a responsible State Secretary. Also of some relevance is the fact that Mr Parker has previously been found to have contravened the Workplace Relations Act: Darlaston v Parker [2010] FCA 771; (2010) 189 FCR 1.”

1. Justice Flick also made the following comments in relation to the evidence given by Mr Parker in the Barangaroo proceedings:[26]

“Reservation is expressed as to the reliability of Mr Parker’s evidence. That reservations springs primarily from the fact that Mr Parker could not recall many of the statements ought to be attributed to either himself or others and, in particular, Mr Kera. Given the importance of the meetings held on 24 and 25 July 2014, and given the role that he played in those events, it is questionable whether his failure to recollect was to be attributed to a lack of memory of events occurring some time ago or to an unwillingness to be fully frank in the evidence that he was giving. The latter explanation, with respect, is considered to be the more likely explanation. Mr Parker’s evidence was also characterised more by his being anxious to provide an explanation for his conduct and then by a desire to answer the question being put. Frequently, for example, he started answering questions before the question had been completed.”

1. Justice Flick ultimately decided to direct that Mr Parker and other witnesses in the proceedings be referred to the Director of Public Prosecutions so that consideration could be given as to whether Mr Parker and the other witnesses had committed an offence of giving false testimony.[27] No evidence was adduced in these proceedings as to whether the Director of Public Prosecutions has considered the matter or taken any steps in relation to it.

1. Although Justice Flick expressed reservations about the reliability of Mr Parker’s evidence, his Honour did not go so far as to make a finding that Mr Parker gave false evidence. I do not propose to give any weight to the observations made by Justice Flick about the reliability of Mr Parker’s evidence in the Barangaroo proceedings. In my view, those observations do not assist in determining whether Mr Parker is a fit and proper person to hold a right of entry permit. In particular, Justice Flick’s reservations about the reliability of evidence given by Mr Parker in his capacity as a witness under cross examination in court proceedings does not assist in my assessment of the personal characteristics of Mr Parker which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit. However, the conduct of Mr Parker which gave rise to the penalties imposed on him, the CFMEU and the CFMEU (NSW Branch) in the Barangaroo proceedings, albeit not in contravention of Part 3-4 of the Act, is relevant and weighs against a finding that Mr Parker is a fit and proper person to hold right of entry permit.

Has any entry permit issued to the official under Part 3-4 of the Act, or under a similar law of the Commonwealth, been revoked, suspended or made subject to conditions? (s.513(1)(e))

Darlaston proceedings

1. Mr Parker’s right of entry permit was suspended by Justice Boulton on 13 May 2011 for a period of three months following penalties being imposed on Mr Parker in the Darlaston proceedings.[28] This suspension was disclosed to the Commission when an application was made for a right of entry permit for Mr Parker in 2011 and 2014 and was taken into account in assessing whether Mr Parker was a fit and proper person at those times.

UTS Gehry proceedings

1. Mr Parker’s right of entry permit was subject to a “suspended suspension” under s.508 of the Act for a period of three months as result of orders made by Vice President Watson by consent on 16 March 2016.[29] The consent orders made by Vice President Watson were structured in such a way that the suspension of Mr Parker’s entry permit would only be triggered if Mr Parker was ordered by a court of competent jurisdiction to pay a pecuniary penalty in relation to a contravention of the Act that occurred within six months of the making of the order on 16 March 2016. In the result, the suspension was not triggered because no such order was made by a court.

1. Because Mr Parker’s right of entry permit was not, in fact, suspended as a result of the orders made by Vice President Watson, it may be appropriate to have regard to this “suspended suspension” and Mr Parker’s conduct which led to it when considering “other relevant matters” under s.513(1)(g), rather than under s.513(1)(e) of the Act. However, I do not need to resolve that issue because the matters are plainly relevant to whether Mr Parker is a fit and proper person to hold an entry permit and whether they are considered under s.513(1)(e) or (g) of the Act will not have any bearing on the outcome of the application for an entry permit.

1. The conduct on the part of Mr Parker which led to the consent orders being made by Vice President Watson took place on 1 April 2014. In particular:

(a)At approximately 10:30am on 1 April 2014, Mr Parker entered the UTS Gehry site in Sydney, exercising rights conferred by the Work, Health and Safety Act 2011 (NSW), namely the right to enter a site occupied or otherwise controlled by a constitutional corporation, being Lend Lease;

(b)Mr Parker and another CFMEU official requested that a site meeting be convened for the purpose of consulting with workers in relation to suspected safety contraventions. Lend Lease convened a site meeting as requested;

(c)Mr Parker took on site a Channel 7 video camera and filmed workers assembled for the site meeting as well is filming the auditorium in which the site meeting was being held and the site entry/exit gate, before returning the camera to a member of Channel 7’s staff, who was outside the site; and

(d)Mr Parker was not authorised by Lend Lease, the occupier of the site, to do any of the filming. A Lend Lease representative saw him filming the auditorium on site and requested that he not do so. Mr Parker complied with the request. Mr Parker was later told by another Lend Lease representative not to film the site exit gate. Mr Parker complied with this request.

1. By engaging in the conduct set out in the previous paragraph, Mr Parker misused his rights exercisable under Division 3 of Part 3-4 of the Act in that he used the occasion of that entry for purposes that included a collateral purpose, namely filming and providing film footage to Channel 7.

1. The matters referred to in paragraphs [44] to [48] above weigh against a finding that Mr Parker is a fit and proper person to hold a right of entry permit. However, the weight to be accorded to those matters is reduced by reason of the lapse of time since the events in December 2008 and April 2014, the fact that the 2011 suspension was disclosed and taken into account in determining Mr Parker’s application for an entry permit in 2011 and 2014, and the lower level nature of Mr Parker’s contravening conduct on 1 April 2014 which resulted in a “suspended suspension” being imposed by consent.

Has any relevant action been taken against the official under a State or Territory industrial law or a State or Territory OHS law? (s.513(1)(f))

1. Mr Parker has held entry permits under the Industrial Relations Act 1996 (NSW) since approximately 1996. No action of the kind referred to in s.513(1)(f) of the Act had been taken against Mr Parker under a State or Territory industrial law or a State or Territory OHS law. This weighs in favour of a finding that Mr Parker is a fit and proper person to hold a right of entry permit.

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

BKH proceedings (NSD361/2016)

1. Mr Parker is named as the Eighth Respondent in proceedings commenced by the ABCC in the Federal Court of Australia on 11 March 2016.[30] Judgment has been reserved by Justice Flick since 27 June 2017, following a hearing in relation to the matter. Although no findings have been made by Justice Flick in the BKH proceedings, on 1 June 2017 Mr Parker filed a Third Amended Defence in which he admitted the following material facts:

(a)On 16 March 2015, Mr Parker attended the Wolli Creek construction site between 5:00am and 4:30pm, during which time a number of flags, each bearing the logo and insignia of the CFMEU, were erected on the fence line at the corner of Boatman Place and Brodie Spark Drive, Wolli Creek;

(b)Between approximately 5:00am and 7:15am on 16 March 2015, Mr Parker and a crowd of persons blocked the main pedestrian entrance to the Wolli Creek site by impeding or obstructing access to the main pedestrian gate at the site;

(c)Between approximately 7:15am and 11:00am on 16 March 2015, Mr Parker and a crowd of persons gathered in front of the main pedestrian entrance at the Wolli Creek site and thereby blocked access to the gate; and

(d)Mr Parker and the crowd of persons continued to block access to the Wolli Creek site on 16 March 2015 by impeding or obstructing access to the main pedestrian gate until approximately 4:30pm.

1. Mr Parker further admitted in his Third Amended Defence that by his conduct described in the previous paragraph, he organised or took, or threatened to organise or take, action to disrupt the performance of work of building contractors with the intent to coerce those contractors to exercise a workplace right in a particular way, thereby contravening s.343 of the Act.

1. The CFMEU contends that, in circumstances where judgment is reserved by Justice Flick, no weight should be given in these proceedings to the admissions made by Mr Parker in the BKH proceedings. In support of this contention the CFMEU makes the point that an admission made in a pleading is not a positive acknowledgement that particular conduct occurred. As Justice Ryan explained in Australian Competition and Consumer Commission v Pratt (No 3):[31]

“A statement in a defence or subsequent pleading that a party “admits” an allegation in a particular paragraph of a statement of claim or subsequent pleading may not always constitute such a positive assertion or acknowledgement. It may, in its context and other relevant circumstances, signify no more than that the party admitting the allegation is content for the litigation in which it is made to be resolved on the basis that allegation is true or has been proved. That election may be made for a variety of forensic reasons, including a desire to avoid the costs of contesting the allegations in question or a belief that the party making the admission can succeed on some other issue without disputing the particular allegations…

These reflections have led me to conclude that it is a question of fact whether a pleading or analogous statement in previous proceedings constitute an admission available to be adduced in later civil or criminal proceedings against the party on whose behalf the plea was filed or the statement was made.”

1. The CFMEU submits that there were “likely pragmatic and forensic decisions made by Mr Parker to admit the conduct and contravention alleged… So much is apparent from the obliteration of a substantial portion of the Amended Statement of Claim and the removal of six officials of the Applicant [CFMEU] as respondents”. I do not accept this argument. No evidence has been adduced in these proceedings to explain why Mr Parker admitted the allegations summarised in paragraph [51] above. It may be the case that Mr Parker made the admissions for the reason submitted by the CFMEU in these proceedings, but he may also have made the admissions because he engaged in the conduct alleged and had no reasonably arguable defence to the allegations. What is clear is that Mr Parker has made the admissions in his Third Amended Defence, as a result of which it is very likely that a finding will be made in the BKH proceedings that Mr Parker contravened s.343 of the Act and an appropriate penalty will very likely be imposed on him.

1. The CFMEU also submits that the Commission should in these proceedings refrain from commenting on the BKH proceedings given that they remain “pending” – that is, they have not been completed. In particular, the Federal Court still needs to determine, based on evidence led in the proceedings, whether the CFMEU and certain of its officials including Mr Parker contravened civil remedy provisions of the Act and what, if any, penalty should be imposed on Mr Parker for his admitted contravention of s.343 of the Act. I do not accept this argument. I am not making findings in these proceedings in relation to contested allegations in the BKH proceedings. I am simply giving appropriate weight to admissions made by Mr Parker in pleadings in the BKH proceedings as part of my evaluative assessment as to whether Mr Parker is a fit and proper person to hold a right of entry permit.

1. The CFMEU further submits that it is apparent from the Third Amended Defence filed on behalf of Mr Parker in the BKH proceedings that he has claimed the privilege against self-exposure to a penalty in relation to a number of the allegations made against him in those proceedings. Traversing or otherwise giving consideration to the allegations made by the ABCC in respect of which Mr Parker has claimed “penalty privilege” has, so it is submitted by the CFMEU, a tendency to undermine the privilege which he has asserted.

1. Mr Parker has claimed privilege against self-exposure to a penalty in response to a number of the allegations made in the Third Further Amended Statement of Claim in the BKH proceedings. However, he has not claimed privilege against self-exposure to a penalty in relation to the allegations he has admitted, as summarised in paragraph [51] above. In those circumstances, I do not accept the CFMEU’s argument that giving consideration to the allegations which Mr Parker has admitted in the BKH proceedings has a tendency to undermine the privilege which he has asserted.

1. In summary, although the admissions made by Mr Parker in the BKH proceedings do not relate to the exercise or purported exercise of rights under Part 3-4 of the Act, they do concern conduct on Mr Parker’s part which he admits was in contravention of s.343 of the Act and, in light of the nature of the conduct admitted by Mr Parker, I consider the admissions to be relevant and they should be accorded some weight against the proposition that Mr Parker is a fit and proper person to hold a right of entry permit. However, because no findings have yet been made by Justice Flick in the BKH proceedings, I accept that less weight ought be given to Mr Parker’s admissions in those proceedings than would be the case if findings had been made.

Austar proceedings (SYG2231 of 2015) and DMG proceedings (SYG332 of 2016)

1. Mr Parker is a respondent to each of these proceedings commenced by the ABCC in the Federal Circuit Court. Allegations of various contraventions of the Act have been made against Mr Parker in pleadings filed by the ABCC in each proceeding. However, Mr Parker has not admitted any such allegations and no findings have been made in either proceeding. Further, apart from the tender of pleadings filed by the ABCC in the Austar proceedings and the DMG proceedings, no evidence has been adduced in these proceedings in relation to the allegations made against Mr Parker in the Austar proceedings and the DMG proceedings. As a result, all I have before me is untested allegations in other proceedings. I will not take such allegations into account in these proceedings in determining whether Mr Parker is a fit and proper person to hold a right of entry permit.[32]

Lendlease proceedings (Lendlease Building Pty Ltd T/A Lendlease & Ors v Construction, Forestry, Mining and Energy Union & Ors (RE2014/761))

1. On 3 April 2014 an application was made to deal with a right of entry dispute pursuant to s.505 of the Act. Mr Parker was a respondent to the application. The applicant sought orders against Mr Parker and others, including an order for the revocation or suspension of Mr Parker’s entry permit. On 18 February 2015, Senior Deputy President Watson made by consent an order binding all parties to the dispute, including Mr Parker, in connection with entries onto building and engineering sites across Australia that are owned, operated or occupied by Lend Lease for the purposes of:

·investigation of suspected contraventions of the Act, Federal Industrial Instruments and/or WHS legislation which relate to, or affect, CFMEU members;

·discussions with employees who work on the relevant sites and who are eligible to be members of the CFMEU;

·rights of entry under Part 3-4 Act; and/or

·the exercise of State or Territory OHS rights as defined in s.494 of the Act.[33]

1. The consent orders made by Senior Deputy President Watson have been extended, with minor alterations, until 16 May 2018. There is no suggestion that Mr Parker has not complied with those orders since they have been in operation.

Character references

1. The CFMEU tendered character references from Mr John Burns, Mr Stephen Costigan, Mr Larry Valesini, Ms Wendy Waller, Mr Michael Finnane RFD QC, and Mr Michael Pechy in support of the application for a right of entry permit for Mr Parker. I have read those references. They weigh in favour of a finding that Mr Parker is a fit and proper person to hold a right of entry permit.

The culture of the CFMEU

1. Mr Parker is the State Secretary of the New South Wales Divisional Branch of the CFMEU. The ABCC submits that the CFMEU has a culture of wilful disobedience of industrial laws. Mr Parker is part of the leadership team that governs the organisation which has this culture. He has a record of contravening industrial laws. There is no evidence that Mr Parker sits apart from this culture, or wants to change or reform it. The ABCC goes on to submit that, as the State Secretary and someone who has been involved in serous contraventions of industrial laws, it can be inferred by the Commission that Mr Parker is a part of the culture of wilful disobedience of industrial laws. This is a relevant matter which I should take into account, so it is submitted by the ABCC, under s.513(1)(g) in assessing whether Mr Parker is a fit and proper person to hold a right of entry permit.

1. In Director of the Fair Work Building Industry Inspectorate v CFMEU,[34] a Full Bench of the Commission considered the relevance of past contraventions of industrial or other relevant laws by an organisation to the consideration of an official’s fitness or proprietary to hold a right of entry permit (references omitted):

“[26] We do not consider that the Director has demonstrated any error in the process by which the Delegate determined that the CMFEU’s history of contraventions was not relevant to his determination as to whether Mr Kong was a fit and proper person to hold an entry permit. It was reasonably open to the Delegate to conclude, as he did, that there was nothing in the annexure to the Director’s General Submissions which bore upon Mr Kong’s “status and attributes”. There was no suggestion that any of the identified contraventions involved any act or omission on the part of Mr Kong. While it may be accepted that the susceptibility of an official to comply with a direction from his or her employing organisation to engage in unlawful conduct might well be considered to be a relevant matter under s.513(1)(g), there was nothing put to the Delegate at first instance or to us on appeal that suggested that the industrial history set out in the annexure demonstrated anything with respect to any personal susceptibility on Mr Kong’s part in that respect.

[27] That is not to say that past contraventions of industrial or other relevant laws by an organisation can never be relevant to the consideration of an official’s fitness or propriety to hold an entry permit where those contraventions did not involve any direct contravening conduct on the part of that official. If, for example, the facts of a particular contravention or contraventions supported an inference that an official with management responsibility in an organisation omitted to take reasonable steps to ensure that others under his or her control complied with the law, or encouraged or tolerated a general culture of non-compliance with the law, then conceivably that might be considered to be a relevant matter under s.513(1)(g). However in this case it was simply not made apparent that the CFMEU’s history of contraventions said anything about Mr Kong’s personal conduct, character or reputation either as relevant to the exercise of rights of entry under the Act or at all.”

1. Another Full Bench of the Commission considered a similar argument in Director of the Fair Work Building Industry Inspectorate v CFMEU (Queensland Northern Territory Divisional Branch) (references omitted):[35]

“[35] In granting a permit to a person who is fit and proper, the Commission is required to have a certain level of satisfaction as to the evidence about an individual and their level of general integrity. Forensically, bearing in mind the seriousness of taking away a right of entry permit, the Commission needs to be satisfied that it is done appropriately in all of the circumstances. The Appellant has argued that the Respondent did not, at any point in the proceedings at first instance, attempt by evidence of any kind, to seek to rebut the allegedly clear inferences that were being suggested about Mr Ravbar’s involvement in the contraventions. We note that this issue was picked up at paragraph [70] of the Decision where it was squarely examined by the Deputy President:

[70] The Applicant was criticised for not providing a more detailed witness statement from Mr Ravbar which could have been the subject of cross-examination. I do not think that this criticism is justified. There was no specific allegation in relation to Mr Ravbar’s personal conduct to be answered. The courts’ decisions in the seven matters which the FWBC relied on was tendered and dealt with extensively in submissions. There was no evidence that Mr Ravbar was “a ring-master in a union office in a managerial position who was sending his organisers out to breach the law” (Transcript PN394). Rather, the general picture which emerges is of the union determinedly pursuing its industrial and health and safety agendas and its activity coming into collision with the industrial legislation. There are remedies under that legislation to deal with that conduct if breaches are found to occur.”

[36] We consider that there were no facts in evidence before the Deputy President or on appeal that supported an inference that Mr Ravbar omitted to take any reasonable steps to ensure that others under his control failed to comply with the law, or encouraged or directed or tolerated a general culture of non-compliance with the law.

[37] We accept the submissions of the Respondent that the Appellant misread Kong. Applying Kong to the circumstances of the matter before us, our inevitable conclusion is that there was no evidence before the Deputy President to support a finding that the CFMEU’s history of contraventions said anything about Mr Ravbar’s personal conduct, character or reputation, either as relevant to the exercise of rights of entry under the Act, or at all.”

1. In CFMEU v Director of the Fair Work Building Industry Inspectorate,[36] the majority of the Full Bench rejected the notion that the CFMEU’s culture of disobedience of industrial laws establishes a higher bar than normal for considering whether an official of the CFMEU is a fit and proper person to hold a right of entry permit (references omitted):

“[86] We agree that it is highly relevant to consider an applicant’s attitude and track record relating to compliance with the relevant legal obligations, however, we consider it erroneous to elevate a context of past contraventions of industrial or other relevant laws by an organisation so that it automatically operates to impose a ‘higher bar than normal’ for an individual to clear in order to satisfy the Commission that he or she is a fit and proper person to hold an entry permit, regardless of his or her past behaviour.

[87] We believe that there was error in the decision-making process of the Vice President because he framed the task of considering whether Mr Tadic was a fit and proper person to hold an entry permit with the opening statement “In my view this context establishes a higher bar than normal for considering whether Mr Tadic is a fit and proper person to hold the right of entry permit in question.” On our reading of s.513(1) of the Act and our consideration of the authorities referred to above, we do not consider this approach was open to him and we have concluded he acted on a wrong principle in doing so. On the basis of this error in the decision making process, we have decided to uphold the appeal and quash the Vice President’s decision to reject the grant of an entry permit to Mr Tadic.”

1. Mr Parker’s “track record” relating to compliance with relevant legal obligations is plainly relevant to my assessment as to whether he is a fit and proper person to hold a right of entry permit. However, there is no evidence to support a finding that Mr Parker has omitted to take reasonable steps to ensure that others under his control comply with the law, or that he has encouraged or tolerated a general culture of non-compliance with the law. Nor is there evidence to support a finding that the CFMEU’s history of contraventions, or culture of disobedience, of industrial laws:

(a)demonstrates anything with respect to any personal susceptibility on Mr Parker’s part in that respect; or

(b)says anything about Mr Parker’s personal conduct, character or reputation either as relevant to the exercise of rights of entry under the Act or at all.

1. Accordingly, I do not consider it relevant to take into account the CFMEU’s record or culture of disobedience of industrial laws in determining whether Mr Parker is a fit and proper person to hold a right of entry permit.

Length of Mr Parker’s role as an official of the CFMEU

1. I also consider relevant the fact that Mr Parker commenced employment as an official with the CFMEU on 5 February 1990. He has held entry permits continuously (with the exception of the suspension of his federal entry permit in May 2011) under the Act and the predecessors to it for a significant period of time. The conduct in which Mr Parker has engaged in contravention of the Act and the predecessors to it must be considered in this context.

Conclusion

1. In my view, Mr Parker is not a fit and proper person to hold a right of entry permit. I have reached this conclusion after taking into account and weighing each of the permit qualification matters set out in s.513(1)(a) to (g) of the Act and addressed in paragraphs [16] to [69] above.

1. Although there are a number of permit qualification matters which support a finding that Mr Parker is a fit and proper person to hold a right of entry permit, they are outweighed by the permit qualification matters which tell against such a conclusion. In particular, it is apparent from Mr Parker’s conduct in the Darlaston proceedings, Barangaroo proceedings, BKH proceedings (insofar as admissions as set out above have been made by Mr Parker) and UTS Gehry proceedings that, in the past, when faced with competing interests between, on the one hand, the CFMEU’s objectives, Mr Parker’s objectives and/or the interests of CFMEU members, and, on the other hand, Mr Parker’s interest in complying, and his obligation to comply, with relevant industrial laws, Mr Parker has repeatedly chosen the former interests over the latter.

1. Mr Parker’s past conduct may provide an indication of his likely future conduct. I say “may” because people can change. However, in circumstances where a person such as Mr Parker has engaged in particular conduct over a period of time and such conduct provides an indication of likely future conduct there must, in my view, be a proper basis to support any finding that the person has changed or is likely to act differently in the future.[37] For example, evidence may be adduced which satisfies the Commission that the official has shown remorse or contrition for their past conduct, understands the nature of their conduct and its impact on others, and has promised or undertaken to comply with their obligations under Part 3-4 of the Act in the future. The absence of any such evidence in this case, together with Mr Parker’s conduct in the Darlaston proceedings, Barangaroo proceedings, BKH proceedings (insofar as admissions as set out above have been made by Mr Parker) and UTS Gehry proceedings, means that I do not have a sufficient level of confidence that Mr Parker would, if granted a right of entry permit, comply with his obligations under Part 3-4 of the Act when faced with competing interests of the type to which I have referred above.

1. In light of my conclusion that Mr Parker is not a fit and proper person to hold a right of entry permit, the CFMEU’s application under s.512 of the Act is dismissed.

COMMISSIONER

Appearances:

Mr P Boncardo, of Counsel, on behalf of the CFMEU.
Mr M Felman, of Counsel, on behalf of the ABCC.

Hearing details:

2017.
Newcastle and Melbourne (by Video Link):
November 29.

[1] RE 2014/1492

[2] Section 480 of the Act

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

[4] Ibid at 405 [56] per Flick J

[5] Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

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

[7]  [2015] FWC 1522

[8] [2015] FCAFC 56

[9] Ibid at [17]

[10] Ibid at [42]

[11] (2010) 200 IR 353; [2010] FCA 1382

[12] Darlaston at [34]

[13] Parker & Ors[2011] FWA 2577

[14] ABCC v Parker [2017] FCA 564; ABCC v Parker (No 2) [2017] FCA 1082

[15] PN237

[16] See, for example, CFMEU[2016] FWC 161 at [34] per Hatcher VP

[17] New South Wales Court of Appeal, unreported, 15 December 1976

[18] Darlaston v Parker [2010] FCA 771 at [238]-[240]

[19] Ibid at [245]

[20] Ibid at [241]

[21] Ibid at [245]

[22] Ibid at [190]

[23] Ibid at [206]

[24] Ibid at [255]

[25] ABCC v Parker (No 2) [2017] FCA 1082 at [40]

[26] Darlaston v Parker [2010] FCA 771 at [234]

[27] Darlaston v Parker (No. 2) [2010] FCA 1382 at [86]-[97]

[28] [2011] FWA 2577

[29] PR577986

[30] NSD361/2016

[31] [2009] FCA 407

[32] CFMEU[2016] FWC 161 at [34] per Hatcher VP

[33] Lend Lease Building Pty Ltd T/A Lend Lease; Lend Lease Building Contractors Pty Ltd (formerly Baulderstone Pty Ltd) T/A Lend Lease; Lend Lease Engineering Pty Ltd (formerly Abigroup Contractors Pty Ltd) T/A Lend Lease v Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and Others PR561155

[34] [2014] FWCFB 5947

[35] [2015] FWCFB 6035. An application for judicial review of the decision of the Full Bench and the first instance decision was dismissed by the Full Court of the Federal Court: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169

[36] [2016] FWCFB 6058

[37] CFMEU[2016] FWC 1984 at [43] per Richards SDP

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