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

[2017] FWC 4982

[2017] FWC 4982

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
(RE2017/968)

COMMISSIONER SAUNDERS NEWCASTLE, 26 SEPTEMBER 2017

Application by CFMEU for issue of right of entry permit to Anthony Burke – satisfied that fit and proper person – permit issued.

[1] On 1 August 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 Anthony Burke, who is employed by the CFMEU as a State Organiser.

[2] On 8 September 2017, the Australian Building and Construction Commission (ABCC) was provided with a Notice of Listing in relation to a directions hearing listed for 4:30pm on 12 September 2017.

[3] On 11 September 2017, the ABCC advised the Commission that it does not intend to make submissions in relation to this application pursuant to s.110 of the Building and Construction Industry (Improving Productivity)Act 2016 (Cth) or otherwise.

[4] On 12 September 2017, a directions hearing was conducted by telephone. Mr B Kruse appeared for the CFMEU. Following the directions hearing, the CFMEU was directed to file any statutory declarations, submissions and other documents it intends to reply on in support of its application by 4pm on 22 September 2017, following which I would, absent any request or need for a hearing, decide the application in chambers on the papers.

[5] The CFMEU have filed a statutory declaration of Mr Burke dated 25 September 2017 and a witness statement of Ms Rita Mallia, State President of the CFMEU dated 18 September 2017. I have had regard to these documents, together with the earlier declaration made by Mr Burke on 1 August 2017 and the declaration made by Mr Brian Parker, NSW Divisional Branch Secretary of the CFMEU, on 1 August 2017, in deciding the present application on the papers.

Statutory Framework

[6] 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.

[7] 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. 1

[8] 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. 2 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.3 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.4

[9] 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. 5

[10] 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.”

[11] 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).”

[12] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 6 Hatcher VP set out the following principles relevant to the interpretation and application of ss. 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.”

[13] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 7, 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.’” 8

[14] 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’.” 9

Consideration

[15] 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 to Mr Burke.

Permit qualification matters – ss.513(1)(a), (b), (d), (e) and (f)

[16] According to the declarations filed by CFMEU in support of the application for the grant of an entry permit to Mr Burke:

(a) Mr Burke has received appropriate training about the rights and responsibilities of a permit holder (s.513(1)(a) of the Act). Mr Burke completed an approved right of entry training course in person with the CFMEU on 14 June 2017; 10

(b) Mr Burke has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);

(c) Mr Burke, or any other person, has never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by Mr Burke (s.513(1)(d) of the Act);

(d) Mr Burke has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act). Mr Burke commenced employment with the CFMEU on 14 June 2017 11 and has not held an entry permit under any Commonwealth or State legislation and has not made any prior applications for an entry permit; and

(e) Mr Burke has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit (s.513(1)(f) of the Act).

[17] I accept that the information set out in the previous paragraph and as disclosed in the declarations concerning these matters is accurate and correct. Each of these permit qualification matters weighs in favour of a conclusion that Mr Burke is a fit and proper person to hold an entry permit.

Permit qualification matter - s.513(1)(c)

[18] Pursuant to s.513(1)(c) of the Act, in deciding whether Mr Burke is a fit and proper person I must take into account whether Mr Burke has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud, dishonesty, intentional use of violence against another person or intentional damage or destruction of property.

[19] Mr Burke disclosed two matters in his statutory declaration that fall within the category of offences in s.513(1)(c)(i) and (ii) of the Act.

[20] The first matter disclosed was a conviction of common assault and stalking/ intimidation on 4 September 2007 that related to a physical altercation between Mr Burke and his brother, Mr Ashley Burke. Mr Burke pleaded guilty to both charges and received an 18 month good behaviour bond and was directed to attend counselling/rehabilitation. Mr Burke gave evidence that at the time of the offences he was 20 years old and was estranged from his family and living with his grandmother. 12 Mr Burke had a difficult relationship with his brother and they had previously been involved in a physical altercation which resulted in his brother taking out an apprehended violence order against him. On the night of the offences, Mr Burke’s father and brother arrived at the grandmother’s house without explanation and Mr Burke and Mr Ashley Burke got into a heated argument that became physical. When the police arrived Mr Burke was charged because of the AVO Mr Ashley Burke had against Mr Burke. Mr Burke gave further evidence that he complied with the court order by attending a three week drug and alcohol rehabilitation course and anger management classes and counselling. Mr Burke says that the counselling helped him turn his life around and create a pathway to successfully rebuilding his relationships with his father and brother. Mr Burke annexed to his statutory declaration dated 25 September 2017 a references from his brother, Mr Ashley Burke, and his sister-in-law, Ms Jessica Dalton, which support Mr Burke’s evidence that he has mended his relationship with his brother and become a responsible and hard-working person who would be able to handle the responsibility of holding a right of entry permit.13

[21] The second matter disclosed was a conviction of three counts of obtaining money by deception on 18 February 2009. Each charge represented a piece of equipment that Mr Burke had hired using his then employer’s discount. Mr Burke pleaded guilty to the charges and received three good behaviour bonds to be served concurrently and was ordered to pay a total fine of $1000, together with $351 in compensation and $73 in court costs. Mr Burke gave evidence that at the time of the offence he asked his then employer if he could use the employer’s discount to hire some equipment for personal use. Mr Burke says that at the time his employer agreed to let him use the discount and helped him to organise the equipment. Approximately two weeks later, Mr Burke resigned from his employment with that employer following a personality clash with a foreman. On the afternoon of his resignation, the police arrived at Mr Burke’s house. He was advised that his former employer had reported that there had been no agreement for Mr Burke to use the discount and as a result he was being charged with obtaining money by deception. 14

[22] The CFMEU submits that given Mr Burke’s honesty, actions, contrition and remorse, the convictions ought to have no impact on the Commission’s assessment of Mr Burke character as a fit and proper person to hold an entry permit. 15

[23] While convictions of offences involving fraud, dishonesty and intentional use of violence against another person weigh against a conclusion that Mr Burke is a fit and proper person to hold an entry permit, I am satisfied that the considerable passage of time since Mr Burke’s convictions and the contrition that Mr Burke has shown, together with the changes made to his life, diminish (but do not extinguish) the adverse weight that I give to those matters.

Permit qualification matter - s.513(1)(g)

[24] Mr Burke has disclosed two further matters in his statutory declaration that I will consider for the purposes of s.513(1)(g) of the Act.

[25] The first matter disclosed was a conviction for driving a vehicle unlicensed on 14 November 2005. Mr Burke pleaded guilty to the offence and was ordered to pay a $500 fine, together with court costs of $65, and was disqualified from driving for 12 months. Mr Burke gave evidence that at the time of the offence he was away for work in The Entrance. Mr Burke and a work colleague, both of whom did not hold a drivers licence, borrowed a vehicle to drive into town and pick up some groceries because the place they were staying had no food and there was no public transport. 16

[26] The second matter disclosed was a conviction for riding a motorcycle unlicensed and failing to give way at lights to oncoming traffic on 1 December 2010. Mr Burke pleaded guilty to both offences and was given a statutory suspension and ordered to pay a total fine of $1,250 and court costs of $158. Mr Burke gave evidence that at the time of the offence he was in the process of obtaining his motorcycle licence but had not yet completed the final part of the test. On the day in question, he had decided to ride his motorcycle to work unlicensed because of a lack of public transport. 17

[27] The CFMEU submits that these driving offences represent lapses in judgement on behalf of Mr Burke and they should not have an impact on the Commission’s assessment of Mr Burke’s character as a fit and proper person to hold an entry permit because Mr Burke showed contrition for his behaviour by pleading guilty to the conduct at the time of the charges, he paid all fines imposed and served his disqualification periods without incident and he has been honest and forthright in bringing these matters to the Commission’s attention. 18

[28] I accept the CFMEU’s submission that these driving offences represent lapses in judgement on Mr Burke’s part, but I do not accept that they should not be given any weight in my assessment of whether Mr Burke is a fit and proper person to hold an entry permit. As a permit holder, Mr Burke will have important rights and obligations under the Act; he will need to use his judgement on a regular basis in exercising those rights and complying with those obligations. Further, he will need to ensure that, unlike his conduct in connection with the driving offences referred to above, he does not place his own interests ahead of the obligations he owes under the Act to occupiers of premises and other persons. In the result, I place some adverse weight on the driving offences disclosed by Mr Burke in relation to my assessment of whether he is a fit and proper person to hold an entry permit, but such weight is moderated by reason of the fact that the convictions are for less serious offences than the category of offences referred to in s.513(1)(c) of the Act, there has been a considerable passage of time since those convictions, Mr Burke has shown contrition for his actions, and Mr Burke has made changes to his life.

Conclusion

[29] Ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Burke for his past wrongdoing. I accept Mr Burke’s evidence that he has taken steps since 2010 to turn his life around and that his family responsibilities are strong motivators for him to keep stable employment and comply with his obligations under Part 3–4 of the FW Act.

[30] Taking into account all the permit qualification matters, I am satisfied, on balance, that Mr Burke is a fit and proper person to hold an entry permit. I am further satisfied that I should exercise the discretion conferred by s.512 of the Act in favour of issuing Mr Burke with an entry permit.

COMMISSIONER

 1 Section 480 of the Act

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

 3   Ibid at 405 [56] per Flick J

 4   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]

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

 6   [2015] FWC 1522

 7 [2015] FCAFC 56

 8   Ibid at [17]

 9   Ibid at [42]

 10   Application for an entry permit filed on 1 August 2017

 11   Statement of Rita Mallia dated 18 September 2017

 12   Statutory declaration of Anthony Burke dated 25 September 2017

 13   Statutory declaration of Anthony Burke dated 25 September 2017 at attachments A and B

 14   Statutory declaration of Anthony Burke dated 25 September 2017 at [8]-[11]

 15   CFMEU’s written submissions dated 21 September 2017 at [26]

 16   Statutory declaration of Anthony Burke dated 25 September 2017 at [3]

 17   Statutory declaration of Anthony Burke dated 25 September 2017 at [12]-[13]

 18   CFMEU’s written submissions dated 21 September 2017 at [32]

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