Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Builders' Labourers' Divisional Branch

[2014] FWCD 1004

[2014] FWCD 1004

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit
Construction, Forestry, Mining and Energy Union
(RE2014/531)
MR ENRIGHT	MELBOURNE, 30 JUNE 2014
Background

[1] On 17 January 2014, an application under s. 512 of the Fair Work Act 2009 (the Act) dated 17 January 2014 was lodged in the Fair Work Commission (the Commission) by the Construction, Forestry, Mining and Energy Union (the CFMEU) for a permit to enter and inspect premises for the following official of the CFMEU:

Timothy Jarvis RE2014/531

[2] The application in this matter was supported by declarations from Mr David Hanna, the relevant Committee of Management member, and Mr Jarvis, the proposed permit holder, both dated 17 January 2014 (the declarations). Mr Hanna is the Divisional Branch Secretary of the Queensland Builders' Labourers' Divisional Branch (the Divisional Branch) of the Construction and General Division of the CFMEU. Mr Jarvis is an Organiser within the Divisional Branch.

[3] I acknowledge receipt on 5 February 2014 of a permit returned to the Commission by Mr Jarvis in matter RE2010/3821.

[4] The declarations disclose that Mr Jarvis was ordered to pay a penalty of $7,260 for contravening section 38 of the Building and Construction Industry Improvement Act 2005 (the BCII Act) in Hogan v Jarvis & Ors (2012) FMCA 189[1](Hogan v Jarvis). The declarations also state that in Hogan v Jarvis the CFMEU was penalised $36,300 in relation to the action taken by Mr Jarvis and another CFMEU organiser.

[1]Hogan v Jarvis & Ors (2012) FMCA 189 (7 February 2012)

[5] The declarations further disclose that Mr Jarvis was ordered to pay a penalty of $6,450 for contravening sections of the BCII Act in Lend Lease Project Management & Construction

(Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 5) [2012] FCA 1144[2](Lend Lease v CFMEU). The declarations also state that in Lend Lease v CFMEU, the

[2]Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union

CFMEU, along with the Construction, Forestry, Mining and Energy Union, Industrial Union of Employees, Queensland (the CFMEUQ) which is a state registered association, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied [2014] FWCD 1004

Services Union of Australia (the CEPU), were ordered jointly liable to pay a penalty of $550,000 in relation to the action of three registered organisations and seven individuals, including Mr Jarvis.

[6] The declarations further disclose that the CFMEU was ordered to pay a penalty of $50,000 for contravention of section 38 of the BCII Act in Director, Fair Work Building

Industry Inspectorate v Andrew Sutherland & Ors (BRG1008/2011)[3](FWBII v Sutherland)

[3]Director, Fair Work Building Industry Inspectorate v Andrew Sutherland & Ors (10 July 2013) (BRG1008/2011)

in relation to actions taken by a number of individuals, including Mr Jarvis.

[7] The declarations further disclose that the CFMEU was ordered to pay a penalty of $99,000 for contravention of sections 43(1)(b) and 44 of the BCII Act in Director, Fair Work

Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013]

FCA 846[4](FWBC v CFMEU) in relation to the actions taken by several individuals,

[4]Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 846

including Mr Jarvis.

[8] On 10 April 2014 the Fair Work Building & Construction (the FWBC) wrote to the Commission advising that the FWBC intended to lodge written submissions in relation to the above application by 17 April 2014.

[9] On 11 April 2014 the Delegate of the Commission wrote to the FWBC advising that due to the time that had passed since the application had been lodged, the progress Commission had made on the matter, and the fact the CFMEU had requested the matter be processed urgently, the Delegate intended to proceed with a Decision without any submissions from the FWBC.

[10] The FWBC responded on 11 April 2014 stating that making applications to the Commission in relation to enforcing ‘designated building laws and safety net contractual entitlements as they relate to building industry participants’ is one of the FWBC’s primary legislative functions, and that it proposed to lodge submissions pursuant to section 72 of the

Fair Work (Building Industry) Act 2012.

[11] On 14 April 2014 the FWBC lodged with the Commission general and specific submissions (the FWBC submissions) in relation to the above application.

[12] On 15 April 2014 the Commission wrote to the CFMEU advising them that the FWBC had lodged submissions. The Commission informed the CFMEU that the Delegate had considered the circumstances, including the aspect of fairness and timeliness, as well as the short period of time the FWBC took in lodging their submissions, and allowed the lodging of the FWBC submissions. Accordingly, the Commission invited the CFMEU an opportunity to lodge submissions in reply to the FWBC submissions.

[13] On 28 April 2014 the CFMEU lodged its submissions (the CFMEU submissions) with the Commission in reply to the FWBC submissions.

Legislative framework

[14] Under s.512 of the Act, 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 an entry permit. In deciding this, the Commission must take into account the “permit qualification matters” set out in s.513(1).

[2014] FWCD 1004

[15] Section 513(1) of the Act is set out below:

“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.”

[16] Sections 512–513 are within Part 3–4 of the Act, entitled ‘Right of Entry’. The objects of Part 3–4 are set out at s.480:

“480 Object of this Part

[2014] FWCD 1004

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work,

information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business
without undue inconvenience.”

[17] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[5], Delegate Nassios made the following observations

[5][2011] FWAD 3518.

regarding the objects of Part 3–4 of the Act with respect to an application for an entry permit:

“[21] The objects of Part 3-4 are set out in section 480 of the Act. The object of right of entry provisions is to establish a framework for officials of organisations to enter premises while balancing competing rights of organisations, employees and occupiers/employers. Organisations have the right to represent their members in the workplace, to hold discussions and to investigate suspected contraventions of relevant laws. Balanced against these rights are the rights of occupiers and employers ‘to go about their business without undue inconvenience’. The objects set out in section 480 of the Act emphasise the mutual rights and responsibilities of participants in the system in much the same way as the objects under the Workplace Relations Act 1996. Earlier decisions regarding the granting of right of entry permits under the Workplace Relations Act 1996 have made reference to the ‘important contextual issue’ of the nature of the power that is exercised by permit holders. In Vivienne Daniels v Joe Patti

& Anor, Munro J observed that:

Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.

The observations of Munro J apply equally to the granting of right of entry permits under the legislative regime set out in the Fair Work Act 2009.”[6](endnotes omitted)

[6]Ibid at [21].

[18] Although I am not bound by the above views I find they are a useful context for considering an application for an entry permit.

[2014] FWCD 1004

Submissions

[19]      As noted above, both the FWBC and the CFMEU filed written submissions in this

matter.

FWBC Submissions

[20] The written submissions of the FWBC filed with the Commission on 14 April 2014 comprise both general submissions and specific submissions regarding Mr Jarvis.

[21]      The general submissions address the following issues, namely:

 The statutory framework of the Commission’s powers under s. 512 of the Act

including the discretionary nature of this power, the proper construction to be given to the term “fit and proper person” as it appears in that provision and the particular relevance of the “permit qualification matters” set out in paragraphs (a), (d) and (g) of subsection 513(1) of the Act for the current matter before me;

 The history of the CFMEU in contravening various pieces of industrial legislation;

 The duty for thorough disclosure in the application before me. Specifically, that is

that the application had failed to disclose relevant matters including that additional orders were made in respect of Mr Jarvis by the Court in Lend Lease v CFMEU; and

 Further orders that have been made against the CFMEU since the application was

lodged on 17 January 2014.

[22] The specific submissions of the FWBC raise the following matters beyond those addressed by the general submissions:

 In Hogan v Jarvis, the Court penalised Mr Jarvis $7,260 for contravening s. 38 of the BCII Act, and the CFMEU $36,300 as a result of Mr Jarvis and another official contravening s. 38 of the BCII Act;

 In Lend Lease v CFMEU the Court penalised Mr Jarvis $6,450 for contravening s. 38 of the BCII Act, and the CFMEU $550,000 as a result of actions taken in part by Mr Jarvis and other officials contravening s. 38 of the BCII Act;

 In FWBII v Sutherland the Court penalised the CFMEU $50,000 as a result of actions taken in part by Mr Jarvis and other officials contravening s. 38 of the BCII Act; and

 In FWBC v CFMEU the Court penalised the CFMEU $99,000 as a result of actions taken in part by Mr Jarvis and other officials contravening s. 43(1)(b) of the BCII Act.

[23] The FWBC submitted that “in light of the gamut of the unlawful conduct engaged in,

it is difficult to comprehend as to how Mr Jarvis could be considered a fit and proper person
to hold an entry permit”.
[2014] FWCD 1004

[24] Having consistently urged throughout its submission that the Commission should exercise significant caution in considering whether Mr Jarvis should be issued with an entry permit, the FWBC ultimately submitted that the Commission should exercise its discretion to refuse to issue an entry permit to Mr Jarvis on the basis that it cannot be satisfied he is a “fit and proper person” pursuant to s512 of the Act.

[25] Alternatively, the FWBC submitted that, if the Commission determined that Mr Jarvis

is a “fit and proper person” to hold an entry permit, then specified conditions should be
imposed on any permit issued to him issued to him pursuant to s. 515 of the Act.

CFMEU Submissions

[26]      The CFMEU filed submissions in this matter on 28 April 2014.

[27] In respect to the alleged failure to disclose, the CFMEU stated that Mr Jarvis had disclosed the matters in Lend Lease v CFMEU, that Lend Lease v CFMEU is a matter of public record, and that there had been no failure to disclose with respect to Lend Lease v

CFMEU. The CFMEU concluded that the FWBC’s submissions regarding failure to disclose

are without merit and should not be accepted.

[28] Regarding Hogan v Jarvis, the CFMEU submitted that the proceedings did not allege

contraventions by Mr Jarvis of right of entry laws and that Mr Jarvis’ conduct which arose in
that matter occurred in 2009, almost five years ago.

[29] Regarding Lend Lease v CFMEU, the CFMEU submitted that the proceedings did not

allege contraventions by Mr Jarvis of right of entry laws and that Mr Jarvis’ conduct which
arose in that matter occurred in May 2011.

[30] Regarding FWBII v Sutherland, the CFMEU submitted that the proceedings did not

allege contraventions by Mr Jarvis of right of entry laws and that Mr Jarvis’ conduct which
arose in that matter occurred in February & March 2011.

[31] Regarding FWBC v CFMEU, the CFMEU submitted that the proceedings did not

allege contraventions by Mr Jarvis of right of entry laws and that Mr Jarvis’ conduct which
arose in that matter occurred in November 2010.

[32] The CFMEU also submitted that Mr Jarvis had undertaken relevant training and that Mr Jarvis had not engaged in any contravening conduct for almost three years.

[33] The CFMEU also submitted that any entry permit granted to Mr Jarvis should not have

any conditions imposed upon it but that if such conditions are imposed, they should not be in
the form proposed by the FWBC in its submissions.

[34] The CFMEU concluded that Mr Jarvis meets the requirements under section 513 of

the Act for holding a permit and that Mr Jarvis should be issued with an entry permit without
further delay.

[2014] FWCD 1004

Permit Qualification Matters

[34] Section 512 of the Act provides that, upon application by an organisation, the Commission may issue an entry permit to an official of that organisation if it is satisfied that the official is a “fit and proper person to hold the entry permit”. Thus, the task of the Commission in the present matter is to consider and determine whether Mr Jarvis is a “fit and proper person” not in a universal sense entirely divorced from any context but specifically whether he is a “fit and proper person” to hold an entry permit. As observed by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380:

“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 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 an 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.”

[35] Therefore, the determination of whether a particular official is a “fit and proper person” to hold an entry permit for the purposes of section 512 of the Act is required to be made by having regard to the nature of the statutory right of entry powers potentially provided to the official pursuant to Part 3-4 of the Act, the activities that the official will be engaged in when exercising such powers and the ends to be served by such activities. As the Full Bench of the Commission in The Maritime Union of Australia [2014] FWCFB 1973 (The Maritime

Union of Australia [2014]) observed:

“The question of whether an officer 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. These are all to be found in Part 3-4 of the Act”.[7]

[7]The Maritime Union of Australia [2014] FWCFB 1973 at [25].

[36] Section 513(1) of the Act provides that, in order to make the primary determination required to be made pursuant to s. 512 of the Act, the Commission must take into account the “permit qualification matters” listed at paragraphs (a) to (g) therein. Although several of those matters do not directly relate to statutory right of entry powers, the Commission is bound to take them into account and apply them in a manner that assists the Commission in determining whether a particular official is a “fit and proper person” to hold an entry permit.

[37] I will consider each of the “permit qualification matters” separately below as they pertain to the current matter before me.

Training about rights and responsibilities

[38] Section 513(1)(a) of the Act requires me to take into account whether Mr Jarvis has

received appropriate training about the rights and responsibilities of a permit holder. Mr Jarvis
[2014] FWCD 1004

undertook such training on 16 January 2014 which was the day before the application was filed. The content of the training material was approved by, then, Fair Work Australia on 6 October 2009. Mr Jarvis had earlier attended right of entry training conducted by Slater and Gordon Lawyers on 12 February 2013.

[39] In its submission, the FWBC suggests that the training undertaken by Mr Jarvis does not appear to be sufficient in the context of the unlawful conduct he has engaged in since 2009 and that Mr Jarvis should have also undertaken training regarding compliance with law generally beyond right of entry and further, that he should have undertaken such training in close proximity to when he discovered he had contravened the law.

[40]      This matter will be considered later in this decision.

Conviction/s against an industrial law

[41] Section 513(1)(b) of the Act requires me to take into account whether Mr Jarvis has ever been convicted of an offence against an industrial law. The declarations do not disclose any such convictions against Mr Jarvis. There is no other evidence before me that suggests otherwise.

Conviction/s involving fraud, dishonesty or intentional use of violence

[42] Section 513(1)(c) of the Act requires me to take into account whether Mr Jarvis 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 or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Jarvis. There is no other evidence before me that suggests otherwise.

Order/s to pay a penalty under an industrial law in relation to action taken by the official

[43] Section 513(1)(d) of the Act requires me to have regard to whether Mr Jarvis, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law, in relation to action taken by Mr Jarvis. As noted in paragraphs [4] and [5] of this decision, Mr Jarvis and the CFMEU were ordered to pay penalties under the BCII Act in Hogan v

Jarvis and in Lend Lease v CFMEU, in relation to action taken by Mr Jarvis and others.

Further, as noted in paragraphs [6] and [7] of this decision, the CFMEU was ordered to pay a penalty under the BCII Act in FWBII v Sutherland and in FWBC v CFMEU, in relation to action taken by Mr Jarvis and others. This permit qualification matter will be considered in detail later in this decision.

Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[44] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Jarvis under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. The declarations do not disclose that any such permits issued to Mr Jarvis having ever been revoked, suspended or made subject to conditions. There is no other evidence before me that suggests otherwise.

[2014] FWCD 1004

Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law

[45] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Jarvis had under that law or disqualified Mr Jarvis from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Jarvis has held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations do not disclose that Mr Jarvis has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no other evidence before me that suggests otherwise.

Any other matter the Commission considers relevant

[46] Section 513(1)(g) of the Act provides the Fair Work Commission with a broad discretion to take into account any other matters it considers relevant. This discretion is limited to a consideration of matters that pertain to a proposed permit holder’s status as a “fit and proper person” to hold an entry permit. The proper construction should be determined by examining the provision in the context of the Act as a whole and the specific considerations set out in subsections 513(1)(a)-(f) of the Act in particular in the sense that such matters must fall within the purview of relevance delineated by the subject, scope and purpose of the Act, particularly Part 3-4 of the Act.[8]Relevant considerations in this regard include whether a

[8]Santos Ltd v Saunders (1988) 49 SASR 556.

particular matter has an industrial or OHS “flavour” or context, the extent to which it raises issues analogous to the considerations set out in subsections 513(1)(a)-(f) of the Act and its pertinence to the exercise of the public right associated with the exercise of statutory right of entry powers pursuant to Part 3-4 of the Act.

[47] As noted above, the submissions of the FWBC address the issues of the history of the CFMEU in contravening various pieces of industrial legislation, an alleged failure to adequately disclose relevant matters in the application currently before me, and further orders that have been made against the CFMEU since the application was lodged.

[48]      These matters will be considered in further detail below.

[49] I have also taken into account the history of Mr Jarvis’ compliance with s 517 of the Act and discuss the context of that compliance in further detail below.

[50]      In addition, I have taken into consideration the objects of Part 3-4 of the Act.

Penalties ordered to be paid under the BCII Act

[51] As outlined at paragraphs [4], [5], [6] and [7] of this decision, Mr Jarvis has been ordered to pay penalties under the BCII Act, and the CFMEU has been ordered to pay penalties under the BCII Act, in part, as a result of the conduct of Mr Jarvis. To be satisfied that these penalties are relevant to s.513(1)(d) of the Act, the relevant provisions of the BCII Act must be industrial laws for the purpose of those provisions.

[2014] FWCD 1004

[52]       ‘Industrial law’ is defined at s.12 of the Act:

“12 The Dictionary...

industrial law means:

(a) this Act; or

(b) the Fair Work (Registered Organisations) Act 2009; or

(c) a law of the Commonwealth, however designated, that regulates the

relationships between employers and employees; or

(d) a State or Territory industrial law.”

[53] I note that the BCII Act was renamed the Fair Work (Building Industry) Act 2012 and amended by the Building and Construction Industry Improvement Amendment (Transition to

Fair Work) Act 2012 on 1 June 2012. In particular, the amending Act repealed Chapters 5 and

6 of the BCII Act which contained various building industry specific provisions, including the provisions that Mr Jarvis and the CFMEU were found to have contravened. However, the repeal of these building industry specific provisions does not affect any previous liability acquired, or penalty incurred, under them.[9]In addition, the amendments also abolished the Office of the Australian Building and Construction Commissioner (ABCC) and established a new agency, the Office of the Fair Work Building Inspectorate. For clarity, where I refer to the BCII Act I am referring to that legislation at the time the contraventions took place.

[9]Building and Construction Industry Improvement Amendment(Transition to Fair Work) Act 2012 sch 2, item 1; Building

[54] I am not aware of any authorities that have determined whether the BCII Act was or

was not, or the FW(BI) Act is or is not, a law of the Commonwealth that “regulates the
relationships between employers and employees”.

[55]      In Dowling v Fairfax Media Publications Pty Ltd[10](Dowling v Fairfax), Justice Jagot

[10]Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470.

considered whether the Occupational Health and Safety Act 2000 (NSW) and the Workplace

Injury Management and Workers Compensation Act 1998 (NSW) were ‘industrial laws’ for

the purposes of the repealed s.779 of the Workplace Relations Act 1996 (the WR Act). Her
Honour observed that:

“[79] WorkCover has a range of enforcement powers under legislation vesting it with functions including the taking of criminal proceedings, the issuing of penalty notices, the preparation of industry codes of practice, powers to issue investigation notices, improvement notices and prohibition notices, powers to take proceedings for offences against such notices, and powers to include directions in such notices…

[80] The legislation in respect of which WorkCover has functions includes issues relating to the relationships between employers and employees and not merely, as the respondent submitted, regulating the environment within which such relationships operated. For example, s 46 of the Workplace Injury Management and Workers Compensation Act requires employers to participate and co-operate in the establishment of an injury management plan required to be established for an injured worker and to comply with the plan. Section 47 imposes reciprocal obligations on

[2014] FWCD 1004

employees. Section 48 imposes an obligation on an injured employee to return to work and s 49 imposes a reciprocal obligation on the employer to provide suitable work for an injured employee. There are many other examples of such mutual or related obligations as between employers and employees in the legislation vesting functions in WorkCover.

[81] Having regard to these matters I am satisfied that the legislation vesting functions in WorkCover, in a number of respects, regulates the relationship between employers

and employees. The legislation is thus within the definition of ‘industrial law’ in

s. 779.”[11]

[11]Ibid at [79]-[81].

[56] The BCII Act vested the ABCC with enforcement powers including the investigation and prosecution of breaches of its provisions[12]and specifically proscribed certain conduct,[13]

[12]Building and Construction Industry Improvement Act 2005 ch 7.

[13]Building and Construction Industry Improvement Act 2005 ch 5.

and created criminal offences.[14]Although the former BCII Act adopted the concept of

[14]Building and Construction Industry Improvement Act 2005 ss 52(6) & 65(2).

“building industry participants”[15]and generally imposed obligations on “persons” rather than “employers” and “employees”, it did appear to regulate the relationship between employers and employees engaged in “building work” [16]in a number of significant ways.

[15]Building and Construction Industry Improvement Act 2005 s 3.

[16]Building and Construction Industry Improvement Act 2005 s 5.

[57] The relevant provisions of the BCII Act that were contravened by Mr Jarvis and/or the CFMEU are ss.38, 43(1)(b) and 44. Extracts of those provisions are set out below:

“38 Unlawful industrial action prohibited

A person must not engage in unlawful industrial action

[58] For the purposes of s.38 unlawful industrial action must be industrially-motivated, which is defined at s.36 of the BCII Act:

“36 Definitions...

(1) In this Chapter, unless the contrary intention appears:

industrially-motivated means motivated by one or more of the following	purposes,
or by purposes that include one or more of the following purposes:

(a) supporting or advancing claims against an employer in respect of the

employment of employees of that employer;

(b) supporting or advancing claims by an employer in respect of the

employment of employees of that employer;

(c) advancing industrial objectives of an industrial association;

(d) disrupting the performance of work.”

“43 Coercion in relation to engagement etc. of building employees and building

contractors

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(1) A person (the first person) must not organise or take action, or threaten to
organise or take action, with intent to coerce another person (the second person):

(b) to engage, or not engage, a person as a building contractor;”

“44 Coercion of persons to make, vary, terminate etc. enterprise agreements etc.

(1) A person must not:

(a) take or threaten to take any action; or

(b) refrain or threaten to refrain from taking any action;

with intent to coerce another person, or with intent to apply undue pressure to another

person, to agree, or not to agree:

(c) to make, vary or terminate, or extend the nominal expiry date of, a building

enterprise agreement; or

(d) to approve any of the things mentioned in paragraph (c).

Note: Grade A civil penalty.

(2) Subsection (1) does not apply to action that is protected industrial action (as

affected by Part 3 of Chapter 5 of this Act).

(3) An employer must not coerce, or attempt to coerce, an employee of the employer

in relation to who is to be, or is not to be, the employee’s bargaining representative.

Note: Grade A civil penalty.

(4) An employer must not apply, or attempt to apply, undue pressure to an employee of the employer in relation to who is to be, or is not to be, the employee’s bargaining representative.

Note: Grade A civil penalty.

(5) To the extent that section 343 of the FW Act relates to:

(a) the making, varying or terminating of an enterprise agreement; or

(b) the appointment, or termination of appointment, of a bargaining

representative for an enterprise agreement;

that section does not apply if the agreement is a building enterprise agreement”.

[59] Whilst regulation in the above provisions is not limited to employees and employers,

it does appear to regulate the industrial context of the building and construction industry,
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including enterprise bargaining and industrial action, an important relationship between employers and employees. Although the mere use of the term industrial should not lead to an immediate finding that a provision is an industrial law for the purposes of the Act, it is clear from the above provisions that the industrial context being regulated affects relations between employers, employees and industrial organisations, even where the person to whom the provision may apply is not an employer or employee themselves. The term industrial law, in my view, applies to at least the provisions of the BCII Act pursuant to which penalties were imposed on Mr Jarvis and the CFMEU.

[60] I shall proceed on the basis that the BCII Act is an industrial law for the purposes of

s.513(1)(d) of the Act.

[61] Even if it is ultimately determined the relevant provisions of the BCII Act were not industrial laws as contemplated by s.513(1)(d) of the Act, the imposition of a penalty under the BCII Act is, in any event, a matter to which I could relevantly turn my mind under s.513(1)(g) of the Act since the conduct occurred in an industrial context and arose while Mr Jarvis was acting in his role as an official of the CFMEU.

[62] It is clear that both the fact that relevant penalties have been imposed and the conduct

associated with those penalties are each important considerations. In that context, I now turn
to the particulars of the penalties imposed.

Hogan v Jarvis

[63] Mr Jarvis had been issued with a Federal entry permit on 4 September 2007 having received relevant training on 21 August 2007.

[64] It is not without some significance that in Hogan v Jarvis, the essential facts which were agreed by the parties included that Mr Jarvis and another CFMEU organiser had entered a hospital construction site on 26 November 2009, without giving entry notice in accordance with s 487 of the Act. It is reasonable to suppose that Mr Jarvis was aware of the rights and responsibilities of permit holders when he entered the hospital construction site without giving the requisite notice in accordance with s 487.

[65] In what was described by the Court in Hogan as planned, deliberately unlawful industrial action, Mr Jarvis and the other official thereafter entered into discussions with some workers on the site whilst they were working. Following those discussions, some workers voted to strike until 30 November 2009, culminating in approximately 200 workers withdrawing their labour. The construction site was one in which Bovis Lend Lease was the principal contractor and the construction site involved the development of a new Gold Coast University Hospital. At the time, Bovis Lend Lease had a union collective agreement with the CFMEU in place. The industrial conflict was associated with a dispute between the CFMEU and Wideform, which was a subcontractor engaged by Bovis on other projects in Queensland and New South Wales, however Wideform’s presence was not material to the works being undertaken on the hospital project.

[66] The CFMEU admitted, in a statement of agreed facts, to contravening s.38 of the BCII Act and the parties agreed to the amount of penalties to be imposed. The Court found that Mr Jarvis was ‘perhaps the most significant of the two personal respondents’ and accepted the parties’ submissions that Mr Jarvis be ordered to pay a penalty of $7,260 for contravening [2014] FWCD 1004

section 38 of the BCII Act. The penalty imposed upon Mr Jarvis was more than double the penalty imposed upon the other CFMEU official (that penalty being $3,300.) As a result of Mr Jarvis’ and another CFMEU organiser’s actions, the CFMEU was also found to have contravened section 38 of the BCII Act and was ordered to pay a penalty of $36,300.

[67] Consideration was given to the general importance of the project, which was the largest hospital development project ever undertaken in Queensland, and had a value of $1.76 billion. The Court found that the industrial action caused by the 200 workers would have led to loss and damage that was not trivial or insubstantial.

[68] Federal Magistrate Burnett identified at least 38 previous occasions where the CFMEU had been ‘adversely noted as a party to proceedings seeking imposition of penalties’. Federal Magistrate Burnett noted that the CFMEU had “a history of engaging in conduct that brings it adversely to the attention of the courts and, notwithstanding the imposition of significant or at least not insignificant penalties, it does not appear that the penalties imposed have, to date at least, been sufficient to deter it from re-engaging in that conduct”. Federal Magistrate Burnett stated that whilst he would have considered a higher penalty if the matter had been left for him to resolve, he considered the amount agreed to by the parties was within the appropriate range of penalties. Federal Magistrate Burnett also stated that the involvement by the CFMEU employees allowed the court “to infer that such actions were not isolated wildcat actions but were planned and deliberate”.

Lend Lease v CFMEU

[69] Lend Lease v CFMEU dealt with several separate matters involving industrial conflict which occurred on two major construction project sites in which Lend Lease Project Management & Construction (Australia) Pty Ltd (Lend Lease) was the principal contractor. The projects involved development of a new Supreme and District Court building in Brisbane (the courts project) and the Gold Coast University Hospital (the hospital project). The industrial conflict was associated with a campaign conducted by the CFMEU to prevent the practice of ‘sham contracting’. The overall conduct involved employees of Lend Lease taking industrial action at the site of the hospital project between 18 and 26 May 2011 and at the site of the law courts project between 24 and 27 May 2011. The respondents involved were the CFMEU, the CFMEUQ (a state registered association), the CEPU, an official of the CEPU and six officials of the CFMEU. The respondents admitted, in a statement of agreed facts to contravening section 38 of the BCII Act on separate occasions between 18 - 27 May 2011.

[70] At the time of the Lend Lease contraventions in May 2011, Mr Jarvis was the holder of the second entry permit which had been issued to him on 31 January 2011 having received right of entry training on 16 November 2010. In relation to his specific conduct, Mr Jarvis admitted to four separate contraventions of section 38 of the BCII Act, all in respect of the hospital project on 18, 19, 21 and 26 May 2011. The action taken by Mr Jarvis included involvement in unlawful industrial action at the hospital project site, which included addressing workers that they should leave the site. Mr Jarvis was ordered to pay a penalty of $6,450 for the four separate contraventions.

[71] The Court found that the industrial action that took place at both the courts project and the hospital project sites had caused serious disruption to Lend Lease, with the total loss and damage calculated at $1,210,770.65.[17]The respondents admitted that the unlawful industrial action had caused a delay of 8 days in respect of the hospital project[18]and Lend Lease had

[17]Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union

[18]Ibid at [21]

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calculated that the daily operating cost of the hospital project site had been $115,722 per

day.[19]

[19]Ibid at [22].

[72] A penalty of $550,000 was imposed on the CFMEU, the CFMEUQ and the CEPU in which each was found to be jointly and severally liable. The penalty imposed on the CFMEU and the two other organisations was partly as a result of the action taken by Mr Jarvis. Section 38 of the BCII Act was a Grade A civil penalty provision which at the time attracted a maximum penalty of $110,000 for a body corporate and $22,000 for a natural person for each contravention.[20]The CFMEU and/or the CFMEUQ had admitted to twelve (12) separate contraventions of section 38 of the BCII Act, eight (8) of which occurred at the hospital project.

[20]Building and Construction Industry Improvement Act 2005 s 49(2); Crimes Act 1914 s 4AA.

FWBII v Sutherland

[73] FWBII v Sutherland dealt with allegations that several CFMEU officials, which included Mr Jarvis, and one CEPU official, had engaged in unlawful industrial action at two separate construction projects in February 2011. As I have indicated above, Mr Jarvis had relevantly received right of entry training on 16 November 2010 and had been issued with his second entry permit on 31 January 2011.

[74] One of the construction projects was the Gold Coast Hilton Hotel site in which Brookfield Multiplex Constructions Pty Ltd (Brookfield Multiplex) was the principal contractor. The industrial conflict was associated with a campaign by the CFMEU to prevent the practice of ‘sham contracting’ and allegedly led to employees of Brookfield Multiplex taking industrial action at the Gold Coast Hilton Hotel site on 28 February and 1 March 2011.

[75] In a ‘Statement of Agreed Facts’ the CFMEU, along with the CEPU, admitted to contravening section 38 of the BCII Act on 28 February 2011. The CFMEU agreed that on 28 February 2011, Mr Jarvis and another CFMEU official, had entered the Gold Coast Hilton Hotel site and held a meeting with building workers regarding ‘sham contracting’. As a result of that meeting approximately 37 workers withdrew their labour and left the site. Those workers returned to work on 2 March 2011.

[76] The ‘Statement of Agreed Facts’ stated that the action of the CFMEU and Mr Jarvis, amongst others, was found to be “constitutionally-connected action” and “industrially motivated”, as defined by section 36(1) of the BCII Act. The parties agreed that the withdrawal of labour on the Gold Coast Hilton Hotel site was unlawful industrial action in contravention of section 38 of the BCII Act.

[77] The parties agreed on the quantum of penalties to be imposed on each respondent. In accordance with that agreement a penalty of $50,000 was imposed on the CFMEU, and a penalty of $15,000 was imposed on the CEPU. Section 38 of the BCII Act was a Grade A civil penalty provision which at the time attracted a maximum penalty of $110,000 for a body corporate and $22,000 for a natural person. 21 The penalties were issued in an Order by Justice

Burnett in the Federal Circuit Court of Australia, on 10 July 2013.

[78] I note from the circumstances of FWBII v Sutherland that within approximately three months of having received further right of entry training and within approximately one month of being issued with an entry permit, Mr Jarvis was engaging in conduct later conceded to be unlawful industrial action in contravention of section 38 of the BCII Act.

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FWBC v CFMEU

[79] FWBC v CFMEU dealt with allegations involving industrial conflict which took place on 9 and 10 November 2010 on three major construction project sites in which Watpac Construction (Queensland) Pty Ltd (Watpac) was the managing contractor. The projects involved development of a new Translation Research Institute Project (the TRI project); the Queensland Institute of Medical Research Centre Project (the QIMR project) and the Carrara Stadium Refurbishment and Extension Project (the Carrara project).

[80] The industrial conflict was associated with a campaign conducted by the CFMEU to coerce Watpac to agree to a new enterprise agreement with the CFMEU, which would effectively restrict the use of subcontractors to those listed in the agreement. The overall conduct involved employees of Watpac taking industrial action at each of the abovementioned project sites on 9 and 10 November 2010. The CEPU was also a respondent in the matter. Both the CFMEU and the CEPU admitted, in a joint statement of agreed facts to contravening section 43(1)(b) of the BCII Act on four separate occasions on 9 and 10 November 2010.

[81] In relation to the involvement of Mr Jarvis specifically, the parties agreed that in company with another CFMEU official, Mr Jarvis entered the Carrara Stadium Project site on 9 November 2010 at which time he and the other official had ‘induced, counselled, procured and organised’ the departure of the workers at that project site.22 The parties also agreed that

the actions taken by Mr Jarvis and another CFMEU official were taken with ‘intent to coerce Watpac or with intent to apply undue pressure to Watpac to agree to engage a person or persons, or not engage a person or persons, as a building contractor’23.

[82] The parties agreed that the effect on Watpac of the industrial action that took place at

the three project sites was not trivial. Each of the projects was a major building project valued
in excess of $100 million.

[83] The parties also agreed on the quantum of penalties to be imposed on each respondent. In accordance with that agreement the CFMEU was ordered to pay a penalty of $99,000 whilst the CEPU was ordered to pay a penalty of $20,000. The penalty imposed on the CFMEU was partly as a result of the conduct of Mr Jarvis.

[84] The CFMEU was found to have contravened section 43(1)(b) of the BCII Act with respect to the coercion at the Carrara project site. In assessing the quantum of the agreed penalty, Justice Collier reviewed the history and extent of similar unlawful conduct of the CFMEU and concluded that although the penalty imposed on the CFMEU was ‘at the upper end of the range for a contravention of the BCII Act’24, the penalty was appropriate. Justice

Collier stated that there was a ‘need to impose penalties which would meet the objective of specific deterrence, particularly in relation to the CFMEU whose organisers appear to have shown a somewhat cavalier disregard both of the need to comply with the law and of penalties which have been previously imposed on the union for similar conduct’25. The penalties were

issued in an Order by Justice Collier in the Federal Court of Australia on 20 August 2013.

Mr Jarvis’ Right of Entry status in FWBC v CFMEU

[85] For the purposes of the application, I noted Mr Jarvis’ status as a permit holder at the time of the contraventions on 9 November 2010.

[2014] FWCD 1004

[86] Mr Jarvis had been issued with a Federal entry permit on 4 September 2007 in matter RE2007/2843 having received relevant training on 21 August 2007. Permit RE2007/2843 expired on 4 September 2010. Mr Jarvis had also been issued with an entry permit for the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees, a transitionally recognised association (TRA), on 29 August 2007 in matter RE2007/2839 having received relevant training on 21 August 2007. That permit expired on 29 August 2010.

[87] As is evident from above, the two entry permits (Federal RE2007/2843 and TRA RE

2007/2830) which had been issued to Mr Jarvis had both expired prior to his attendance at the
Carrara Stadium Project site on 9 November 2010.

[88] A new application for a Federal entry permit had been lodged with the then Fair Work Australia on 8 November 2010 which contained a declaration signed by Mr Jarvis dated 8 November 2010. The date of lodgement was the day prior to Mr Jarvis attending at the Carrara Stadium Project site on 9 November 2010.

[89] As a result of Mr Jarvis’ new application being lodged on 8 November 2010, contact

was made with the CFMEU on 9 November 2010 as a result of which Mr Jarvis’ two expired
permits were returned to the then Fair Work Australia on 11 November 2010.

[90] Consequent upon Mr Jarvis’ two entry permits not having been returned within 7 days of their expiration in accordance with s 517 of the Act, an explanation for that apparent breach was sought from him and it was recommended by staff of the then Fair Work Australia that Mr Jarvis engage in fresh right of entry training. Mr Jarvis conceded the breach of s 517 and provided an explanation that the permits had not been returned as a result of an oversight. Mr Jarvis agreed to and in fact undertook fresh right of entry training on 16 November 2010.

[91] Subsequent discussions occurred between the CFMEU and staff of the then Fair Work Australia which resulted in the submission of two further amended applications for an entry permit for Mr Jarvis until a new permit was ultimately issued on 31 January 2011.

[92] The Court in FWBC v CFMEU found that the actions of the CFMEU and Mr Jarvis appeared to be part of a calculated and co-ordinated campaign against Watpac, although unlike Hogan v Jarvis, the Court did not refer to any issue relating to an entry notice in accordance with s 487 of the Act. The status of Mr Jarvis’ entry permit was similarly not referred to in FWBC v CFMEU nor referred to in either the submissions of the CFMEU or the FWBC relevant to this application.

[93]       Although the status of Mr Jarvis’ entry permit at the time of the FWBC v CFMEU

contraventions is a matter that could have been disclosed by the applicant as relevant to the task of the Commission, in all the circumstances I will make no adverse findings against Mr Jarvis in this regard.

[94] Although I find that the potential breach of s 517 of the Act, arising at it did when the two expired permits were not returned in accordance with that section, is a relevant matter for my consideration, the actions of Mr Jarvis in providing what must have been regarded as a plausible explanation and the undertaking of fresh training was sufficient to satisfy the then [2014] FWCD 1004

delegate to issue a new permit on 31 January 2011 and is not now a matter which bears on my
decision either to grant or refuse the current application.

[95] The absence of any reference in the Court findings or the parties’ submissions before me regarding the status of Mr Jarvis’ entry permit at the time of the contravention in FWBC v

CFMEU leads me to reach a neutral conclusion which is similarly not a matter bearing on my

decision either to grant or refuse the current application.

Other relevant matters

History of contraventions by the CFMEU

[96] The FWBC submits that the history of contraventions of industrial law committed by various officials of the CFMEU, particularly officials attached to the Construction and General Division (the Division), is a relevant matter for me to take into account pursuant to subsection 513(1)(g) of the Act. Annexed to its general submissions, the FWBC provided a list of matters in which it was found that that the CFMEU had contravened various pieces of industrial legislation. The FWBC argues that, given this history of contravening conduct, the Commission should exercise caution in determining whether or not to issue an entry permit on the basis of an application made by the CFMEU.

[97] I share the concerns of the FWBC regarding the CFMEU’s history, particularly that of the Division, in contravening various pieces of industrial legislation. As set out in the submissions of the FWBC, the courts have made several observations in relation to this history. For instance, in Williams v Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 548, noted that:

“...the history tends to suggest that the Union has, with respect to anti-coercion and

similar provisions of industrial laws, what the High Court in Veen described as ‘a

continuing attitude of disobedience of the law’...”.26

[98] Further in Cozadinos v Construction, Forestry, Mining and Energy Union [2013] FCA 1243, Tracey J remarked that the CFMEU has “...a deplorable record of contraventions of the

BCII Act and similar legislation”27 and in Cozadinos v Construction, Forestry, Mining and

Energy Union & Ors [2011] FMCA 284 Reithmuller FM noted its “...unenviable history of

breaches as set out in the various cases”.28

[99] However, in my view, given the structure of sections 512 and 513(1) of the Act, this history of contraventions of industrial legislation by the CFMEU is not a proper matter to take into account for the purposes of subsection 513(1)(g) of the Act. As noted above, section 512 of the Act provides that the determination required to be made is whether the Commission is satisfied that a particular official is a “fit and proper person to hold the entry permit”. Similarly, the “permit qualification matters” set out in paragraphs (a) to (f) of subsection 513(1) of the Act pertain to matters specifically in relation to such an official. Thus, the inquiry required to be made in determining whether or not to issue an entry permit to a particular official is directed to the status and attributes of that official. Given this, it would not be appropriate to take into account matters not directly involving a particular proposed permit holder for the purposes of subsection 513(1)(g) of the Act. It would not in my view, be a proper exercise of the Commission’s discretion pursuant to section 512 of the Act to

[2014] FWCD 1004

determine all applications from the CFMEU or the Division with a pre-determined adverse
disposition.

[100] The appropriate vehicle for pursuing such matters may in some instances be provided by s. 508 of the Act. That provision provides that the Commission may restrict the right of entry powers otherwise exercisable under Part 3-4 of the Act if it is satisfied that a particular organisation or an official of such an organisation has misused those powers. Such restrictions may include suspending, revoking or imposing conditions on entry permits, requiring some or all of the entry permits issued in relation to a particular registered organisation to be issued subject to specific conditions, banning the issue of entry permits in relation to a particular registered organisation for a specified period and any other order the Commission considers appropriate.

Disclosure of relevant matters in application

[101] In its submissions, the FWBC argued that the declarations currently before me did not disclose that in Lend Lease v CFMEU Mr Jarvis had admitted to four separate contraventions of section 38 of the BCII Act. I also note the FWBC stated in its submissions that it was not suggested that the CFMEU and Mr Jarvis had made false declarations.

[102] The CFMEU submitted that the permit application and supporting declarations

‘plainly and squarely disclosed [2012] FCA 1144’ and ‘the fact that in [2012] FCA 1144 Mr

Jarvis admitted to four separate contraventions is apparent from the face of the judgement.’

[103] For its part and in its submission, the CFMEU urged the Commission to take the

approach I recently adopted in CFMEU [2014] FWCB 2437 in relation to the obligation of

disclosure on permit applicants.

[104] The obligation to disclose facts relevant to the permit qualification matters has been

defined as a “duty of full and frank disclosure”. In “Automotive, Food, Metals, Engineering,

Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’Union (AMWU)-Victorian Branch29, Delegate Nassios expressed the following view:

“[14] Thoroughness by an applicant in disclosing adverse issues is paramount in assisting a Delegate to make an informed judgment as to whether an application for an entry permit is a fit and proper person. Thoroughness however can only be gauged in relation to each individual applicant’s circumstances.”30

[105] The above quote has been cited as a statement of general principle in several decisions regarding applications under s.512 of the Act.31 This obligation to disclose facts relevant to the permit qualification matters has been defined as a “duty of full and frank disclosure”32 and reflects the practice that entry permits are issued to officials of organisations largely on the basis of the contents of the declarations made by proposed permit holders and members of the Committee of Management of the relevant registered organisation.

[106] Full and frank disclosure is imperative and of assistance to the Commission in

exercising its discretion. While capacious disclosure is encouraged, I am content to adopt the
approach I have referred to above set out in CFMEU [2014] FWCB 2437 at [105].
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[107] As the level of disclosure provided in an application bears upon both the character and the level of due diligence demonstrated by and can be expected of a proposed permit holder, I accept the submission of the FWBC that this is a relevant matter to take into account for the purposes of subsection 513(1)(g) of the Act.

[108] In my view, while Mr Jarvis and the CFMEU may not have disclosed each relevant detail in Lend Lease v CFMEU, the disclosure was adequate.

Further orders made against the CFMEU

[109] The FWBC submits that the further orders that have been made against the CFMEU

since the application in the present matter was lodged are proper matters for the Commission
to take into account for the purposes of subsection 513(1)(g) of the Act.

[110] For the reasons given at paragraphs [96] to [100] of this decision, I do not accept that the further matters identified in the FWBC’s submissions which do not directly involve Mr Jarvis are proper matters for me to take into account pursuant to subsection 513(1)(g) of the Act.

Training

[111] The FWBC submitted that the training Mr Jarvis has undertaken does not appear to be sufficient in the context of the unlawful conduct he has engaged in since 2009.

[112] As I have referred to throughout this decision, Mr Jarvis undertook initial right of

entry training on 21 August 2007 and at the recommendation of the then Fair Work Australia, participated in further training on 16 November 2010. Mr Jarvis received right of entry training conducted by Slater and Gordon Lawyers on 12 February 2013 and most recently right of entry training on 16 January 2014, which was the day before the current application was initially filed.

[113] The FWBC submission includes that that Mr Jarvis should have also undertaken

training regarding compliance with law generally beyond right of entry. Subsection 513(1)(a) of the Act refers to “appropriate training” specifically regarding the “rights and responsibilities of a permit holder”. I am not persuaded that the reference to “appropriate training” should be extended to embrace training beyond such “rights and responsibilities” as contained within Part 3 – 4 of the Act.

[114]    I am satisfied that Mr Jarvis has received the appropriate training required by section

513(1)(a) of the Act.

Role of Mr Jarvis

[115] The FWBC submission includes that Mr Jarvis ‘is a person who holds an office’ in the CFMEU. The application submitted on behalf of Mr Jarvis refers to Mr Jarvis’ role as an Organiser within the Construction and General Division of the CFMEU and in its submission, the CFMEU refers to there being no suggestion that Mr Jarvis is a senior or elected official of the CFMEU.

[2014] FWCD 1004

[116]    I accept that Mr Jarvis is an Organiser and is neither a senior or elected official of the

CFMEU.

Consideration

[117] My task in the present matter is to determine whether Mr Jarvis is a “fit and proper person” to hold the entry permit for which application is made taking into account the nature of the powers that are bestowed pursuant to the grant of such a permit within the statutory regime set out in Part 3-4 of the Act, the activities that he will potentially be engaged in when exercising such powers and the ends to be served by such activities. In order to make this determination, I must take into account the “permit qualification” matters set out in paragraphs (a) to (g) of section 513(1) of the Act. Those matters are to be taken into account and applied in a way that assists me in determining whether Mr Jarvis is a “fit and proper person to hold the entry permit”.

[118] I have carefully considered all of the available circumstances of this matter and have had particular regard to the permit qualification matters for the purposes of s.512 of the Act.

[119] I have taken into account the conduct and resultant penalties imposed upon both Mr Jarvis and the CFMEU in Hogan v Jarvis and in Lend Lease v CFMEU and note that Lend

Lease suffered more than $1 million in losses and damages as a result of the unlawful conduct

of a number of unions including the CFMEU and Mr Jarvis.

[120] I have also taken into account the penalties imposed upon the CFMEU in FWBII v

Sutherland and in FWBC v CFMEU. I have also taken into account the conduct of Mr Jarvis

that was found to have occurred in those matters and which led to the imposition of those

penalties.

[121] I have considered the comments of Federal Magistrate Burnett in Hogan v Jarvis

regarding Mr Jarvis’ failure to provide an entry notice in accordance with the Act. I have considered that failure by Mr Jarvis to be a deliberate disregard for the statutory requirements and responsibilities of a permit holder. Such responsibilities are an important component of the right of entry training for permit holders, which Mr Jarvis has undertaken before applying for his previous permits.

[122] I have also noted Federal Magistrate Burnett’s comments and the comments of Justice Collier in FWBC v CFMEU regarding concern that previous penalties imposed upon the CFMEU have not appeared to have been sufficient to deter the CFMEU from continuing to undertake similar conduct.

[123] The total quantum of penalties imposed upon Mr Jarvis under the BCII Act in the

above four matters totals $13,710. The total quantum of penalties imposed upon the CFMEU in all of the four matters mentioned in paragraphs [4] - [7] above totals $735,000. Whilst I acknowledge, as noted above, that none of the abovementioned penalties imposed upon the CFMEU arose as a consequence of actions taken solely by Mr Jarvis, nevertheless it is evident that the conduct of Mr Jarvis in the four matters mentioned above has contributed to the imposition of those penalties.

[124] The FWBC has submitted that a permit holder who has engaged in unlawful industrial

action should give the Commission significant cause for concern as to whether such a person
[2014] FWCD 1004

is ‘fit and proper’ to enjoy the privileges and powers that are entrusted to such a position. The FWBC further submitted that the fact that Mr Jarvis has engaged in unlawful industrial action himself and engaged in conduct that was designed to negate the choice of employers, resulting in the CFMEU being found to have engaged in coercion are “serious matters’ that must be taken into account.

[125] I accept these submissions and readily concede that the facts and circumstances to

which I have referred in this decision, and the substantial nature of the penalties imposed as a consequence, have raised serious concerns regarding Mr Jarvis’ demonstrable lack of regard for provisions of industrial legislation.

[126] I have also taken into account the fact that the conduct engaged in by Mr Jarvis in

Hogan v Jarvis, Lend Lease v CFMEU, FWBII v Sutherland and FWBC v CFMEU occurred

in November 2009 (determined in 2012), May 2011 (determined in 2012), February 2011
(determined in 2013), and November 2010 (determined in 2013), respectively.

[127] Another relevant consideration includes the role Mr Jarvis performs as an Organiser of the CFMEU including the provision of advice, support and assistance to its members. This is relevant to the objects set out in s.480(a)–(b) of the Act in relation to the rights of registered organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions and the rights of employees to receive information and representation from officials of such organisations.

[128] The CFMEU have consistently put to the Commission that it is essential for Mr Jarvis

to possess a current permit in his role as an organiser and that the absence of an entry permit
would effectively curtail his ability to perform his duties.

[129] I have also taken into account the fact that subject to exceptions in late 2010 to early

2011 and since January of 2014, Mr Jarvis has been a permit holder under the Act and its
predecessor legislation, and an organiser of the CFMEU since 29 August 2007.

Conclusion

[130] I am troubled by the circumstances of this matter. Having regard to Mr Jarvis’

training and experience as an organiser, the facts, conduct and issues in Hogan v Jarvis; Lend

Lease v CFMEU; FWBII v Sutherland and in FWBC v CFMEU lead me to the conclusion that

Mr Jarvis has made conscious and calculated decisions to engage in unlawful industrial action while disregarding lawful alternatives and in so doing has failed to give proper regard to the rights and responsibilities of a permit holder. Examples of these decisions are included in

Hogan where the Court found the unlawful industrial action engaged in had been planned,

deliberately unlawful industrial action and in Lend Lease in which Mr Jarvis was ordered to

pay a penalty for four separate contraventions.

[131] The contraventions evidence an historical pattern of disregard for the provisions of

industrial legislation by engaging in and contributing to actions which have led to the findings of contraventions of the BCII Act as outlined in the four cases referred to throughout the decision. The materials demonstrate a paucity of remorse or contrition in those cases. In my view, these are serious issues.

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[132] Mr Jarvis must in my view, accept that in making conscious and calculated decisions to engage in unlawful industrial action while disregarding lawful alternatives he consequentially puts at grave risk the right to enjoy the privileges and powers that are entrusted by the Parliament to permit holders.

[133] However, I have also considered the important balancing and potentially mitigating

factors which include that the most recent contravention occurred more than three years ago in the context of Mr Jarvis holding an entry permit between January of 2011 and January of 2014. In addition, the CFMEU urges the Commission to draw the ‘inference that previous matters have had a scarifying effect on Mr Jarvis and that he has learnt from his previous experiences’ and that deprivation of a permit may have the effect of jeopardising his ongoing employment with the Union.

[134] Further, I accept that Mr Jarvis is employed as an organiser and is neither a senior or elected official of the CFMEU and I note that Mr Jarvis has been without an entry permit since 31 January of 2014 awaiting the outcome of this current application. Prior to the expiration of Mr Jarvis’ permit in January 2014, the CFMEU had not taken the opportunity to seek an extension under s. 516(2) of the Act although I acknowledge that since that time, the CFMEU have continued to correspond with the Commission in relation to the urgency of the matter. I also acknowledge that the CFMEU submission dated 28 April 2014 refers to the potential jeopardy to Mr Jarvis’ ongoing employment in the circumstances of further delay.

[135] The FWBC made a submission in relation to what might be described as a propensity to engage in a particular manner as well as the prospects of Mr Jarvis re-offending by suggesting that the succession of contraventions may tend to point to the possibility of a recurrence of improper conduct by Mr Jarvis if granted a new permit. I have considered that submission in the context of the FWBC having included that Mr Jarvis’ most recent contravention was in 2011.

[136] If there is such a thing as a ‘fine line’ between being satisfied or not satisfied about

whether an applicant is a fit and proper person to hold an entry permit in accordance with s
513 of the Act then this application must fall within that characterisation.

[137] Having carefully considered all of the available circumstances of this matter and

having particular regard to the permit qualification matters for the purposes of s.512 of the Act, I have concluded on fine balance that I am satisfied that Mr Jarvis is currently a “fit and proper person” to hold an entry permit.

Conditions

[138] Each of the submissions refer to the issue of conditions. As I have earlier indicated, the FWBC urged that the Commission should exercise its discretion to refuse to issue an entry permit to Mr Jarvis and alternatively, that if the Commission determined that Mr Jarvis is a “fit and proper person” to hold an entry permit, then specified conditions should be imposed on any permit issued to him pursuant to s. 515 of the Act.

[139] The CFMEU submitted that a permit should be issued to Mr Jarvis without any

conditions but that if a condition were to be applied it should not be in the form proposed by
the FWBC.
[2014] FWCD 1004

[140] While I am satisfied on fine balance that Mr Jarvis is currently a fit and proper person to hold an entry permit, his conduct in each of the four cases referred to throughout the decision gives rise to a considerable and ongoing concern about the potential repetition of such conduct and I propose to impose conditions upon the permit.

[141]     The authority for the Commission to impose conditions on an entry permit appears at

s.515 of the Act:

“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).”

[142] The Explanatory Memorandum to the Act states that the decision to impose conditions on a permit is “entirely at the discretion of [the FWC]”. Having carefully considered and taken into account the permit qualification matters and since my concern is that similar conduct may occur in the future I have decided to apply conditions in the following terms:

“If any findings are made or penalties imposed that are relevant to the permit qualification matters at s.513(a)–(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s.513(a)–(f) of the Fair Work Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding commenced.”

“The permit holder must only use his entry permit:

a) in the company of another permit holder who has no condition imposed
upon their entry permit; and

b) after providing 24 hours notice to the Director of the Fair Work Building Industry Inspectorate of his intention to enter premises where building work is being performed.”

[2014] FWCD 1004

[2014] FWCD 1004

21 Building and Construction Industry Improvement Act 2005 s 49(2); Crimes Act 1914 s 4AA.

22 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 846

(20 August 2013) at 29.

23 Ibid at 29.

24 Ibid at 39.

25 Ibid at 35.

26 At [29].

27 At [43].

28 At [18].

29 [2010] FWAD 10039.

30 Ibid at [14].

31 For example, see The Australian Workers’ Union [2011] FWAD 5025;“Automotive, Food, Metals, Engineering, Printing

and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch

[2011] FWAD 443; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services

Union of Australia [2011] FWAD 3518; Construction, Forestry, Mining and Energy Union [2011] FWAD 5188;

Construction, Forestry, Mining and Energy Union [2012] FWAD 962; Construction, Forestry, Mining and Energy Union

[2012] FWAD 8712.

32 For example see “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the

Australian Manufacturing Workers’ Union (AMWU) - Victorian Branch [2010] FWAD 10039; Re Communications,

Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2011] FWAD 3518.

DELEGATE OF THE FAIR WORK COMMISSION

FAIR WORK COMMISSION

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Endnotes

(No 5) [2012] FCA 1144 (19 October 2012)

(20 August 2013)

and Construction Industry Improvement Amendment(Transition to Fair Work) Regulation 2012, reg 2.4; Acts

Interpretation Act 1901 s7(2).

(No 5) [2012] FCA 1144 (19 October 2012) at [39].