[2015] FWC 6708

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2015/1117)

The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
(RE2015/1118)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 5 NOVEMBER 2015

Application for an entry permit – Edward Molloy Bland CFMEU Organiser – admissibility of evidentiary case – persuasive burden - s.611 of the Evidence Act – agreed statements of fact in prior proceedings – penalty privilege – application for right of entry permit dismissed

[1] On 31 July 2015, the CFMEU – Construction and General Division, Queensland Northern Territory Divisional Branch and the CFMEU, Industrial Union of Employees, Queensland made application under s.512 of the Fair Work Act 2009 (“the Act”) for right of entry permits to be issued to Mr Edward Molloy Bland, an organiser and employee of both of those unions (together referred to here as the CFMEU).

[2] Section 512 of the Act provides as follows:

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

[3] The CFMEU is entitled by s.512 of the Act to make the application it has.

[4] When the Commission comes to considering whether it is satisfied that Mr Bland is a fit and proper person to hold an entry permit (which is the particular focus of the investigation the Commission must undertake as posed by s.512 of the Act), the Commission must take into account the permit qualification matters set out at s.513 of the Act.

[5] Section 513 of the Act provides as follows:

513 Considering application

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

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

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

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

(i) entry onto premises; or

(ii) fraud or dishonesty; or

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

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

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

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

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

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

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

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

CFMEU declarations

[6] For the purposes of section 513 of the Act, the CFMEU and Mr Bland declare that:

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

[7] Mr Bland has received appropriate training about the rights and responsibilities of a permit holder, having completed an applicable training module with an authorised individual of the CFMEU on 24 July 2015 and has obtained the ACTU certificate of achievement “Federal Right of Entry”.

whether the official has ever been convicted of an offence against an industrial law

[8] It was declared that Mr Bland has never been convicted of any offence against an industrial law.

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

[9] In respect of these matters, it was declared that Mr Bland has never been convicted of an offence against a law of the Commonwealth etc.

(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

[10] In respect of these matters, it was declared that:

In Director, Fair Work Building Industry Inspectorate v CFMEU [2013] FCA 846 (“the Watpac proceedings”) the CFMEU was fined as a consequence of conduct undertaken by Mr Bland;

In Director, Fair Work Building Industry Inspectorate v CFMEU & Anor [2013] FCCA 2130 (“the Laing O’Rourke proceedings”) the CFMEU was fined as a consequence of conduct undertaken by Mr Bland;

Mr Bland is a respondent in Blackwood v Bland (WHS/2014/79), which concerns an application by the Queensland Work Health and Safety Regulator to revoke Mr Bland’s permit under the Work Health and Safety Act 2011 (Qld). Mr Bland denies all allegations and no findings have been made to this juncture; and

Mr Bland is a respondent in FWBC v Ingham and others (QUD491/15) in which allegations have been made as to various breaches of the Act in 2014. The Court proceedings have not concluded and no findings have been made.

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; and

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;

[11] It was declared that Mr Bland has not had revoked, suspended or been made subject to conditions, any permit issued under Part 3-4 of the Act or a similar law of the Commonwealth.

[12] It was also declared that Mr Bland has not 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 occupational health and safety purposes under that law.

any other matters that the FWC considers relevant.

[13] Neither Mr Bland nor the CFMEU made any further declarations under s.513(g) of the Act, other than to add that Mr Bland had had his attention drawn to the changes in the right of entry procedures in the Act and understands the effects of those changes.

Director of the Fair Work Building Inspectorate

[14] The Director of the Fair Work Building Industry Inspectorate (“the Director”) made submissions in respect of the application and the building industry participants (Mr Bland and the CFMEU), pursuant to s.72 of the Fair Work (Building Industry) Act 2012 (“the FWBI Act”).

[15] In summary, the Director contends that Mr Bland should not be granted a permit as he is not a fit and proper person to hold an entry permit.

[16] The Director’s concerns are as follows, albeit it in severely edited form. Where practical I have followed up the Director’s particular concerns with a summary of the CFMEU’s contrary position.

The Director’s Objections

[17] Prior to exercising the discretion to issue an entry permit the Commission firstly must be satisfied in each case that a relevant application is made by an organisation in respect of an official of that organisation.

[18] There is no challenge to the various imbedded propositions in this regard: Mr Bland is an official (under s.12 of the Act) of the organisation registered under the Act that has made a relevant application under s.512 the Act.

[19] The second precondition that must be satisfied is that Mr Bland - as the official of the organisation for whom the right of entry is sought - is a fit and proper person to hold the entry permit.

[20] The Director’s submissions take the Commission to the second precondition.

[21] In this regard, the Director contends initially that the CFMEU, broadly put, is not able to provide the organisational support to and for an applicant seeking to exercise the important powers related to a right of entry. The Director argues this by reference to the CFMEU’s pattern of non-compliance with industrial laws, its prior contraventions of workplace standards (particularly within the Construction and General Division thereof) and the commentary of the courts in respect of this conduct.

[22] In this latter respect, the Director referred, amongst others, to the judgement of the Federal Court of Australia in Cozadinos v Construction, Forestry, Mining and Energy Union [2013] FCA 1243, in which Tracey J remarked [at 43]:

There is also a need for any penalty to have a specific deterrent effect on the CFMEU. It has, as I have already outlined, a deplorable record of contraventions of the BCII Act and similar legislation. The union has not displayed any contrition or remorse for his conduct. The contravention is serious … Substantial penalties for misconduct, prior to that presently under consideration, have not cause the CFMEU to desist from similar unlawful conduct. As a result this consideration must weigh heavily when determining an appropriate penalty.

[23] In the judgement of the full court of the Federal Court of Australia in Draffin v CFMEU & Ors [2009] FCAFC 120 at [70] Goldberg, Jacobsen and Tracey JJ referred to:

[…] the litany of contraventions… [and] the many prior contraventions of relevant statutory prescriptions by the Union … indicating a propensity, on the part of the Union, to engage in proscribed conduct.

[24] The behaviour of the CFMEU (that is, both applicants referred to above) was considered by Watson VP in Construction, Forestry, Mining and Energy Union[2015] FWC 4544 at [30] and [31] to be a relevant consideration to be taken into account when assessing the fitness and propriety for the holding of a right of entry permit:

There is no evidence before me of constructive efforts by the CFMEU and the CFMEUQ to ensure that its officials comply with the requirements of industrial laws. I am not aware of any legitimate explanation of the large number of contraventions. I am not aware of the extent to which, for example, the CFMEU has required its officials to pay fines imposed on its officials personally. I'm not aware of any disciplinary action taken against officials who have been found to contravene industrial laws. [….] It appears to me that the poor history of compliance arises from deliberate behaviour sanctioned by the organisations.

[25] The continuation of the conduct referred to above by the CFMEU was said by the Director to strongly suggest “that positive direction and support of officials is not being provided by [the CFMEU] and that in fact the [CFMEU] is knowingly concerned in, and supportive of, the conduct of its officials.” It could not therefore be reasonably assumed that an applicant nominated by the CFMEU for a right of entry permit - in this case Mr Bland - will be provided the necessary guidance and discipline to give appropriate effect to the right of entry powers. That is, the systemic problem of non-compliance with industrial laws by the CFMEU brings into question the likely disposition of the CFMEU’s nominee to comply with industrial laws and follow dispute procedures.

CFMEU counter argument

[26] The CFMEU itself responded to the Director’s claims as set out above. It contended that the claims misapplied the Act in so far as the proper subject of the Commission’s investigation ought to be the personal characteristics of the person for whom the permit is sought - in this case Mr Bland. Section 513 of the Act, the CFMEU argued, does not direct the Commission to consider the conduct of the organisation of which the person is an employee, but only the suitability of the person “to properly discharge the functions and exercise the rights and privileges associated with the holding of an entry permit” (see Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[2014] FWCFB 5947 at PN21).

[27] The Commission, the CFMEU continued, should “give little weight to those matters which do not reflect directly on conduct of the person for whom the permit is sought in the exercise of the rights and benefits conferred by the permit.”

The Watpac Proceedings

[28] In Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 846 (“Watpac proceedings”) referred to earlier, Justice Collier fined the CFMEU $99,000 as a result of agreed conduct taken by Mr Bland and other CFMEU officials which was in contravention of the Building and Construction Industry Improvement Act 2005 (“BCII Act”) (in relation to coercion on the Queensland Institute of Medical Research (“QIMR”) Project on 9 and 10 November 2010).

[29] The proceedings were settled on an Agreed Statement of Fact submitted to the court prior to the hearing. As set out in the judgment at paragraph 22, it was agreed by the CFMEU that Mr Bland, with others:

“induced, counselled, procured and organised the employees of the QIMR project to leave the Project”

“[took] action […] to compel and\or force Watpac to cease to engage contractors that did not have an enterprise agreement with a union, and to engage contractors that did;” and

“the relevant action was intended [by Mr Bland] to compel and/or force Watpac by this conduct to cease to engage contractors that did not have an enterprise agreement with the union, and to engage contractors that did.”

[30] Justice Collier commented at the conclusion of his judgment (at paragraph 35) as follows:

“Further, I consider that the facts demonstrate the need to impose penalties which 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.”

[31] His Honour also commented (at paragraph 36) that:

“Conduct in the workplace constituting coercion as admitted by the respondents is a serious matter.”

The Laing O’Rourke Proceedings

[32] In Director, Fair Work Building Industry Inspectorate v CFMEU & Anor [2013] FCCA 2130 (“Laing O’Rourke proceedings”) as referred to above, the CFMEU was fined $55,500 as a result of conduct agreed to have been taken by Mr Bland and other CFMEU officials in breach of s.38 of the BCII Act on 19 November 2010 on the Multilevel Car Park Project at the Brisbane airport.

[33] The conduct occurred some few days following the conduct in relation to the Watpac matter referred to above.

[34] The Director argued as it had in respect of the Watpac proceedings in this regard. Whilst Mr Bland was not said to have been exercising right of entry powers at the time of the relevant conduct, his conduct nonetheless was argued to have exhibited serious deficiencies and a demonstrable lack of regard to the provisions of industrial legislation.

[35] In particular, the Agreed Statement of Fact agreed for purposes of the Laing O’Rourke proceedings again disclosed agreed conduct in respect of Mr Bland (and another CFMEU official) to the effect that s.38 of the BCII Act was breached. The Court judgement referred to the absence of contrition or remorse (see Laing O’Rourke proceedings at PN35).

[36] In essence, the conduct as was agreed in that matter concern Mr Bland, with others, convened at unauthorised meeting of workers and:

“During the course of the meeting [Mr Bland] encouraged or procured those employees to take strike action for the remainder of the day by ceasing to perform any building work and by suggesting that they leave the site without Laing O’Rourke’s authorisation […].” 1

Past conduct

[37] Mr Bland’s conduct as set out above occurred in what was described as the “relatively recent past” by the Director. But the passage of time (in the absence of any further overt misconduct of the relevant kind) is often contended to have brought about a reformation of character.

[38] The Director contended by reference to various court authorities that the reformation of underlying character relies on evidence to the effect that if “a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.” 2

[39] Further, “adverse findings on the facts relating to an earlier period when he was already mature in years make it difficult to come to a conclusion that he is now good character at this later time. There can, of course, be no universal rule on such a question. Each case must depend on its own facts and circumstances.” 3

[40] And, “the mere effluxion of time without further adverse conduct does not lead to satisfaction as to a reformation of character in respect of offences continuing over a period of three and a half years and ending only four years ago. The Court agrees.” 4

[41] In a similar sense, a full bench of the Fair Work Commission in Maritime Union of Australia [2014] FWCFB 1973 held that that the relevant person:

“[…] engaged in deliberate conduct to organise unlawful industrial action on two occasions in the not too distant past, and did so disregarding dispute settlement procedures in the relevant enterprise agreements, with which the organisation of which he is an officer agreed to comply, shows a propensity not to follow rules that are established by industrial legislation. […] The propensity not to follow rules set out in industrial legislation plainly raises a question that is relevant to assessing whether Mr Tracey is a fit and proper person to hold an entry permit.” 5

[42] Remorse and contrition can be relevant factors in assessing character reformation. But in this regard, the Director contended there was no record of contrition on the part of Mr Bland or the CFMEU in respect of the conduct referred to above. Consequently, the real question arises as to whether Mr Bland understands the need to comply with industrial and other relevant laws and/or is motivated to conduct himself in a manner that is consistent with those industrial and other relevant laws into the future.

[43] In short, the Director contends that there is no clear proof that Mr Bland has established himself as a different man than the man who conducted himself in the manner as agreed to by the CFMEU in the above instances. And without such proof, the Commission - the Director contends - should find Mr Bland is not a fit and proper person and not grant Mr Bland a right of entry permit.

[44] That said, the evidentiary case set out below points to prior conduct of a more recent kind, which occurred in March-April 2015, and concerned Mr Bland’s conduct as an organiser.

Duty to disclose

[45] The Director contended that Mr Bland has not provided “full and frank disclosure” in relation to permit qualification matters and that this is a matter that should weigh against granting him a right of entry permit.

[46] Candour in making full and frank disclosures - the onus in respect of which falls upon the applicant organisation and the proposed permit holder - provides a basis upon which the Commission may properly evaluate whether a person is a fit and proper person for the relevant purpose. 6

[47] It matters not that the proceedings are not yet decided or determined but only that they are on foot and involve the applicant organisation and the relevant organiser. In respect of such proceedings, so long as they are not in some manner insignificant or irrelevant to the application, the applicant and proposed permit holder should disclose “the nature and history of such proceedings.” 7

[48] Neither the CFMEU nor Mr Bland had disclosed for the purposes of their declarations as required in the application certain relevant facts arising from the judgement of the Court in Director, Fair Work Building Industry Inspectorate v CFMEU and CEPU (QUD 257/13) (“QUD 257/13”).

[49] The CFMEU has agreed to the court finding in QUD 257/13 that on 25 and 26 May 2011, Mr Bland contravened s.38 of the BCII Act by being a person directly or indirectly knowingly concerned in or a party to employees employed on the Brisbane Convention and Exhibition Centre Project (“the BCEC project”) taking unlawful industrial action.

[50] The CFMEU also agreed to the imposition of a civil penalty upon the union itself as a consequence of the conduct of Mr Bland and others. The court imposed a penalty of $105,000 on the union as a consequence of the conduct of the CFMEU officers, including Mr Bland, across three construction sites the subject of the proceedings.

[51] The penalty was based upon an Agreed Statement of Facts as to the conduct of Mr Bland in contravening s.38 of the BCII Act by being a person directly or indirectly knowingly concerned in or a party to employees employed on a building project taking unlawful industrial action on the project.

[52] The proceedings in QUD 257/13 have not as yet concluded for reasons of the full court finding that the agreed penalties were not admissible for the purposes of the court determining the appropriate penalty in relation to the contraventions. This matter was to be heard before the High Court of Australia in mid-October 2015.

[53] Irrespective of the continuing proceedings in respect of penalty, it was submitted by the Director that the facts of the admitted conduct should have been disclosed by the CFMEU and Mr Bland as it was relevant to the Commission’s consideration and should be given appropriate weight.

[54] The only alternative reason, the Director contends, that there has not been full disclosure in this instance must be that Mr Bland and the CFMEU took their duty to disclose without care and diligence (which constitutes conduct which is inconsistent with the important privileges conferred on a person who holds a right of entry permit) or sought to conceal the agreed statement as to Mr Bland’s conduct in relation to the BCEC Project.

[55] The Director also contends that where disclosure has been made in respect of Blackwood v Bland and FWBC v Ingham & Ors (above), the CFMEU and Mr Bland should have disclosed the nature and history of such proceedings so as to allow the Commission a comprehensive basis on which to make its relevant evaluation. Instead, the CFMEU and Mr Bland had only provided what could be described as a cursory comment in respect of each of the applications still on foot (which amounted to a denial of the allegations).

[56] The Director argues that a failure and/or a refusal to provide such explanations must lead to an inference that the information, if it had been disclosed, would not have assisted the success of the application. Alternatively, the failure to provide such explanations reflects on the cavalier manner in which both the CFMEU and Mr Bland have approached the making of this application.

[57] In respect of the contention that the CFMEU and Mr Bland have failed to set out the wider context of the outstanding proceedings, the Director referred to the decision of Watson VP in Construction, Forestry, Mining and Energy Union[2015] FWC 4544 at [35], that an adverse inference as to the fitness of the applicant may arise where no further information is provided about the outstanding proceedings (which includes) information that provides an indication of the nature of the defence and the evidence intended to be called.

[58] The Director argued generally that circumstances of the application demonstrate that Mr Bland has not acted consistently with industrial laws and is unfit to be afforded the privilege to exercise the powers of a right of entry permit. Mr Bland was described as an experienced organiser who was a “repeated and intractable offender” and has demonstrated no intention to withdraw from such conduct in future or to express contrition and remorse for the conduct for which he has been responsible in the past.

CFMEU response

[59] The CFMEU held that the failure to disclose in respect of the judgement of the Court in QUD 257/13 should lead the Commission to infer that there was an innocent error or oversight rather than a deliberate effort to conceal a matter that should have been disclosed (in an effort to affect the Commission’s discretionary finding).

[60] The CFMEU appears to argue that the decision in QUD 257/13 is still on foot and yet to be determined, and for that reason it would be unsound to rely upon it in any event.

[61] The CFMEU contended that no reliance could be had upon Agreed Statements of Fact made for purposes of s.191 of the Evidence Act 1995. This is because the Evidence Act makes it clear that such agreed statements concern “agreed facts” for the purposes of and/or are confined to the particular proceeding alone, and do not amount to admissions for all purposes:

“The definition of “agreed fact” in s. 191 of the Evidence Act, because of its terms, is not limited to a fact which is true or which the parties believe to be true. It includes a matter capable of being the subject of a finding by a court or tribunal which the parties agree, for the purposes of the proceeding, is not to be disputed. It follows that the inclusion of a statement in an agreed statement pursuant to s.191 is not a representation of fact for all purposes. It is no more than a representation by each party to the proceeding that he, she or it will not dispute the asserted fact in that proceeding. In other words, the only representation in the sense used in the definition of “admission” in the evidence act is as to the intention or state of mind of the parties to the agreed statement.” 8

[62] The CFMEU therefore contends that such Agreed Statements of Fact as are relied upon by the Director as set out above are of no consequence for these proceedings (and a failure to disclose any agreed statement arising therein is a failure to disclose nothing).

[63] Further, the CFMEU argued that there was no obligation upon the applicant to provide a more comprehensive disclosure of those matters that were disclosed than it had provided. It was enough, the CFMEU argued, for the relevant matters to be referred to by way of appropriate citation, and the onus fell upon the Commission subsequently to require of the applicants such further information as may assist it.

[64] Equally, the CFMEU held that there is no duty to disclose in respect of proceedings that have not yet been determined, in any event, because it would “be most unsound” to take into account allegations of conduct concerning contested matters and claims which had not been subject to any findings of fact or law (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 4450 [at PN48]).

Evidentiary case

[65] Apart from the above submissions on law and various facts, the Director also led an evidentiary case in respect of recent conduct (late March - April 2015) by Mr Bland in his capacity as an organiser for the CFMEU. I set out the key elements of the evidentiary case further below.

RCQ Constructions: Proximity Hamilton Project

Thursday 26 March 2015

[66] Evidence was led by Mr Michael McEwan (project manager for RCQ Construction Pty Ltd) and Mr Daniel Kun (the site manager), that Mr Bland entered the worksite on the morning of Thursday 26 March 2015 without having provided appropriate right of entry or signed the visitors’ book. Mr Bland attended the premises at that time with a CEPU organiser by the name of Mr Mark Bateman.

[67] This site consisted of a 15 story residential tower construction project that is valued at some $33 million.

[68] Mr Kun met Mr Bland and Mr Bateman upon their arrival at the site. Mr Bland was asked whether he had provided his 24 hour notice and if he could provide his workplace health and safety card and whether he could sign the visitors’ book. Mr Bland was said to have replied in the negative. Mr Kun went on to explain that Mr Bland and Mr Bateman then left his office and walked onto the site and across the scaffold bridge along the edge of the construction zone. Mr Bland and Mr Bateman were again asked to show their permits but they both declined to show their permits and so indicated by shaking their heads in the negative.

[69] Mr Kun provided video materials of Mr Bland and Mr Bateman walking along the scaffold bridge, and walking from level 1 to level 2 on the internal concrete ramp.

[70] Mr Kun claimed that he requested Mr Bland and Mr Bateman leave the site.

[71] Mr McEwan subsequently attended the site.

[72] Mr McEwan contended that Mr Bland - who had refused to depart the site upon Mr McEwan agitating the absence of a right to enter without 24 hours’ notice - claimed that there was an electrocution risk on the top deck. Mr McEwan contended upon inspection with an electrician that there was no electrocution risk on the top deck. Mr Kun, who was also in attendance on the top deck, contended that Mr Bland agreed there was no issue with the electrical board.

[73] Mr Bland was said by Mr Kun to have pointed out some issues that needed improving such as repair to a step (which was remedied by direct instruction to the scaffolding foreman). Mr Bland - according to Mr McEwan - thereafter claimed that there was an access and egress issue and inquired as to where the second point of access/egress from the deck was located. Mr McEwan contended that he replied that the scaffolders were working that day and they would be constructing the second point at that time but in the meantime the second access point was provided by the hoist or the second set of construction stairs.

[74] Mr McEwan held there was no imminent safety risk to which the workers were exposed and there was no reason for a stoppage of work as a consequence.

[75] Mr Kun gave evidence that Mr Bland called the workers to a meeting. Mr Kun appears then to have commented to Mr Bland and the workers:

“If this is in regards to the step. There is no imminent danger. Please go back to work. The scaffolders are fixing the step.”

[76] Mr Kun stated that Mr Bland “continued to force the men off the deck [and] told them to continue to leave.”

[77] The meeting convened at 8AM and concluded at 10AM whereupon the subcontractors went on smoko.

[78] Mr Kun claimed that Mr Bland then called the steel fixers down from the deck for a second two-hour meeting in the lunch shed.

[79] Mr McEwan and Mr Kun entered the lunch shed and Mr McEwan asked why Mr Bland was on-site, and Mr Bland was said to have replied with words to the effect that the “boys are having a meeting in accordance with section 33 of their Industrial Agreement. Have you read it?”

[80] Mr McEwan responded by claiming that the meeting was to be convened subject to reasonableness and that Mr Bland was treating the law with contempt and pointed out to him that he had “no right to be here.”

[81] Mr Bland - according to Mr McEwan - then directed that the meeting take place outside the workplace and at a nearby park, and the steelfixers followed Mr Bland to that location.

[82] Because of the time of day and the absence of the steelfixers, there was insufficient time to complete a concrete pour that had been in progress at that time. The consequent delay led to some $30,000 in costs.

Tuesday 31 March 2015

[83] Mr Kun gave evidence that Mr Bland attended site once more on Tuesday 31 March 2015 at approximately 7AM. Mr Bland and Mr Bateman entered Mr Kun’s office and Mr Bland claimed that he was suspicious there was an access issue on the deck.

[84] Mr Kun stated that Mr Bland indicated he was going to have a look on the deck. Mr Bland refused to indicate if he had given 24 hours’ notice, and refused to provide his workplace health and safety card or sign the visitors’ book

[85] At approximately 7:15AM Mr Bland and Mr Bateman inspected the top deck where it was proven, according to Mr Kun, that there was no issue with either access or egress as had been expressed.

[86] Mr Kun claimed that Mr Bland then directed workers to assemble in the driveway area, whereupon a meeting was held between 7:45AM and 8:15AM. Mr Bland thereafter approached Mr Kun and informed him that all the workers were going home for the day. Mr Kun stated to Mr Bland that he (Mr Bland) had illegally entered the site and had directed his men to be sent home “over industrial action.”

[87] Mr Kun said Mr Bland explained that the program was too tight and his attendance had nothing to do with access issues. Mr Kun replied that the program had been agreed with the subcontractors, was not too tight at all and that there was flexibility in any event. Mr Bland was said to have replied:

“Well you’re a liar. I know all about you from Gladstone to Mackay.”

[88] Mr Bland was then said to have demanded that a union delegate be employed by RCQ.

[89] As said to have been overheard by Mr Kun, as Mr Bland was leaving site he was asked by an employee of a contractor whether there had been a safety issue which caused the walk off. Mr Bland confirmed that the walk off was for a safety issue. Mr Kun claimed that he then interjected:

“That’s not true Eddie. You are now lying to your own members.”

[90] Mr Bland was said not to have provided any further explanation as to the issues of concern to him and upon what authority he had entered the site or why he had refused to leave the site when directed to do so.

Wednesday 1 April 2015

[91] To the extent it is relevant and provides context, Mr McEwan claimed that on Wednesday 1 April 2015, Mr McEwan arrived at site at 6:15AM. At approximately 6:30AM, Mr Bland was said by Mr McEwan to have entered his office (though not the construction site proper). The day was thereupon declared inclement due to rain. Mr McEwan gave evidence that he then broached the subject of the 26 March 2015 stoppage with Mr Bland, and Mr Bland indicated that the reason for the stoppage on 26 March 2015 was that RCQ didn’t have an agreement with the CFMEU.

[92] Mr McEwan made notes of the conversation, which was structured as follows:

Mr McEwan: “I've got a copy of [the] EBA here and to stop a pour is not reasonable and not in accordance with clause 33 which refers to the frequency of meetings to be reasonable.”

Mr Bland: “like I told you yesterday, RCQ don't have an agreement with us; they can if they want?” (sic)

Thursday 2 April 2015

[93] Mr McEwan gave evidence that a foreman on site called him around 6:15AM and advised that Mr Bland was on site.

[94] When Mr McEwan arrived on site, he noted that three organisers were onsite and called the police. He then approached the three organisers including Mr Bland and Mr Bateman.

[95] Mr McEwan requested Mr Bland to provide his right of entry permit. Mr Bland was said to have replied:

“No and you can stick your 24 hours’ notice up your arse.”

[96] Mr Bland was said to have explained that the purpose of the visit was “access and egress.”

[97] Mr Bland was requested to leave the site on the basis that he was trespassing.

[98] Upon the intervention of the police Mr Bland left site. Mr Bland was said to have conceded to the police that he had no right to be on the site.

[99] According to Mr McEwan, Mr Bland instructed the workers to follow him off the site as he was leaving and the workers followed him. Mr Bland then instructed the CFMEU members in the following way:

“CFMEU members stay here!”

[100] Mr McEwan claimed that following a meeting with Mr Bland, the CFMEU members did not return to work.

CFMEU response to RCQ evidentiary case and RCQ counter response

[101] The CFMEU led evidence through Mr Geoffrey Robert Griffin, a site manager at the Proximity apartment project site at Hamilton between September 2014 and 14 March 2015.

[102] Mr Griffin contended that shortly after he commenced at the project he had become aware that there was an ongoing issue in relation to the CFMEU attending the site and not formally putting in a right of entry notice when it did so.

[103] This practice as it was continued until February 2015, so Mr Griffin claimed, until Mr McEwan, the Project Manager referred to above, purportedly indicated to Mr Griffin that in order to have a “better working arrangement with [Mr Bland] we will now have an open door policy on this site and not require [Mr Bland] to submit right of entries before coming on site.”

[104] Mr McEwan, for his part (by way of a supplementary statement) claimed never to have spoken or agreed with RCQ management to adopt the course he was said to have by Mr Griffin. Mr McEwan also claimed that he had never heard the phrase “open door policy” before reading Mr Griffin’s statement and was not a party to any arrangement to allow Mr Bland to enter the site without exercising his right of entry. This would have been a course of action contrary to the Right and Entry Checklist and Record maintained by RCQ.

[105] Notwithstanding this, Mr Griffin stated that he complained that the approach he asserted that Mr McEwan sought to introduce would be “taking us all down a dangerous path and putting out seriously mixed messages.”

[106] Mr Griffin stated that Mr McEwan applied the new open door policy shortly thereafter, following a meeting with Mr Bland. Mr McEwan for his part states that no such meeting with Mr Bland ever took place and no such policy was introduced.

[107] Mr Griffin also pondered as to why Mr McEwan would have initiated such a policy when “in the weeks prior to the commencement of the open door policy, we had contacted the Fair Work Building Industry Inspectorate in relation to right of entry and had also called the police when union organisers were on site and had not provided a right of entry.”

[108] Mr Griffin gave evidence that the open door policy, as he said it was, was in place at least until he resigned from his employment on 14 March 2015. Mr McEwan maintained in reply that there was no such policy in place, period.

[109] Mr Griffin gave wider evidence in his oral evidence-in-chief as to his interactions with Mr Bland that did not form part of his written statement and I will deal with this further below.

[110] The thrust of the CFMEU’s response to the RCQ evidentiary case was that Mr McEwan had created an expectation, or at least had caused confusion as to RCQ’s expectations in relation to right of entry to its construction site, and as such Mr Bland’s conduct must be viewed against this contextual consideration. I will discuss these matters further below.

[111] Mr McEwan gave further evidence in respect of Mr Griffin’s claims, as I will discuss below.

The Lend Lease Stockland Hervey Bay Expansion Project

[112] Mr Darrell Bell, site manager for the Lend Lease Stockland Hervey Bay Expansion Project, gave evidence that the established procedure for right of entry by union officials for the project was that 24 hours prior to arriving on site the relevant union official was required to send a right of entry form to the site office.

3 June 2014

[113] Mr Bell stated that around 10AM on 3 June 2014 Mr Bland and an ETU organiser arrived at site and sought to meet with the union delegate. Mr Bell facilitated that meeting in the site office. Upon the conclusion of that meeting Mr Bland stated that he wanted to walk the site. Mr Bell responded with words the effect that:

“We haven’t received a right of entry, so I can’t do that, I can’t let you on the site.”

[114] Mr Bland was said to have replied:

“You have to do what you have to do.”

[115] Mr Bland left the site office with the ETU organiser (and without having signed the visitor register).

[116] Mr Bell was subsequently informed that Mr Bland and the ETU organiser had entered the site through another gate (this was around 10:15AM).

[117] Mr Bell made his way to the gate in question and saw Mr Bland and the ETU organiser walking through the construction site.

[118] Mr Bland and the ETU organiser were not wearing the appropriate PPE.

[119] Mr Bell approached Mr Bland and the ETU organiser and said words to the following effect:

“You have to leave, you can’t be here. I’m going to ring the police.”

[120] Mr Bland was said to have replied:

“Do what you have to do.”

[121] Mr Bell thereafter called the police at around 10:25AM. Mr Bell then proceeded to follow Mr Bland and the ETU organiser for another 15 minutes as they walked through the site and stopped to speak with workers.

[122] After this, Mr Bland and the ETU organiser left the site (after having been on the site for some 25 minutes).

[123] The police arrived subsequently.

[124] Mr Bell claimed that Mr Bland and the ETU organiser did not provide a right of entry notice in relation to their entry to the site on 3 June 2014.

25 June 2014

[125] On 25 June 2014, Mr Bell was informed by a site foreman that there had been an entry onto the site by “the union.”

[126] Mr Bell made his way to the point of entry and identified Mr Bland and the same ETU organiser as had entered the site on 3 June 2014 walking through the construction site.

[127] Mr Bell approached the two organisers and stated:

“Boys, you know you can’t be here, you have to leave.”

[128] Mr Bland was said to have replied:

“We just want to have a look around.”

[129] Mr Bell responded:

“You have no right of entry, you can’t come onto the site, I’m going to call the police.”

[130] Mr Bland and the ETU organiser proceeded to walk through the project regardless.

[131] At a point in the walk through Mr Bland was said to have commented:

“Lend Lease is shit. You guys sent Siganto and Stacey broke.”

[132] Mr Bell replied:

“It would have been good if you guys could have made contact with the guys who lost their jobs to give them some advice.”

[133] Mr Bland was said to have then become agitated and approached Mr Bell in an aggressive manner. Mr Bell claimed that Mr Bland approached him from the front and leant towards his face so that he was only some 12 or so centimetres away and said words to the following effect:

“Fu**ing Lend Lease sent them broke. You’re so smart Darrell, you tell me.”

[134] Mr Bland was said to have been yelling these words directly at Mr Bell from very close proximity to his face.

[135] Mr Bell responded in the following way:

“Is this the way we are going to talk to one another?”

[136] Mr Bland walked off through the construction site, having some general discussion with workers as he proceeded.

[137] The police arrived at approximately 12:20PM and directed Mr Bland to remove himself from the site.

[138] It was alleged, at least, that Mr Bland exited the site in a very slow manner such that the police directed him and the ETU organiser to “hurry up” and threatened to issue them a move on order.

[139] Mr Bland and the ETU organiser left the site around 1PM (some 40 minutes after the arrival of the police according to Mr Bell).

[140] Upon exiting the site Mr Bland said words to the following effect:

“We’ll be back next week.”

[141] Mr Bell claimed that the disruption to the site came at a busy time as the site was in the final stages of completion. Mr Bell claimed that no one to his knowledge gave Mr Bland any authority to be on the site and Mr Bland did not provide a right of entry notice (and he was positioned to be knowledgeable about this fact as right of entry notices are directed to him - Mr Bell).

Consideration

Threshold ruling

[142] Counsel for the CFMEU raised the admissibility of the Director’s evidentiary case as set out above and requested that I rule on that matter before proceeding further. I acceded to this request as it would allow the matter to proceed on a sound basis and without concern that the evidentiary tasks might be wasted. My findings as given in the course of the hearing are largely as set out below.

[143] Counsel for CFMEU firstly pressed upon me that the evidentiary case presented by the Director should be considered inadmissible for reasons that the claims that reside therein are inconsistent with the statutory intention of s.513 of the Act. That is, in so far as the witness evidence led by the Director purports to reflect on the conduct of Mr Bland, it stands outside of the relevant context of the matters to which the Commission is obliged to give attention in sections 513(1)(a)-(f) of the Act.

[144] In essence, Counsel for the CFMEU argues that s.513(1)(g) of the Act is limited to relevant considerations in relation to matters which have concluded or which have occurred in the past and have been subject to determinative processes.

[145] The witness evidence led by the Director requires the Commission to consider claims as to the conduct of Mr Bland in relation to matters of various kinds which have not been subject to a prior determinative process (in some respects are not exposed to particular determinative processes in any event). The Director’s case, therefore, requires the Commission to engage in a potentially contested evidentiary process to satisfy itself as to the nature of the applicant’s conduct and its relevance, if any, to the application.

[146] The Director, which seeks to lead such evidence, bears an evidential onus to persuade the Commission of the various matters that constitute its claims in this regard.

[147] The scope of the Commission’s considerations under subsection 513(1)(g) of the Act may traverse matters which relate to past contraventions but may also have regard to other relevant conduct on the part of an applicant (such as, for example, the measure of reasonable civility with which the applicant conducts himself in interactions with the occupiers of building premises and their representatives) which is relevant to whether or not that person is a fit and proper person to be accorded the benefits and entitlements associated with a right of entry permit.

[148] In my view, the construction of s.513 of the Act as pressed upon me by the CFMEU presents too narrow a reading of the Act, and reads down the scope of relevant considerations available to the Commission under subsection 513(1)(g) of the Act.

[149] Further, it appears to me that subsection 513(1)(g) is not limited to past conduct which has been subject to a determinative process. The plain language of the subsection does not suggest the subsection is to be read in such an exclusionary sense, or else only in the context of the same class of matters (on some indicia) as the preceding subsections.

[150] The argument pressed upon me by the CFMEU would also appear to contradict the reasoning of Deputy President Gostencnik in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 4450 (at PN15). In that decision the Deputy President stated that court matters not determined for the purposes of s.513(1)(d) of the Act were to be taken to be relevant nonetheless to consideration under s.513(1)(g) of the Act.

[151] The schema of s.513 to my mind merely indicates that the Commission is obliged by way of mandatory statutory direction to take into account particular matters. Subsection 513(1)(g) of the Act provides scope for the Commission to consider any other matters which it considers relevant to the application.

[152] The Commission would need to approach s.513(1)(g) with some caution in order to ensure that any relevant issues in respect of the general integrity of the applicant in respect of the application made, noting that the Commission does not consider the fitness of the applicant at large.

[153] That is, as the judgement of the full bench of the Commission in Maritime Union of Australia [2014] FWCFB 1973 found, the permit qualification matters set out in s.513 of the Act are not matters to be considered at large without reference to the question that needs to be answered in respect of s.512 of the Act:

“They are not matters to be considered to determine whether a person is a "fit and proper person" per se. Rather the permit qualification matters must be taken into account to decide 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." 9

[154] That all said, an applicant for a permit would appear to be required to make out the case that he or she is a fit and proper person in the context of the legislation to be accorded the rights and entitlements that flow from being given a right of entry permit.

[155] Where evidenced claims are made about that person’s conduct - whether they be evidenced claims that may consequentially have an implication in respect of a contravention of an industrial law or be in respect of other aspects of the applicants behaviour on a building site - the applicant - having presented himself as a person who fit and proper person to exercise a right of entry permit - may seek to respond to those claims to ensure he can be identified as such a person (to the Commission’s satisfaction).

[156] Counsel for the CFMEU also contended - as a further prejudicial point as it were - that the Commission could not rely on the evidentiary materials led by the Director for reason that Mr Bland could not respond to the claims therein as they may expose him to a risk of a civil penalty arising from a breach of an industrial law. In essence, it was pressed upon me that it would be unfairly prejudicial to require Mr Bland to give evidence in relation to matters that could at some future point result in legal proceedings. Mr Bland was entitled to exercise his right not to lead evidence that might incriminate him in those potential proceedings. This was notably a risk to which Mr Bland was exposed as the Director had not given any undertaking not to initiate an action against Mr Bland.

[157] That said, a person who seeks to agitate the jurisdiction under s.512 of the Act by way of an application must be committed to establishing the requirements that need to be made out thereunder. The person who presents themselves as a fit and proper person to hold a right of entry permit must be able to establish his or her identity as being such a person in the context of claims as may be made out to the contrary.

[158] If that person has doubts that in the process of so doing they may put themselves at risk of exposure to a penalty in respect of some other industrial law, then whether or not the application is pressed is a matter of judgement for that person.

[159] It is a matter of private judgement as to whether or not a person is unwilling to challenge a particular evidentiary claim by another person in response to an application made under s.512 of the Act.

[160] The anxieties the person may hold regarding such matters cannot be a cause for disregarding the claims about the person’s conduct. If that were so, the Commission would never satisfy itself in respect of the requirements of s.513 of the Act (unless it excluded all such claims about an applicant’s conduct). The CFMEU’s subsequent contentions made in closing submission on the related point do not alter my view in this regard.

[161] Given these findings and comments regarding the threshold issue, I invited counsel for the CFMEU whether he sought to gather new instructions in relation to whether Mr Bland sought to appear in these proceedings to give evidence. In saying so, I indicated that I was disposed to adjourn the matter to enable such instructions to be sought and to allow Mr Bland an opportunity to present at the hearing (though I add that Mr Bland has always been free to attend the hearing in respect of the application he be granted a right of entry permit). Mr Bland did not appear to give evidence in these proceedings.

[162] The Director’s case largely focussed upon matters arising from s.513(1)(g) of the Act.

Failure to disclose

[163] Neither the CFMEU nor Mr Bland declared the relevance (or existence) of the judgement in QUD 257/13. Failure to disclose will not in all circumstances carry weight in respect of considerations under s.513 of the Act.

[164] A mere oversight which is explained reasonably by an applicant would not be a cause for concern. Equally, nondisclosure of a court action in which the applicant was found not to have a case to answer would equally be of marginal relevance.

[165] It appears difficult to me that the CFMEU, or Mr Bland, could simply overlook the fact that they had been respondent in legal action in the court in that an Agreed Statement of Fact had been agreed, that a penalty had been determined and that that penalty - having been subject to appeal before the full court - was now under further review in the High Court (on a matter of particular principle).

[166] This is not a legal process that would simply slip the mind of a reasonable person, let alone a person who is seeking to be given permission to exercise important statutory rights, and in respect of which the (undisclosed) court judgement has potential bearing.

[167] Additionally, Mr Bland is a person who has undertaken training in respect of right of entry matters and by dint of that training (and his updated advice about the statutory arrangements) and for many other reasons should have been sensitised to the potential relevance of such circumstances as the court judgement in QUD 257/13 to his role as a permit holder.

[168] Neither Mr Ravbar nor Mr Bland have provided a supplementary statement to address the non-disclosure in QUD 257/13. They have not stepped forward since this submission was made to amend their applications or clarify their actions. I have only a submission from the bar table that the proceeding was so notorious that it would have been impossible for either Mr Ravbar or Mr Bland to have omitted reference to the proceeding other than by accident.

[169] In my view, some weight at least should be given to the failure to disclose in this particular context. At the least, the failure to disclose demonstrates a lack of due diligence on the part of the applicants in the preparation of the application and the materials it puts before the Commission for the statutory purpose. An applicant is required to make out the matters as particularised in s.513 of the Act and a suitable standard of due diligence in so presenting him or herself as a fit and proper person is to be expected in such important matters.

Prior conduct and s.191 of the Evidence Act

[170] To my earlier comments I add that it is true, as counsel for the CFMEU stressed, that Agreed Statements of Fact for the purposes of s.191 of the Evidence Act 1995 (Cth) do not constitute admissions for all purposes, and particularly noting where the applicant is not a party to the proceedings.

[171] Section 191 of the Evidence Act provide as follows:

Section 191 Agreements as to facts

(1) In this section:

"agreed fact " means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.

(2) In a proceeding:

(a) evidence is not required to prove the existence of an agreed fact; and

(b) evidence may not be adduced to contradict or qualify an agreed fact;

unless the court gives leave.

(3) Subsection (2) does not apply unless the agreed fact:

(a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding; or

(b) with the leave of the court, is stated by a party before the court with the agreement of all other parties.

[172] But it does not follow that such Agreed Statements of Fact are irrelevant for the purposes of my consideration.

[173] Irrespective of whether he was a party to the proceeding or not, Mr Bland has not sought to put before me any evidence that the Agreed Statements of Fact agreed for the purposes of the various proceedings referred to do not reflect the circumstances as they are said to have been therein, or that he did not conduct himself in the manner as agreed by the CFMEU that he did.

[174] The CFMEU has not led any material to inform me that the facts to which it has agreed in relation to Mr Bland’s conduct in the past are not an accurate representation of his conduct at the relevant times.

[175] In essence, I have no evidence from Mr Bland to persuade me that he is not motivated now as he seemingly was in 2010 and can conduct himself appropriately and with proper regard to the right of the occupiers of premises on a construction site to go about their business. I am only asked to infer he is a changed man by reference to some bare circumstances.

[176] Opportunity was given to Mr Bland to give evidence in this regard but it was not taken up. Consequentially, there is nothing before me of an evidentiary nature which causes me to believe that Mr Bland did not conduct himself in a manner as was agreed by the CFMEU, or would not so conduct himself in the future, and would not accommodate any direction to act contrary to legislation.

[177] In respect of the Agreed Statements of Fact, Mr Bland sought to make no appearance and gave no evidence to persuade me that the claims about his conduct were wrong or not properly cast or need in some other manner to be re-characterised, or that the judgement of the court did not reflect accurately on his conduct.

[178] Generally, Mr Bland has made no effort to demonstrate to me that he is not the man that the various Agreed Statements of Fact cast him as, or that he is remorseful in respect of such conduct and is a changed man, or perhaps that his conduct as admitted must be contextualised in some important manner. I have been asked simply to pay no regard whatsoever to any of the Agreed Statements of Fact and the relevant conduct of Mr Bland to which they refer.

[179] As I said above in dealing with the threshold issues, Mr Bland cannot insist on agitating an application under s.512 of the Act in which he is required to put himself forward as a fit and proper person to hold a right of entry permit, but at the same time not address matters as they may arise that relevantly assist the Commission in reaching the requisite degree of satisfaction in that same regard.

[180] This is the same issue, as it were, that arises in respect of Mr Bland’s claim, presumably as he has instructed Counsel, to assert his penalty privilege in relation to the claims made about his conduct in the Director’s evidentiary case.

[181] Some point was made in these proceedings that Deputy President Gostencnik had reached a finding on the same terms as I have above in his decision in [2015] FWC 4450. In that decision, the Deputy President quoted at length the Agreed Statement of Facts agreed in court proceedings relating to the applicant before him in proceedings brought under s.512 of the Act and found as follows:

“The Bateman declarations contend that Mr Bateman made no admissions in relation to the conduct and was not a party to the proceeding. Nonetheless, it is not insignificant that the CEPU admits and agrees that the conduct Mr Bateman engaged in was conduct which was in contravention of s. 38 of the BCII Act. This admission is important because it is the CEPU which is the applicant in this proceeding and it discloses this matter as relevant in assessing whether or not Mr Bateman is a fit and proper person to hold a permit. Although Mr Bateman claimed that he did not admit the conduct for the purposes of the proceeding, there is no material before me from Mr Bateman denying that he engaged in the conduct as set out in the statement of agreed facts, nor did he allege that the conduct described in the statement of agreed facts or the legal conclusions agreed in those facts are not accurate. No issue is taken that the BCII Act is,or was at the relevant time, an industrial law.

[…]

The CEPU submitted that the admissions made, described above, should be given limited weight because Mr Bateman was not a party to the proceeding in which the agreed statement of facts was filed and that it should not be treated as containing admissions for all purposes. Whilst I accept that admissions made during the course of a particular litigation should not be treated as admissions for all purposes and that admissions of this kind are often made in proceedings for strategic purposes, I do not accept that the admissions contained in the statement of agreed facts are not relevant to my consideration and I do not accept that the admissions should be given limited weight. Mr Bateman was free to attend before me to give an explanation of the circumstances of his involvement in the conduct set out in the agreed statement of facts. He was free to explain or qualify any fact that had been admitted by the CEPU. He did not do so, nor did the CEPU submit that the conduct it agreed Mr Bateman engaged in did not accurately reflect Mr Bateman’s conduct. That Mr Bateman, by his conduct whilst on the QIMR Project site as set out in the agreed statement of facts, breached a prohibition in an industrial law is an important factor in assessing the fitness and propriety of Mr Bateman to hold an entry permit. The conduct demonstrates either a lack of regard for or failure to understand particular provisions in what was at the time an operative industrial law.” 10

[182] It was argued by Counsel for the CFMEU that in so finding the Deputy President (whose decision was otherwise relied upon by the CFMEU) had not had regard to s.191 of the Evidence Act and his findings were not relevantly conditioned by that Act. The Deputy President at least implicitly referred to s.191 of the Evidence Act and considered the matter within the context that “admissions made during the course of a particular litigation should not be treated as admissions for all purposes and that admissions of this kind are often made in proceedings for strategic purposes.”

Findings in Relation to the Evidentiary Case

[183] Claims as may be made about the conduct of an applicant for a right of entry permit must be made out on a persuasive basis. It is to this matter that I now turn.

The RCQ site

[184] Mr Griffin’s evidence, as set out above, did not give me cause to call the substance of claims made by Mr McEwan (and Mr Kun) into serious question. Having had the benefit of hearing Mr Griffin’s evidence, I have not found it persuasive. My reasons for so finding are as follows.

[185] Mr Griffin gave evidence that he was aware that there were site procedures that required notice of right of entry and the presentation of the permit on entry.

“You know that the site rules required a right of entry to be - - -? Yes.

A notice of entry to be given - - -? Yes.

- - - on 24 hours and for a right of entry to be produced once they arrive? If requested. That's my belief.

Yes, that was the rules. And you knew that they were the rules that operated on the site when you arrived there. Is that so? (No audible reply)

[…]

[…] Yes, I believe that if you request a right of entry, they can't come on site unless they produce that and they've got to give you 24 hours to be able to come on site. That's what I believe was the law.” 11

[186] Mr Griffin gave evidence that Mr Bland had not complied with those rules:

“And Mr Bland and two others were not, in fact, complying with those requirements when they came onto the site? Well - - -

Were they? No.” 12

[187] Mr Griffin also gave evidence that to his knowledge Mr Bland had never given notice or produced his right of entry upon entering the site:

“To your knowledge, to your experience, Mr Bland never produced a right of entry. To you knowledge, is that right? I never requested one, no.

You were never aware of him producing one? Not in my time while I was there, no.

So far as you were aware, he never gave 24 hours' notice of his intention to enter the site, so far as you were aware? No.

So far as you were aware, he did not sign the site visitor's book on any occasion? No. But neither did Kevin Griffin or Mick Myles. None of them did.” 13

[188] Mr Griffin stated that he had no authority to waive the site rules in this regard.

“Thank you. Now, did you have the authority on that site to waive the safety and site entry requirements yourself? No. Hence why I used to either ring Mick or text him to say the CFMEU were there.” 14

[189] Mr Griffin gave further evidence that he had never conveyed a message to Mr Bland that the site rules had been waived in respect of his (Mr Bland’s) entries:

“You never issued any message to Mr Bland or anyone else that they didn't have to comply with the right of entry or safety requirements for that site, did you? No.

And you had no authority to do that? No.” 15

[190] Having given that evidence, Mr Griffin nonetheless gave evidence that he allowed Mr Bland to come on site without regard to the site entry protocols because he believed that would “keep the boys […] working:”

“When you had these telephone contacts that you talk about from Mr Bland, and he said he was coming on site because there was a problem, did you require him to go through the right of entry processes that existed on the site? No, and I said that before.

You simply permitted him to come onto the site without observing those matters, did you? He advised me what the issue was and I, as a consultative method of trying to keep the boys at work, keep them working, yes I invited him on.” 16

[191] Mr Griffin went on in a similar vein, explaining that he had allowed Mr Bland to come on site regardless of the site requirements for entry:

“You invited him on. So you bypassed the right of entry requirements on that site without authority to do so? Yes.

How many times did this happen? Twice, maybe three times.” 17

[192] Mr Griffin maintained, as I set out above in his formal evidence, that he had expressed concern at Mr McEwan proposing to allow an open door policy on right of entry as it would cause confusion. He maintained this despite in his evidence contending that he had been the instigator of such an approach himself in relation to Mr Bland.

[193] Mr Griffin claimed to me under questioning that he was not opposed to Mr Bland’s access to the site as such, but the wider effect of allowing unfettered access to the site by other unions and their officials.

[194] But in his witness statement, Mr Griffin expressly stated that:

“[…] I thought that providing an open invitation to site to Eddie from the Union and not requiring right of entries would create problems and confusion.” 18

[195] Mr Griffin had in his evidence in chief amended his statement to amend a reference to Mr Bland having been the cause of an ongoing site entry issue to the CFMEU generally being responsible. But Mr Bland did not alter his witness statement in respect of the above comment as to his concerns with Mr Bland in particular.

[196] Generally, Mr Griffin’s evidence struck me as unreliable and lacking authenticity.

[197] Mr Griffin, I add, because he left RCQ’s employment shortly after the alleged February meeting, could not make out on his own observations whether the very change he claimed had ever been communicated to Mr Bland, or had ever been given effect by Mr McEwan.

[198] Mr McEwan’s evidence was that in February 2015, following some difficulties with the CFMEU in the immediately prior period, he had sought to establish a less confrontational relationship with Mr Bland. To this end, Mr McEwan gave evidence that he had invited Mr Bland on site on 3 February 2015 and accompanied him to a particular area on the construction site, and thereafter proceeded to invite Mr Bland to a HSR meeting on 11 February 2015.

[199] But this was not conduct on Mr McEwan’s part that intended to convey to Mr Bland an intention on the part of the occupier not to require right of entry notices into the future, or that an open invitation had been extended (to Mr Bland) to enter the site at any time and under any circumstances. There was no evidence that Mr McEwan had ever conveyed such a position to Mr Bland.

[200] Indeed, Mr McEwan and Mr Kun’s evidence was to the very effect that when Mr Bland entered the site subsequently he was requested to show his entry notice (be it under either Division 2 or 3 of the State WHS scheme or under Part 3-4 of the Act) but declined to do so.

[201] It was argued by Counsel for the CFMEU, in effect, that the conduct of the employer in extending invitations to Mr Bland to enter the site but then subsequently expressing anxiety over Mr Bland’s apparently unauthorised entries demonstrated that the entry protocols on the site had fallen into confusion. But it is difficult to see how this was the case.

[202] Firstly, Mr Bland gives no evidence that he was in a confused state of mind. For example, there is no evidence that Mr Bland resisted the request for his notice on the basis that he had been previously informed that such notice was unnecessary or that the request contradicted a prior direction or standing authorisation.

[203] Secondly, Mr McEwan’s intentions in respect of 3 February 2015 and 11 February 2015 appear to have been expressly conveyed, and do not provide the basis (on what is before me in the evidentiary case) for a reasonable inference to be drawn to that Mr Bland may have reasonably assumed he had been granted unconditional access to the construction site on an indefinite basis.

The Lend Lease Site

[204] Mr Bell’s evidence withstood examination, and was not exposed to any contradictory evidenced narrative. Mr Bell’s evidence demonstrated to my satisfaction that Mr Bland was pressed (by Mr Bell) to present his right of entry permit on each occasion that he entered the site.

[205] That is, Mr Bell’s particularised statements of the events of 3 June 2014 and 25 June 2014 demonstrated that Mr Bland was indifferent to requests for him to give effect to the statutory right of entry procedures.

[206] There appeared to be some argument by Counsel for the CFMEU that in so far as Mr Bell engaged in discussion with Mr Bland about the treatment of a sub-contractor by Lend Lease, that this in some manner implicitly authorised Mr Bland’s entry on site. This was similarly so in respect of Mr McEwan and Mr Kun, who also appear to have entered into exchanges with Mr Bland about various matters Mr Bland sought to agitate once on site.

[207] I discern no merit in this argument. Mr Bell (or Mr McEwan and Mr Kun) appear to have entered an exchange with Mr Bland as might ordinarily occur by way of the pressure of circumstances. As a matter of evidence, there was no intention on the part of the witnesses in so doing to convey an implicit authorisation to be on site in some manner that set aside their original concerns as to Mr Bland’s absence of notice of his entry. No reasonable person could have drawn from the circumstances any endorsement for their originating conduct, or fallen into confusion as to what was expected of them by the occupiers on each occasion.

[208] Further, I add that Mr Bell’s description of Mr Bland’s manner of communication with him when the subject of the treatment of the certain sub-contractor was raised illuminates conduct on Mr Bland’s part that is not consistent with the reasonable measure of civility with which permit holders and the occupiers of premises should be expected to interact. As Mr Bell detailed it, Mr Bland’s physical gesture was underscored by aggressive use of language, and did not arise in response to any physical provocation on Mr Bell’s part.

[209] Mr Bland’s conduct, as illuminated through the evidentiary case, is relatively recent. It took place over 2014 and 2015. It is conduct that has occurred following Mr Bland having been exposed to legal sanction in various court actions set out above. It is conduct that has occurred after such time as Mr Bland has successfully completed training in relation to his right of entry permit and been advised of changes to the statutory regime.

[210] The evidence is sound.

[211] It is not possible to disregard the evidence led in this matter for the purposes of s.513 of the Act. It evinces conduct by Mr Bland which is inimical to the statutory basis for the right of entry permit, shows little regard to the rights of occupiers of building sites, and evinces an uncivil manner of communicating on a building site in some instances.

[212] To the extent that it is of any relevance, there is no evidence before me that suggests that the CFMEU seeks to take responsibility for Mr Bland’s conduct; to make clear that such conduct is not supported or encouraged by it; or to provide him with guidance in the future. The Director led argument that the history of the CFMEU’s conduct (which I have summarised somewhat poorly above) gave little indication that such guidance - at an organisational level - was likely to be forthcoming.

[213] What is before me, then, by way of the evidence led by the Director is detailed evidence of Mr Bland’s conduct on two building sites on multiple days by different and unrelated witnesses (in respect of the two sites). The evidence is unchallenged to its relevant extent. I condition my comment in this regard as there were elements of hearsay in the witness evidence, which I have disregarded, and the evidence in some parts addressed matters and went to issues and events that were not relevant to my task under s.513 of the Act.

Conclusions

[214] The schema of the right of entry provisions in the Act is intended to ensure that a balance between the rights of the occupier of building sites and union officials is achieved.

[215] I have taken into account the matters set out in the declarations which supported the applications. But having done so, and giving them due consideration, I am nonetheless of the view the statutory balance will not be achieved by granting Mr Bland a right of entry permit.

[216] On the basis of the evidentiary case alone - that is in relation to the evidence given in respect of the Lend Lease and RCQ construction projects as set out above - Mr Bland should not be extended the right to exercise powers under a right of entry permit because he has not demonstrated in recent times a willingness to comply with the statutory regime; give effect to the anticipated balance of rights expressly required thereof; or give due respect to the rights of occupiers of the construction sites on which he seeks to enter or at all times to act in a civil manner.

[217] Mr Bland at earlier times has carried out right of entry training and demonstrated a competent understanding of the relevant principles, it would appear. His understanding of the changed statutory arrangement has been updated as well by more current advice. He has been involved in a number of court proceedings in relation to right of entry issues as well.

[218] Mr Bland would be expected to, by dint of acquired knowledge and experience over time, be sensitised to the role of a permit holder and his or her rights and responsibilities. But his recent conduct as set out in the evidentiary case shows this is not the case.

[219] The wider findings set out in this decision only fortify my reasons for denying Mr Bland a right of entry permit. That is, Mr Bland’s prior conduct as evidenced through the various Agreed Statements of Fact in the court judgements set out above (and in respect of which Mr Bland has given no qualifying evidence) further suggest that Mr Bland, over time, has not been disposed to facilitating the achievement of the necessary balance of rights envisaged in the operation of the right of entry provisions in Part 3-4 of the Act.

[220] I add that in the alternative, if I had found the evidentiary case led by the Director lacked persuasive power, I nonetheless would have found - taking into consideration of all the requirements of s.513 of the Act - that Mr Bland did not satisfy me on an evidenced basis that his prior conduct was not as it was agreed to have been (through the various Agreed Statements of Fact cited above) and that he is now and/or always has been a fit and proper person to exercise the powers vested by the statute in a right of entry permit holder.

[221] The applications for a right of entry permit are dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

E White of Counsel for the CFMEU

A Herbert of Counsel for the Director of Fair Work Building and Construction (intervening)

Hearing details:

2015.

Brisbane:

October 27 & 28.

1 Director, Fair Work Building Industry Inspectorate v CFMEU & Anor [2013] FCCA 2130 at PN5.

2 Ex parte Tziniolis and Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 448 at page 461.

3 Ex parte Tziniolis and Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 448 at page 461.

4 Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 at PN28.

5 Maritime Union of Australia [2014] FWCFB 1973 at PN36.

6 Construction, Forestry, Mining and Energy Union[2014] FWC 7209 at PN6.

7 Construction, Forestry, Mining and Energy Union [2015] 3057 at PN11-PN12.

8 Australian Competition and Consumer Commission v Pratt (no 3) [2009] FCA 407; (2009) 175 FCR 558 at PN83-PN85 (Ryan J).

9 Maritime Union of Australia [2014] FWCFB 1973 at PN24.

10 [2015] FWC 4450 at PN18-PN20.

11 Transcript of proceedings dated 27 October 2015, at PN297-PN302.

12 Transcript of proceedings dated 27 October 2015, at PN303-PN304.

13 Transcript of proceedings dated 27 October 2015, at PN332-PN335.

14 Transcript of proceedings dated 27 October 2015, at PN305.

15 Transcript of proceedings dated 27 October 2015, at PN308-PN309.

16 Transcript of proceedings dated 27 October 2015, at PN359-PN360.

17 Transcript of proceedings dated 27 October 2015, at PN365-PN366.

18 Exhibit CFMEU2 - statement of Geoffrey Robert Griffin dated 12 October 2015, at PN13.

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