Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch

[2015] FWC 5247

[2015] FWC 5247

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
(RE2015/765)

The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
(RE2015/766)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 AUGUST 2015

Summary: right of entry permit applications for Mr Scott Vink – permit consideration s.513 – whether failure to personally discharge a personal deterrent penalty imposed by a court relevant – conditions under s.515 – no contradictor.

[1] The CFMEU - Construction and General Division, Queensland Northern Territory Divisional Branch and the CFMEU Industrial Union of Employees, Queensland (which is a transitionally recognised association) have made application pursuant to s.512 of the FairWork Act 2009 (“the Act”) for right of entry permits for Mr Scott Vink. I hereafter refer to these two applications as the “CFMEU applications”.

[2] Mr Vink is an organiser for the CFMEU and official of the CFMEU, and currently possesses two right of entry permits issued to him in 2012 by the Fair Work Commission (“the Commission”) in matters RE2012/1827 and RE2012/1870.

[3] On 1 June 2015 the Delegate of the Director of the Fair Work Building Industry Inspectorate (FWBII) notified the Commission that it intended to lodge submissions in relation to the two CFMEU applications. The FWBII opposed the issue of an entry permit being granted to Mr Vink. That said, on 17 July 2015 FWBII indicated that it did not seek to make any submission in respect of the two applications.

[4] 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. For purposes of reaching the requisite degree of satisfaction, the Commission must take into account the "permit qualification matters" that are set out in s.513(1) of the Act.

[5] Section 513(1) 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.

[6] 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

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.

[7] Section 515 of the Act provides for the Commission to impose conditions on an entry permit when it is issued, having taken into account the permit qualification matters above.

[8] I now turn to consider the permit qualification matters.

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

[9] It was declared by Mr Vink, and the CFMEU that upon the enquiries having been made including that of the proposed permit holder, that he (Mr Vink) had undertaken and completed successfully the training provided by and through the CFMEU Approved Right of Entry Training Course on 11 May 2015.

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

[10] It was declared by Mr Vink (and the CFMEU) he had never 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

[11] Mr Vink and the CFMEU declared that he (Mr Vink) had never been convicted of an offence against a law the Commonwealth, a state, a territory or a foreign country involving any of the matters set out above.

(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

[12] Mr Vink and the CFMEU declared that he (Mr Vink) and the CFMEU were ordered to pay a penalty of $6,450 and $550,000 respectively in Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No.5) [2012] FCA 1144.

(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

[13] Mr Vink (and the CFMEU) declared that he (Mr Vink) had never had a permit issued under this part revoked or suspended or made subject to any 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

[14] Mr Vink and the CFMEU declared that he (Mr Vink) had not been subject to any of the above actions by a court or other person or body of the kind set out in the sub section.

(g) any other matters that the FWC considers relevant

[15] Mr Vink declared – as did the CFMEU – that he (Mr Vink) had had his attention drawn to changes to right of entry provisions made by the Fair Work Act 2009 and understands the effect of those changes.

[16] Mr Vink was a respondent in FWBC v Vink & Ors (BRG68/15). It was declared that the allegations made in that matter have been denied and no findings have as yet been made.

[17] Mr Vink was also a respondent in Laing O’Rourke Australia Pty Ltd and Ors v Construction, Forestry, Mining and Energy Union & Ors (QUD86/13). It was declared that in this case injunctive relief was granted and imposed upon Mr Vink (see [2013] FCA 133). It was further declared that the substantive matter was settled on confidential terms without any admission as to liability and without any final relief being imposed (with the matter being discontinued by consent on 23 December 2013).

Consideration

[18] The principles underlying the approach to determining whether a person is a fit and proper person to hold an entry permit have been set out in numerous previous decisions of the Commission, and are usefully summarised in Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union of Australia [2015] FWC 1522 [32]. There is no need to provide for a further elaboration of the known principles.

[19] I do not have the benefit of any contradictor in these proceedings and, save for what I discuss below, I accept on their face the declarations that are before me for the purposes of s.513(1)(a), s.513(1)(b), s.513(1)(c), s.513(1)(d), s.513(1)(e), s.513(1)(f) of the Act.

[20] There are some concerns I have with Mr Vink’s application, however, which arise for my consideration through s.513(1)(g) of the Act, and which go to whether there can be a sound basis for confidence that Mr Vink would exercise the rights attached to a right of entry permit in an appropriate way.

[21] Mr Vink has undertaken approved training in May 2015. However, he had also undertaken approved training on 28 September 2009, whereupon “Mr Vink successfully completed an ACTU course of training, approved by the Commission, in relation to right of entry”. Notwithstanding this, Mr Vink made admissions in respect of his subsequent conduct in Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No.5) [2012] FCA 1144, and accepted a court imposed penalty in respect of the relevant contravention.

[22] The fact that Mr Vink completed the approved training in 2009 but subsequently a penalty was imposed on Mr Vink for his involvement in industrial action lends support to a conclusion that the completion of approved training may not necessarily be a strong indicator of future intention or conduct.

[23] As mentioned above, in Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No.5) [2012] FCA 1144, the court imposed a penalty on Mr Vink of $6,450.00.

[24] In those proceedings the respondents admitted multiple contraventions of s.38 of the BCII Act 2005. In particular:

• “The CFMEU and/or CFMEU (Qld) admit 12 separate contraventions of s 38 (on 18, 19, 20, 21, 23, 24, 25 and 26 May 2011 in respect of the GCUH Project and on 24, 25, 26 and 27 May 2011 in respect of the Law Courts Project).



• The CEPU admits one contravention of s 38 on 26 May 2011 in respect of the GCUH Project.



• Mr Pearson admits four separate contraventions of s 38, all in respect of the Law Courts Project, on 24, 25, 26 and 27 May 2011.



• Mr Vink admits two separate contraventions of s 38, both in respect of the GCUH Project, on 18 and 25 May 2011.



• Mr O’Doherty admits two separate contraventions of s 38, both in respect of the Law Courts Project, on 24 and 26 May 2011.



• Mr Hanna admits six separate contraventions of s 38, all in respect of the GCUH Project, on 18, 19, 20, 23, 24 and 25 May 2011.



• Mr Jarvis admits four separate contraventions of s 38, all in respect of the GCUH Project, on 18, 19, 21 and 26 May 2011.



• Mr Olsen admits two separate contraventions of s 38, both in respect of the GCUH Project, on 18 and 21 May 2011.



• Mr Malone admits one contravention of s 38 in respect of the GCUH Project on 26 May 2011.”

[25] The Court commented as follows:

“28. Pursuant to s 49(5) of the BCII Act, Lend Lease and the Director seek an order from the Court that the respondents pay certain penalty amounts in respect of these contraventions, and the respondents have agreed to an order from the Court in the terms sought by the applicants. The penalty amounts the parties have proposed to the Court in these proceedings are as follows:◦The CFMEU, CFMEU (Qld) and CEPU pay a penalty of $550,000 in total; and Messrs Pearson, Vink, O’Doherty, Hanna, Jarvis, Olsen and Malone pay a penalty of $40,000 in total, to be apportioned as follows:

• Mr Pearson: $6,450



• Mr O’Doherty: $4,300



• Mr Vink: $6,450



• Mr Hanna: $7,750



• Mr Jarvis: $6,450



• Mr Olsen: $6,450



• Mr Malone: $2,150.”

[26] The Court made comment upon the purpose of penalties as follows:

31. “In this case although the parties have reached agreement in respect of both culpability of the respondents and appropriate sanctions, it is ultimately for the Court to determine both the nature and quantum of any penalties to be imposed on the respondents. It is also clear, however, that the Court should give weight to any agreement reached by the parties as to penalties, and agreed to the penalties in so far as they fell within the appropriate range.

32. In Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977 Barker J summarised general principles relevant to imposition of civil penalties in the following terms:

[4] Sentencing (which the imposition of a civil penalty is an instance of) is one of the most, if not the most difficult tasks that judicial officers perform: CFMEU v Williams [2009] FCAFC 171; (2009) 262 ALR 417 (Williams) at [28].

[5] The overriding principle is to ensure that the sentence is proportionate to the gravity of the contravening conduct: Attorney-General (SA) v Tichy (1982) SASR 84 at 92-93.

[6] The purpose to be served by the imposition of penalties is at least threefold:

(1) Punishment, which must be proportionate to the offence and in accordance with prevailing standards;
(2) Deterrence, both personal (assessing the risk of re-offending) and general (a deterrent to others who might be likely to offend); and
(3) Rehabilitation.
See Ponzio v BP Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 (Ponzio), Lander J at [93]-[94].

[7] The task which a sentencing judge is faced with is one of “instinctive synthesis”: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (Australian Ophthalmic Supplies), Gray J at [27] and Graham J [55]. Such a process requires that a court take into account all relevant factors and to arrive at a single result which takes due account of them all: see Wong v The Queen [2001] HCA 64; [2001] HCA 64; (2001) 207 CLR 584 at [74]- [76]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian), Gleeson CJ, Gummow, Hayne and Callinan JJ at [37]-[39]. The penalty must not be so great as to crush the person upon whom the penalty is imposed or reveal the person as a scapegoat: Ponzio at [93] (Lander J); McDonald v R [1994] FCA 956; (1994) 48 FCR 555 at 563. The maximum penalty is reserved for only the most serious of contraventions: Markarian at [31]. Proportionality and consistency commonly operate as a final check on the penalty assessed: Australian Ophthalmic Supplies at [53].

33. I respectfully adopt his Honour’s summary as providing an overall guide to the approach of the Court in relation to the imposition of civil penalties.

34. Further, and more recently, Tracey J in Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 summarised factors which, in his Honour’s view, were relevant to consideration of the penalty upon which the parties in that particular case had agreed. Those factors were as follows (at [70]):

• The nature and extent of the conduct which led to the breaches.
• The circumstances in which that relevant conduct took place.
•The nature and extent of any loss or damage sustained as a result of the breaches.
• Whether there had been similar previous conduct by the respondent.
• Whether or not the breaches were deliberate.
• Whether the respondent had exhibited contrition.
• Whether the respondent had taken corrective action.
• Whether the respondent had co-operated with the enforcement authority.
• The need for specific and general deterrence.

35. In my view this list is a helpful guide to the exercise of the discretion of the Court in the current circumstances in determining an appropriate penalty. With reference to these factors, I now make the following observations concerning appropriate penalties in this case.

36. First, it is not in dispute that both the Law Courts Project and the GCUH Project are major projects in south-east Queensland, with projected values of approximately $570 million in relation to the Law Courts Project and $1.76 billion in relation to the GCUH Project. Further, the unlawful industrial action was protracted, conspicuously public, and co-ordinated across the two project sites. Hundreds of workers on both sites ceased work on the days I listed earlier in this judgment, causing delays to the critical path of each project (5 days in respect of the Law Courts Project and 8 days in respect of the GCUH Project).

37. Second, the unlawful industrial action was not taken by the respondents in relation to specific concerns relevant to the particular sites, but rather was taken as part of an industry-wide campaign relating to union claims of sham contracting.

38. Third, and importantly, the unlawful industrial action was taken despite orders from Fair Work Australia that it should not occur.

39. Fourth, it is clear that the unlawful industrial action of the respondents caused serious disruption to Lend Lease. It is not in dispute that, as a result, Lend Lease suffered estimated loss and damage totalling $1,210,770.65.

40. Fifth, it is not in dispute that the contravening conduct of the respondents was deliberate, in pursuit of general and (in the final result in these proceedings) unsubstantiated claims by the unions of sham contracting, and in contravention of orders of Fair Work Australia. This is not a case where, for example, the contravention was inadvertent.

41. Sixth, it is questionable whether the respondents have demonstrated contrition in respect of the contraventions of the legislation. Rather, in their written submissions they vaguely referred to a “willingness to facilitate justice”. Nonetheless, the respondents have conceded that contraventions of the legislation occurred, and have reached agreement with the applicants – including the Director – in relation to appropriate penalties and injunctive relief. I note that the proceedings were set down for hearing for a combined period of several weeks. The agreement of the parties obviated the need for trials, and the associated expenditure which would have been incurred by all parties.

42. Seventh, to the extent that the respondents agreed to facts, penalties and other remedial orders, the respondents have demonstrated co-operation with the regulatory authorities in these proceedings.

43. Eighth, as observed by Lander J in Ponzio at [93] the penalty must recognise the need for deterrence, both personal and general. As his Honour further explained:

In regard to personal deterrence, an assessment must be made of the risk of re-offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217.

44. As at the date of hearing it appeared that the respondents had an ongoing involvement, not only in the construction industry, but in activity at the sites of both projects. To that extent, specific deterrence in relation to unlawful industrial activity is of particular significance. The continuing involvement of the unions and the individual respondents (being officials of those unions) in the building and construction industry in Australia emphasises the importance of general deterrence in preventing similar contraventions of the legislation.

45. In this case penalties at different levels are submitted as appropriate for the unions – which are large and well-funded organisations – and the individual respondents […].”

[27] The court imposed penalties on individual respondents for reason of both personal and general deterrence.

[28] It appears to me that if Mr Vink did not himself personally discharge the penalty as imposed from his own private financial resources, then it may be held he was not appropriately exposed to the deterrent effect of the penalty (and its general deterrent effect would have been mitigated).

[29] I posed this issue to the CFMEU’s legal representative and inquired as to whether Mr Vink personally discharged his penalty. The CFMEU response was as follows:

“As to his Honour’s query concerning the payment of the civil penalty imposed on Mr Vink, we confirm that in the exercise of its jurisdiction the Federal Court ( [2012] FCA 1144) imposed a civil penalty of $6,450 on Mr Vink in respect of his contraventions of the BCII Act and, further, ordered that the penalty be paid to the Commonwealth. The penalty has been paid to the Commonwealth. The cause of action has merged in the judgment and orders. It is not for any party or, with respect, the Commission, to go beyond or behind orders of the Court, especially those that have been satisfied. The matters raised in his Honour’s query, with respect, are not matters properly to be considered in this application.”

[30] My tentative position, notwithstanding the CFMEU counter argument, is that should it be demonstrated that a person (seeking to hold a right of entry permit) has not discharged a personal penalty intended to have a personal deterrent effect, as imposed by a court (in a relevant proceeding), it would be a matter for relevant consideration under s.513(1)(g) of the Act. That is, in not having been exposed personally to the intended personal deterrent imposed by the court, it may reasonably be inferred that a person would not be less actuated to re-offend.

[31] Further, where the person does not seek to disclose upon reasonable inquiry by the Commission or otherwise, whether he or she personally discharged a deterrent penalty imposed upon them personally by a court may give rise to inference that the person has not personally discharged the penalty.

[32] As this matter has proceeded off the documents, without the benefit of full submissions and without a contradictor, I have not had cause to determine the matter to finality, or rely on my tentative position to reach an adverse finding in respect of Mr Vink’s fitness to hold an entry permit.

Conditions

[33] On balance, and taking into account the declarations made under s.513(1) of the Act as a whole, I am satisfied that Mr Vink is a fit and proper person to hold an entry permit.

[34] Notwithstanding this, I will impose conditions on Mr Vink’s permits for the purposes of s.515 of the Act. The conditions are similar to those ordered in Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522. Mr Vink’s prior conduct generally is such that conditions are warranted.

[35] The conditions I impose are as follows:

• Mr Vink must undertake training approved by the Fair Work Commission on an annual basis in relation to Parts 3-1, 3-3 and 3-4 of the Fair Work Act 2009 (Cth) for the duration of the permit. Evidence of attendance at such training and of its successful completion (or otherwise) shall be provided to the Fair Work Commission within 2 weeks of the training being undertaken by the permit holder each year that Mr Vink holds a right of entry permit; and



• 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 1 week of the finding being made, the penalty imposed or the proceeding commenced.

[36] I posed the above conditions to the CFMEU for comment. It relevantly replied as follows:

“As to the contemplated conditions, none of the material before the Commission concerns breaches or alleged breaches of Part 3-1 of the Act. Accordingly Part 3-1 of the Act should be excised from the first proposed condition if the permits are to be granted with conditions. The Applicant otherwise does not demur from the proposed conditions.”

[37] I do not agree that I should excise reference to matters arising under Part 3-1 of the Act from the conditions, as the CFMEU has sought. Conduct arising under that Part may be expressly relevant to the conduct appropriate for a person who exercises powers under a right of entry permit. I consider more comprehensive and persistent training is desirable in the circumstances.

[38] Separate orders [PR570172] and [PR570551] will be issued to give effect to this decision (and provide for the provision of right of entry permits to Mr Vink). The orders will come into effect seven (7) calendar days from the date of this decision, subject further to Mr Vink surrendering to the General Manager of the Fair Work Commission his current right of entry permits.

SENIOR DEPUTY PRESIDENT

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