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

[2015] FWC 4544

[2015] FWC 4544

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
(RE2015/486)

The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
(RE2015/487)

VICE PRESIDENT WATSON MELBOURNE, 20 JULY 2015

Applications by the Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland and Northern Territory Divisional Branch and The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland for entry permits for Mr Michael Myles - Factors to be taken into account when determining whether fit and proper person – Appropriate training – Pattern of CFMEU behaviour – Candour and disclosure – Conduct at building sites - Fair Work Act 2009, ss.480, 512 and 513.

Introduction

[1] This matter involves an application by the Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland and Northern Territory Divisional Branch (CFMEU) and an application by The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEUQ) under s.512 of the Fair Work Act 2009 (the Act) for the issue of entry permits to Mr Michael Myles. Mr Myles is an official of both organisations.

[2] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 (FWBI Act), the Director of the Fair Work Building Industry Inspectorate (the Director) was notified of the lodgement of the two applications. The Delegate of the Director gave written notice pursuant to s.72 of the FWBI Act that the Director proposes to make submissions in relation to the applications.

[3] The matter was heard at the Fair Work Commission (the Commission) on 29 June 2015. Mr A. Herbert of counsel appeared for the Director and Mr E. White of counsel, with Mr L. Tiley appeared for the CFMEU and CFMEUQ.

Legislative provisions

[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. In deciding this, the Commission must take into account the "permit qualification matters" set out in s.513(1).

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

“513 Considering application

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

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

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

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

(i) entry onto premises; or

(ii) fraud or dishonesty; or

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

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

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

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

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

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

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

[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] A Full Bench of the Commission has described these tasks in the following manner 1:

“[23] As is apparent from the above, the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. 2 Taking into account context, the structure of s. 512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

[24] The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the entry permit”. The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se. 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.
[25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act.”

[8] In this matter the Director contends that circumstances relating to s.513(1)(a) and (g) arise for consideration. The scope of paragraph (g) has been described by a Full Bench as follows 3:

“[24] … Paragraph (g) requires the Commission to take into account any other matters which it considers to be relevant. It is not necessary to apply the eiusdem generis presumption to conclude that the relevance referred to in paragraph (g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.

[25] A matter is only required to be taken into account under s.513(1)(g) if the Commission “considers” it to be relevant - that is, the requirement operates upon the opinion as to relevance formed by the Commission.”

[9] At the hearing of the matter an application was made by Mr White to exclude the evidence proposed to be called in relation to matters that had not been subject to a concluded proceeding. His contention was that paragraph (g) does not permit a consideration of matters that have not been subject to consideration by a Court.

[10] Counsel for the CFMEU and CFMEUQ submitted that a further reason the Commission should not admit the statements into evidence relates to fairness. He submitted that as the Director will not give an undertaking that the statements will not form part of an allegation of a breach of the Act, the only way to meet the allegations would be to irrevocably prejudice Mr Myles’ right to invoke his privilege against self-incrimination and exposure to a penalty in the event proceedings are instituted.

[11] Counsel for the Director submitted that there is no question in the interests of fairness or privilege against self-incrimination, as Mr Myles is not compelled to give evidence in this matter and therefore has a choice whether or not to respond to the allegations in the statements filed by the Director.

[12] At the hearing I advised that I would not exclude the evidence proposed to be led by the Director. I found that excluding that material would undermine my determination and consideration of the application under s.513 of the Act. I confirmed that the ruling does not deal with the argument that the evidence should be given little weight, which is addressed later in this decision.

The Evidence

[13] Each application contained a declaration from Mr Myles, as the proposed permit holder, and a declaration from Mr Ravbar, as the Member of Committee of Management, making the application in accordance with the Act. The declarations stated that Mr Myles:

• has received appropriate training about the rights and responsibilities of a permit holder and understands the effects of any changes to the right of entry provisions



• has never been convicted of an offence against an industrial law



• has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises; or fraud or dishonesty; or intentional use of violence against another person or intentional damage or destruction of property



• has never been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him, nor has any other person been ordered to pay a penalty in respect of such action



• 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



• has not been disqualified, by any court, or other person or body, under a State or Territory industrial law or OHS law, from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law



• while denying all allegations and noting that no findings have been made, has been named as a respondent in the following matters:



• Lend Lease Engineering Pty Ltd v CFMEU & ors (BRG714/12)



• Lend Lease Engineering Pty Ltd v CFMEU & ors (BRG771/12)



• Blackwood v Myles & anor (WHS/2014/88)



• FWBC v J Hutchinson Pty Ltd & ors (BRG894/14)



• Grocon v CFMEU & anor (BRG1055/14)



• FWBC v Myles & anor (BRG1165/14), and



• FWBC v CFMEU & Ors (RE2014/1389) and Lend Lease v CFMEU & ors (RE2014/761).

[14] By letter dated 13 May 2015 the CFMEU and CFMEUQ notified the Commission of further proceedings commenced against Mr Myles, namely, Director, Fair Work Building Industry Inspectorate v Michael Myles & Anor (BRG312/2015).

[15] The statements of the following persons were admitted into evidence:

● Mr Mick Prestridge

● Mr Scott Thomson

● Mr John Salotti

● Mr Bradley Ross

● Mr Michael McEwan

● Mr Kenneth Fitzjohn

● Mr Allen Ware.

[16] Mr Prestridge is employed by Grocon Constructors (Qld) Pty Ltd (Grocon) as a Site Manager. Mr Prestridge gave evidence concerning the circumstances of entry by Mr Myles onto the site at the Grocon 480 Queen Street Brisbane Project (Queen Street site) on 13, 20, 21 January and 2 February 2015 and the behaviour of Mr Myles while on site.

[17] Mr Thomson is employed by Grocon as a Project Manager on the Queen Street site. Mr Thomson gave evidence concerning entry by Mr Myles onto the site on 13, 20, 21, 23 January and 2 February 2015 and the behaviour of Mr Myles while on site.

[18] Mr Salotti is employed as a Security Officer by Executive Security Group Pty Ltd (ESG). At the relevant time ESG was engaged to provide security services on the construction project at the Queen Street site. Mr Salotti gave evidence of the circumstances of Mr Myles’ entry onto the site on 2 February 2015.

[19] Mr Ross is employed as a Project Manager by Watpac Constructions Pty Ltd (Watpac) and is currently the Project Manager at “180 Brisbane” located at 192 Ann Street, Brisbane. As Project Manager, Mr Ross is informed of scheduled visits by CFMEU officials and is responsible for removing persons from the site when directed to by Watpac management. Mr Ross gave evidence of the circumstances of Mr Myles’ entry onto the site on 10 and 11 December 2014.

[20] Mr McEwan is employed as a Project Manager by RCQ Construction Pty Ltd and is currently the Project Manager at the Proximity Hamilton project located at 37B Harbour Road, Queensland. As Project Manager, Mr Ross is notified when a right of entry notice is provided, and he has authority to direct any person to leave the Project. Mr McEwan gave evidence concerning the circumstances of Mr Myles’ entry onto the project on 15 January 2015.

[21] Mr Fitzjohn is employed as an Inspector by the Director of the Fair Work Building Industry Inspectorate. Mr Fitzjohn provided evidence of an incident on 12 November 2013 near a construction project situated at Queensland University of Technology involving Mr Myles.

[22] Mr Ware was previously employed as Site Manager by Lend Lease Construction and Infrastructure Pty Ltd (Lend Lease) from about September 2013 to about 17 April 2015. During that time Mr Ware was involved in the K1 RNA Showgrounds Project in Bowen Hills, Queensland. Mr Ware gave evidence that when industrial action, including an industrial dispute, occurs on a Lend Lease project, those Lend Lease personnel involved in the dispute must record the visit in an Industrial Report. Mr Ware gave evidence that he completed Industrial Reports in relation to the Project involving conduct of Mr Myles for the following days:

• 5 April 2014



• 2 May 2014



• 24 June 2014



• 22 July 2014



• 29 July 2014



• 27 August 2014



• 28 August 2014



• 6 January 2015.

[23] As I have noted, the Director submits that the applications should be refused and that in coming to that conclusion, ss.513(a) and (g) of the Act are particularly relevant. I propose to consider each of these matters in turn before considering the overall assessment of whether Mr Myles is a fit and proper person.

Appropriate Training

[24] The Director submits that while the declarations state that Mr Myles has received training about the rights and responsibilities of a permit holder, there is no evidence that the training was authorised by the Commission. Further, there is no evidence that Mr Myles has fully understood and is committed to his rights and obligations as a permit holder.

[25] The CFMEU and CFMEUQ submit that evidence has been given as to the training received by Mr Myles and the course referred to by Mr Myles and Mr Ravbar is a course approved by the Commission, therefore the Director’s submissions about appropriate training should be rejected.

[26] I am satisfied that the training undertaken by Mr Myles is training approved by the Commission and this factor should not be taken to be a negative factor in relation to Mr Myles’ fitness to hold a right of entry permit.

Pattern of CFMEU behaviour

[27] The Director submits that the history of contraventions of industrial law by the CFMEU is also a relevant consideration. The Director submits that caution should be exercised before granting an application for an entry permit made by the CFMEU in relation to any person it nominates, as CFMEU officials may not receive the appropriate support and encouragement to meet their obligations as permit holders when their trainer, mentor or employer has a history of non-compliance with industrial and other laws. The Director drew my attention to the following comments of Federal Court and Federal Circuit Court Judges as to the pattern of repeated, calculated contraventions of the Act by CFMEU officials and the lack of contrition or remorse for such behaviour:

• A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466, Justice Gyles at [13]-[14].



• Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426, Justice Tracey at [44].



• Williams v Construction, Forestry, Mining and Energy Union and Mates (No 2) [2009] FCA 548, Justice Jessup at [29].



• Draffin v CFMEU & Ors [2009] FCAFC 120, Justices Goldberg, Jacobson and Tracey at [70], [79], [92].



• Cozadinos v CFMEU & Ors [2011] FMCA 284, Federal Magistrate Reithmuller at [18].



• Hogan v Jarvis [2012] FMCA 189, Federal Magistrate Burnett at [20].



• Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 846, Justice Collier at [34]-[35].



• Cozadinos v Construction, Forestry, Mining and Energy Union [2013] FCA 1243, Justice Tracey at [43].



• Director of the Fair Work Building Industry Inspectorate v McDonald [2013] FCA 1431, Justice Barker at [73].

[28] The CFMEU and CFMEUQ submit that consideration of the permit qualification matters in relation to a proposed permit holder is to be directed to the personal characteristics of the person for whom a permit is sought, not to the conduct of the organisation of which the person is an official.

[29] In my view, the assessment of whether Mr Myles should be considered a fit and proper person to hold a right of entry permit should be based on his personal characteristics. This entails a judgement based on the evidence of his prior conduct and other relevant circumstances. The context of his behaviour is a relevant consideration.

[30] 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 for 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 am not aware of any disciplinary action taken against officials who have been found to contravene industrial laws.

[31] Despite these matters being raised by the Director in these proceedings, no evidence was led by the unions in relation to these matters. It appears to me that the poor history of compliance arises from deliberate behaviour sanctioned by the organisations. I consider that it is important to take this factor into account when assessing Mr Myles past conduct and assessing his fitness and propriety for holding a permit in the future.

Candour and Disclosure

[32] The Director submits that a further consideration is the level of candour demonstrated by the applicants in disclosing information relevant to the application. The Director submits that there has not been full and frank disclosure in this instance, as the declarations fail to disclosure the nature, history and potential consequences of the proceedings disclosed in the evidence and declarations. The Director submits that failure to provide details of the proceedings on foot must lead to an inference that the information, if disclosed, would not assist the success of the application, as there could be no other sensible reason why such potentially damaging material would not be explained or neutralized as a negative consideration.

[33] The Director submits that regard should be had to the apparent failure of the CFMEU, the CFMEUQ and Mr Myles to disclose, or provide a satisfactory explanation for the failure to disclose, the following:

• injunctions were made against Mr Myles in Lend Lease Engineering Pty Ltd v CFMEU & Ors (BRG714/12)



• Lend Lease v CFMEU & Ors (RE2014/761) was settled between the parties on 18 February 2015. The Commission made orders which will operate until 30 June 2016. Essentially, the orders relating to Mr Myles require him to comply with certain statutory requirements as well as other practical steps which are included at Schedule 1 to the orders, and



• there are significant potential consequences of the proceedings on foot.

[34] The CFMEU and CFMEUQ submit that the appropriate disclosures were made in the applications as each of Mr Ravbar and Mr Myles stated that Mr Myles is a respondent in a number of listed matters. The CFMEU and CFMEUQ note that each of the matters referred to are public matters and the appropriate Court or Commission reference was given in respect of each matter.

[35] In relation to matters listed in the Court, the CFMEU and CFMEUQ advise that Mr Myles intends to invoke the privilege against self-exposure to a penalty. The CFMEU and CFMEUQ submit that the Commission, in assessing fitness and propriety should not speculate about the outcome of Court proceedings in circumstances where the allegations are denied. The CFMEU and CFMEUQ further submit that the Commission should not rely on or be expected to take into account the interlocutory orders of a Court.

[36] In my view, given the serious nature of the outstanding proceedings, further information should be given by the applicant as part of the application. I consider that a summary of the nature of allegations in extant proceedings should be given together with an indication of the nature of the defence and evidence intended to be called. A failure to do so may give rise to a negative assessment of fitness and propriety. Evidence of conduct itself, as has been led in this case, is clearly of greater weight than criticisms regarding the level of disclosure.

Conduct at Building Sites

[37] The Director submits that a further relevant consideration is a recent pattern of conduct by Mr Myles. A number of persons gave evidence about Mr Myles’s behaviour as is summarised above.

[38] The Director submits that the evidence shows a significant number of occasions on which Mr Myles has entered construction workplaces without any attempt to comply with the requirements of Part 3-4 of the Act, without the permission of the person in control of that workplace, and on most occasions refusing to leave the workplace when directed to do so by a person in authority. On none of those occasions was it asserted by Mr Myles that notice of entry had been provided, and on a number of occasions meetings were conducted whereupon workers left the site and commenced to take industrial action.

[39] The Director submits that this activity appears to be a deliberate strategy to ignore Part 3-4 of the Act, presumably to avoid the consequences of ss.500 and 508 of the Act which only apply to Mr Myles if he is exercising or seeking to exercise his rights under Part 3-4 of the Act. The Director submits that such deliberate unlawful conduct by a permit holder is clear evidence of My Myles’ unfitness to hold a permit on “general integrity” grounds. The Director further submits that such conduct demonstrates a contempt for the legislative scheme and therefore Mr Myles should not be granted the statutory protection of the Act, nor be permitted to further participate in that scheme.

[40] The CFMEU and CFMEUQ submit that the Director’s proposition that the conduct alleged is a deliberate strategy to ignore Part 3-4 of the Act draws attention away from those matters the Commission is to consider, as set out in s.513 of the Act, and the purpose for which the Commission is to consider those matters.

[41] The CFMEU and CFMEUQ submit that as the Director was unwilling to give an undertaking that he would not pursue civil penalty claims arising out of the content of the statements filed in this matter, Mr Myles is not in a position to meet the allegations in those statements at this stage without fatally compromising the content and effect of the invocation of that privilege. In those circumstances, the CFMEU and CFMEUQ submit that the Commission should give little weight, if any, to those matters alleged by the Director.

[42] I have reviewed the evidence led in this matter. As it has not been contested through cross-examination or alternative evidence I regard it as unchallenged. The evidence discloses a record of disrespect and disregard for the rights of occupiers of building sites and the legislative scheme regarding right of entry. On numerous occasions Mr Myles has shown a complete lack of preparedness to comply with the rights and obligations of permit holders. To the extent that the behaviour is sanctioned or encouraged by the union, Mr Myles has demonstrated a preparedness to follow the approach sanctioned rather than comply with the law. The unions have not demonstrated any real preparedness to take action to avoid similar behaviour in the future. No real attempt has been made to justify his behaviour and no such justification would seem to be available. There is no basis to find that similar conduct will not occur in the future. The evidence is highly relevant to my assessment of Mr Myles’ fitness and propriety to hold a right of entry permit.

Conclusions

[43] The unions submitted that a condition that could be imposed to assist in finding that Mr Myles is a fit and proper person to hold a right of entry permit is a requirement that Mr Myles immediately inform the Commission and the Director of the resolution of any court proceedings against him.

[44] Having regard to all of the circumstances I am not satisfied that Mr Myles is a fit and proper person to hold a right of entry permit. Despite having training on his obligations under the Act Mr Myles has shown a general disregard for those requirements. He has displayed, by his behaviour, that he has no intention of operating within those strictures.

[45] The scheme of the Right of Entry provisions of the Act is to strike a balance between competing interests of occupiers and union officials. Mr Myles appears to lack any desire to comply with the legislative balance. Rather, he appears to prefer to operate in a manner that gives him unfettered access and occupiers little choice but to accept his access or to have him physically removed. Where he does not obtain the consent of an occupier to enter premises, his approach seems to be to access the site in any event when he deems it appropriate in order to undertake the functions he wishes to perform. His unions appear to sanction this approach.

[46] On the evidence before me I fully expect this behaviour to continue. I do not consider that Mr Myles is a fit and proper person to hold a right of entry permit.

[47] Each application for an entry permit for Mr Myles is dismissed.

VICE PRESIDENT

Appearances:

Mr Herbert, A of counsel on behalf of FWBC.

Mr White, E of counsel with Mr Tiley, L on behalf of CFMEU and CFMEUQ.

Hearing details:

2015.

Brisbane.

29 June.

Final written submissions:

FWBC on 14 May 2015 and 21 May 2015.

CFMEU and CFMEUQ on 16 June 2015.

 1   The Maritime Union of Australia [2014] FWCFB 1973

 2   See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380

 3   [2014] FWCFB 5947

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