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

[2017] FWC 4836

[2017] FWC 4836

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
(RE2017/687)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 18 SEPTEMBER 2017

Application for issue of right of entry permits to Mr Anthony Stott; satisfied that fit and proper person; permit issued.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 14 September 2017. The Construction, Forestry, Mining and Energy Union (CFMEU) has, by its application lodged on 8 June 2017, applied to the Fair Work Commission (Commission), under  s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official Mr Anthony Stott.

[2] Mr Stott is employed as an organiser of the CFMEU. He currently holds an entry permit which was issued on 11 July 2014, the expiry date of which was extended by order of Senior Deputy President Hamberger on 11 July 2014. 1 The effect of the order is that the expiry date of that permit is extended until the determination of this application.

[3] Part 3-4 of the Act contains provisions dealing with, amongst other things, entry permits.  So far as is relevant to the current application, ss.512 - 515 are relevant and the proper application of those provisions to the question whether a proposed permit holder is a fit and proper person in the context of the right of entry scheme established by Part 3-4 has been the subject of extensive consideration by the Federal Court in Maritime Union of Australia v The Fair Work Commission and Anor 2and in decisions of this Commission.

[4] Most recently in Australian Salaried Medical Officers Federation 3(ASMOF), I summarised the relevant principles to be drawn from the authorities relevant to the question of whether a proposed permit holder is a fit and proper person which I adopt without repeating them. 

[5] Turning then to the permit qualification matters. Section 513 sets out the matters that are to be taken into account in determining whether a proposed permit holder, in this case Mr Stott, is a fit and proper person to hold an entry permit under the Act. They are described therein as permit qualification matters.

[6] A consideration of those matters is, as the authorities make clear, directed to the personal characteristics of the proposed permit holder and they are necessarily concerned with the suitability of, in this case, Mr Stott to properly discharge his functions and to exercise the rights, powers and privileges associated with holding a permit under the Act in the context of the right of entry scheme of the Act.

[7] According to the declarations filed in support of the application, it appears that Mr Stott completed appropriate training about the rights and responsibilities of a permit holder on 30 May 2017. 4

[8] The declarations disclose that Mr Stott has never been convicted of an offence under or against an industrial law. 5 He has never been convicted of an offence against a law of the Commonwealth, a state or territory or a foreign country involving the conduct which is described in s.513(1)(c) of the Act.

[9] Mr Stott has not had an entry permit that has been issued under Part 3-4 of the Act or similar law of the Commonwealth revoked, suspended, nor has he had any condition imposed on any such permit. 6  He has not had cancelled or suspended or imposed conditions on any right of entry permit for industrial occupational health and safety purposes that may have been held by him under State or Territory industrial law or State or Territory occupational health and safety law.7

[10] Further, Mr Stott has not been disqualified from exercising or applying for a right of entry permit for industrial occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law. 8

[11] I accept the information as disclosed in the declarations concerning these matters to be accurate and correct.  I am satisfied, taking into account that which I said in ASMOF to which earlier reference has been made about assessing whether or not training undertaken was appropriate, that the training undertaken by Mr Stott is appropriate training about the rights and responsibilities of a permit holder.

[12] I am also satisfied as to each of the matters that are set out in the declarations.  Accordingly, each of those permit qualification matters seem to me to favour a conclusion that Mr Stott is a fit and proper person to hold an entry permit under the Act.

[13] In the declarations lodged in support of the application Mr Stott properly discloses as relevant a proceeding currently before the Federal Court in the Australian Building Construction Commissioner v The Construction Forestry Mining Energy Union 9 in which he and the CFMEU are respondents.

[14] In those proceedings it is alleged that on 23 September 2016, while attending a meeting of employees of Hutchinson Builders, Mr Stott organised action with the intent to coerce Hutchinson Builders into contravening s.355 of the Act.  It is also alleged that on the same day Mr Stott took adverse action against Hutchinson Builders in contravention of s.343 of the Act and that Mr Stott organised and/or engaged in unprotected industrial action in contravention of s.417 of the Act.

[15] In a further amended defence which was filed on 11 May 2017, Mr Stott made admissions to those allegations of conduct concerning contraventions of ss.346 and 355 of the Act, but denied the s.417 contravention allegation.

[16] It appears that on 22 November 2016, the court held a hearing into penalty and other matters and final judgment, so far as it concerns Mr Stott, has been reserved. Counsel for the applicant informs me today, and my own enquiries disclose, that no final judgment or orders have been made against Mr Stott and no penalties have been to date imposed on Mr Stott, nor for that matter on the CFMEU, arising out of any conduct engaged in by Mr Stott.

[17] Submissions filed by the CFMEU in support of the grant of a permit for Mr Stott disclose that on 25 May 2017 declarations were made by the court by consent but none concerned Mr Stott.

[18] The admitted contraventions are appropriate matters that I should take into account and should be weighed in the balance in determining whether Mr Stott is a fit and proper person to hold a permit.  But it is also relevant in weighing these matters to consider that those contraventions to which earlier reference has been made are admitted, which shows at least some level of acknowledgement of wrongdoing.

[19] Also relevant in assessing the weight that should attach the admitted contraventions is to view the contraventions in some context. The context includes Mr Stott has held a permit for at least five years and the contravening conduct appears to be an isolated incident stemming from the attendance by him at one meeting. Although the admitted contravening conduct weighs against a conclusion that Mr Stott is a fit and proper person to hold an entry permit, the contravening conduct, considered in context and weighed against the other permit qualification matters, does not weigh so heavily as to tip the balance against a conclusion that he is a fit and proper person to hold an entry permit.

[20] The CFMEU in its written submissions also contends that, consistent with the views expressed by the Full Court of the Federal Court in respect of the imposition of a penalty in trade practices related matters in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd 10, and NW Frozen Foods Pty Ltd v The ACCC11, that the view of a regulator, a specialist body, is relevant but not determinative in that case, in assessing the level of a penalty to impose as a consequence of contravening conduct. The CFMEU says that I should take into account the fact that the Australian Building and Construction Commission (ABCC), the relevant regulator in this jurisdiction, has elected not to take an active role or to make submissions in respect of this application.  It is put that this is so because the ABCC and its predecessor, the Director of the Fair Work Building Inspectorate, has previously undertaken quite active roles in respect of some permit applications, particularly those to which the CFMEU is an applicant.

[21] I accept that this is a relevant matter and I take into account in this case that it weighs in favour of the permit holder. The ABCC is made aware of all such applications and has indicated that it does not wish to be heard or to make submissions in respect of this matter. However, I will observe in passing that such considerations might cut both ways and that in other cases in which the ABCC might take an active role the weight which might be attached to their views might shift in another direction..

[22] In any event, it seems to me, taking into account the permit qualification matters, including the disclosure of the current proceedings before the Federal Court, I am satisfied for the reasons given that Mr Stott is a fit and proper person to hold an entry permit under the Act.

[23] Accordingly, I direct that an entry permit be issued to Mr Stott as soon as practicable. The entry permit will operate from the day on which it is issued.  I will vary the order made by Senior Deputy President Hamberger on 11 July 2017 so that the expiry date of the current permit held by Mr Stott is extended until the date on which an entry permit is issued pursuant to the decision I have just made.

DEPUTY PRESIDENT

Appearances:

Mr R Reitano, Counsel for the Construction, Forestry, Mining and Energy Union.

Hearing details:

Sydney.

2017.

14 September.

 1   PR594473.

 2 [2015] FCAFC 56.

 3   [2017] FWC 3282 at [8] – [13].

 4   Section 513(1)(a).

 5   Section 513(1)(b).

 6   Section 513(1)(e).

 7   Section 513(1)(f)(i).

 8   Section 513(1)(f)(ii).

 9   QUD755/2016.

 10   [2004] FCA FC at 72.

 11 [1996] 71 FCR at 285.

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