Construction, Forestry, Mining and Energy Union - Construction and General Division, Queensland Northern Territory Divisional Branch
[2017] FWC 1457
•4 APRIL 2017
| [2017] FWC 1457 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry, Mining and Energy Union - Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2016/1795)
| SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 4 APRIL 2017 |
Application for a right of entry permit for Michael Kenneth Robinson –not a fit and proper person to hold an entry permit – application refused.
On 29 December 2016, the Construction, Forestry, Mining and Energy Union, Construction and General Division, Queensland Northern Territory Divisional Branch (CFMEU) made an application under s.512 of the Fair Work Act 2009 (the FW Act) for an entry permit for Mr Michael Kenneth Robinson.
On 14 February 2017, a mention and directions hearing was conducted by telephone. The application was heard in Sydney on 16 March 2017. Mr White of counsel appeared for the CFMEU and Mr Robinson.
Mr White filed the following documents:
· Submissions of the CFMEU and Mr Robinson;
· Statement of Kyla-Jayde Johnstone;[1] and
· Statement of Luke Michael Tiley.[2]
At the conclusion of the hearing, I reserved my decision.
The legislative provisions
The provisions concerning entry permits are to be found in Part 3-4 of the FW Act, which deals with right of entry. The object of Part 3-4 is set out in 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.’
In Maritime Union of Australia v Fair Work Commission (MUA v FWC), the Full Court of the Federal Court (North, Flick and Bromberg JJ) observed:
‘Section 480 … sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.’[3]
Section 512 of the FW Act states:
‘512 FWC may issue entry permits
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.’
Section 513(1) of the FW Act states:
‘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.’
In The Maritime Union of Australia,[4] a Full Bench referred to the concept of a ‘fit and proper person’ in the following terms:
‘[23] … 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. 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.’ (references omitted)
Those observations were adopted by the Full Bench in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union.[5] The Full Bench in that matter made the following additional observations:
‘[22] Thus the “fit and proper person test” is necessarily concerned with the personal characteristics of the person for whom the issue of an entry permit is sought. The large number of cases concerned with the use of the “fit and proper person” criterion in a variety of statutory contexts have consistently taken that approach. In the South Australian Supreme Court Full Court decision in Teachers Registration Board of South Australia v Edwards, Anderson J said:
“[103] [T]he cases show in my view that although the expression “fit and proper person” takes its meaning from the content of the legislation, there are nevertheless certain consistent notions which emerge in the relevant decisions.
[104] These are that a consideration of whether a person is fit and proper looks to the suitability and eligibility to hold a position. The suitability in turn is viewed against a consideration of the person’s previous conduct and their general reputation.”
[23] Various formulations have been used in the cases concerning the matters relevant to an assessment of whether a person meets the “fit and proper” standard to engage in particular activities; for example in the High Court decision in Australian Broadcasting Tribunal v Bond, Toohey and Gaudron JJ referred to a person’s conduct, character and reputation as being part of a non-exhaustive list of considerations, while in the earlier High Court decision in Hughes & Vale Pty Ltd v The State of New South Wales (No 2) Dixon CJ and McTiernan and Webb JJ characterised the fitness aspect of the criterion as involving honesty, knowledge and ability. Whatever the formulation, it is clear that the assessment process required by the standard, although one which “give[s] the widest scope for judgment and indeed for rejection”, necessarily involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required. That position is in no way altered by the fact that, under the Act, it is the organisation which may apply for a particular official to be issued with an entry permit rather than the official personally.
[24] Section 513(1) of the Act requires the Commission, in considering whether an official is a fit and proper person to hold an entry permit, to take into account a number of matters (described as “permit qualification matters”) specified in paragraphs (a)-(g) of the subsection. It is apparent, as the CFMEU/ CFMEIUEQ submitted, that the permit qualification matters in paragraphs (a)-(f) are all concerned with matters personal to the official for whom the issue of an entry permit is sought. 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.’
[8] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,[6] Hatcher VP articulated the following relevant principles:
‘[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of the s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia, CEPU v Director of the Fair Work Building Industry Inspectorate, Director of the Fair Work Building Industry Inspectorate v CFMEU, Construction, Forestry, Mining and Energy Union, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate. The relevant principles may be summarised as follows:
· A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.
· The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an 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, but rather 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.
· The question of whether an official 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.
· The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.
· The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.
· While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).
· Relevance referred to in s.513(1)(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.’
Section 515 of the FW Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:
‘515 Conditions on entry permit
(1) The FWC may impose conditions on an entry permit when it is issued.
(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.
(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).’
In MUA v FWC, the Federal Court held that the consideration of whether conditions ought to be imposed on an entry permit can be made in conjunction with the assessment of whether a person is a fit and proper person to hold the permit:
‘… the assessment of fitness and propriety is to be made by reference to all of the applicable conditions upon the exercise of rights conferred by the grant of a particular permit, including any imposed under s 515…
This construction of s 515 is to be preferred, as it is consistent with the discernible legislative intent to provide the Commission with a capacity to facilitate the balance contemplated by s 480 and, regarding the imposition of conditions, to do so harmoniously both in relation to the grant of a permit and the Commission’s supervision of its subsequent use (see ss 505(2), 505A(3)(a), 507(1) and 508(2).’[7]
Background
Mr Robinson has held an entry permit under the FW Act and its predecessor legislation, the Workplace Relations Act 1996 (the WR Act), since 1 October 2008 (when he commenced employment with the CFMEU).[8]
Bechtel dispute
On 19 September 2014, Booth C issued a decision in Bechtel v CFMEU.[9] That decision concerned an application by Bechtel to deal with a dispute over right of entry under s.505 of the FW Act. The dispute was between Bechtel, the CFMEU and 15 of its officials, including Mr Robinson. It concerned visits by CFMEU officials to three LNG projects being constructed on Curtis Island near Gladstone in Queensland. Bechtel had a series of complaints about the conduct of the officials during visits over the course of 2012 and 2013. In her decision, the Commissioner, inter alia, issued orders suspending the entry permits of a number of officials (including Mr Robinson).
The Commissioner made the following findings about Mr Robinson.
‘[113] Mr Robinson participated only in the first entry.[10] That was his first visit to Curtis Island. He gave oral evidence and provided an affidavit.
[114] He went to Curtis Island on his own private vessel, using it to ferry other officials, contrary to OHS requirements and knowing that by doing so he would bypass Bechtel’s usual entry procedures, although he says the decision to use the private vessel was spontaneous. He also left his escort, walked on the site unescorted and failed to comply with reasonable OHS requests.
[115] Bechtel seeks orders suspending Mr Robinson’s permit for 1 month. I had considered a longer suspension, given Mr Robinson’s use of his own private vessel in the first entry and the extent to which that contributed to the dispute with Bechtel. His evidence that the use was spontaneous remained unchallenged. I find his conduct gave rise to a dispute with Bechtel. In order to deal with the dispute, I order pursuant to s.505(2)(a) that the permit is suspended for a period of 1 month.’
Elsewhere in her decision, the Commissioner found that it was reasonable for Bechtel to require visitors to travel to the island by a particular ferry and to be accompanied by an escort on occupational health and safety grounds.[11]
The Commissioner’s decision was subsequently overturned on appeal.[12] The Full Bench found that the orders made by the Commissioner suspending permits were not validly made as they could not be characterised as orders dealing with the dispute in hand.
‘In this matter, it is not clear how making an order suspending the permits of the relevant individuals could be said to deal with the dispute at hand. It is clear from her reasoning that the Commissioner determined the length of the suspension for each individual solely on the basis of that individual’s past conduct. What is not clear, however, is the nexus between that past conduct, the ongoing dispute between the parties and the way in which a suspension could deal with that dispute. We are of the view that the suspension of permits, in the circumstances of the dispute before the Commissioner, was intended as a sanction for past conduct as opposed to an order for the purposes of dealing with an ongoing dispute. This is particularly the case given that the suspension of a permit goes beyond the projects that were the subject of the dispute. Given the far-reaching consequences of such an order, significant care is required in order to determine that it is a suitable means of dealing with any dispute that arises under s.505 of the FW Act.’[13]
The Full Bench continued:
‘[34] There are circumstances in which an order suspending a permit will be appropriate to deal with an ongoing dispute. It is not necessary to exhaustively deal with the situations that such an order might be suitable, but it is sufficient to note that a suspension order could be appropriate in a situation where a finding is made that it is likely that the permit holder will repeat the behaviour that gave rise to the dispute unless the permit is suspended.
[35] Despite the Commissioner’s findings that there was no evidence that the CFMEU or its officials had acquired an understanding of the proper use of rights of entry that would give confidence that similar conduct would not occur again, the Commissioner made no finding that it was likely that the dispute would continue unless the permits were suspended, nor an explanation of how a suspension of the permits would deal with the dispute. We are satisfied that the Commissioner had an insufficient evidentiary basis to deal with the dispute by way of suspending the entry permits, and that this gives rise to error.’
Inpex dispute
On 16 May 2016, the Federal Court issued its judgement in Director of the Fair Work Building Industry Inspectorate v Robinson[14] (Robinson). The case concerned a dispute involving the CFMEU, the Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union of Australia (CEPU) and the Australian Manufacturing Workers’ Union (AMWU). The dispute was over park and ride facilities at the Inpex LNG project near Darwin. The Federal Court found that during the course of the dispute, three union officials, including Mr Robinson, organised industrial action by employees of Laing O’Rourke Construction Australia Pty Ltd (a construction company working on the Inpex project) during the term of an enterprise agreement, in breach of s.417 of the FW Act.
By the time the matter was heard, the facts were largely uncontested, and most of the judgment was concerned with the issue of penalties. In response to submissions suggesting that the breaches committed by the respondents (including Mr Robinson) were at the lower end of seriousness, Charlesworth J stated:
‘I have found that the industrial action organised by the respondents involved the cessation of work by 66 employees for one day at a construction site. Their absence from the workplace caused significant disruption and inconvenience to O’Rourke on that day, although no serious or ongoing economic loss is proven. I reject the respondents’ submission that both the scale of the industrial action and the seriousness of their contraventions are to be regarded as “low-level”.
The following paragraphs summarise the inferences I have drawn from the affidavit material in respect of the individual respondents’ states of mind.
Put simply, the individual respondents deliberately contravened s 417 of the FW Act. They knowingly encouraged the employees to do the same. Their actions formed a part of an organised strategy in respect of which their contraventions of s 417 were not merely an accidental or collateral consequence, but a planned and central feature. They were aware of at least the possibility that O’Rourke or some other person with standing may, as a result of their contraventions, suffer the costs and inconvenience of obtaining orders under s 418 of the FW Act to compel the employees’ compliance with the requirements of the FW Act. Mr Robinson and Mr Taylor referred to that possibility at their respective meetings and Mr Haire, as I have found, both endorsed Mr Taylor’s statements and added words of encouragement of his own.
It is reasonable to infer that the individual respondents knew that the industrial action taken by the employees was not protected industrial action and that the employees would be in breach of their obligations as employees to O’Rourke and enjoy no immunity under the FW Act in respect of it. The ballots conducted by them were not secret ballots and were accompanied by language intended to influence as many O’Rourke employees as possible to vote collectively in favour of the stop work proposals.’[15]
Charlesworth J said the following with regard to the motivation of the respondents:
‘It was submitted on behalf of the respondents that their motivations in conducting the Park and Ride meetings were well-intentioned in the sense that they acted in what they perceived to be the best interests of the O’Rourke employees in connection with the subject matter of a grievance. This circumstance, it was submitted, called for a reduction in penalty. I reject that submission for two reasons.
First, in all of the circumstances, and in the absence of evidence from the respondents themselves, I am not prepared to infer that the motivations of the individual respondents were well-intentioned in a sense that diminishes the seriousness of their contraventions. This is especially so in light of a concession by the respondents’ counsel to the effect that the union organisers had other (lawful) means to address any safety issues they identified at the Park and Ride facilities, for example, by addressing the issues in accordance with State occupational health and safety laws. No evidence was given as to why lawful means of that kind were not pursued.
Second, and relatedly, the respondents’ submission invites the Court to reduce the penalty that might otherwise be imposed for a contravention of s 417 in circumstances where the contravener knows that he or she is acting in contravention of its requirements, merely because he or she genuinely believes that the ends (advancing employees’ interests in a dispute) justify the means (unlawful industrial action). In my opinion, the conduct of a union organiser who appreciates that the law proscribes industrial action as unlawful and therefore unjustified ought not be treated more leniently by reference to his or her subjective opinion that the law does not strike an appropriate balance and can justifiably be ignored.
That is not to say that there could not be cases in which an intentional breach of the law may nonetheless be accompanied by a motive supporting a finding that the conduct is less culpable. However, the text and context of s 417 of the FW Act (to which I have earlier referred), together with the facts of the present case, count against such a conclusion in favour of the respondents in this case.
In all of the circumstances, I regard the mental attitudes accompanying the contraventions of Mr Robinson, Mr Taylor and Mr Haire as defiant and serious. Their states of mind are attributable to their respective unions by the operation of s.793 of the FW Act.’[16]
With regard to the issue of deterrence, her Honour stated:
‘Mr Robinson, Mr Taylor and Mr Haire have committed no prior contraventions of the FW Act. Notwithstanding that, the circumstances of these respondents’ contraventions call for a penalty that meets the proper objective of specifically deterring each of them from engaging in like conduct and from maintaining the mental attitudes I have found in respect of each of them. Their knowledge that their actions were unlawful did not deter them, on this occasion, from contravening the law, and there is no evidence that they have since gained any insight into the importance of compliance by union organisers with the requirements of the FW Act. There is, in that circumstance, a considerable need for specific deterrence notwithstanding their status as first-time contraveners.’[17]
The Court was informed that the respondents had entered into an agreement with the Director of the Fair Work Building Industry Inspectorate (the Director), which included a term whereby Mr Robinson (and the other respondents) would ‘consent’ to orders by the Commission for the purposes of an application to be made by the Director for orders pursuant to s.507 of the FW Act. Section 507 provides:
‘507 FWC may take action against permit holder
(1) The FWC may, on application by an inspector or a person prescribed by the regulations, take the following action against a permit holder:
(a) impose conditions on any entry permit issued to the permit holder;
(b) suspend any entry permit issued to the permit holder;
(c) revoke any entry permit issued to the permit holder.
(2) In deciding whether to take action under subsection (1), the FWC must take into account the permit qualification matters.’
Charlesworth J said:
‘This Court was informed that Mr Robinson, Mr Taylor and Mr Haire will consent to orders that provide for the suspension of their permits for a period of three months, although the orders themselves would be “suspended” for 12 months. I am prepared to assume for present purposes that the “suspension” of the Fair Work Commission order is intended to have the effect that the individual respondents will not suffer any suspension of their s 512 permits unless they are found, within 12 months, to have committed a further contravention of the FW Act. I heard no submissions on the question of whether the Fair Work Commission had the power to suspend the taking of any action it is empowered to take under s 507, whether for 12 months or at all. In light of what I say below, it is not necessary to determine that question.
The reference in s 507(2) of the FW Act to “permit qualification matters” is a reference to the same matters to which the Fair Work Commission is to have regard when determining whether a person is a fit and proper person to hold an entry permit: see ss 512 and 513. The matters include, but are not limited to, the circumstance that the person has been ordered to pay a penalty for contravention of the FW Act or any other industrial law: s 513(1)(d).
The practice (if there be one) of agreeing orders to be made on an application made pursuant to s 507 is one that cannot bind the Fair Work Commission in its determination as to whether or not a person is a fit and proper person within the meaning of s 512 of the FW Act.
It was submitted nonetheless that the willingness of the individual respondents to consent to the orders evidenced an attitude of contrition and that it should be regarded as a step taken by them and their respective unions toward preventing future contraventions of the FW Act. I am not persuaded by that submission for three related reasons.
First, the respondents did not tender the agreement in these proceedings. As a consequence, this Court cannot make any assessment as to its terms, including on such matters as to whether the agreement to the consent orders was made in exchange for any concessions made by the Director.
Second, in circumstances where the respondents have not given any direct evidence of contrition or change of attitude, I am disinclined to draw inferences in their favour on the basis of statements from the bar table about the content or purpose of the agreement or the circumstances in which it was made.
Third, the reality for the respondents is that by virtue of their liability for contraventions of s 417 the FW Act, they would be at risk of the Fair Work Commission ordering a suspension of their permits on terms more severe than those proposed in the consent orders or, depending on the circumstances and the proper exercise of the Fair Work Commission’s discretion, an order revoking their permits. The respondents may well have agreed to the consent orders to advance their self-interests in reducing that risk. In the absence of evidence, the Court is in no position to make a finding either way.’[18]
The Court imposed a penalty of $6,700 on Mr Robinson and $39,000 on the CFMEU in relation to Mr Robinson’s conduct (and the conduct of another official).
On 27 June 2016 the Director made the application to the Commission under s.507 that had been foreshadowed to the Court and referred to by Charlesworth J. A hearing was held by Vice President Watson on 5 July 2016 who issued the following that day:
‘Further to the hearing on 5 July 2016, the Fair Work Commission makes the following orders by consent:
1. That the following condition be imposed on the entry permits of Mr Michael Robinson:
“Under section 507(1)(a) of the Fair Work Act 2009 (the Act), a three month suspension be imposed, but that suspension be suspended, and only activated if Michael Robinson, after 5 July 2016 is ordered by a Court of competent jurisdiction to pay a pecuniary penalty in relation to conduct which gives rise to a contravention of the Act or an industrial law, which occurs within 12 months of 5 July 2016….”
This order was made in conformity with the agreement made between the parties to the Federal Court matter. The agreement (which was included as Annexure B to the s.507 application) included the following:
‘The Applicant will not take any other action against the Entry Permits of Michael Robinson…, whatsoever, as a result of the matters the subject of NTD 45 of 2015 (for example, contending that they are not fit and proper under Section 512 of the Act in any subsequent Permit Renewal Application)’.
Lendlease dispute
On 7 October 2016 (that is, around three months after the condition was imposed on Mr Robinson’s permit), Hunt C published a decision in Lendlease v CFMEU.[19] In her decision, the Commissioner gave reasons for granting an application for an order under s.418 of the FW Act sought by Lendlease Building Pty Ltd (Lendlease). The order[20] was made against the CFMEU (including its relevant officers, delegates, employees and agents) and the employees of 61 subcontractors performing work at six building and construction sites in Queensland.
At the time of the order, Lendlease was in negotiation with the CFMEU about a proposed enterprise agreement to replace the one that had reached its nominal expiry date. Lendlease employed 25 employees who would be covered by the proposed enterprise agreement at six sites throughout Queensland. They had been taking protected industrial action since 28 September 2016. The Commissioner found that unprotected industrial action was also being taken by up to 450 employees of subcontractors working on those sites.
During the proceedings before the Commissioner, a written statement was tendered from the Site Manager at the James Cook University ‘The Science Place’ Project, Mr Gary Brett. Mr Brett was not required for cross-examination. His uncontested evidence was that at 5:28am on 28 September 2016, he saw Mr Robinson and a Lendlease employee placing CFMEU flags and signs against the site temporary fencing:
‘7. From approximately 6:00am onwards, Mick Robinson confronted all workers approaching the Project gate and I heard him advise some of the workers as to why he and the group were at the Project. He was saying “we are here for a protected action against Lendlease, as negotiations with Lendlease and the unions have broken down.” Most workers continued to enter the Project, however some left the site immediately and some remained outside the gate.’[21]
The advocate for the CFMEU during the Lendlease proceedings justified the failure of the CFMEU to call any of its officials as witnesses on the grounds that ‘there is no significant evidentiary contest. My clients don’t challenge the evidence of the applicant because for the most part they consider it to be broadly correct.’[22] The issue was what inferences could be drawn from the evidence. In particular, the CFMEU contended that its officials were present at the sites to support the employees engaged in protected action, and there was nothing to link the absence of the subcontractor employees with the actions of those officials.[23]
The Commissioner was satisfied on the weight of the evidence before her that unprotected industrial action commenced on the six sites on 28 September 2016 involving approximately 450 subcontractor employees, and was continuing on 6 October 2016 with no known end in sight. She was also satisfied that the CFMEU and its officials (including Mr Robinson) were ‘‘organising’ industrial action in the circumstances required for an order to be made under s.418(1)(c) to have been met.’
The Commissioner rejected the notion that there was no link between the actions of the CFMEU officials and the failure of the subcontractor employees to attend for work:
‘I am satisfied that 450 subcontractor employees across six worksites spread across Queensland did not all have a meeting of the minds at around 6:30am on a single day and decide that they individually did not wish to cross a CFMEU established picket line. The pattern of behaviour across all six sites is remarkably similar.
Even without direct evidence of ‘organisation’ being undertaken, I would find that the ‘surrounding circumstances’ as per Richards SDP in Lendlease v CFMEU, have been met on this occasion to draw the relevant inference that the size and breadth of the industrial action was organised by the CFMEU and its officials and employees.’[24]
In elaborating on the role performed by the CFMEU and its officials, the Commissioner referred to Mr Brett’s evidence concerning Mr Robinson.
‘… Some subcontractor employees chose to enter the site gate to perform their ordinary work; many did not. It would be an intimidating path to traverse to seek to commence work, and have a CFMEU organiser ‘informing’ or ‘confronting’ such workers that there was protected action being undertaken. While there is no direct evidence as to what discussions occurred between those workers and Mr Robertson (sic) where those workers did not enter the site gates, the inference is that those workers, on the first occasion being informed by Mr Robertson that there was industrial action being taken, then sought to not attend for work.
If not for Mr Robertson seeking to ‘inform’ these workers of the industrial action being undertaken, I conclude on the evidence before me that at least some of those employees are likely to have entered the site and performed work. Instead, some left immediately and some remained near the gate and did not enter site.’[25]
Consideration
I make the following findings concerning the permit qualification matters.
Section 513(1)(a)
Mr Robinson has received appropriate training about the rights and responsibilities of a permit holder.
Sections 513(1)(b) and (c)
Mr Robinson has never been convicted of an offence against an industrial law, nor has he been convicted of an offence involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property.
Section 513(1)(d)
The Federal Court has ordered Mr Robinson to pay a penalty under the FW Act. In addition, the CFMEU has been ordered to pay a penalty under the FW Act in relation to action taken by Mr Robinson.
Section 513(1)(e)
Mr Robinson has had a condition imposed on his entry permit.
Section 513(1)(f)
Mr Robinson has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit.
Section 513(1)(g)
The findings made by the Commission in Bechtel v CFMEU and Lendlease v CFMEU about Mr Robinson’s conduct are highly relevant to my consideration of whether he is a fit and proper person to hold an entry permit. In particular, they relate to my assessment of the likelihood that Mr Robinson will comply with his obligations as a permit holder in the future.
The weight I attach to Bechtel v CFMEU is somewhat lessened by the fact that it related to a single entry which occurred around five years ago. The Commission also accepted that Mr Robinson’s use of his own private vessel on that occasion was ‘spontaneous’. However, the Commission not only found that Mr Robinson had knowingly bypassed Bechtel’s usual entry procedures, but also that he had walked on the site unescorted and failed to comply with reasonable occupational health and safety requests. Section 491 of the FW Act expressly provides that permit holders exercising their right of entry must comply with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement applying to those premises.
I note that the orders made by the Commissioner were subsequently overturned on appeal. However, the appeal decision did not undermine the findings the Commissioner made about Mr Robinson’s actions.
The findings of the Commission in Lendlease v CFMEU are of much greater concern to me. In particular, they concern conduct on the part of Mr Robinson that occurred only a few months after the penalties imposed in Robinson. Charlesworth J in Robinson specifically rejected the submission that the seriousness of Mr Robinson’s contravention of the FW Act was to be regarded as ‘low-level’. Her Honour found that his contravention was deliberate and that he knowingly encouraged the employees to do the same. His action formed part of an organised strategy in respect of which his contravention of the FW Act was not merely an accidental or collateral consequence, but a planned and central feature.
Her Honour refused to infer that Mr Robinson’s motivation was well-intentioned in a sense that diminished the seriousness of his contravention. She pointed out that no evidence was given as to why lawful means were not pursued to address the employees’ grievances. She found that the mental attitude accompanying Mr Robinson’s contravention was defiant and serious.
Charlesworth J not only found that did Mr Robinson know that his actions were unlawful, but also that there was no evidence that he had subsequently gained any insight into the importance of compliance by union organisers with the requirements of the FW Act.
These findings relate to Mr Robinson’s general attitude to complying with industrial law and therefore the likelihood that he could be expected to comply with his obligations as a permit holder.
The CFMEU submitted in the current matter that the Commission ought to have positive regard for the fact that Mr Robinson admitted the contravention in the Federal Court matter and that he volunteered to have a condition imposed on his permit. This, it was submitted, demonstrated insight into the unsatisfactory nature of the conduct and leads to an inference that reoffending is unlikely. This reasoning was rejected by Charlesworth J who noted that Mr Robinson was, by virtue of his liability for contravention of s 417 the FW Act, at risk of the Commission ordering a suspension of his permit on terms more severe than those proposed in the consent orders agreed with the Director or indeed having his permit revoked altogether. She considered that Mr Robinson may well have agreed to the consent orders to advance his self-interests in reducing that risk.
The CFMEU’s submission that, in effect, Mr Robinson has ‘learned the error of his ways’ is undermined by the findings made by the Commission in Lendlease v CFMEU. In that case the Commission, in effect, found that Mr Robinson had again been involved in organising unprotected industrial action. Once again, this raises doubts about Mr Robinson’s attitude to complying with industrial law, and therefore whether one could reasonably expect that he would comply with his obligations as a permit holder.
Mr White submitted that the relevant findings made by the Commissioner in Lendlease v CFMEU were not available to her.[26] He also submitted that I should not rely on findings made in a s.418 matter:
‘…section 418 applications are peculiar and particular beasts under this Act. They are heard quickly. There’s a level of satisfaction not directed to particular conduct of individuals but the level of satisfaction is directed to whether industrial action is happening and thereafter if it’s being organised by the persons against whom the order is sought. But the level of specificity needed to reach that level of satisfaction is a far cry, we say, from the level of specificity and detail and onus and the burden – the level of proof required to, for example, find a contravention of the Act in organising industrial action.’[27]
I have examined the evidence in the proceedings before the Commissioner, and I am satisfied that the conclusions she drew were not only open to her, but were inescapable. I am in no doubt that the evidence in Lendlease v CFMEU is more than sufficient to conclude that on that occasion, Mr Robinson was involved in organising unprotected industrial action.
There are some similarities between this application and that made by the CEPU for a permit for Michael Haire.[28] Like Mr Robinson, Mr Haire was subject to adverse findings both in Robinson and another matter before the Commission (JKC[29]). However, there are significant differences.
First, though in the case of Mr Haire I was concerned that his poor behaviour in Robinson was compounded by the adverse findings made against him in JKC, it is important to note that Mr Haire’s inappropriate conduct disclosed in JKC occurred before the judgment in Robinson. In Mr Robinson’s case, one of the things that concerns me most is that that his inappropriate conduct as disclosed in Lendlease v CFMEU happened only around three months after he had been subject to penalties in Robinson. This supports an inference that he had not learned to ‘mend his ways’ since that case. The timing of the conduct in JKC does not allow a similar inference to be drawn about Mr Haire.
Secondly, when the CEPU applied to renew Mr Haire’s permit, Mr Haire gave a written statement in which he admitted his past behaviour was wrong and gave a commitment about how he would behave in the future. This was explicitly given weight in the decision to renew Mr Haire’s permit – albeit with conditions. Mr Robinson gave no such statement in the current matter and did not attend the hearing.
Given Mr Robinson’s previous track record of compliance with industrial law, I am not satisfied that he would perform his role as a permit holder in a way that respects the obligations of that role. This inexorably casts doubt on whether he is a fit and proper person to hold such a permit.
I have considered whether there would be any conditions that the Commission could impose that would alter my assessment. I am not satisfied that there are any.
In these circumstances, I find that Mr Robinson is not a fit and proper person to hold an entry permit.
The application is accordingly refused.
SENIOR DEPUTY PRESIDENT
Appearances:
E White of counsel for the Construction, Forestry, Mining and Energy Union - Construction and General Division, Queensland Northern Territory Divisional Branch.
Hearing details:
Sydney.
2017.
March 16.
[1] Exhibit CFMEU1.
[2] Exhibit CFMEU2.
[3] [2015] FCAFC 56 [15].
[4] The Maritime Union of Australia [2014] FWCFB 1973.
[5] [2014] FWCFB 5947.
[6] [2015] FWC 1522.
[7] [2015] FCAFC 56 [35]-[36].
[8] Exhibit CFMEU1.
[9] Bechtel Construction (Australia) Pty Ltd & Anor v CFMEU & Ors[2014] FWC 5900.
[10] This occurred in March 2012 (see [6]).
[11] At [83]-[86].
[12] [2015] FWCFB 946.
[13] At [33].
[14] Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525.
[15] Ibid [71]-[74].
[16] Ibid [75]-[79].
[17] Ibid [81].
[18] Ibid [83]-[89].
[19] Lendlease Building Pty Ltd T/A Lendlease Building v Construction, Forestry, Mining and Energy Union[2016] FWC 7198.
[20] PR586082.
[21] Exhibit A15 before Hunt C in [2016] FWC 7198.
[22] PN490 before Hunt C.
[23] PN491-PN493 before Hunt C.
[24] [2016] FWC 7198 [96]-[97].
[25] Ibid [98]-[99].
[26] PN77.
[27] PN91.
[28] [2017] FWC 96.
[29] JKC Australia LNG Pty Ltd v CFMEU & Ors [2016] FWC 536.
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