Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
[2017] FWC 1390
•13 MARCH 2017
| [2017] FWC 1390 |
| 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
(RE2016/1679)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 13 MARCH 2017 |
Application for a right of entry permit for Roland Cummins.
[1] On 30 November 2016 the Construction, Forestry, Mining and Energy Union, Construction and General Division, Queensland Northern Territory Divisional Branch (CFMEU) applied under s.512 of the Fair Work Act 2009 (the FW Act) for an entry permit for Mr Roland Cummins.
[2] On 11 January 2017 a telephone mention and directions hearing was held and on Monday 13 March 2017 the application was heard in Sydney.
[3] At the hearing, Mr White, of counsel, appeared for the CFMEU.
[4] During the hearing, Mr White tendered a statement from Kyla-Jayde Johnstone, the Industrial Officer who prepared the application for the entry permit.
[5] At the conclusion of the hearing I indicated that a permit would be issued for Mr Cummins, with reasons for that decision to follow. These are those reasons.
The Legislative provisions
[6] 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.’
[7] 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.’1
[8] 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.’
[9] 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.’
[10] In The Maritime Union of Australia,2 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)
[11] Those observations were adopted by the Full Bench in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union.3 The Full Bench 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.’
[12] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,4 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.’
[13] Section 515 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).’
[14] 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).’5
Background
[15] On 16 February 2010, when he was 23 years old, Mr Cummins was convicted for trespass under s.70A of the Criminal Code WA for conduct that occurred on Sunday 31 January 2010, while he was attending a One Day international cricket match being played at the WACA Ground. He jumped over a boundary fence onto the playing field at the western side of the ground. He ran approximately 50 metres before being apprehended by security. He was fined $1500.
[16] Mr Cummins became an Organiser with the CFMEU in March 2014. He was issued with an entry permit on 24 March 2014. It appears that the CFMEU did not disclose this conviction when it applied for an entry permit for Mr Cummins in 2014.
[17] However when the CFMEU was preparing the current application, the relevant Industrial Officer, Ms Johnstone, asked Mr Cummins whether there were any prior convictions that should be disclosed. Mr Cummins advised Ms Johnstone of the trespass conviction. He also told her that he had told the CFMEU’s industrial department of the conviction in 2014, when the original application for his permit was prepared.
[18] The current application discloses the trespass offence.
[19] On 15 July 2016, Commissioner Simpson issued a decision concerning a right of entry dispute, JKC. 6The decision concerned an application for orders pursuant to s.505 of the FW Act against six respondents, including the CFMEU and Mr Cummins. The application was made by JKC Australia LNG Pty Ltd, a company in charge and control of the Ichthys Onshore Construction Project and Project site in the Northern Territory. The application stemmed from a dispute that initially arose from a right of entry exercised by Mr Cummins and two other officials, one from the CEPU and one from the AMWU on 10 and 12 June 2015 (the official from the CEPU was not involved in the entry on 12 June 2015).
[20] The issues of concern with Mr Cummins’ conduct on 10 and 12 June 2015 included not following reasonable directions, not remaining with his escort, not holding a meeting in the designated location or a default location (as provided under s.492 of the FW Act) and holding discussions with employees outside his union’s eligibility. In particular, Simpson C found that Mr Cummins:
● Walked away from his escort (despite agreeing that it was a condition of entry on the site that he should not do so) 7 on both 10 and 12 June 2015;8
● Held discussions with employees other than those who industrial interests his union was entitled to represent on both 10 and 12 June 2015; 9
● Failed to comply with a reasonable request as to an occupational health and safety requirement on both 10 and 12 June 2015; 10
● Failed to comply with a reasonable request to take a particular route to reach a room on both 10 and 12 June 2015. 11
[21] It is implicit in Simpson C’s decision that he considered the conduct of Mr Cummins to be inconsistent with his obligations under ss. 491, 492 and 492A of the FW Act (dealing with occupational health and safety requirements, the location of discussions and the route to the location for discussions). However, he correctly noted that his role was not to sanction any of the respondents for past conduct, but to find a practical resolution of the dispute. He had this to say about the conduct of Mr Cummins:
‘[224] The evidence concerning Mr Cummins’ conduct, including his reluctance to accept that his conduct on 10 and 12 June was inappropriate, raises a concern that Mr Cummins may engage in similar conduct again in future.
[225] Mr Cummins gave evidence that were he faced with similar circumstances again; he would have a discussion with the employer, in this case UGL, to come up with an agreement on “where we’d crib before I was actually there.” However Mr Cummins did not say what he would do if he was unable to reach agreement in the future with the occupier about the location for meetings under s.492 of the FW Act. I am satisfied there is likelihood that Mr Cummins may be willing to engage in similar behaviour in the future.
[226] Mr Cummins knew his conduct on 10 June 2015 was inappropriate, however made no attempt to reach agreement with UGL about where the meeting on 12 June would occur, despite attending an earlier meeting on 12 June 2015 in the East End Training Room.
[227] The CFMEU has given no commitment to the Applicant or the FWC that it would take reasonable steps to ensure that Mr Cummins would not engage in similar conduct in the future.
[228] I have also preferred the evidence of witnesses for the Applicant over that of Mr Cummins on a number of factual disputes. Mr Cummins knew he was required to stay with his escort and not walk away from his escort, who was Ms Garland. The repetition of the conduct on 12 June is a significant factor persuading me that in the case of Mr Cummins there remains a concern about his future conduct.’ (references omitted)
[22] The Commissioner indicated that he had given serious consideration to issuing orders requiring the three union officials concerned (including Mr Cummins) to do the following for a period of time to address the future likelihood of repetition of that conduct:
‘(a) follow all reasonable directions given by JKC’s representatives and their designated escort;
(b) remain with and not walk away from their designated escort;
(c) not hold meetings or discussions in locations other than those assigned by the occupier for that purpose or that are the default locations under section 492 of the FW Act;
(d) not hold, organise, attend or participate in combined union meetings, joint meetings, or meetings or discussions with any employees other than employees whose industrial interests they are entitled to represent.’ 12
[23] In the end, Simpson C decided not to issue any orders. He said in his conclusion:
‘It is my understanding that the Project will run at least well into 2017. Since the specific events of June 2015 there has been no other evidence put before me of conduct on the part of the 2nd 4th or 6th Respondent 20 of the nature that has been the subject of the findings in this decision. I am alive to the possibility that these proceedings themselves may have had a restraining influence on the 2nd 4th and 6th Respondents. It is also notable that none of the parties have appeared to have regarded the resolution of the dispute as an urgent matter as is sometimes the case in section 505 matters. As referred to earlier in this decision, when I requested at the conclusion of the hearing in February that the parties confer over a timetable for closing submissions the timetable put to the Commission on a consent basis extended to May. As the length of time since the events of June 2015 has grown without a recurrence of the conduct, the weaker the case has become for orders to be issued to resolve the dispute.
I have ultimately concluded that the proposed orders I have referred to above, even if issued for a limited duration, are not now appropriate for resolving this dispute. Given the period of approximately 13 months since the events of 10 and 12 June 2015, I am satisfied that the findings in this decision are sufficient to resolve the dispute, when taken in combination with the knowledge that the Respondents, on becoming aware of the findings in this decision, should also be well aware that any further findings of such conduct against them would provide the Applicant a very strong basis for the kind of orders sought by the Applicant in this matter.’
Consideration
[24] I will set out my findings in relation to each of the permit qualification matters in turn.
[25] Mr Cummins has received appropriate training about the rights and responsibilities of a permit holder, most recently on 14 October 2016.
[26] Mr Cummins has never been convicted of an offence against an industrial law.
[27] Mr Cummins has been convicted of an offence against a law of a State involving entry onto premises (the 2010 trespass conviction).
[28] Neither Mr Cummins, nor any other person, has been ordered to pay a penalty under an industrial law in relation to action he has taken.
[29] Mr Cummins has not had an entry permit revoked, suspended or made subject to conditions. Nor has a court or other body or person cancelled, suspended or imposed conditions on a right of entry that Mr Cummins had or disqualified him from exercising or applying for a right of entry.
[30] I consider that the following matters are relevant: the WA trespass conviction and the Mr Cummins’ involvement in the JKC matter.
[31] While the trespass conviction does not reflect well on Mr Cummins, it appears to have been an isolated incident. Moreover, it was not in an industrial or employment-related context. Accordingly, I grant it little weight.
[32] The JKC matter is more serious. In his decision, Simpson C made a number of adverse findings against Mr Cummins. In effect he found that Mr Cummins had exercised his right of entry in a way that was inconsistent with his obligations under the FW Act. While the Commissioner made no orders, this was only because he considered that they would not be an appropriate way of resolving the dispute on the project in question.
[33] Nevertheless, there is no evidence before me that Mr Cummins has misused his entry permit on any other occasion, or otherwise acted inconsistently with his obligations under industrial law.
[34] Having regard to all these factors, I am satisfied that Mr Cummins is a fit and proper person to hold an entry permit.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr E White, of counsel, appeared for the Construction, Forestry, Mining and Energy Union instructed by Mr J Kennedy, solicitor, of Hall Payne.
Hearing details:
Sydney.
2017.
March 13.
1 [2015] FCAFC 56 [15].
2 The Maritime Union of Australia [2014] FWCFB 1973.
3 [2014] FWCFB 5947.
4 [2015] FWC 1522.
5 [2015] FCAFC 56 [35]-[36].
6 JKC Australia LNG Pty Ltd v CFMEU & Ors [2016] FWC 536.
7 Ibid [98].
8 Ibid [130]-[131].
9 Ibid [138], [140].
10 Ibid [145], [146].
11 Ibid [147], [148].
12 Ibid [252].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR590883>
2
7
0