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

[2016] FWC 3952

[2016] FWC 3952

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
(RE2016/639)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 JULY 2016

Andrew James Sutherland – application for Right of Entry Permit – conditions imposed.

[1] This decision concerns an application made by the Construction, Forestry, Mining and Energy Union - Construction and General Division, Queensland Northern Territory Divisional Branch of the Construction, Forestry, Mining and Energy Union (“the CFMEU”) under s.512 of the Fair Work Act 2009 (“the Act”) (“the application”) for right of entry permit to be issued to Mr Andrew James Sutherland, an office holder (Assistant Secretary) for the CFMEU.

[2] Mr Sutherland currently holds two Right of Entry permits (RE2013/1502 and RE2013/1426).

[3] Section 512 of the Act provides as follows:

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.

[4] The CFMEU is entitled by s.512 of the Act to make the application.

[5] The application has been made on the currently appropriate form by a person authorised by the CFMEU’s Committee of Management to make the application, Mr Michael Ravbar. Mr Ravbar is the Divisional Branch Secretary of the CFMEU.

[6] When the Commission comes to considering whether it is satisfied that Mr Sutherland is a fit and proper person to hold an entry permit (which is the particular focus of the investigation the Commission must undertake as posed by s.512 of the Act), the Commission must take into account the permit qualification matters set out at s.513 of the Act. Section 512 and section 513 of the Act are found within Part 3-4 of the Act. Regard should also be given to the objects of Part 3-4 of the Act (as set out in s.480 of the Act).

[7] Section 513 of the Act provides as follows:

513 Considering application

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

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

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

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

(i) entry onto premises; or

(ii) fraud or dishonesty; or

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

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

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

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

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

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

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

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914 (Cth), Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Declarations by Mr Sutherland and the CFMEU Committee of Management

[8] For the purposes of section 513 of the Act, the CFMEU and Mr Sutherland declared in the following terms.

Whether the official has received appropriate training about the rights and responsibilities of a permit holder

“Mr Sutherland has received training about the rights and responsibilities of a permit holder, having completed an applicable training module with an authorised individual of the CFMEU on 29 April 2015, and has obtained the CFMEU ‘Certificate of Achievement’ for the course described as the ‘Federal Right of Entry under the Fair Work Act 2009’”.

[9] The relevant document in support of the declaration was attached to the application.

Whether the official has ever been convicted of an offence against an industrial law

[10] It was declared that Mr Sutherland has never been convicted of any offence against an industrial law.

Whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving: (i) entry onto premises; or (ii) fraud or dishonesty; or (iii) intentional use of violence against another person or intentional damage or destruction of property

[11] In respect of the above matters, it was declared that Mr Sutherland has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country of the requisite kind.

Whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official.

[12] In respect of these matters, it was declared that the CFMEU was ordered to pay $50,000.00 by way of the judgment, Director, Fair Work Building Industry Inspectorate v Andrew Sutherland & Ors (BRG1008/2011) (“FWBII v Sutherland”) as a result of alleged conduct in relation to Mr Sutherland. The penalty order fell only on the CFMEU and not on Mr Sutherland. That is, the Director, Fair Work Building Industry Inspectorate (“the FWBC”) did not press for relief against Mr Sutherland personally. The penalty order arose from a consent arrangement entered into between the CFMEU and the FWBC. Mr Sutherland for his purposes denied the allegations. The court has not published any reasons other than to publish the orders it made on the basis of the consent position reached between the parties. It is now a matter for the CFMEU’s governance as to why it reached a costly settlement in respect of conduct that was denied by Mr Sutherland, although I note there were also other officials of the CFMEU involved.

[13] Before going further I note at this juncture that this was not a matter that was disclosed at the time of the application and approval of Mr Sutherland’s current right of entry permits (RE2013/1502 and RE2013/1426). That is, the permits applications were considered and approved without cognisance of the prior proceeding and order. Some short time after the right of entry permits had been issued the CFMEU and Mr Sutherland disclosed the proceedings by way of statutory declaration, and explained their oversight.

[14] In response, the Regulatory Compliance Branch of Fair Work Commission (“the RCBFWC”) seemingly indicated that such a disclosure would have been taken into account in its prior decision to issue the right of entry permits. No action, however, was taken by the RCBFWC at the time to revoke its decision (under s.603 of the Act) and re-determine the application on the basis of an irregularity in its original decision. The RCBFWC’s response to the circumstances was to indicate to the CFMEU that the matter would be considered in any future application (3 years later).

[15] The matter is now some five years old, and three years have passed since the right of entry permit was granted by the RCBFWC.

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

[16] It was declared that Mr Sutherland had 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.

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

[17] It was declared that Mr Sutherland has not had cancelled, suspended or had imposed conditions, on a right of entry for industrial or occupational health and safety purposes by any Court, or other person or body, under a State or Territory industrial law or an OHS law.

Whether Mr Sutherland has been disqualified by any Court, or person or body under a State or Territory industrial law or and OHS law, from exercising, or applying for, a right of entry for industrial or Occupational Health & Safety purposes under that law.

[18] It was declared that Mr Sutherland had not been disqualified, by any Court, or person or body under a State or Territory industrial law or and OHS law, from exercising, or applying for, a right of entry for industrial or Occupational Health & Safety purposes under that law.

Any other matters that the FWC considers relevant

[19] Mr Sutherland is a respondent to FWBC v Ingham & Ors (QUD491/15). Mr Sutherland is said to have been involved in organising unlawful industrial action, though the full particulars in relation to the allegations are not currently known. It follows that there are no findings of fact made in relation to the proceedings at this stage.

[20] In FWBC v Ingham & Ors (QUD 388/2016), whilst proceedings have commenced, no defence has been filed and Mr Sutherland denies the allegations. The application was filed on 1 June 2016. There are no findings of fact, therefore, before me.

[21] In Laing O’Rourke Australia Pty Ltd v CFMEU & Ors [2013] FCA 133, proceedings were commenced against the CFMEU and others, including Mr Sutherland, and an interlocutory injunction was made. Mr Sutherland denied the allegations. The application has since been discontinued.

[22] In Bechtel Western Australia Pty Ltd v Sutherland and Others (PEG245/2016), all allegations are denied by Mr Sutherland and he has yet to file a defence. It follows that there are no findings of fact at hand to which I can refer for the relevant purposes.

[23] In Bechtel v CFMEU and Ors [2014] FWC 5900 Mr Sutherland had been a named respondent in respect of an application made under s.505 of the Act. No orders were made or sought against Mr Sutherland.

Consideration

[24] The CFMEU also asked that I take into account the fact that the Regulator, the FWBC, has not sought to oppose the application by Mr Sutherland. I have not taken this into account. This is because the reasons for the FWBC’s actions in not opposing the application are unknown to me. It would be speculation to assert that the FWBC approves of the application or believes that the application cannot be opposed on a reasonable basis. There may be many reasons why the FWBC has not opposed the application, including resource issues.

[25] Ultimately, whether the FWBC opposes or does not oppose an application under s.512 of the Act has no bearing upon the Commission’s discretionary decision making (though reasonably some matters are best determined through dialectical processes in respect of which the Commission is removed).

[26] Mr Sutherland is currently a respondent to a number of matters as set out above. However, none of those matters have as yet resulted in an order being made in respect of Mr Sutherland, or an order on which I can place any relevant significant weight.

[27] In his decision in Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch [2016] FWC 3110 (RE2016/355), VP Watson made the following observations about an application with some similarities to this particular application in so far as the applicants currently are facing proceedings in the court:

“[32] The context of this application is an important consideration. The relevant branch of the CFMEU has been described by the Federal Court as exhibiting a culture of disobedience of the law.

[33] Mr Travers has held a right of entry permit for approximately 14 years. He has completed training on right of entry obligations recently. Two instances in which Mr Travers has been ordered to pay penalties for breaches of industrial laws have been considered in relation to past applications and have not led to a finding that he is not a fit and proper person to hold a permit. The conduct in question was inappropriate and found to be unlawful. However the events giving rise to these findings occurred over seven years ago. Since then there have not been any court findings of unlawful behaviour.

[34] Considered alone, these circumstances might suggest that Mr Travers is a fit and proper person to hold a right of entry permit. However serious allegations are currently before the Court in proceedings initiated by the Director. In my view while this is a relevant consideration, I do not consider that significant weight should be attached to the matter. No evidence has been led, the allegations have not been tested, and the allegations are denied. The circumstances may well be different if findings are made by the Court.”

[28] Mr Sutherland has completed relevant training. The various proceedings in which Mr Sutherland is involved are at a preliminary point only and there are no findings of fact and the allegations made against him have gone untested to this date. But the various applications to the Court raise important, relevant concerns.

[29] In the circumstances, noting Mr Sutherland’s involvement in multiple unresolved proceedings, I consider it necessary to impose conditions on Mr Sutherland’s permit for the purposes of s.515 of the Act. The conditions are similar (though with amendments) to those ordered in Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522.

[30] The conditions I impose are as follows:

● If any findings are made or penalties imposed that are relevant to the permit qualification matters at s.513(a)-(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s.513(a)-(f) of the Fair Work Act 2009, and any potential action by the Commission under s.510 of the Act, then the permit holder is to notify the Fair Work Commission within one week of the finding being made, the penalty imposed or the proceeding commenced. The permit holder must provide a full copy of any judgment and any orders or decision in both electronic and hard copy forms.

[31] This decision will come into effect upon the expiry of the relevant current right of entry permit (RE2013/1502). Upon its expiry (on 16 September 2016), the current right of entry permit should be returned without delay to the Regulatory Compliance Branch of the Fair Work Commission.

SENIOR DEPUTY PRESIDENT

Final written submissions:

Hall Payne Lawyers on 16 June 2016 for the CFMEU.

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