Construction, Forestry, Mining and Energy Union-Construction and General Division, SA Divisional Branch

[2017] FWC 1227

[2017] FWC 1227 [Note: An appeal pursuant to s.604 (C2017/1524) was lodged against this decision - refer to Full Bench decision dated 8 August 2017 [[2017] FWCFB 4141] for result of appeal.]

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, SA Divisional Branch
(RE2016/1607)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 8 MARCH 2017

Application for a right of entry permit re Mark Gava – fit and proper person – uncertainty about undertakings – in context of behaviours – application refused.

[1] On 24 November 2016 the Construction, Forestry, Mining and Energy Union-Construction and General Division, SA Divisional Branch applied for an entry permit for Mr Mark Gava. I have referred to the applicant union in this matter as the CFMEU. This decision reflects my consideration of the substantial material provided in support of the application and submissions and evidence given in a hearing on 24 February 2017, together with submissions made by the Australian Building and Construction Commissioner (the ABCC) in accordance with s.110 of the Building and Construction Industry (Improving Productivity) Act 2016.

[2] Part 3-4 of the Fair Work Act 2009 (the FW Act) sets out arrangements and conditions relative to entry into premises by officials of organisations who hold entry permits. The objects of this Part of the FW Act are set out in s.480 in the following terms:

“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.”

[3] This Part of the FW Act specifies the capacity for permit holders to enter premises, the requirements for exercising entry rights under State or Territory Occupational Health & Safety laws and specifies impermissible actions. It establishes the powers of the FWC in these respects and stipulates arrangements which relate to the exercise of rights of entry. Of particular relevance to this application are provisions which specify that a permit holder must not hinder or obstruct a person in an improper manner (Section 500). Additionally, the FWC may restrict rights if an organisation or official has misused rights (Section 508). Section 510 requires that the FWC must revoke or suspend entry permits as a consequence of certain contravention findings.

[4] The application is made pursuant to s.512 of the FW Act. That section 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.”

[5] Section 513 sets out the permit qualification matters that the FWC must consider. I have dealt with these issues later in this decision.

[6] Mr Gava held a right of entry permit under various workplace relations laws from 2001. Mr Gava’s last entry permit expired on 28 November 2016. That permit was returned to the Fair Work Commission two days beyond the time limit allocated for it to be returned.

[7] Mr Gava was identified in proceedings commenced of the Fair Work Commission’s (the FWC’s) own motion pursuant to s.508 of the (the FW Act) in 2013. This matter was concluded in a decision issued on 13 June 2014. 1 Court proceedings relating to these events were subsequently commenced and, in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union2(the Liability Decision), Mr Gava, the CFMEU and 10 other officials were found to have contravened ss.500 and 348 of the FW Act. In Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union3 (the Penalty Decision), penalties were imposed on Mr Gava, the CFMEU and other officials. An appeal against that decision was subsequently lodged, although Mr Gava did not dispute the findings of contravention or the penalties applied to him. A further action of the FWC’s own initiative, pursuant to s.510 of the FW Act following the Penalty decision, was adjourned pending the determination of that appeal.

[8] Before further detailing the evidence before me, I have set out the broad circumstances relevant to a request made by the ABCC with respect to the conduct of this application. The ABCC contends that this application should be stayed pending the determination of the appeal and, following that determination, it could be heard and determined at the same time as the s.510 application. The alternative ABCC position was that the s.510 adjournment should be abandoned and that matter should be dealt with at the same time as this right of entry permit application was considered. In the alternative, the ABCC contended that entry permit should not be granted to Mr Gava on the basis that he is not a fit and proper person for the purposes of s.513 of the FW Act.

[9] Notwithstanding these submissions, the ABCC agreed that evidence and submissions relative to the right of entry permit application should proceed on 24 February 2017.

[10] The CFMEU opposed any delay in the consideration of this application and submitted that the application should be considered on its merits, and on the information before the Commission.

[11] I do not consider any delay in the consideration of this right of entry permit application, pending the determination of the appeal is appropriate and, for similar reasons, do not consider it appropriate to conflate consideration of the s.510 matter with this proceeding. The CFMEU has sought that an entry permit be granted to Mr Gava. That application is made in the current context and I have concluded that the FWC should determine it on the evidence presented with the time for assessment of whether Mr Gava is a fit and proper person to hold an entry permit being the current time. The imposition of a delay of indefinite duration in the consideration of an application of this nature appears to have the very real potential of visiting unfairness on the applicant. Additionally, the nature of the appeal lodged by the CFMEU means that, in a circumstance where Mr Gava is not challenging findings made against him in both the Liability Decision and the Penalty Decision, his request for an entry permit may be delayed or confused with the CFMEU’s actions relative to various Court proceedings.

[12] It is clear that, if an entry permit is granted to Mr Gava and the Liability Decision is not materially altered, s.510 necessitates that the FWC take action. However, I am not persuaded that consideration of this application should necessarily be conflated with the s.510 proceedings.

The Evidence

[13] There was no dispute about the evidence of Ms Candy, the CFMEU’s Industrial Officer. That evidence went to the extent to which Ms Candy prepared the application but did not disclose in that application a proceeding currently before the Court. 4 Ms Candy also advised that she had posted Mr Gava’s expired entry permit such that it had arrived at the FWC outside of the seven day period required under the FW Act. Ms Candy explained that both disclosures reflected her inexperience at dealing with matters of this nature.

[14] Mr Gava’s evidence went to his family and employment circumstances and history. He explained the manner and frequency of the use of his entry permit and the significance of that permit for the performance of his duties. Mr Gava advised that whilst he admitted the contraventions alleged against him and accepted the findings of contraventions made against him in the Liability and Penalty Decisions, he did not have a specific recollection of the events of 30 October 2013. Notwithstanding this, Mr Gava disputed certain of the facts in the Liability Decision about the 30 October 2013 incident. He confirmed that he regarded his conduct on that day as wrong, unlawful and contrary to the standards that he held out for himself and he advised that he had not engaged in that conduct before or subsequently. Mr Gava confirmed that the penalties imposed upon him had been paid by the CFMEU. Mr Gava advised that, at some time or times after the 30 October 2013 incident he had apologised to some employees, to his wife and, later to one of the employer managers involved in this incident. He confirmed that he had not otherwise apologised until he had prepared his witness statement for this application.

[15] Mr Gava confirmed that, after 30 October 2013 he undertook further right of entry training with the ACTU and that, as a consequence of the s.508 proceedings 5, he undertook further training which he found helpful and informative. Mr Gava undertook further ACTU training on 19 January 2017.

[16] In terms of the suspension imposed on him in that 13 June 2014 s.508 decision, 6 which was itself suspended, Mr Gava confirmed that he had not breached the terms of that suspension.

[17] Mr Gava’s evidence went to his awareness of current Federal Court proceedings 7 which related to his behaviour in 2015 but he exercised his right to be silent on that matter.

[18] Mr Gava also confirmed that he had provided an entry notice to a building site on 1 December 2016 and attended that site on 2 December 2016. Mr Gava confirmed that, on 16 December 2016 he had signed a statutory declaration in which he advised that his entry permit expired on 28 November 2016 and that he had handed that permit to an administrative assistant with the CFMEU to be sent to the FWC. In that statutory declaration, Mr Gava confirmed that he had not attempted to use his permit after it had expired. In a subsequent statutory declaration, 8 signed on 12 January 2017, Mr Gava advised that he had in fact issued an entry notice on 1 December 2016 and exercised entry rights on 2 December 2016. He advised that he had left the site when he was advised that his entry permit had expired and that his actions in this respect reflected an oversight.

[19] Mr Gava had a general understanding that the CFMEU had incurred substantial penalties over the past three years and agreed that the CFMEU track record for breaching workplace relations laws was “not good”. 9

[20] Mr Gava acknowledged that, as a consequence of other actions, there were now only a limited number of CFMEU officials with entry permits in South Australia and that this inhibited the CFMEU from fully undertaking its functions on behalf of members. Notwithstanding his concerns about the significance of his entry permit for the proper performance of his duties, Mr Gava acknowledged that he was an elected official with on-going employment until the next election.

[21] Mr Gava provided a number of references 10 in support of his position that he was a fit and proper person to hold a right of entry permit.

The submissions

[22] The CFMEU position was that Mr Gava had completed the requisite training, that he had not been convicted of an offence against an industrial law or of an offence against a law of the Commonwealth, State or Territory involving entry onto premises, fraud or dishonesty or the intentional use of violence or damage. The CFMEU acknowledged that Mr Gava had been ordered to pay penalties in relation to events which occurred on 30 October 2013 but that the unique nature of his behaviour in this respect was recognised in the Penalty Decision and in the quantum of penalty imposed upon him. The CFMEU submitted that Mr Gava had provided evidence of his contrition relative to his behaviour which should be regarded as an aberration. The CFMEU referred to the s.508 decision and the extent to which Mr Gava had participated in further training and complied with the imposed restrictions on his permit. The CFMEU submitted that there had been no issue with Mr Gava’s involvement in health and safety issues throughout his career. To the extent that the CFMEU did not disclose, in the application, the existence of current Court proceedings involving Mr Gava, 11 it asserts this was due to an administrative oversight which should not be attributed to Mr Gava. In the same way, the CFMEU submits that the late return of Mr Gava’s entry permit reflected an administrative oversight. The CFMEU advised that the allegations against Mr Gava in the current Court matter12 are denied and that no weight should be attached to those allegations. In terms of the entry notice Mr Gava’s exercised after his permit had expired, the CFMEU submits that this was an oversight which should not mitigate against him being regarded as a fit and proper person to hold an entry permit. The CFMEU submits that Mr Gava’s family responsibilities, long history of involvement in the building industry and the references he provided, all support his being regarded as a fit and proper person to hold an entry permit.

[23] The ABCC contends that Mr Gava is not a fit and proper person to hold an entry permit and that the proper application of the relevant principles 13 mitigate against a permit being granted. The ABCC contends that the findings made against Mr Gava in the Liability Decision were to the extent that his conduct was deliberate and pre-meditated and was part of a concerted campaign in defiance of the requirements in the FW Act such that little weight should be given to any training undertaken by Mr Gava in determining whether he was a fit and proper person to hold an entry permit. The ABCC relies on three contraventions of the FW Act in the following terms:

“4. In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 (the Penalty Decision), White J imposed penalties totalling $494,150. Gaya was ordered to pay the following penalties:

(a) $1,400 for one contravention of s.500 of the FW Act for conduct engaged in at the Flinders University site on 30 October 2013;

(b) $1,400 for one contravention of s.348 of the FW Act for conduct engaged in at the Flinders University site on 30 October 2013; and

(c) $1,000 for one contravention of s.500 of the FW Act for conduct engaged in at the TAFE site on 30 October 2013. 14

[24] The ABCC acknowledges that Mr Gava admitted these contraventions, but it asserts that he did not admit all of the evidence relied upon in relation to these events and his witness statement represents the first time that he has provided evidence of contrition or remorse for his conduct. The ABCC referred to the allegations against Mr Gava in the matter currently before the Court 15 which it summarised on the following basis:

36. In addition, Gava is a respondent in Director of the Fair Work Building Industry Inspectorate v Michael McDermott & Ors (SAD 39 of 2016). Gava is alleged to have contravened s.348 of the FW Act on 9 December 2015 by threatening to take action against another person with intent to coerce the other person to engage in industrial activity, and to have contravened s.500 of the FW Act on the same date by acting in an improper manner while exercising rights in accordance with Part 3−4. Gava denied the contraventions and the matter proceeded to trial in the Federal Court on 10 October 2016 and is listed for closing submissions on 31 March 2017.” 16

[25] Further, the ABCC submitted that Mr Gava’s provision of an entry notice on 1 December 2016, three days after his permit expired, and he had given that permit to an administrative officer for return to the FWC, was a relevant consideration and that this issue was the subject of an on-going investigation into a possible contravention of s.503 of the FW Act.

[26] The ABCC relied on the penalties imposed on Mr Gava and the conditions imposed upon his entry rights as a consequence of the s.508 decision 17 in support of its submissions. Additionally, the ABCC contended that Mr Gava’s actions in 2013, in the context of 10 separate penalties awarded against the CFMEU and its officials for contraventions of industrial laws over the past three years, indicates that Mr Gava is susceptible to comply with directions from his employer to engage in unlawful conduct such that he should not be regarded as a fit and proper person to hold an entry permit. The ABCC contends that Mr Gava’s actions in providing an entry notice when his permit had expired, lend support to its position in this regard.

Findings

[27] Because of my later references to s.508, it is convenient to set out that section of the FW Act.

“508 FWC may restrict rights if organisation or official has misused rights

(1) The FWC may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if the FWC is satisfied that the organisation, or an official of the organisation, has misused those rights.

Note: Only a Vice President, Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).

(2) The action that the FWC may take under subsection (1) includes the following:

(a) imposing conditions on entry permits;

(b) suspending entry permits;

(c) revoking entry permits;

(d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions;

(e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;

(f) making any order it considers appropriate.

(3) The FWC may take action under subsection (1):

(a) on its own initiative; or

(b) on application by an inspector.

(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:

(a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or

(b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:

(i) because the exercise of the right is excessive in the circumstances; or

(ii) for some other reason.”

[28] This application is to be determined with regard to s.513, which 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.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, 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.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.”

[29] I have set out below my conclusions about these permit qualification matters. Those conclusions are reached on the evidence before me at the present time.

[30] I am satisfied that Mr Gava has received appropriate training about the rights and responsibilities of a permit holder. In this respect, I am satisfied that he has undergone training to that effect on numerous occasions, including before the events of October 2013.

[31] In terms of s.513(1)(b) I have accepted the position set out by Hatcher VP in Construction, Forestry, Mining and Energy Union of Workers, 18 (referred to as Pallot’s case) in the following terms:

“[6] In relation to paragraph (b), the declarations accompanying the two applications both make the disclosure that Mr Pallot “has been convicted of an offence against an industrial law, namely: * Brookfield Multiplex FSH Contractor Pty Limited v McDonald [2014] FCA 359 - contravention of s.348 and s.417 of the Fair Work Act 2009”. However, I consider this disclosure to be incorrect. Contravention of s.348 or s.417 of the FW Act does not constitute an offence; both sections are civil remedy provisions. Having perused the Federal Court (North J) decision in Brookfield Multiplex FSH Contractor Pty Limited v McDonald (Brookfield Multiplex Decision), it is clear that the Court did not purport to convict Mr Pallot of any offence, but only imposed a civil penalty upon him of $3,500. Mr Pallot’s evidence was that he had “no transgressions against an industrial law or other laws save for one stain” (that is, the Brookfield Multiplex Decision). There is nothing before me to suggest that Mr Pallot has ever been convicted of an offence against an industrial law, and I am satisfied that he has not been.”

[32] Adopting this approach, I am satisfied that Mr Gava has not been convicted of an offence against an industrial law.

[33] I have accepted that Mr Gava has not been convicted of an offence against a law involving entry onto premises, fraud or dishonesty or the intentional use of violence or intentional damage or destruction.

[34] In the Liability and Penalty Decisions, Mr Gava was ordered to pay a penalty under the FW Act. I have taken into account the circumstances of that matter. This matter arose as a consequence of the behaviour of Mr Gava and a number of other CFMEU officials who entered a Lend Lease Flinders University construction site on 30 October 2013 for the purposes set out in s.484 without having provided an entry notice in accordance with s.487 and who refused to leave when requested, and who held discussions with workers on that site. 19 The Court found that Mr Gava threatened to organise, or to take, action against Lend Lease with the intention of coercing it to comply with the request that it fly the CFMEU flag on a crane hook, or to advance the interests of the CFMEU by flying its flag.20 Additionally, the Court found that Mr Gava and the CFMEU contravened s.500 on an adjacent Lend Lease construction site at Tonsley Park on 30 October 2013. In the Penalty Decision the Court declared that:

“1. The Second Respondent, Mark Gava, contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 34 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Flinders University project at Tonsley Park (the Flinders University Site), and by then remaining on the site for about one hour and 40 minutes after he was asked to leave by a representative of Lend Lease Building Contractors Pty Ltd (Lend Lease), the head contractor and occupier of the premises, and by holding discussions with workers during that time.

2 .By reason of s 793 of the FW Act, the First Respondent, the Construction, Forestry, Mining and Energy Union (the CFMEU), contravened s 500 of the FW Act by the conduct of Mr Gava constituting the contravention subject of the first declaration herein.

…

7. Mark Gava contravened s 348 of the FW Act on 30 October 2013 at the Flinders University Site by threatening to organise, or take, action against Lend Lease, by his conduct in threatening to cause work on the site to be stopped, with the intention of coercing Lend Lease to engage in industrial activity pursuant to s 347(b)(v) of the FW Act, namely, to fly the flag of the CFMEU on the crane hook at the site.

8. By reason of s 793 of the FW Act, the CFMEU contravened s 348 of the FW Act by the conduct of Mr Gava constituting the contravention the subject of the seventh declaration herein.

…

15. The Second Respondent, Mark Gava, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 34 of the FW Act, by twice failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the TAFE project at Tonsley Park Site (the TAFE Site), and by remaining on the TAFE Site after he was asked to comply with the s 487 requirements by a representative of Lend Lease, the head contractor and occupier of the TAFE Site, and by holding discussions with workers on the site.

16. By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Gava constituting the contravention the subject of the 15th declaration herein.” 21

[35] The penalties imposed on Mr Gava were not at the maximum end of the scale available to the Court. In the Penalty Decision (which I emphasise is subject to appeal), White J. addressed the principles applicable to the determination of penalties and substantially accepted the proposition that Mr Gava’s actions occurred in the course of a concerted and deliberate campaign by the CFMEU. In terms of Mr Gava, White J noted that no expression of regret, apology or contrition had been established. 22 His Honour recorded the broad circumstances of Mr Gava’s behaviour, before stating:

“109. Mr Gava’s defiance of the law and of his obligations as a permit holder is evident in his statement made to Mr Crabb in the passage set out earlier, in his statement in the telephone call made to Mr Gooding at about 8.30 am to the effect that he and his “interstate friends” would be entering the site “whether you like it or not”, and in his response to Mr Gooding when told that the group could not go onto the site, “We’ll be doing whatever we want to do. We will be walking out on site”. Later, Mr Gava told Mr Gooding that, “We are not going to be filling out right of entry notices ... that’s come from the Secretary”.” 23

[36] His Honour continued, to state:

“111. Mr Gava commenced as an organiser with the CFMEU in 2001. He has held an entry permit since that time.

112. It is to Mr Gava’s credit that prior, to 30 October 2013, he had not been found to have contravened s 500, nor any other provision in industrial legislation.

113. It is also to Mr Gava’s credit that he admitted each of his contraventions at the Flinders University and TAFE sites. However, the credit which can be given to him in respect of his admissions of the contraventions at the Flinders University site is limited because they were made only on the morning of the day on which the trial of the Director’s allegations was to commence. Greater credit can be given in respect of Mr Gava’s admission of the contravention of s 500 at the TAFE site because that admission was made in the defence filed on 14 April 2015, some six months before the trial.” 24

[37] Having dismissed the contention that Mr Gava’s actions should be regarded as part of a single course of conduct, his Honour concluded:

“120. Penalties of $1,400 are appropriate in respect of each of Mr Gava’s contraventions of ss 348 and 500 at Flinders University site on 30 October 2013 and a penalty of $1,000 is appropriate in respect of his contravention of s 500 at the TAFE site. This penalty would have been higher but for the willingness to facilitate the course of justice reflected in Mr Gava’s early admission of that contravention.” 25

[38] I note that penalties relating to Mr Gava’s conduct were also imposed on the CFMEU.

[39] Mr Gava’s entry permit was made subject to conditions as a consequence of the s.508 action taken by the FWC which culminated in the decision of 13 June 2014. 26 I note that this decision followed a number of other decisions and appeal proceedings in relation to the ultimate findings of misuse of entry rights. In that final decision27, I excluded Mr Gava from my general suspension of entry rights for all CFMEU officials with respect to Lend Lease sites in South Australia because I was satisfied that he was one of a number of officials who had participated in a right of entry training programme which included specific reference to the misuses which had been confirmed. Notwithstanding this, Mr Gava was one of four CFMEU officials whose entry rights with respect to Lend Lease sites in South Australia were suspended for a period of six months, with that suspension itself to be suspended, such that it would apply only in the event that further misuses involving any of those officials, relative to Lend Lease in South Australia were established to the Commission within the following 12 months. Additionally, a number of other restrictions were applied. These included a specific obligation for a CFMEU permit holder to give Lend Lease an entry notice for any proposed entry with a minimum of 24 hours’ notice and not more than 14 days’ notice. The entry notice was required to advise of the contravention or basis upon which the entry was sought and was required to be in the form set out in the Regulations. Additionally, the CFMEU permit holder seeking to exercise an entry right was required to provide a copy of this entry notice to the Director of Fair Work Building and Construction at the same time as it was provided to Lend Lease. Finally, any CFMEU official seeking to enter a Lend Lease site in South Australia was required to comply with all generally applicable right of entry requirements and the Work Health and Safety Act 2012 and to:

● have, and wear all personal protective equipment required for that site,
● present at the site offices and wait for an escort to arrive,
● identify themselves, including their full names,
● sign their names in the visitors book,
● carry with them on the site, and provide, if requested to do so by Lend Lease

○ their right of entry permit,
○ their notice of entry,
○ a valid drivers license or passport for identification purposes.

● CFMEU officials were required to be escorted by a Lend Lease escort at all times and to comply with instructions from that escort,
● any discussions with employees at Lend Lease South Australian sites were to be held during designated breaks, or outside of work times, and
● CFMEU officials were required to sign the designated visitors book when leaving a Lend Lease site.

[40] At this point it is appropriate that I note that the s.510 application, commenced of the FWC’s own motion as a consequence of the Penalty Decision, has been adjourned at the request of Mr Gava and the CFMEU pending the outcome of the CFMEU appeal against that Penalty Decision. Section 510 is couched in terms which require the FWC to revoke or suspend an entry permit when a permit holder has been ordered to pay a pecuniary penalty in relation to a contravention under this Part of the FW Act, unless the FWC concludes that suspension or revocation of the entry permit would be harsh or unreasonable in the circumstances. Because that s.510 matter has not yet proceeded, I have not taken this into account in the current application.

[41] There is no suggestion that any other suspension or cancellation or other form of disqualification has applied to Mr Gava.

[42] In terms of s.513(1)(g) I consider that a number of other matters are relevant. Firstly, in this respect, I have had regard to the written references provided by Mr Gava. Whilst I must observe that it is rare for adverse references to be relied upon in circumstances such as this, it is clear that these referees have a substantial regard for Mr Gava.

[43] The CFMEU contends that I should have regard to the extent to which Mr Gava was chastised by his wife for the October 2013 incidents and his evidence to the effect that his family commitments and responsibilities mean that he will not repeat behaviour of that nature.

[44] The CFMEU contends that I should have regard to the undertaking given by Mr Gava that he would refuse to follow any CFMEU instructions which would require him to act in an unlawful manner and that he has admitted that his October 2013 behaviour was wrong and undertaken not to repeat that behaviour. Mr Gava has also acknowledged the significant fines against the CFMEU have damaged the South Australian Branch and inhibited its capacity to properly service its members.

[45] I consider Mr Gava’s concerns about his inability to properly service its members without an entry permit, to be a relevant matter. Whilst I have noted that, as an elected official, the absence of a permit does not immediately impact on his employment tenure, it may do so in the future. Notwithstanding this, the effect of the absence of an entry permit on Mr Gava cannot, of itself, form the basis for a conclusion that he is a fit and proper person to hold such a permit. Accordingly, I have considered this issue from the perspective that Mr Gava’s concerns about the potential impact of the absence of a permit are an indication of his intention to comply with the requirements of the FW Act.

[46] I consider that Mr Gava’s inability to recall his specific behaviour on 30 October 2013 is relevant, particularly given his undertaking not to repeat that behaviour. Simply put, Mr Gava does not recall exactly what he did but has undertaken not to do it again.

[47] I have noted that Mr Gava has apologised for his conduct on 30 October 2013 in his witness statement and has confirmed that he has also apologised to certain of his members and to at least one Lend Lease manager. The times at which these apologies were made is not clear to me but it does seem clear from the Penalty Decision that any expression of remorse was not made clear to the Court before that penalty determination, and remorse was not a feature in the course of the significant number of proceedings that culminated in the final s.508 decision. 28

[48] I have had regard to the current Court proceedings involving Mr Gava 29 to the extent only that the nature of these proceedings casts an element of doubt about Mr Gava’s categoric advice to me that, since October 2013 he has not engaged in any behaviour which could represent a breach of his right of entry obligations. No definitive conclusions can be drawn from this matter at the present time.

[49] I have had regard to Mr Gava’s admission that he issued a right of entry notice on 1 December 2016 and exercised an entry pursuant to that notice on the following day, when he acknowledges that he had handed his expired entry permit to a CFMEU administrative officer on 28 November 2016. Mr Gava advised that this reflected an oversight, which may in fact be the case, but it raises a significant concern about the reliability of Mr Gava’s memory and the credibility of his advice to me that, apart from the 30 October 2013 incidents, he has always complied with his legislative obligations and will continue to do so. These concerns are heightened by the extent to which Mr Gava then signed a statutory declaration on 16 December 2016 in which he confirmed he had not attempted to use his permit after it had expired, and, nearly one month later had to make a further statutory declaration recording that this was not correct.

[50] Finally, I accept the advice provided by the ABCC in relation to the substantial penalties which have been awarded against the CFMEU and its officials for contraventions of industrial laws in South Australia. Mr Gava’s evidence also recognised the significance of these penalties and the impact they had on the CFMEU’s capacity to properly represent its members. Those penalties amount to more than $1.5 million. The penalty decisions are indicative of a culture of wilful disregard for workplace relations laws within the CFMEU. I note that a number of those penalty decisions involve actions taken by the State Secretary of the CFMEU and I have concluded from those decisions that this culture of wilful disregard extends to that senior position. In the Penalty Decision, White J. stated:

“33. I have previously described the CFMEU record of contraventions of industrial legislation as dismal: DFWBII v Stephenson [2014] FCA 1432 at [76]. That description is just as apt now as it was then.

34. A table provided by the Director shows that, before November 2013, courts had dealt the CFMEU and/or its officials on six separate occasions for contraventions of s 500 of the FW Act or the counterpart provision in previous legislation. The six cases involved contraventions occurring on seven separate occasions. Individual officials had contravened s 500 on seven separate occasions and the CFMEU on six occasions. In addition, before November 2013, CFMEU officials had committed 20 individual contraventions of s 500 and the CFMEU itself 14 contraventions (being contraventions of s 500 or of its counterpart provision in previous legislation) which had not been dealt with by a court by that date. That by itself is a significant record.

35. The CFMEU’s compliance with industrial legislation generally has been poor. The Director’s summary shows that in the period from December 2000 to October 2013, the CFMEU and its officials were dealt with by courts on 80 separate occasions for contraventions of industrial legislation. On any reasonable measure that is an appalling record. It bespeaks an attitude by the CFMEU of ignoring, if not defying, the law and a willingness to contravene it as and when it chooses. This means that specific deterrence in particular must be a prominent consideration in the penalties imposed on the CFMEU in the present case.

36. The Director’s summary also showed that since November 2013, courts have dealt with the CFMEU and/or its officials on 16 separate occasions for contraventions of s 500 of the FW Act or its predecessor. Those 16 cases have involved contraventions occurring on 23 separate occasions. This record of repeated contraventions makes it obvious that the penalties to be imposed on the CFMEU cannot be mitigated because of any change of attitude on its part to compliance with the law.” 30

[51] His Honour made the following findings with respect to the October 2013 incidents:

“71. … Whatever its purpose, I am satisfied that the CFMEU and its officials were engaged in a concerted campaign at Lend Lease sites in Adelaide in deliberate defiance of the requirements in the FW Act regarding the exercise of rights of entry. I agree that the conduct of the respondents on 30 and 31 October 2013 should be assessed in that light. It means that the contraventions are to be regarded as deliberate and premeditated. This is a significant matter of aggravation.” 31

[52] There is nothing before me that establishes that this culture of wilful disregard for workplace relations laws within the CFMEU has changed. I have considered the evidence of Mr Gava, to the effect that, following the additional training he received after the October 2013 incidents, he is committed to refusing any requests or suggestions that he should participate in any further unlawful behaviour in the context of the history of poor behaviour on the part of the CFMEU.

[53] I have discounted two factors from consideration of whether Mr Gava is a fit and proper person to hold an entry permit. Firstly, I have accepted that the delay in the receipt, by the FWC of Mr Gava’s entry permit, reflected an administrative error which should not be taken into account in considering Mr Gava’s circumstances. Secondly, I have accepted the evidence of Ms Candy and Mr Gava to the effect that the failure to reference the current Court proceedings 32 in the application and attendant material reflected an oversight.

[54] The matters in s.513(1) need to be balanced and considered as a whole and do not uniformly suggest one particular outcome. In conducting that assessment I have had regard to the principles relevant to the interpretation of ss.512 and 513(1) of the FW Act that were set out by Hatcher VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 33 in the following terms:

“[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.”

(references removed)

[55] I have also had regard to the majority decision in Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate 34 in the following terms:

“[84] We agree with the observation of Hatcher VP in Mooney and the Full Bench in CFMEU v Director of the Fair Work Building Inspectorate that there is no statutory indication that any particular permit qualification matter should be given more weight than any other. We also agree that it will be for the first instance decision maker to determine the appropriate weight to be given to matters it considers relevant pursuant to s.513(1)(g) of the Act.

[85] We also consider that Director of Fair Work Building Inspectorate v CFMEU (Kong) establishes:

• The susceptibility of an official to comply with a direction from his or her employing organisation to engage in unlawful conduct can be considered to be a relevant matter under s.513(1)(g); and



• past contraventions of industrial or other relevant laws by an organisation can also be relevant to the consideration of an official’s fitness or propriety to hold an entry permit, and such contraventions do not necessarily have to involve any direct contravening conduct on the part of that official.

[86] We agree that it is highly relevant to consider an applicant’s attitude and track record relating to compliance with the relevant legal obligations, however, we consider it erroneous to elevate a context of past contraventions of industrial or other relevant laws by an organisation so that it automatically operates to impose a ‘higher bar than normal’ for an individual to clear in order to satisfy the Commission that he or she is a fit and proper person to hold an entry permit, regardless of his or her past behaviour.

[87] We believe that there was error in the decision-making process of the Vice President because he framed the task of considering whether Mr Tadic was a fit and proper person to hold an entry permit with the opening statement “In my view this context establishes a higher bar than normal for considering whether Mr Tadic is a fit and proper person to hold the right of entry permit in question.” On our reading of s.513(1) of the Act and our consideration of the authorities referred to above, we do not consider this approach was open to him and we have concluded he acted on a wrong principle in doing so. On the basis of this error in the decision making process, we have decided to uphold the appeal and quash the Vice President’s decision to reject the grant of an entry permit to Mr Tadic.”

(references removed)

[56] Those approaches seem to me to be predicated on the requirement that the Commission must reach a positive satisfaction that a person is a fit and proper person to hold an entry permit.

[57] That discretionary conclusion must be a positive finding such that serious doubt or serious uncertainty would mitigate against such a finding.

[58] My decision in this matter is not predicated on the application of a higher bar than normal for considering whether Mr Gava is a fit and proper person to hold an entry permit, but it commences from the premise that he is an official of the CFMEU, with its history of disregard for legislative obligations.

[59] I have concluded that the October 2013 incident was a serious and significant incident. That Mr Gava had imposed upon him fines which were substantially less than those which could have been applied, reflected his good record up to that time and his admissions. Nevertheless, Mr Gava was an active and key official who was involved in a blatant and deliberate strategy to coerce an employer into agreeing to various claims. I am not satisfied that Mr Gava’s contrition for his actions was at all obvious for some time and have concluded that his publicly explicit expression of contrition was only made as part of this application.

[60] I am not satisfied that the CFMEU has established to me that it’s method of operation and management is such that the normal type of constraints, limitations and obligations placed on officials who are permit holders applies. Indeed, whilst I have not assumed it to be necessarily the case, there is a likelihood that Mr Gava will be expected to be an active participant in one or more of the campaigns it is currently pursuing.

[61] I have commenced from the premise that I am satisfied that the significant training which Mr Gava has undertaken, together with his experience, means that he is aware of the obligations on a permit holder under the FW Act.

[62] In this context Mr Gava’s undertaking to ensure that he rejects any notion that he would behave in a manner contrary to the requirements of the FW Act and will not repeat his October 2013 behaviours, becomes particularly significant. I do not accept that this undertaking is sufficiently clear on the evidence currently before me. In this respect I have considered the present time as the relevant time and have simply looked at the information that is currently before me. That approach appears to be consistent with the position adopted by Hatcher VP in Construction, Forestry, Mining and Energy Union-Construction and General Division, SA Divisional Branch. 35

[63] Mr Gava has advised that he cannot recall his specific behaviours on 30 October 2013. 36 In that context, his undertaking to not repeat those behaviours is unclear. To the extent that this undertaking is based on the findings in the Liability Decision, Mr Gava has disagreed with various of the behaviours and words attributed to him in that Liability Decision.37 Consequently, I have concluded that Mr Gava is, either, equivocal about his commitment, or that his memory about his behaviour is such that he is genuinely unsure of what he did. These factors create serious doubt about the level of confidence that I can have about Mr Gava’s commitment to act in a manner consistent with the provisions of Part 3-4 of the FW Act.

[64] This doubt is exacerbated by Mr Gava’s behaviour three days after he handed his expired entry permit to an administrative officer for return to the FWC. Mr Gava’s actions in providing an entry notice and relying on that notice to effect his entry to a site cast substantial doubt over his credibility, or at best, his memory. That doubt is compounded by the erroneous statutory declaration which he initially made out. I am not satisfied that Mr Gava has adequately explained his position in this respect. In this regard, Mr Gava’s position is quite different to that considered by Hatcher VP in Construction, Forestry, Mining and Energy Union Construction and General Division, Victorian and Tasmanian Divisional Branch. 38

[65] Finally and to a far lesser extent, the current Court proceedings 39 are relevant in that, had such a proceeding not been commenced at all, or had it reached a conclusion which completely exonerated Mr Gava, either outcome may have reinforced the credibility of the undertakings he has provided to me.

[66] I have weighed these concerns against the indicators that favour a finding that Mr Gava is a fit and proper person to hold an entry permit. The most significant matters in this context go to his traditional good record prior to 2013, the references he has provided and his stated desire to properly represent and service the CFMEU members as an official of the CFMEU with an entry permit.

[67] In summary form, the magnitude of the October 2013 behaviours, the uncertainties about Mr Gava’s recollections of behaviours he has now undertaken not to repeat, his reliance on his entry permit three days after he handed it in, his erroneous statutory declaration and the uncertainty associated with the extent Court proceedings, do not support a finding that he should be regarded as a fit and proper person to hold an entry permit. Further, I am not satisfied that Mr Gava expressed contrition for his 2013 actions in a manner which reflected a clear understanding of the import of those actions as distinct from a position convenient to this application. I have taken into account the extent to which the CFMEU currently only has three permit holders in South Australia and Mr Gava’s evidence that this impacts on service delivery. In the same context I have also had regard to Mr Gava’s concerns that, without a permit his representational capacity is reduced. Whilst I have noted the position adopted by Hatcher VP in Construction, Forestry, Mining and Energy Union 40, I do not regard this consideration as a factor which overrides my concerns. A shortage of persons with entry permits does not make Mr Gava a fit and proper person.I have concluded that Mr Gava’s expression of contrition is different to that considered by Hatcher VP in CFMEU41 and must be considered in the context of his limited memory of the October 2013 behaviours. In terms of the discretion which I am required to exercise, I am not satisfied that the factors which favour a finding that Mr Gava is a fit and proper person, address the more fundamental concerns about the credibility of his undertakings and the consistency of that undertaking with his actions in December 2016.

[68] In reaching this conclusion, I have had regard to the circumstances of other persons for whom a right of entry permit has been sought. I am satisfied that, certainly in the matters which have been referred to me, and where an entry permit has been granted, the factors providing certainty about the proposed permit holder’s commitments have been substantially clearer. In terms of applications considered by other Members of the FWC, it is appropriate only that I observe that each Member is required to exercise the discretion inherent in s.513 of the FW Act, on the basis of the information before them.

[69] At the present time, and on balance, I am not satisfied that Mr Gava is a fit and proper person to hold an entry permit and, accordingly the CFMEU application is refused. Given that conclusion it is neither necessary nor appropriate that I consider the imposition of conditions on an entry permit pursuant to s.515 of the FW Act. The imposition of conditions would not, in my view, address the inherent inconsistencies in the advice which Mr Gava has provided to me.

[70] The CFMEU has the capacity seek to pursue a further application for Mr Gava to be granted an entry permit relying on additional evidence or Court findings, a demonstrably clearer understanding of the obligations on him or on improvements in his memory.

[71] This decision means that it is unnecessary for the FWC to undertake further consideration of the s.510 application with respect to Mr Gava. In due course advice of the conclusion of that matter will be provided.

Appearances:

P Boncardo for the CFMEU on behalf of Mr Gava.

S Pemberton for the Australian Building and Construction Commissioner.

Hearing details:

2017.

Adelaide:

February 24.

 1   [2014] FWC 3907

 2 [2015] FCA 1293

 3 [2016] FCA 413

 4   Director Fair Work Building Industry Inspectorate v McDermott & Others SAD 39/2016

 5   [2014] FWC 3907

 6   [2014] FWC 3907

 7   Director Fair Work Building Industry Inspectorate v McDermott & Others SAD 39/2016

 8   Exhibit CFMEU9

 9   Transcript audio recording, 24 February 2017, 10.46

 10   Exhibit CFMEU8

 11   Director Fair Work Building Industry Inspectorate v McDermott & Others SAD 39/2016

 12   Director Fair Work Building Industry Inspectorate v McDermott & Others SAD 39/2016

 13   see Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522, para [32]

 14   Exhibit ABCC1, para 4

 15   Director Fair Work Building Industry Inspectorate v McDermott & Others SAD 39/2016

 16   Exhibit ABCC1, para 36

 17   [2014] FWC 3907

 18   [2015] FWC 2138

 19 [2015] FCA 1293 (The Liability Decision) para [67]

 20 [2015] FCA 1293 (The Liability Decision) paras [92] and [106]

 21 [2016] FCA 413, paras 1, 2, 7, 8, 15, 16

 22 [2016] FCA 413, para [99]

 23 [2016] FCA 413, para 109

 24 [2016] FCA 413, paras [111] – [113]

 25 [2016] FCA 413, para [120]

 26   [2014] FWC 3907

 27   para 61

 28   [2014] FWC 3709

 29   Director Fair Work Building Industry Inspectorate v McDermott & Others SAD 39/2016

 30 [2016] FCA 413, paras 33 - 36

 31 [2016] FCA 413, para 71 (in part)

 32   Director Fair Work Building Industry Inspectorate v McDermott & Others SAD 39/2016

 33   [2015] FWC 1522, para [32]

 34   [2016] FWCFB 6058, paras [84] – [87]

 35   [2016] FWC 161

 36   Transcript audio recording, 24 February 2017, 10.28-10.34

 37   Transcript audio recording, 24 February 2017, 10.34-10.37

 38   [2017] FWC 666, para [23]

 39   Director Fair Work Building Industry Inspectorate v McDermott & Others SAD 39/2016

 40   [2015] FWC 2138, para [17]

 41   [2016] FWC 161, para [23]

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