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

[2018] FWC 1325

[2018] FWC 1325

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, Victoria-Tasmania Divisional Branch
(RE2017/1280)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 MARCH 2018

Application for issue of right of entry permit to Mr Toby Thornton; satisfied that fit and proper person; permit issued.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Toby Thornton. Mr Thornton is employed in the Victorian/Tasmanian Divisional Branch of the CFMEU as an organiser.

[2] The Australian Building and Construction Commissioner (Commissioner) advised of its intention to make submissions in respect of the application. The application was listed for hearing on 12 February 2018.

Relevant statutory provisions and application

[3] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as it is relevant for present purposes these provide as follows:

“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.

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.

514 When the FWC must not issue permit

The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official’s exercise of; or

(b) prevents the official from exercising or applying for; a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.

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).

(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.

(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).”

[4] The operation of these provisions and their application is now well settled. In previous decisions I summarised the relevant principles and without repetition I adopt what is therein said. 1

[5] I turn to consider the application.

Consideration

[6] Mr Thornton has been an organiser employed by the CFMEU since 7 November 2011. 2 His duties include providing representation for construction workers and inspecting the occupational health and safety of construction sites throughout the Latrobe Valley in Victoria.3 Mr Thornton is the only CFMEU organiser allocated to the Latrobe Valley area.4 Mr Thornton is responsible for all construction site and power generation stations in the Latrobe Valley, as well as sites located in the Gippsland region that lies east of Melbourne, from Pakenham to the Victorian/New South Wales border.5 His role also involves assisting employers and employees resolve workplace disputes, including disputes about safety.6 Mr Thornton has been a participant in the building, construction and maintenance industry for approximately 30 years.7 Prior to being employed by the CFMEU, Mr Thornton worked as a rigger/scaffolder for approximately 20 years.8

[7] Mr Thornton obtained his first federal right of entry permit on or about 15 December 2011. 9 His current permit was issued on 18 December 2014.10 Since 2011, Mr Thornton has held both a Federal right of entry permit under the Act and a State right of entry permit under the Occupational Health and Safety Act 2004 (OH&S Act).

Section 1.01 Permit qualification matters – s.513(1)(a), (b), (c), (e) and (f)

[8] According to the declarations filed by the CFMEU in support of the application for the grant of a permit to Mr Thornton (the Declarations):

•  Mr Thornton has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of federal right of entry conducted online by the ACTU on 4 October 2017 11 (s.513(1)(a) of the Act);

•  He has never been convicted of an offence against an industrial law 12 (s.513(1)(b) of the Act);

•  He has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act 13;

•  He has not had any entry permit issued under Part 3 – 4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit 14 (s.513(1)(e) of the Act);

•  He has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Thornton held under a State or Territory industrial law or a State or Territory occupational health and safety law 15 (s.513(1)(f)(i) of the Act); and

•  He has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law 16 (s.513(1)(f)(ii) of the Act).

[9] None of the above was disputed by the Commissioner and I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. These matters all weigh in favour of a conclusion that Mr Thornton is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(d) and (g)

[10] The Declarations disclose that Mr Thornton was ordered by the Federal Court of Australia in Australian Building and Construction Commissioner v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union (Australian Paper Case) 17 to pay a pecuniary penalty in the amount of $350018 in respect to a contravention of ss.417, 421 and 346 of the Act.19 The CFMEU was ordered to pay a pecuniary penalty in the amount of $45,000 in relation to Mr Thornton’s contravening conduct.20 The CFMEU paid Mr Thornton’s penalty.21

[11] At the relevant time Australian Paper (AP) was installing a de-inking facility at its Maryvale Mill (Site), and had engaged two companies BMC and John Beever (Aust) Pty Ltd (JMA), to complete various works on the project.  22 An electrician, Mr Steven Birrell, had been injured at work on 22 March 2014 suffering a cut to his left hand/wrist.23 Mr Birrell was taken to the first aid facility on Site and then to the Latrobe Regional Hospital. As a result of the incident, the health and safety representatives (HSR’s) at the Site developed significant concerns about the adequacy of the Site’s first-aid facilities. These concerns manifested in a view that there was a threat to employee health and safety, which caused the HSR’s to issue a cease work direction. The unlawful action stopped work at the Site for three days (27, 28 and 31 March 2014).24

[12] Mr Thornton and officials from the AMWU and AWU attended the Site on 27 March 2014 and participated in a meeting with employees outside the Site (in the carpark). At the time of the meeting, Mr Thornton was aware that a worker had been injured on Site. The meeting was scheduled because employees wanted to know what was happening around the safety issues. 25 Mr Thornton’s evidence is that the meeting with the employees was emotional and it was evident that employees were concerned about the injury sustained by Mr Birrell and employees raised concerns about the inadequacy of first-aid facilities on Site including the lack of a level 3 qualified first-aider.26 During the meeting, the employees indicated their willingness to go home, and following the meeting the employees sat in the shed and failed to return to work. Mr Thornton’s evidence is that he counselled employees to try and resolve the issue amicably. His evidence is that he was not responsible for the employees failing to return to work after the meeting.27 Mr Cuddy, a HSR, directed the employees in his designated work group to sit in the sheds.28

[13] Mr Thornton and the other officials, together with the HSR’s and other employee representatives met with AP’s management on 27 March and 28 March 2014. Mr Thornton said that, after the meeting on 27 March 2014, he had contacted Mr Peter Clark, the CFMEU’s Occupational Health and Safety (OH&S) specialist for some assistance. Mr Thornton’s evidence is as follows:

“I believe it was in the afternoon or the evening of that same day, Thursday, you rang Peter Clark for advice?---Correct.

Can you explain what Peter Clark's position was at the time?---Peter Clark works out of our Melbourne office.  I asked for assistance.  I explained the HSR's raised safety concerns and that I requested him attend site for assistance, which he did, and the concerns were a level 3 first aid - or it was mainly to do the with the safe systems of work and with the construction safety plan which identified the safety concerns.

Mr Clark has, to your knowledge, considerable experience in OHS issues?---Yes.

That was why you called him to seek his advice?---Yes, yes.

You would generally rely on the advice that he gives you as someone with that OHS experience?---If it's a safety-related matter, yes, I do, and he specialises in asbestos, so I do.

Turning to the orders that were made by the Fair Work Commission on the next day, the Friday, 28 March 2014, as I understand your evidence in Australian Paper, it was that Roger Wilkinson from Australian Paper told you about those orders and you were with Peter Clark at that point?  Could you just say - - -?---Mr Clark explained to Mr Wilkinson that - is that what you're asking me?

Sorry, no, I was just saying you should say "Yes" or "No" given the transcript?---Yes, yes.

Roger Wilkinson told you and Peter Clark about the orders that had come down from the Commission?---Correct, yes.

Mr Clark said to Mr Wilkinson that the orders did not apply because it was a safety issue not an industrial issue.  Do you recall that?---Correct.

Were you of the same view at that point?---Yes, I was.

Was that because you relied on Mr Clark's expertise?---Correct, yes.

It is correct that the court found that because there was no safety issue that justified the stopping of work, the Commission's orders were contravened?---Yes.” 29

[14] On 28 March 2014, the Commission made three interim orders under s.420(2) of the Act. One was referrable to BMC and its employees at the Site, one was referrable to JBA and its employees at the site, while the third was referrable to AP and to the employees of BMC and of JBA at the site. It is established that the orders bound and applied to each of the unions, their officials, delegates, employees and agents, and the employees of BMC and of JBA at the site; that the orders required the unions, and their officials, delegates, employees and agents, to stop organising, and to refrain from further organising and/or from recommencing the organisation of, any ban, limitation or restriction on the performance of work by any of the relevant employees and of any failure or refusal by any of those employees who attended for work to perform any work at all; and that the orders required the employees immediately to stop, and to not further engage in or to recommence, any ban, limitation or restriction on the performance of their work, and any failure or refusal to perform any work at all where they had attended for work. 30

[15] Despite the orders made by the Commission, the employees did not return to work.

[16] The issue at the Site was resolved on 31 March 2014and it was agreed inter alia, that the occupier of the Site would train the person at the gate to be a level 3 qualified first-aider, and that until such training was completed, a level 3 qualified first-aider would be put in place. 31 The employees returned to work at 1.30pm that day.32

[17] Jessup J in the Australian Paper Case held that he was not satisfied that Mr Thornton organised the industrial action taken on the afternoon of 27 March 2014 or that Mr Thornton organised the continuing industrial action on 28 and 31 March 2014, or on either of those days. 33 Jessup J found that Mr Thornton and the other organisers were knowingly concerned in the industrial action taken by the employees on each 27, 28 and 31 March 2014.

[18] The CFMEU says that the above issue does not, in the circumstances, militate to any significant extent against Mr Thornton being found to be a fit and proper person to hold an entry permit for the following reasons: 34

•  the contraventions did not concern the exercise of rights under Part 3-4 of the Act; 35

•  objectively assessed, the contraventions of Mr Thornton do not evince an attitude of defiance or disregard of the law; 36

•  Mr Thornton has learned from the Federal Court proceedings. He attests to now having a better understanding of the powers of HST’s what constitutes prohibited industrial action so far as safety is concerned; 37 and

•  Mr Thornton has been an official for six years and the above outlined proceedings is the only blemish on his record. 38

[19] I do not accept this submission as put. It seems to me relevant that Mr Thornton was found to have been knowingly concerned in contravening conduct and that a penalty was imposed both on him and on the CFMEU. The circumstances of the contravening conduct, its seriousness and the other matters identified by the CFMEU above are matters going to the weight that should attach to the matter in these circumstances.

[20] The CFMEU submits that Mr Thornton’s training and knowledge of his rights and responsibilities as a permit holder were not challenged. 39 It says that Mr Thornton has undertaken ACTU training on three occasions and has a good understanding of Part 3-4 rights.40 Further, the CFMEU relies on written character testaments from Mr Philip Darcy and Mr Rod Felmingham.41 Mr Darcy, was the OH&S/Employee representative at the Latrobe Regional Hospital where he worked closely with Mr Thornton. His evidence is that Mr Thornton demonstrated honesty, integrity, trustworthiness and excellent work ethic.42 Mr Felmingham has known Mr Thornton for over 20 years, through work and social activities. His evidence is that Mr Thornton is committed to working with all stakeholders in the power industry. His evidence is that that can only be achieved through hard work, honesty and integrity.43 I accept this evidence as relevant and will afford it appropriate weight.

[21] The CFMEU says that the other permit qualification matters bear positively on Mr Thornton being a fit and proper person. 44 As should be apparent from my earlier comments, I agree.

[22] The CFMEU points to the penalty decision, 45 in which Jessup J sets out, in particular at [22] and [24], that Mr Thornton did not have the requisite understanding and knowledge that he ought to have had that at the time. The CFMEU says that Mr Thornton does now and, given his present state of knowledge and his present understanding of the law, the Commission can be well satisfied, that if circumstances such as those which arose in the Australian Paper Case arose again, that Mr Thornton will counsel the HSRs to follow consultation appropriately, he will seek advice from the legal department of the CFMEU, as well as the OH&S department of the CFMEU, and that he will act in accordance with the law.46 Mr Thornton also gave evidence to this effect, which I accept.

[23] The CFMEU says that Mr Thornton had an honest but mistaken view of the law in relation to the interaction between the Act and the Occupational Health and SafetyAct.  It says that the advice that he received from Mr Clark was erroneous and there is no suggestion that that advice was given in bad faith. The CFMEU submits that there is no suggestion that that advice was an instruction to consciously break the law, and there is a significant difference between someone obtaining advice and someone getting an instruction. The CFMEU says that the advice that Mr Thornton received was not correct but maintains that it does not matter in the present case given that Mr Thornton is now well aware of what the requirements of the law are. 47 I accept these submissions.

[24] The Commissioner submits that I should exercise caution in considering whether to grant Mr Thornton an entry permit. The Commissioner submits that Mr Thornton’s previous conduct of engaging in contraventions of the Act demonstrates an attitude of recklessness as to his compliance with industrial laws. It says that a permit holder who has engaged in such conduct should give the Commission cause for concern as to whether such a person is ‘fit and proper’ to enjoy the privilege and ‘extensive power’ entrusted to such a position. 48 Whilst it is doubtless the case that Mr Thornton engaged in contravening conduct, the submission that this shows a reckless attitude to compliance with the law cannot be sustained. First, because there was not such finding made by Jessup J. Secondly, because on the uncontested evidence Mr Thornton sought advice from someone who appears to have some relevant expertise and acted on it. That the advice was shown subsequently to be erroneous does not translate recklessness on the part of Mr Thornton. Thirdly, that Mr Thornton has taken the trouble to receive further training and instruction about his obligations and about the adverse finding made by Jessup J, is in my view, inconsistent with the actions of someone who is reckless as to compliance with the law.

[25] The Commissioner submits that if an entry permit were to be issued to Mr Thornton, a condition should be imposed that he undergo further training before exercising any rights under that permit, conducted by a third party provider (agreed to by the Commissioner and the CFMEU), on the interaction between occupational health and safety and industrial law, and particularly with regard to when work may lawfully stop. I do not consider such a condition to be necessary in the circumstances.

[26] The Commissioner accepts that Mr Thornton’s conduct arose out of a dispute on the Site itself, and was not taken at the instigation of the CFMEU (or the other unions concerned), but it says that Mr Thornton has not expressed contrition or remorse for his conduct. The Commissioner submits that this lessens the weight which the Commission can place upon Mr Thornton’s assertions that he has accepted the unlawful nature of his actions and will not act in the same fashion in the future. 49 Nevertheless, it says that Mr Thornton was reckless as to whether he was acting unlawfully. The Commissioner says that Mr Thornton’s contravention of s.421 of the Act was especially serious, involving wilful disregard of orders made by the Commission.50 The Commissioner says that the explanation that is most exculpatory of Mr Thornton’s conduct in this respect is that Mr Thornton relied upon a statement made by Mr Clark to the effect that the employees were not contravening the Commission’s orders because it was a safety issue. The Commissioner submits that Mr Thornton’s conduct evinces, at least a personal susceptibility on the part of Mr Thornton, to act in reliance on advice provided by other CFMEU officials without proper consideration of its correctness or the legal consequences of taking such action.51 Save for the submissions as to recklessness and that of the absence of contrition, I accept that these matters go to the weight to be attributed to the matter disclosed. As to the exceptions I have already dealt with recklessness. The issue of contrition (or its absence) is and will usually be a relevant matter to be weighed on the balance. But much will depend on the circumstances of the contravening conduct. Here, Mr Thornton acted on advice, was not himself engaging in contravening conduct but was knowingly concerned in the contravening conduct of others. In these circumstances it matters less to me that Mr Thornton is contrite, than that he has taken steps to understand why he was found to have been knowingly concerned and to take steps to avoid doing so again. I am satisfied on the evidence that he has done so.

Conclusion

[27] As I have stated on more than one occasion, it would seem to me self-evident, having regard to the structure and content of s.513, that in deciding whether an official of a registered organisation is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight. Save for the matter disclosed, all of the other permit qualification matters appear to me to weigh in favour of a conclusion that Mr Thornton is a fit and proper person to hold an entry permit.

[28] As to the matter disclosed, whilst not insignificant, for the reasons given, I do not regard it to be of such moment as to outweigh these other matters. In the circumstances taking into account the permit qualification matters, I am satisfied that Mr Thornton is a fit and proper person to hold an entry permit. I am not persuaded that there is any other discretionary consideration which would have the result that a permit not issue. I therefore issue a permit to Mr Thornton.

[29] The application for the issue of an entry permit to Mr Thornton is granted. The permit will separately be issued.

DEPUTY PRESIDENT

Appearances:

Mr P Boncardo, Counsel for the Construction, Forestry, Mining and Energy Union.

Mr P Giam, Solicitor on behalf of the Australian Building and Construction Commissioner

Hearing details:

Melbourne.

2018.

February 12.

<PR600887>

 1   See for example [2017] FWC 666 at [4] – [8].

 2 Exhibit 2 at [3].

 3 Ibid at [4].

 4 Ibid at [11].

 5 Ibid at [12].

 6 Ibid at [7].

 7 Ibid at [6].

 8   Ibid.

 9 Ibid at [16].

 10   Ibid.

 11   CFMEU’s Outline of Submissions dated 12 January 2018 at [14], Exhibit 2 at TT-6.

 12 Ibid at [16].

 13 Ibid at [17].

 14 Ibid at [35].

 15   Ibid at [36] – [37].

 16   Ibid.

 17 (No 2) [2017] FCA 367

 18   CFMEU’s Outline of Submissions dated 12 January 2018, Attachment A.

 19 Ibid at [19].

 20   Ibid.

 21   Transcript PN115.

 22   CFMEU’s Outline of Submissions dated 12 January 2018 at [21], ABCC Submissions dated 29 January 2018 at [31], Australian Building and Construction Commissioner v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 167 at [2].

 23   CFMEU’s Outline of Submissions dated 12 January 2018 at [21], Australian Building and Construction Commissioner v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 167 at [7].

 24 ABCC Submissions dated 29 January 2018 at [32].

 25 CFMEU’s Outline of Submissions dated 12 January 2018 at [22].

 26   Ibid.

 27   Ibid.

 28   Ibid; Australian Building and Construction Commissioner v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 167 at [63] and [65].

 29   Transcript PN101 – PN112.

 30   Australian Building and Construction Commissioner v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 167 at [103].

 31 CFMEU’s Outline of Submissions dated 12 January 2018 at [34].

 32   Australian Building and Construction Commissioner v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 167 at [112].

 33   Australian Building and Construction Commissioner v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2017] FCA 167 at [146].

 34 CFMEU’s Outline of Submissions dated 12 January 2018 at [29].

 35 Ibid at [30].

 36 Ibid at [31].

 37 Ibid at [32].

 38 Ibid at [33].

 39   Transcript PN129.

 40   Transcript PN130.

 41   Exhibit 2 at TT-1 and TT-8 respectively.

 42   Ibid.

 43   Ibid.

 44   Transcript PN158.

 45   Australian Building and Construction Commissioner v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2017] FCA 367.

 46   Transcript PN165.

 47   Transcript PN172.

 48 ABCC’s Outline of Submissions dated 29 January 2018 at [66].

 49 Ibid at [52].

 50 Ibid at [59].

 51   Ibid at [59] – [60].

Printed by authority of the Commonwealth Government Printer