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

[2017] FWC 6761

[2017] FWC 6761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch
(RE2017/1177)

COMMISSIONER SAUNDERS NEWCASTLE, 15 DECEMBER 2017

Application by CFMEU for right of entry permit – Stephen Roach.

[1] On 4 October 2017, the Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch (CFMEU)made an application to the Fair Work Commission (Commission)under s.512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Stephen Roach, who is employed by the CFMEU as an Organiser.

[2] The Australian Building and Construction Commission (ABCC) advised the Commission that it does not intend to intervene or lodge submissions in respect of this application pursuant to s.110 of the Building and Construction Industry (Improving Productivity)Act 2016 (Cth) or otherwise.

[3] On 22 November 2017, a directions hearing was conducted by telephone. Ms K Reid appeared for the CFMEU. The CFMEU was directed to file any statutory declarations, submissions and other documents it wished to reply on in support of its application by 4pm on 1 December 2017, following which I would, absent any request or need for a hearing, decide the application in chambers ‘on the papers’.

[4] On 1 December 2017, the CFMEU filed submissions and a witness statement of Mr Roach. I have had regard to those submissions and Mr Roach’s witness statement, together with the earlier statutory declaration made by Mr Roach on 3 October 2017 and the declaration made by Mr Ralph Edwards, President of the CFMEU, Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch, on 3 October 2017, in deciding the present application ‘on the papers’.

Statutory Framework

[5] Part 3-4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

[6] The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. 1

[7] Part 3-4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 2 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.3 Accordingly, the right of entry scheme established by Part 3-4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.4

[8] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold the entry permit. The Commission’s discretion whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the “permit qualification matters” set out in s.513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose. 5

[9] Section 513 of the Act sets out the permit qualification matters 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, 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.”

[10] Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:

“515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).”

[11] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 6 Hatcher VP set out the following principles relevant to the interpretation and application of ss. 512 and 513(1) of the Act as follows:

“[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 s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. 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.”

[12] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 7, a Full Court of the Federal Court of Australia observed the following in relation to the phrase a fit and proper person:

“[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’” 8

[13] In MUA v FWC, the Full Court ultimately concluded as follows:

“[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged ‘unreasonableness’.” 9

Consideration

[14] I will now take into account all of the permit qualification matters specified in s.513(1) of the Act in relation to the application for an entry permit to Mr Roach.

Permit qualification matters – ss.513(1)(a)-(f)

[15] According to the declarations filed by CFMEU in support of the application for the grant of an entry permit to Mr Roach:

(a) Mr Roach has received appropriate training about the rights and responsibilities of a permit holder (s.513(1)(a) of the Act). Mr Roach completed an approved Federal Right of Entry training course online with the ACTU on 3 October 2017; 10

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

(c) Mr Roach has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, fraud, dishonesty, intentional use of violence against another person or intentional damage or destruction of property (s.513(1)(b) of the Act);

(d) Mr Roach, or any other person, has never been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by Mr Roach (s.513(1)(d) of the Act);

(e) Mr Roach 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 (s.513(1)(e) of the Act); and

(f) Mr Roach has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit (s.513(1)(f) of the Act).

[16] I accept that this information as disclosed in the declarations concerning these matters is accurate and correct. Each of these permit qualification matters weighs in favour of a conclusion that Mr Roach is a fit and proper person to hold an entry permit.

Permit qualification matter - s.513(1)(g)

Austral Bricks case

[17] In Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd; Austral Bricks (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union 11, Deputy President Gostencnik dealt with two applications lodged by the CFMEU and Austral Bricks (Vic) Pty Ltd respectively for the Commission to deal with a right of entry dispute under s.505 of the Act. One element of the dispute related to the manner in which the CFMEU permit holders, including Mr Roach, held discussions on 17 March 2014.

[18] In the Austral Bricks case, Mr Roach was not called to give evidence. Gostencnik DP accepted the evidence adduced by Austral Bricks that on 17 March 2014:

● CFMEU officials, including Mr Roach, were presenting to employees in the lunch room at the Wollert plant of Austral Bricks; 12
● whilst in the lunch room Mr Garvin O’Donnell, Raw Materials Superintendent Austral Bricks, heard Mr Roach use continuous foul language including saying “We’ve got to get these cunts”, “Fuck this, fuck that” and using the word “cunt” several times; 13 and
● Mr O’Connell heard Mr Roach make a belittling comment, “We fucking got rid of him, kicked him out” in reference to the CFMEU officials earlier asking Mr Mark Griffiths, Plant Manager of Austral Bricks, to leave the lunchroom. 14

[19] Gostencnik DP made the following observation regarding Mr Roach’s conduct:

“[63] … conduct of the kind said to have been engaged in by Mr Roach upon the occasion of his entry to the Wollert plant on 17 March 2014, has no place in a modern workplace or in 21st century industrial relations. Foul language which is belittling and derisive of others, and crass conduct of the kind described by Mr O’Donnell in his evidence impresses no one. Considered, persuasive and substantive argument is much more likely to yield that result. Mr Roach needs to take stock of his conduct in the exercise of rights conferred under Part 3-4 of the Act lest he run the risk that conditions might be imposed on his entry permit in the future, or worse, that the right to enter workplaces be removed.”

[20] In response to the observations made by Gostencnik DP in the Austral Bricks case,Mr Roach gave evidence in these proceedings as follows:

“I accept that my conduct on 17 March 2014 was inappropriate and as Deputy President Gostencnik articulated at paragraph [63] “has no place in a modern workplace or in 21st century industrial relations.” At the time of the conduct, I was frustrated with my inability to properly access the workplace and speak to members of the CFMEU. However, I understand now that my conduct was inconsistent with the conduct expected of a permit holder.”

Personal circumstances

[21] Mr Roach is 54 years old. He has been employed as an Occupational Health and Safety Officer for the CFMEU since August 2011. Prior to commencing employment with the CFMEU, Mr Roach worked as an Occupation Health and Safety Inspector for the Victorian WorkCover Authority and prior to that was the General Secretary of the Shearers and Rural Workers Union.

[22] Mr Roach has consecutively held an entry permit:

● under the Act (and its predecessor the Workplace Relations Act 1996 (Cth)) since May 2001; and
● under the Occupational Health and Safety Act 2004 (Vic) since 2005.

[23] Mr Roach gave evidence that his role of Occupational Health and Safety Officer is principally performed on site and he uses both his federal right of entry permit and his state right of entry permit to access sites to investigate safety concerns. Mr Roach estimates that he visits three sites per day on average to investigate safety issues. 15 In the event the Commission refuses to issue him with an entry permit, Mr Roach contends that he would not be able to fully perform his job to assist members of the CFMEU who report potential safety breaches as his entry permit is required to obtain access to sites to investigate potential safety breaches.16

Further training

[24] As set out in paragraph [15(a)] above, Mr Roach completed an approved Federal Right of Entry training course online with the ACTU on 3 October 2017 in relation to the rights and responsibilities of a permit holder.

[25] Mr Roach gave evidence, which I accept, that on 28 November 2017 he attended further 30 minute training session presented by Ms Reid, Legal Officer of the CFMEU, during which Ms Reid further outlined his rights and responsibilities as a permit holder and took him through the Austral Bricks case to ensure that he had read the decision and understood Gostencnik DP’s findings. 17

[26] I find that the conduct Mr Roach engaged in on 17 March 2014 the subject of the observations by Gostencnik DP in the Austral Bricks case weighs against a conclusion that Mr Roach is a fit and proper person to hold an entry permit. Mr Roach’s conduct on that occasion was not appropriate for a person who has an entry permit under the Act. However, the adverse weight that would otherwise be afforded to Mr Roach’s conduct on 17 March 2014 is reduced, to some extent, for the following reasons:

(a) he has held a Federal entry permit since 2001 without his conduct as a permit holder being the subject of judicial criticism;

(b) he has expressed remorse for his conduct and accepts that such conduct was inconsistent with the conduct expected of a permit holder;

(c) he has completed further training in relation to the rights and responsibilities of a permit holder since 17 March 2014 on two occasions, one of which involved specific training in relation to his conduct the subject of the Austral Bricks case; and

(d) by reason of the matters referred to in the previous three subparagraphs, I am satisfied that Mr Roach understands why his conduct on 17 March 2014 was unacceptable and is unlikely to repeat it in the future.

[27] I also accept that Mr Roach would be unable to undertake his role of Occupational Health and Safety Officer with the CFMEU effectively if he was refused an entry permit.

Conclusion

[28] Taking into account all the permit qualification matters, I am satisfied that Mr Roach is a fit and proper person to hold an entry permit.

[29] Accordingly, I exercise the discretion conferred on me by s.512 of the Act in favour of issuing Mr Roach with an entry permit.

COMMISSIONER

 1 Section 480 of the Act

 2   Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

 3   Ibid at 405 [56] per Flick J

 4   Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

 5   Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141

 6   [2015] FWC 1522

 7 [2015] FCAFC 56

 8   Ibid at [17]

 9   Ibid at [42]

 10   Application for an entry permit filed on 3 October 2017

 11   [2014] FWC 5407 (Austral Bricks case)

 12   Ibid at [6]

 13   Ibid at [6]

 14   Ibid at [7]-[13]

 15   Statement of Stephen Roach at [24]

 16   Ibid at [26]-[27]

 17   Ibid at [21]

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