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

[2016] FWC 3322

[2016] FWC 3322

The attached document replaces the document previously issued with the above code on 31 May 2016.

The paragraph numbering has been corrected.

Associate to Vice President Watson

Dated 31 May 2016

[2016] FWC 3322 [Note: An appeal pursuant to s.604 (C2016/4195) was lodged against this decision - refer to Full Bench decision dated 12 July 2016 [[2016] FWC 4593] 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, Victoria-Tasmania Divisional Branch
(RE2016/363)

VICE PRESIDENT WATSON MELBOURNE, 31 MAY 2016

Application by Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch for an entry permit for Alex Tadic - Factors to be taken into account when determining whether fit and proper person - Fair Work Act 2009, ss.512 and 513.

Introduction

[1] This matter involves an application by the Construction, Forestry, Mining and Energy Union - Construction and General Division, Victoria/Tasmania Divisional Branch (CFMEU) under s.512 of the Fair Work Act 2009 (the Act) for the issue of an entry permit to Mr Alex Tadic. Mr Tadic is an official of the CFMEU.

[2] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 (FWBI Act), the Director of the Fair Work Building Industry Inspectorate (the Director) was notified of the lodgement of the application. The Acting Director gave written notice pursuant to s.72 of the FWBI Act that he proposes to make submissions in relation to the application.

[3] The matter was listed for hearing on 22 April and 18 May 2016. Mr N Campbell, of counsel, appeared on behalf of the CFMEU, and Mr B Avallone, of counsel, appeared on behalf of the Director. Mr Tadic gave evidence and was cross-examined during the proceedings.

Legislative provisions

[4] Under s.512 of the Act, 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 an entry permit. In deciding this, the Commission must take into account the "permit qualification matters" set out in s.513(1).

[5] Section 513(1) of the Act is set out below:

“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."

[6] Sections 512–513 are within Part 3–4 of the Act, entitled 'Right of Entry'. The objects of Part 3–4 are set out at s.480:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and Fair Work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience."

[7] In MUA v FWC (2015) 230 FCR 15 a Full Court of the Federal Court discussed the task of the Commission under s.512 in the following terms:

1. Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.

1. A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:

The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.

1. Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.

1. It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.

2. The phrase a “fit and proper person” is used in many different statutory contexts: e.g., Customs Act1901 (Cth), ss 67H, 102CF; Migration Act1958 (Cth), s 290; Marriage Act1961 (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.

18. Senior Counsel for the Maritime Union was correct in his submission that the phrase “fit and proper person” employed in s 512 is confined to an inquiry as to fitness and propriety for the purposes of holding an entry permit. So much would necessarily follow from both an exercise of the power to issue a permit in a manner consistent with furthering the objects set forth in ss 3 and 480 and from the concluding phrase in s 512 itself (“to hold the entry permit”).

19. Nevertheless, with respect, Senior Counsel fell into error in identifying the ambit of those considerations relevant to fitness and propriety. The principal submission advanced on behalf of the Maritime Union is rejected, namely that the only considerations relevant to that assessment were (for example) contraventions, offences, or penalties imposed, in respect to the manner in which rights conferred by an entry permit had been exercised. Contraventions or penalties imposed in respect to other offences created by an “industrial law”, according to this submission, assumed no relevance.

[8] To a similar effect, a Full Bench of the Commission has described these tasks in the following manner 1:

“[23] As is apparent from the above, the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. 2 Taking into account context, the structure of s. 512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

[24] The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the entry permit”. The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se. Rather the permit qualification matters must be taken into account to decide whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.
[25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act.”

[9] As highlighted in the cases referred to above the permit qualification matters must be taken into account to decide whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation. The applicant in this matter is the CFMEU. The permit applied for is for an official of the Victoria/Tasmania Branch of the Construction and General Division of that union. The context of the application therefore requires a consideration of the role of an official exercising rights of entry with respect to that branch of the union. It is therefore relevant to have regard to the consideration of that context by the Federal Court in other proceedings. The Federal Court has been called upon to consider that context on a number of occasions. Recently Mortimer J said the following: 3

1. Just as in other penalty proceedings involving the CFMEU, the applicant attached to his submissions a table setting out the prior contraventions of industrial laws by the CFMEU. That table had 106 separate entries, dating back to 1999. In 2015 alone, there were 10 decisions of this Court finding contraventions against the CFMEU, in relation to conduct occurring between 2012 and 2014.

1. The applicant attached a second table showing the history of coercion contraventions involving the Victoria/Tasmania Branch of the Construction and General Division of the CFMEU, the branch responsible for this conduct. This table shows 23 separate proceedings in which contraventions have been proven, dating back to 2004. In 2015 there were four proceedings resulting in orders, relating to conduct between 2012 and 2014.

1. …

1. Neither respondent challenged any aspect of these tables and I accept them as accurate.

1. In the Myer Emporium Case [2015] FCA 1213 at [63], in a statement with which I respectfully agree, Tracey J said:

Neither the CFMEU nor any individual respondent is to be punished again for earlier misconduct. They are, however, to be punished more severely than they would have been had they had no adverse record or been responsible for only a few isolated incidents over a period of many years. Their continued willingness to engage in contravening conduct supports the view that earlier penalties, some of them severe, had not had a deterrent effect: cf Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477-8. The longer such recidivism continues the more likely it is that this consideration will carry greater weight than the principle that the maximum available penalty must be reserved for the worst possible offending.

1. To describe what is revealed by each of these tables, and the first table in particular, as evidence of a “continuing attitude of disobedience of the law” is to apply, in my opinion a relatively neutral description.

1. I also agree with the observations of Jessup J in the Mitcham Rail Case [2015] FCA 1173 at [29] that this kind of evidence “bespeaks an organisational culture in which contraventions of the law have become normalised”.

…

1. I have referred above to the number of previous contraventions by the CFMEU, and by the Victoria/Tasmania Branch of its Construction and General Division. What is notable is not only the sheer number of contraventions, but the frequency of them. The conduct involved in those contraventions ranges from very similar conduct to these contraventions (that is, conduct and threats designed to force an employer to accept a CFMEU delegate on site); to blockades to achieve other industrial outcomes; to abuse (including racial abuse: Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672) when unlawfully on work sites; to seeking to coerce employers to employ CFMEU members and fire non-CFMEU members; to using blockades, obstructing access to sites and making threats during enterprise bargaining negotiations; to engaging in bullying behaviour while on work sites and refusing to leave sites; to encouraging workers not to attend work sites; to threatening industrial action unless a CFMEU member was reinstated. This list is taken from only the first 20 or so entries in the table attached to the applicant’s submissions, and could be multiplied and expanded several times over, particularly given this Court has continued to make similar findings against the CFMEU and its members since the list was compiled in November 2015: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 414.

1. The conduct has in common features of abuse of industrial power and the use of whatever means the individuals involved considered likely to achieve outcomes favourable to the interests of the CFMEU. The conduct occurs so regularly, in situations with the same kinds of features, that the only available inference is that there is a conscious and deliberate strategy employed by the CFMEU and its officers to engage in disruptive, threatening and abusive behaviour towards employers without regard to the lawfulness of that action, and impervious to the prospect of prosecution and penalties. An alternative inference – that the CFMEU weighs up the cost of engaging in such action (that is, likely prosecution and imposition of penalties) and nevertheless concludes it is a collateral cost of doing its industrial business – reflects no better on the organisation or its officials.

1. There is no evidence that any individuals are disciplined in any way by the hierarchy of the CFMEU for contraventions of the kind I have outlined above. Indeed, the individuals involved are often part of the CFMEU hierarchy, as is the case with Mr Myles. Rather, the evidence suggests this ongoing behaviour is tolerated, facilitated and encouraged by all levels of the organisation. There is no evidence that it has been proposed that members’ funds cease to be available to pay penalties and that individual office holders or employees should pay those penalties themselves, as an internal incentive for individuals within the CFMEU to be encouraged to begin to respect industrial laws. In this case, there was no evidence Mr Ralph Edwards sought to distance himself from the contravening conduct, to condemn it, or to take any action to ensure it did not occur again.

1. I also consider it relevant to note from the applicant’s table that a large proportion of the contraventions and penalties stem from agreed facts and agreed ranges of penalty. In other words, the CFMEU (and the Victoria/Tasmania Branch of its Construction and General Division) have a history of eventually admitting to contraventions. In some contexts, this might be seen as a mitigating factor. I do not see it in that way, in all of the circumstances. Rather it seems to me to be part of a deliberate and calculated strategy by the CFMEU to engage in whatever action, and make whatever threats, it wishes, without regard to the law, and then, once a prosecution is brought, to seek to negotiate its way into a position in which the penalities for its actions can be tolerated as the price of doing its industrial business.

[10] In this matter the CFMEU and the Director have made submissions relating to the factors in s.513(a)–(g). The scope of paragraph (g) has been described by a Full Bench as follows 4:

“[24] … Paragraph (g) requires the Commission to take into account any other matters which it considers to be relevant. It is not necessary to apply the eiusdem generis presumption to conclude that the relevance referred to in paragraph (g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.

[25] A matter is only required to be taken into account under s.513(1)(g) if the Commission “considers” it to be relevant - that is, the requirement operates upon the opinion as to relevance formed by the Commission.”

[11] I will apply the approach outlined in these cases to the disposition of this matter.

Evidence and Background

[12] Mr Tadic is an officer of the CFMEU and holds the position of Organiser and Occupational Health and Safety Adviser, Construction and General Division.

[13] The Commission’s records indicate that Mr Tadic was first granted an entry permit under predecessor legislation on 13 February 2006. Mr Tadic was again issued with an entry permit on 25 March 2009 and 10 April 2013.

[14] Mr Tadic is also the holder of an entry permit issued to him under s.83 of the Occupational Health and Safety Act 2004 (OHS Act) in his capacity as an officer of the CFMEU. Mr Tadic was first granted a permit under s.83 of the OHS Act in 2006 and has continuously held that permit since that time.

[15] On 11 April 2008, a decision was issued in Cahill v CFMEU 5concerning conduct by Mr Tadic on 11, 13 and 14 May 2004.

[16] Mr Tadic was granted a further entry permit on 25 March 2009. I am not aware whether Mr Tadic declared the Cahill matter at the time or that it was considered by the Commission.

[17] On 7 March 2011, a decision was issued in White v CFMEU 6 concerning conduct by Mr Tadic on 16 and 28 May 2008.

[18] On 7 April 2011, a decision was issued in Cozadinos v CFMEU & Ors 7 concerning conduct by Mr Tadic on 31 January and 1 February 2008.

[19] On 25 March 2013 Mr Murray Furlong, delegate of the Commission issued a decision 8 in which he decided to grant Mr Tadic an entry permit subject to a limiting condition. Delegate Furlong considered the matters of Cahill, White and Cozadinos in making his decision, which he reached ‘on balance’. He said that the finding is a fine distinction and there were many circumstances and factors indicating that Mr Tadic should not enjoy the privileges attached to issuing a permit.

[20] On 10 April 2013 Mr Tadic was issued an entry permit with the following limiting condition:

“If any findings made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a)-(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a)-(f) of the FairWork Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding commenced. See decision [2013] FWCD 478 issued on 25 March 2013.”

[21] On 17 March 2015, a decision was issued in Director of the Fair Work Building Industry Inspectorate v CFMEU. 9 Mr Tadic’s conduct and the conduct of other CFMEU officials was found to be in contempt of court on the part of the CFMEU, resulting in fines totalling $125,000 against the CFMEU.

[22] On 5 February 2016, in accordance with the condition on Mr Tadic’s permit, the CFMEU notified the Commission that the Director had commenced proceedings in the Federal Court in Director of the Fair Work Building Industry Inspectorate v CFMEU & Anor (VID955/2015) and that Mr Tadic is named as a respondent in the proceedings.

[23] On 15 April 2016, the CFMEU notified the Commission that the Director had commenced proceedings in Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors (VID194/2016) in which Mr Tadic has been named as a respondent. Given that Mr Tadic was served with the proceedings on 11 March 2016, Mr Tadic did not comply with the timeframe within which to notify the Commission of any relevant proceedings as specified in the limiting condition. The CFMEU advised that the delay was due to an administrative oversight.

[24] The current application for an entry permit contained a declaration from Mr Tadic, as the proposed permit holder, and a declaration from Mr Setka, as the Member of the Committee of Management, making the application in accordance with the Act. The declarations stated that Mr Tadic:

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



• has never been convicted of an offence against an industrial law, apart from the following matters:

• Cahill v CFMEU [2008] FCA 495



• White v CFMEU [2011] FCA 192



• Cozadinos v CFMEU & Ors [2011] FMCA 284



• Director of the Fair Work Building Industry Inspectorate v CFMEU [2015] FCA 226



• Director of the Fair Work Building Industry Inspectorate v CFMEU & Anor (VID955/2015)—proceedings commenced but matter yet to be determined.

• 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; or fraud or dishonesty; or intentional use of violence against another person or intentional damage or destruction of property



• Mr Setka’s declaration states that apart from the matters outlined above, Mr Tadic has never been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him, nor has any other person been ordered to pay a penalty in respect of such action. Mr Tadic’s declaration does not reference the above matters, and simply states that he has never been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him, nor has any other person been ordered to pay a penalty in respect of such action



• has not had revoked or suspended any permit issued under Part 3-4 of the Act or a similar law of the Commonwealth. Permit number RE2012/1403 was issued with a limiting condition



• has not had cancelled, suspended or had imposed conditions on a permit for industrial or occupational health and safety purposes, by any court, or other person or body, under a State or Territory industrial law or an OHS law



• has not been disqualified, by any court, or other person or body, under a State or Territory industrial law or OHS law, from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law.

[25] Mr Tadic gave evidence that in relation to Cahill, he does not recall that he was found to have contravened s.187AB of the Workplace Relations Act 1996 (WR Act). Mr Tadic said that he does not recall exactly what occurred on that day. He said that the amount of training he had as a shop steward and OHS representative did not cause him to be aware of the seriousness of the conduct. He said the actions he took on that day were as a result of the wishes or directions of the workers.

[26] In relation to Conzadinos, Mr Tadic said that while not recalling the specifics, he does not dispute the findings that were made in that matter. He said that he did receive the paperwork in relation to the orders that were issued. Mr Tadic said that he did not pay the $2,500 penalty that was imposed on him for contravening s.38 of the BCII Act and he assumes that the penalty was paid by the CFMEU.

[27] In relation to White, Mr Tadic said that he does not dispute the finding of the Federal Court in the matter. He said that the CFMEU paid the $8,000 penalty that was imposed on him in that matter.

[28] Mr Tadic claimed the privilege against self-incrimination and objected to giving evidence about the extant proceedings 10 and the proceedings in Director of the Fair Work Building Inspectorate v CFMEU.11

[29] In relation to whether Mr Tadic feels remorse in relation to his previous conduct, Mr Tadic said under cross-examination that he believes that he is learning and has made significant improvements in respect of the use of his entry permit and going onto sites.

[30] I turn to consider the specific matters required to be considered under s.513.

Appropriate Training: s. 513(1)(a)

[31] Mr Tadic completed the ACTU training course concerning right of entry on 19 January 2016. The course has been approved by the Commission for the purposes of s.513(1)(a) of the Act. The Certificate of Achievement issued by the ACTU is attached to Mr Tadic’s application.

Offences against industrial law: s. 513 (1)(b)

[32] While Mr Setka’s declaration disclosed that Mr Tadic has been convicted of an offence against an industrial law, the CFMEU in its submissions states that Mr Tadic has not been convicted of an offence against an industrial law. I accept that the proceedings referred to are of a different nature to offences covered by this paragraph.

Offences involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property: s. 513(1)(c)

[33] Mr Tadic has not been convicted of offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises; or fraud of dishonesty; or intentional use of violence against another person or intentional damage or destruction of property.

Penalties under industrial law in relation to action taken by Mr Tadic: s. 513(1)(d)

[34] Mr Tadic’s application disclosed a number of proceedings in which a penalty was paid in relation to action taken by Mr Tadic.

[35] On 11 April 2008, in Cahill, a penalty of $4,000 was imposed on the CFMEU for breach of 187AB of the WR Act and Mr Tadic was found to have contravened s.187AB of the WR Act. Mr Tadic’s conduct in this matter concerned circumstances in which Mr Tadic had on 11 May 2004 as a delegate or shop steward for the CFMEU held a meeting with all delegates and workers on site about a safety issue, after which all workers on site commenced a 48 hour stoppage of work. Then on both 13 May and 14 May 2004 Mr Tadic and Mr Setka requested that the employer pay CFMEU members for the work stoppage, and when that request was not satisfied Mr Tadic, Mr Setka and others conducted meetings with the workers after which the workers ceased all work at the site.

[36] On 7 March 2011, in White, a penalty of $105,000 was imposed on the CFMEU for contravening ss.38 and 43 of the BCII Act on 16 and 28 May 2008 by engaging in unlawful industrial action, in that members who were employees of Abigroup engaged in unlawful industrial action for one day and organising or taking action with the intent to coerce Abigroup to employ redundant employees to perform building work and to allocate particular responsibilities to the redundant employees. A penalty of $8,000 was also imposed on Mr Tadic for contravening ss.38 and 43 of the BCII Act. Mr Tadic was the tenth respondent in the proceedings. Penalties imposed on other individual respondents ranged from $5,000 to $13,000.

[37] On 7 April 2011, in Cozadinos, a penalty of $2,500 was imposed on Mr Tadic for contravening s.38 of the BCII Act. A penalty of $30,000 was imposed on the CFMEU. Mr Tadic was found to have breached s.38 by his conduct in counselling or encouraging stoppages of building work at the Springvale section of the Eastlink Freeway Project on 31 January and 1 February 2008.

Permits revoked, suspended or made subject to conditions under Commonwealth law: s.513(1)(e)

[38] Mr Tadic presently holds a permit and has done so since 2006. Mr Tadic’s permit has not been revoked, suspended or cancelled in the period since it was first issued to Mr Tadic.

[39] Mr Tadic’s permit in RE2012/1403 was issued with the following limiting condition:

“If any findings made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a)-(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a)-(f) of the FairWork Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding commenced. See decision [2013] FWCD 478 issued on 25 March 2013.”

[40] On 5 February and 15 April 2016 Mr Tadic notified the Commission of proceedings that had commenced in the Federal Court in which Mr Tadic was named as a respondent. There was a slight delay in Mr Tadic notifying the Commission of the second proceeding, which was explained by way of administrative oversight on the part of the CFMEU.

Permits revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or OHS law: s.513(1)(f)

[41] Mr Tadic has not had cancelled, suspended or had imposed conditions on a permit for industrial or occupational health and safety purposes, by any court, or other person or body, under a State or Territory industrial law or an OHS law.

[42] Further, Mr Tadic has not been disqualified, by any court, or other person or body, under a State or Territory industrial law or OHS law, from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law.

Other relevant matters: s.513(1)(g)

[43] The CFMEU states that is important for Mr Tadic in performing his role as an organiser and occupational health and safety officer in the civil construction industry in Victoria to hold a right of entry permit.

[44] On 17 March 2015, in Director of the Fair Work Building Inspectorate v CFMEU, the CFMEU was ordered to pay a fine of $100,000 for contempt of court as a result of the conduct of Mr Tadic and other CFMEU officials. In April 2014 Mr Tadic participated in a blockage of the Bald Hills Wind Farm Project and other conduct, after undertakings to the Federal Court had been given by the CFMEU to allow free access to the site. Mr Tadic was not a respondent in the matter and no individual penalty order was made against him in the proceedings. I consider this to be a relevant matter to take into account – noting that the proceedings were not taken against Mr Tadic personally. I note that Tracy J said the following 12:

1. The CFMEU submitted that the contraventions of paragraphs 1.1 and 1.4 of the undertaking given by it should be treated as a single offence.

1. It sought to explain the relevant circumstances as follows. It said that there was a dispute regarding the employment of Mr Stavlic. It was the CFMEU’s view that Mr Stavlic was unfairly targeted and it wanted “his employment to resume”. To this end the blockade was mounted on 15 April 2014. The CFMEU acknowledged that some of the workers on the Bald Hill site were prevented from working on that day and that a number of delivery trucks were prevented from having free access to the site for a period of just over eight hours. It said that the blockade had not attracted any media attention and that it had taken place in a remote location away from public observation.

1. The CFMEU relied on a number of factors which, it said, mitigated the seriousness of the offending by comparison with some of its earlier contraventions of Court orders. To this end it emphasised that:

○ There had been no violence, no abuse and no trespassing in the course of the blockade.

○ No large implements had been placed across driveways which were abandoned there upon completion of the blockade.

○ 30 to 40 percent of the workforce had been able to attend the site on 15 April 2014 by using entrances which were not normally used.

○ Deliveries had been delayed by matters of hours and, at the most, by two days.

○ There was no jeering at workers and delivery truck drivers who sought access to the site.

○ No sophisticated planning was involved.

1. Some, but not all, of these contentions may be accepted. Before dealing with them, however, it is necessary to say something about the unstated assumptions which underpin the CFMEU’s actions. It considered that Mr Stavlic had been badly done by and should be reemployed at the site. When potential employers refused its demands the CFMEU could have pursued a number of lawful options with a view to resolving the disputes about Mr Stavlic’s employment. This would have required it to justify its complaints about the treatment of Mr Stavlic and to justify its view that re-employment was an appropriate remedy. Rather than do this it sought to impose its will on some of the companies engaged at the site by preventing work from proceeding as normal on 15 April 2014. In doing so it opted for a show of industrial force in preference to engagement in lawful dispute settling procedures. The CFMEU has failed to explain why it chose this course of action despite having undertaken to the Court that it would not so act less than a fortnight before these events occurred. The overwhelming inference is that the CFMEU, not for the first time, decided that its wishes should prevail over the interests of the companies and that this end justified the means.

1. The organisation of the blockade required planning and preparation. The wind farm site was located in a remote area of South Gippsland some 175.7 kilometres away from Melbourne. It was divided into three compounds. Compound A was separated from the other two. Compounds B and C had a common border. The closest point of Compound A to Compound B was about 700 metres. The closest points between Compound A and Compound C were about 2.5 kilometres apart. Each compound had a main entrance. They were identified as Gates A, B and C. Access to the compounds could also be obtained, in each case, by tracks and smaller gates. These alternative access points were not normally used but were utilised by some employees to enter the compounds on 15 April 2014.

1. On that morning cars were parked across Gates A, B and C at various times between 5:30 and 5:45 am. The vehicles prevented other vehicles entering the compounds through the gates. Barbeque trailers were also located at two of the gates. The vehicles and trailers remained in place until early afternoon. At least 10 of the vehicles were registered to the CFMEU. In the course of the day food was cooked on the barbeques. Pictures taken at the gates show CFMEU flags attached to vehicles and fences. Other vehicles blocked access to four of the alternative entrance points. At least eight paid officials of the CFMEU were present.

1. A more detailed account of the blockade is to be found in the Director’s Summary. The facts recounted here are sufficient to gainsay the proposition that no sophisticated planning was involved in mounting the blockade. The contrary is plainly true. I readily infer that the officials had travelled from Melbourne in the union owned vehicles and other vehicles in time to block the gates before the usual time for commencement of work at the sites. Food and banners were brought. These arrangements required planning and co-ordination.

1. As a result of the blockade only about 30 to 40 percent of the workforce engaged on Compound A was able to enter the site on 15 April 2014. Fifteen quarry trucks carrying about 600 tonnes of bluestone and other aggregate were unable to enter Compound A. The material which they were carrying had to be dumped in a turnout bay about four kilometres away. Once the blockade had been lifted Hazell Bros workers had to reload the material on to trucks using a front end loader. This work was not completed until 17 April 2014. Other trucks, delivering gravel to Compound A, arrived during the morning and could not enter Compound A until the blockade had been lifted.

1. I accept that a number of the aggravating features which had accompanied earlier action by the CFMEU which constituted contempt of Court and with which comparisons were drawn during submissions were not present during the blockade on 15 April 2014. There was no violence. Workers attempting to enter the site were not abused. When the blockade finished there was no debris left at the site.

[45] On 23 December 2015 the Director commenced proceedings in the Federal Court in which Mr Tadic was named as the second respondent (VID955/2015). In these proceedings the Director has alleged that while exercising a State or Territory OHS right within the meaning of Division 3 of Part 3-4 of the Act on 13 June 2014, Mr Tadic intentionally hindered an inspector appointed under the OHS Actand otherwise acted in an improper manner, and thereby contravened s.500 of the Act. The matter is yet to be determined. I consider that the allegation in this matter is relevant to take into account – noting that there are no findings of fact in relation to the allegations.

[46] In addition, since the filing of the CFMEU’s application for an entry permit for Mr Tadic, a further proceeding has been commenced by the Director in which Mr Tadic is named as the third respondent (VID194/2016). In these proceedings the Director alleges that, while exercising a State or Territory OHS right within the meaning of Division 3 of Part 3-4 of the Act on 1 August 2014, Mr Tadic acted in an improper manner (through the use of indecent and profane language and by acting in an aggressive manner towards a project manager) and thereby contravened s.500 of the Act. I consider that the allegations in this matter are relevant on the same basis as the other incomplete extant proceeding.

Is Mr Tadic a Fit and Proper Person?

[47] The Federal Court has found that the branch of the CFMEU which seeks a right of entry permit with respect to Mr Tadic has displayed a continuing attitude to disobedience of the law and has an organisational culture in which contraventions of the law have become normalised. 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.

[48] In my view it is highly relevant to consider Mr Tadic’s attitude and track record to compliance with legal obligations including when the organisation of which he is an official is supporting or organising unlawful action. In the circumstances of Mr Tadic, training and understanding of legal obligations is secondary. It appears to me that his preparedness to comply with legal obligations is far more important.

[49] I note the absence of any instances of inappropriate conduct falling within the permit qualification matters in s. 513(1)(a),(b),(c) and (f). The absence of such conduct operates in Mr Tadic’s favour.

[50] The three instances of penalties personally imposed on Mr Tadic under industrial laws are serious matters, but they occurred some years ago. The first related to conduct in 2004, when Mr Tadic was a shop steward of the CFMEU employed by Bovis. Under cross-examination Mr Tadic gave the following evidence:

“Do you recall that you were found to have contravened that section of the Act?---No, I don't to be quite honest with you.  I was just basically following direction of what happened on the site on that particular date.  As far as court proceedings or anything else I had no knowledge and I wasn't involved in any of that.

Okay.  We will come back to the case.  You were just following direction, whose direction were you following?---The workers.

Sorry?---The workers.

All right.  We can refresh your memory.  Can a copy of the decision be provided.  It's annexure C to the submissions, your Honour.

Mr Tadic, you will see that I have handed you a copy of a decision, it's headed Federal Court of Australia and then at the top of the first page it's got Kale [sic] v Construction Forestry Mining and Energy Union (2008) FCA 495?---Yes.

If you turn to the second page you will see there's a court header there, and then it lists the parties.  There's a Christopher James Kale [sic], applicant.  Do you see that?---Yes.

Then there's the name of the union as the first respondent.  John Sedka [sic], the second respondent?---Yes.

And then Alex Tadic, third respondent.  That's you?---Yes.

You will see on that second page a finding - sorry, on that same second page the court orders that, number 2.

It is declared that the second and third respondents have each contravened section 187AB of the Act.

?---I understand that.  I see that, yes.

Does that refresh your memory about these proceedings?---I understand the proceedings, but the state of knowledge I had at that particular time and the amount of training I had as a shop steward and OH&S rep did not make me aware of the seriousness of the breaches and things like that.  So we just done what we done on the day, because that's what the workers wanted, and then all the rest of it come out later obviously what you're talking about here on that paperwork.

I see.  If you turn to page - it's marked page 2 unhelpfully, but over the page there's a heading "The parties" and then paragraph 4, paragraph 5.  Paragraph 5 refers to you near the end:

The third respondent, Mr Alex Tadic, was at all material times employed by Bovis Lend Lease Pty Ltd.  He was a member of the CFMEU and a delegate or shop steward representing members of the CFMEU employed by Bovis.

Do you see that?---Yes.

Is that correct?---Yes.

If you turn over the page to page 3, paragraph 11, the last sentence:

Mr Tadic together with another or other union delegates suggested that the workers on site should go home for the day while a small clean-up crew remained on site.

Do you see that sentence?---I see that, yes.

Do you dispute that finding?---To be honest with you going back that far I don't recall exactly what was said on the day.

You don't recall it.  Do you have any reason to dispute - - -?---I wasn't involved in all of this literature when this was all being happening.  At the time I was a shop steward, so it's not as if I sat in the union office every day and was given all of this relevant paperwork.  So what was said and what was agreed to and all that sort of stuff I'm not totally aware.

I am sorry, you were a respondent to these proceedings, weren't you?---I was a respondent, but - - -

And you were represented in the proceedings?---Well, to my understanding I was, yes.  I wasn't in no courtroom or anything like that to represent myself or have someone represent me.  The union represented me because I was a member of the union and I was playing a role on the site, but - - -

You were represented by Jesse Maddison, weren't you?  Do you remember that?---I remember Jesse being working at the office, yes.

Do you remember that he was representing you?---To be honest with you, no, because at the time I was a shop steward and I didn't spend all the time in the office - in the CFMEU office.

So you weren't in the office, you don't remember; do you have any reason to dispute that sentence that I read to you from paragraph 11 that says that you suggested that the workers on site should go home for the day?---Well I'd probably - yes, I'd probably dispute that.”

[51] Mr Tadic did not pay the penalty imposed on him by the Court. He assumes that it was paid by the CFMEU. The same occurred in relation to the two subsequent impositions of penalties.

[52] The other two penalties related to conduct in 2008. When cross examined in relation to the Cozadinos matter Mr Tadic gave the following evidence in relation to the statement of agreed facts and circumstances:

“And then the next paragraph, still in italics, paragraph 10:

Once on the site, the Second and Third Respondents held a meeting with a number of TJH employees and the employees of the TJH subcontractors.

Is that right?---Yes.

In that meeting the Second and Third Respondents encouraged the TJH employees and employees of the TJH subcontractors to stop building work on the EastLink Project.

Is that right?---They stopped, yes.

No, read the words.  It says that Mr Powell and you encouraged the TJH employees and employees of the TJH subcontractors to stop building work.  Is it right that you encouraged them?---It could've been, yes.

I put it to you again, these are the words in the statement of agreed facts that were filed on your behalf?---Well if they were filed on my behalf I'm guessing it's yes.

You're guessing it's yes or it's yes?---It's yes.

[53] In Mr Tadic’s statement of evidence before the Commission he did not express and contrition or remorse for conduct found to be unlawful by the Courts. Under cross-examination he said:

“… Just back to the materials that you filed in this proceeding, you refer to your statement before - Mr Campbell asked you about that statement.  That's this statement dated 29 Feb, do you have that with you?---Yes.

That statement, it refers to your role as an OH and S organiser?---Yes.

But it doesn't refer to the decisions that we've discussed today, the ones relating to Bovis, the Monash Project, EastLink, it doesn't refer to them?---No.

And it does not express any remorse in relation to how you behaved in those proceedings?---No.

And the reason for that is you don't have any remorse?---That's not correct.  I believe that I'm learning and I'm doing things a hell of a lot better regarding my right of entry and when I go onto sites and things like that, so I have learnt.

Your statement doesn't say that, does it?---It doesn't say that I haven't had any remorse.”

[54] Mr Tadic claimed a privilege in relation to the Bald Hills wind farm contempt proceedings and the incomplete extant proceedings. No adverse inference can be made from that circumstance. Nevertheless, the findings of the Federal Court are on the public record and relevant parts are extracted above. The conduct of the CFMEU, through its officials, including Mr Tadic was serious, planned and organised. The Court’s findings in the matter are particularly damning. I reject the submission advanced by the CFMEU that the Bald Hills proceedings are not relevant to the application for a permit with respect to Mr Tadic.

[55] I have carefully considered all of these matters. A permit was granted to him in 2013 as a matter of fine balance. Since then, in 2014, he engaged in conduct which has been found to be a serious contempt of the Federal Court on the part of the CFMEU. Further allegations have been made against him in relation to conduct later in 2014.

[56] Mr Tadic can no longer claim that he was inexperienced and untrained in relation to his legal obligations. He appears to have played little role in the legal proceedings relating to his conduct. More importantly he appears to have taken little interest in the proceedings and the outcomes from the proceedings. The CFMEU has not provided him with any specific training or guidance to avoid a repetition of this conduct. Mr Tadic has not demonstrated that he has learnt lessons from the proceedings. He has not demonstrated an understanding of the conduct that led to findings of unlawfulness. He has not explained how he has adjusted his conduct to ensure that he has and will comply with the law in the future. The only expression of remorse emerged from cross-examination as a denial of an allegation that he lacked remorse.

[57] It may be that these matters are common amongst officials of the branch of the CFMEU. It appears that the union does not expect or demand any different behaviour. However, given the culture of disobedience of the union a person will not be fit and proper to hold a right of entry permit unless they demonstrate different personal qualities, capabilities and a preparedness to act in accordance with those qualities and capabilities. I am not satisfied that the CFMEU and Mr Tadic have established such a case. Nor do I consider that any conditions that might be imposed on the grant of a permit would alter the conclusion I have reached. Accordingly I am not satisfied that Mr Tadic is a fit and proper person to hold a right of entry permit.

[58]
Although I have attached little weight to the allegations made against him in the extant proceedings, it may be that as a result of those proceedings, a different position will emerge. There would appear to be no impediment on the CFMEU making a further application at a subsequent time that would be considered on the basis of the circumstances at the time and intervening events.

VICE PRESIDENT

Appearances:

Mr Campbell, N, of counsel, with Ms Reid, K on behalf of the CFMEU.

Mr Avallone, of counsel, with Mr Baldo, F and Ms Giarratana, N, on behalf of the Director.

Hearing details:

2016.

Melbourne.

22 April and 18 May.

Final written submissions:

The Director on 2 May 2016.

The CFMEU on 12 May 2016.

 1   The Maritime Union of Australia [2014] FWCFB 1973.

 2   See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.

 3   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union(No 2) [2016] FCA 436.

 4   [2014] FWCFB 5947.

 5 [2008] FCA 495.

 6 [2011] FCA 192.

 7 [2011] FMCA 284.

 8   [2013] FWCD 478.

 9 [2015] FCA 226.

 10   VID955/2015 and VID194/2016.

 11 [2015] FCA 226.

 12 [2015] FCA 226.

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