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

[2016] FWC 3110

[2016] FWC 3110

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
(RE2016/355)

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 Mark Travers – 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 Mark Travers. Mr Travers 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 2016. Mr N Campbell, of counsel, appeared on behalf of the CFMEU, and Mr B Avallone, of counsel, appeared on behalf of the Director.

Legislative provisions

[1] 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).

[2] 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."

[3] 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."

[4] 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:

13. 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.

14. 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.

15. 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.

16. 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”.

17. 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.

[5] 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.”

[6] 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

118. 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.

119. 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.

120. …

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

122. 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.

123. 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.

124. 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”.

…

139. 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.

140. 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.

141. 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.

142. 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.

[7] 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.”

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

Evidence and Background

[9] Mr Travers is an officer of the CFMEU and holds the position of Organiser, Construction and General Division.

[10] The Commission’s records indicate that Mr Travers was first granted an entry permit under predecessor legislation on 24 July 2002. Mr Travers was again issued with an entry permit on 23 March 2006, 25 March 2009 and 15 April 2013.

[11] Mr Travers is also the holder of an entry permit issued to him under s.83 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) in his capacity as an officer of the CFMEU. He was first granted a permit under the OHS Act on 14 July 2005 and has continuously held an entry permit issued under the OHS Act since that time.

[12] On 13 December 2009 a decision was issued in John Holland Pty Ltd v CFMEU & Ors 5 concerning conduct by Mr Travers (and others) at two sites at Melbourne Airport on 24 March 2009.

[13] On 22 July 2011 a decision was issued in Murray Gregor v CFMEU & Anor 6concerning conduct of Mr Travers at the Melbourne Airport construction project on 24 February 2009.

[14] Mr Travers’ conduct in Gregor was the subject of the decision in Re Travers. 7 Re Travers involved an application initiated by Fair Work Australia to revoke or suspend Mr Travers’ entry permit (pursuant to s.510 of the Act) because he had been imposed with a penalty for contravening s.767(1) of the Workplace Relations Act 1996 (WR Act) in Gregor. In that matter, Justice Boulton decided not to suspend Mr Travers’ entry permit because his Honour found it was unreasonable to do so.

[15] Mr Travers’ conduct in John Holland and Gregor was considered by Mr Murray Furlong, Delegate of the Commission, when considering Mr Travers’ July 2012 application for a permit. In a decision issued on 25 March 2013, 8 Delegate Furlong decided on balance that Mr Travers was a fit and proper person to hold an entry permit and issued an entry permit on 15 April 2013.

[16] The current application for an entry permit contained a declaration from Mr Travers, 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 Travers:

• 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:

• John Holland Pty Ltd v CFMEU & Ors [2009] FMCA 1248



• Murray Gregor v CFMEU & Anor [2011] FMCA 562



• Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors (VID333/2015)—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



• 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, suspended or been made subject to conditions, any permit issued under Part 3-4 of the Act or a similar law of the Commonwealth



• 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.

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

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

[18] Mr Travers completed the ACTU training course concerning right of entry on 11 February 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 Travers’ application.

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

[19] While Mr Setka and Mr Travers’ declaration disclosed that Mr Travers has been convicted of an offence against an industrial law, the CFMEU in its submissions states that Mr Travers 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)

[20] Mr Travers 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)

[21] Mr Travers’ application disclosed one proceeding in which Mr Travers’ conduct resulted in the imposition of a pecuniary penalty on CFMEU (John Holland) and one proceeding in which Mr Travers’ was required to pay a penalty under an industrial law (Gregor).

[22] On 14 December 2009, in John Holland, a penalty of $11,500 was imposed on the CFMEU for breach of s.38 of the BCII Act by engaging in unlawful industrial action by its officers (including Mr Travers) encouraging and directing the cessation of work by its members on 24 March 2009, at the T2EP site at Melbourne Airport.

[23] A further penalty of $11,500 was imposed on the CFMEU for breach of s.38 of the BCII Act by engaging in unlawful industrial action by Mr Travers encouraging and directing the cessation of work by its members on 24 March 2009 at the Carpark Site at Melbourne Airport. There were no individual penalties imposed on Mr Travers.

[24] On 22 July 2011 in Gregor, Mr Travers was ordered to pay a penalty of $1,000 for contravening s.767(1) of the WR Act. Whilst exercising a right of entry conferred upon him as a permit holder by s.760 of the WR Act, Mr Travers acted in an improper manner on 24 February 2009 by entering onto site, without authorisation, for a stop work meeting with workers. Mr Travers then refused to leave, despite repeated requests by management to do so, and swore at management. The court also imposed a penalty of $5,000 on the CFMEU for contravening s.767(1) of the WR Act by its vicarious liability for the conduct of Mr Travers.

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

[25] Mr Travers presently holds an entry permit and has done so since 2002. Mr Travers’ permit has not been revoked, suspended or cancelled in the period since it was first issued to Mr Travers.

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)

[26] Mr Travers 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.

[27] Further, Mr Travers 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)

[28] The CFMEU states that is important for Mr Travers 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.

[29] Mr Travers is named as a respondent in a civil penalty proceeding before the Federal Court of Australia in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union and others (VID 333 of 2015). An application and statement of claim was filed by the Director on 24 June 2015.

[30] In these proceedings the Director has alleged that on 17 June 2014 Mr Travers, while exercising, or seeking to exercise, a right of entry under Part 3–4 of the Act, acted in an improper manner and thereby contravened s.500 of the Act. In an amended statement of claim the Director alleges that Mr Travers also contravened s.348 of the Act by threating to take action against McConnell Dowell with the intent to coerce it to comply with a request made by Mr Travers that McConnell Dowell not call the police to attend the premises in relation to the attendance of Mr Travers and Mr Hall. The amended statement of claim filed by the Director includes the following allegations:

“8. On 17 June 2014 Travers and Hall attended at and entered the Project premises, specifically the Site Compound (the Entry).

9. The Entry was for the purpose of holding discussions with Duggan in accordance with s 484 of the FW Act.

Particulars

Travers' and Hall's purpose on 17 June 2014 is to be found or
inferred from the following matters which occurred on 17 June
2014 at the Project premises:
A. In response to a request by Naughton for Travers and Hall to
leave to the Project premises, Travers said words to the
following effect:

"I'm just catching up with my mate Rod".

"We (Travers and Hall) are chatting to Rod about a safety
issue, but go ahead and call the police or whoever you
need to".

B. In a telephone conversation with White at about 12:55 pm in
relation to Travers' and Hall's presence on the Project
premises, Travers said words to the following effect:

"If he calls the police I won't leave, I'm here to talk to
Rod, another 5 minutes and we (Travers and Hall) will be
leaving".

10. Travers and Hall did not give an "entry notice" pursuant to s 487 of the FW Act or any other notice in writing at least 24 hours prior to the entry onto the Project premises on 17 June 2014.

11. At or about 12.42pm, being a time after the Entry, Travers and Hall were present in the lunch room in the Site Compound of the Project premises speaking to Duggan.

12. Naughton, in the company of Carter, approached the lunch room in the Site Compound and requested Travers and Hall to leave the Project premises.

Particulars

The conversation in which Naughton requested Travers and Hall to leave the Project premises was to the following effect:

Naughton: Guys, I'm gonna have to ask you to leave the site, you haven't given me 24 hours notice in accordance with the right of entry process.

Travers and Hall: No, we don't have to give 24 hours notice.

Travers: I'm just catching up with my mate Rod.

Naughton: I understand but I still have to ask you to leave.

Travers: We are chatting to Rod about a safety issue, but go ahead and call the police or whoever you need to.

13. Naughton then left the lunch room in the Site Compound, made a telephone call to White and told him what had occurred. White instructed Naughton to ask Travers and Hall to leave the Project premises and, if they refused to do so, to contact the Police.

14. Naughton returned to the lunch room in the Site Compound and again requested Travers and Hall to leave the Project premises.

Particulars

The conversation in which Naughton requested Travers and Hall to leave the Project premises was to the following effect:

Naughton: Guys, I'm gonna have to ask you to leave as you haven't given 24 hours notice.

Hall: No, we are not leaving. Who is giving you directions?

Naughton: David White.

Travers: I will call David White.

Naughton: I am going to call the police.

15. At or about 12.51 pm, Naughton called '000' and informed the police operator of the situation.

16. At or about 12:55 pm or 12:56 pm, White received a telephone call from Travers.

Particulars

The conversation between White and Travers was to the following effect:

Travers: Luke has told me he wants me to leave or he will call the police.

White: You know the rules, we have to do this, you can't be there, if you don't want to leave then we have no choice but to call the police.

Travers: If he calls the police I won't leave, I'm just here to talk to Rod, another 5 minutes and we will be leaving.

White: It is out of our hands, Luke has to do what he has to do.

Travers: If you do that you are starting a war and it will be no different to what we have done with Kane.

17. At or about 1.16pm, approximately four Australian Federal Police (AFP) officers arrived at the Project premises.

Particulars

The AFP officers introduced themselves and took the names and dates of birth of Travers, Hall, Duggan, and Naughton. Whilst doing so, Travers said words to the effect of: "We know our rights, if the authorities are called, we wait, it's our policy".

18. Shortly after these events at or about 1.37pm, Travers and Hall left the Project premises and returned to their vehicle, which was parked at a car park of a building site adjacent to the Project premises.”

[31] Most of these allegations are denied in pleadings filed in the Court. A hearing date is yet to be fixed.

Is Mr Travers a Fit and Proper Person?

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

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

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

[35] In these circumstances I consider that the seriousness of the allegations, against a background of unlawful conduct, warrant conditions being placed on Mr Travers’ permit. I find that at the current time, as a matter of balance, Mr Travers is a fit and proper person to hold a permit subject to the following condition:

“If any findings are made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a) to (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) to (f) of the Fair Work 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.”

[36] I direct the Regulatory Compliance Branch of the Commission to issue a permit in these terms.

VICE PRESIDENT

Appearances:

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

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

Hearing details:

2016.

Melbourne.

22 April.

Final written submissions:

The Director on 29 April 2016.

The CFMEU on 6 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 [2009] FMCA 1248.

 6 [2011] FMCA 562.

 7   [2011] FWA 7247.

 8   [2013] FWCD 1822.

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