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

[2016] FWC 3190

[2016] FWC 3190

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
(RE2016/354)

VICE PRESIDENT WATSON MELBOURNE, 31 MAY 2016

Application by the Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch for entry permit for Mr Drew MacDonald – Factors to be taken into account when determining whether fit and proper person – Fair Work Act 2009, ss. 480, 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 Drew MacDonald. Mr MacDonald 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 the Acting Director proposes to make submissions in relation to the application.

[3] The matter was listed for hearing on 18 May 2016. Ms S. Kelly of counsel appeared with Ms K. Reid on behalf of the CFMEU, and Mr B. Avallone of counsel appeared with Mr F. Baldo and Ms N. Giarratana on behalf of the Director.

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 Maritime Union of Australia v Fair Work Commission (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.”

[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. In my view, 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. I propose 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 penalties 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.

Background and Evidence

[12] Mr MacDonald is an officer of the CFMEU and holds the position of Organiser, Construction and General Division, Victoria-Tasmania Divisional Branch. He is a permit holder within the meaning of s.12 of the Act and was first granted an entry permit by a Delegate of the Commission under s.512 on 16 September 2010. Mr MacDonald has continuously held an entry permit since that time. Mr MacDonald’s current entry permit was issued on 1 June 2013 and is due to expire on 1 June 2016.

[13] Mr MacDonald 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 an entry permit under s.83 in 2009 and has held an entry permit under this legislation continuously since that time.

[14] The application for an entry permit was made on 1 March 2016 under s.512 of the Act. It contains a declaration from Mr MacDonald, as the proposed permit holder, and a declaration from John Setka, as the Member of the Committee of Management, making the application in accordance with the Act. The declarations state that Mr MacDonald:

● 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:

• Director of the Fair Work Building Inspectorate v CFMEU & Ors [2013] FCA 1014;



• Abigroup Contractors Pty Ltd v CFMEU & Ors (BRG123/2013);



• Director of theFair Work Building Industry Inspectorate v CFMEU [2015] FCA 226;



• Director of the Fair Work Building Inspectorate v CFMEU & Ors (VID27/2015) – proceedings commenced;



• Director of the Fair Work Building Inspectorate v CFMEU & Ors (VID281/2015) – proceedings commenced; and



• Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors (VID164/2016) – proceedings commenced.

● 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

● apart from the matters set out above, 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.

[15] The Director submits that a real question arises as to whether Mr MacDonald is a fit and proper person to hold an entry permit and whether appropriate conditions could be imposed in order to adequately address the deficiencies in conduct Mr MacDonald has previously engaged in. The Director submits that in the context of the CFMEU’s application for an entry permit for Mr MacDonald, ss. 513(d) and (g) of the Act are particularly relevant.

[16] I propose to consider each of the matters in s.513 in turn before considering the overall assessment of whether Mr MacDonald is a fit and proper person.

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

[17] Mr MacDonald has completed the ACTU training course concerning right of entry which has been approved by the Commission for the purpose of s.513(1)(a). The ACTU Certificate of Achievement is included in Mr MacDonald’s application and demonstrates that he completed the Federal Right of Entry course on 2 February 2016.

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

[18] Mr MacDonald has not been convicted of an offence of the kind proscribed by s.513(1)(b).

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)

[19] Mr MacDonald has not been convicted of an offence of the kind proscribed by s.513(1)(c).

Penalty under the Act or other Industrial Law: s. 513(1)(d)

[20] Mr MacDonald’s application discloses one proceeding in which he was required to pay penalties under industrial law 5, and also discloses another proceeding in which the CFMEU was found guilty of contempt arising from conduct of its officials including Mr MacDonald.6 I consider that the contempt matter is better considered under s.513(1)(g).

[21] In Abigroup, the CFMEU was ordered to pay penalties for conduct engaged in by Mr MacDonald, as well as other CFMEU officials, at a number of Abigroup sites around Melbourne on 26, 27 October, and 11 November 2010. Mr MacDonald was found to have been involved in unlawful strike action on 27 October and 11 November 2010 by both employees and sub-contractors of Abigroup Contractors working at the Truganina South Primary School Project site. This conduct came about as a result of a dispute between the CFMEU and Abigroup about redeployment of employees to the Peninsula Link Project in about June 2010. When Abigroup declined to redeploy employees, CFMEU officials engaged in blockades of the Peninsula Link Project. Mr MacDonald’s conduct on both days involved entering the premises at about 7:00am with the express intention of conducting a meeting with workers, conducting such a meeting, and directing workers to strike on those days. As a result, the relevant workers refused to work for the remainder of those days. Penalties totalling $5,000 were imposed on Mr MacDonald for contraventions of s.38 of the Building and Construction Industry Improvement Act 2005 (BCII Act).

[22] Mr MacDonald gave evidence on the day of the hearing that supplemented his statement filed with the application. He said in a witness statement that since the Federal Court decision he had undertaken further training through the ACTU course relating to right of entry, he took notice of what he was taught and intended to apply this knowledge to the best of his ability. He was cross-examined in relation to this matter. He said that he did not have a good recollection of the events as it was a long time ago, but that he was reminded of the proceedings when he signed the declaration associated with making the application for renewal of his right of entry permit. He accepted that he had engaged in the conduct that was part of the agreed facts in the proceedings and provided the basis for the conclusions of the Court. He said that he did not pay the penalties imposed by the Court and assumed that the union did.

[23] Mr MacDonald did not express regret or remorse for his conduct in any of the statements or his evidence in chief. When it was put to him in cross-examination that he was not sorry for his conduct he said: “Of course I am now.” In re-examination the following exchange occurred with his counsel:

“You were asked by my learned friend about not having expressed "sorrow or remorse" was his phrase, in your statement about the Truganina dispute, and in response to that you said, "Of course I am".  Can you tell the Vice President what you meant when you said that and how, if at all, you'd go about dealing with that differently if confronted with the same situation today?---Well, if the question was asked of producing an entry permit I have no problems in doing that.

When you say producing an entry permit, do you sometimes go on sites without going through the right of entry process, Mr MacDonald?---I do.

How often would that happen?---Probably be the majority of the times that I do visit sites.

How do you access the site if you're not using the right of entry provisions?---More than often we're invited on.

How many sites would you visit a week?---It varies.  It can vary from a dozen to 30.

So as a minimum it would be 12 sites in a week?---Yes, at a minimum, yes.

It could be as many as 30 sites?---Yes, easily.

Now the Truganina dispute as you have been taken to wasn't about you misusing your right of entry.  It was about some unlawful industrial action that occurred?---Yes.

Can you tell the Vice President what - how you would manage that circumstance differently today, if at all?  A dispute of that kind?---The dispute of that kind, I would exercise my right as an ARREO permit holder.

When say ARREO, what are you referring to Mr MacDonald?---The provisions under - well in regards to safety, yes.

Do you use those ARREO provisions at the time?---From time to time I do, yes, if required.

When you say from time to time, what times is it that you use your ARREO, Mr MacDonald?---If we've seen that there's a need to go onto a site where we would see that there'd be immediate safety breaches.  Sorry, suspected contraventions of the Act, yes.”

[24] The reference to the ARREO permit is a reference to the State Occupational Health and Safety permit held by Mr MacDonald.

Revocation of Permits: s. 513(1) (e) and (f)

[25] Mr MacDonald presently holds an entry permit under the Act and has done so since 2010. He also holds an entry permit issued under s.83 of the OHS Act and has done so since 2009. Neither permit has been revoked, suspended or cancelled in the period since it was first issued to Mr MacDonald.

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

[26] In the Bald Hills contempt proceedings, the CFMEU provided an undertaking to the Federal Court of Australia on 2 April 2014 that it would not prevent, hinder or interfere with free access to, and free egress from the Bald Hills Wind Farm in Western Victoria by any person or vehicle. On 15 April 2014, Mr MacDonald was involved in conduct in contravention of this undertaking which resulted in the CFMEU being found guilty of contempt of court. Tracey J examined the material which was filed by the Director in support of the contempt charges and the Director’s summary which was based on that material. He found that the summary was supported by the underlying evidence which, in his view, established each of the allegations levelled against the CFMEU beyond reasonable doubt. Mr MacDonald’s conduct included blocking a number of gates around the site and engaging in obscene gesturing and language directed towards two Fair Work Building Industry inspectors. The relevant parts of the summary of evidence provided:

“Conduct at Gate A on 15 April 2014 ….

31. At around 10.55am, Fair Work Building Industry Inspectors Shad Heyman (Inspector Heyman) and John Post (Inspector Post) arrived at Gate A in their vehicle. Myles was cooking on the Gate A BBQ trailer and Stephenson and McDonald were present. At around this time, Stephenson walked to the door of CFMEU vehicle ZEK547 (which was one of the vehicles blocking access through Gate A at the time), opened the door and leaned inside the vehicle for about 20 seconds. He then closed the door and returned to the group…

….

36. At approximately 2pm, Stephenson addressed a grouping of approximately 30-40 people outside Gate A, including Beattie, Myles, McDonald, Tadic, Christopher, Theodorou, one of the persons blocking the Box Driveway (see below at paragraphs [72]-[74]) and other CFMEU officers and employees and others wearing CFMEU badged attire. During his address, Stephenson was gesturing with his arms in the air as though he was giving the crowd a passionate speech. After Stephenson finished talking, the group of people started applauding. At this time, the vehicles placed across Gate A included CFMEU vehicle YJR191, CFMEU vehicle XZS731 (which was towing the Gate A BBQ trailer), CFMEU vehicle ZEK547, CFMEU vehicle YOX831 and CFMEU vehicle ZSX923.

….

Conduct at the Water Tank Entrance on 15 April 2014…

47. McDonald was at the Water Tank Entrance for a period around 12.41pm. At about 12.41pm, Inspectors Heyman and Post drove past the Water Tank Entrance. McDonald saw them, grabbed his crotch and mouthed the words ‘fuck off’ to them.”

[27] Assessing the CFMEU conduct as a whole Tracey J said:

33. 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:

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

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

o 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.

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

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

o No sophisticated planning was involved.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.”

[28] The absence of violence and abuse of workers was noted by Tracey J. However his Honour found that Mr MacDonald abused two inspectors in the course of his picketing and blockading activities. In my view, these are serious matters. Ultimately his Honour imposed fines on the CFMEU totalling $125,000. However under cross-examination Mr MacDonald professed little knowledge of the proceedings. He said that he was not aware of the applicant’s summary of evidence for the plea hearing. He claimed the privilege against self-incrimination in relation to questions regarding his conduct relied upon by his Honour.

[29] Mr MacDonald’s application discloses three further proceedings which are currently before the Federal Court of Australia, and in which he is named as a respondent.

[30] First, in Director of the Fair Work Building Inspectorate v CFMEU & Ors (VID27/2015) it is alleged that Mr MacDonald, while seeking to exercise a State or Territory OHS right pursuant to Part 3-4 of the Act, acted in an improper manner and contravened s.500 of the Act by entering an area delineated as unsafe and despite being asked not to enter, and also intentionally hindered or obstructed a driver of a concrete truck and other workers on site in February 2014. The application has recently been to trial and the decision of Tracey J is reserved. Under cross-examination Mr MacDonald again expressed little knowledge of the proceedings. He said that he was not involved in the proceedings and had not looked at the originating documents until he was shown them in the witness box. His understanding of the matter was that the matter was dealt with and the application was dismissed. He said that he was unaware of the trial in the matter that occurred in December 2015.

[31] Secondly, in Director of the Fair Work Building Inspectorate v CFMEU & Ors (VID281/2015), it is alleged that Mr MacDonald while exercising or seeking to exercise rights in accordance with Part 3-4 of the Act for the purpose of holding discussions with employees pursuant to s.484, on a number of dates in February and March 2014:

● Acted in an improper manner at sites in Laverton North and Cheltenham by failing to provide notice of his entry on site and failing to provide any authority documents, thereby contravening s.500; and
● Took action with the intention of giving the impression, or reckless as to whether the impression was given, that he was authorised to enter sites at Laverton North and Cheltenham without providing 24 hours written notice of entry and without producing his authority documents upon request, thereby contravening s.503.

[32] Mr MacDonald said that his understanding of the status of the proceedings was that the union’s legal department was dealing with the matter. He had no knowledge that the matter was set down for hearing in the Federal Court for five days from 22 June 2016, although he understood from discussions with the CFMEU legal department that the matter was ongoing.

[33] Thirdly, in Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors (VID164/2016), it is alleged that Mr MacDonald contravened ss. 340, 343, 346 and 348 of the Act by coordinating, inciting, participating in and controlling a blockade and protest at a site in Webb Dock in Port Melbourne in March 2015. The extent of Mr MacDonald’s knowledge of the proceedings appears to be that he is aware that they are ongoing.

[34] No findings have been made to date in the matters. Counsel for the Director sought to cross-examine Mr MacDonald in relation to these cases. In each case Mr MacDonald claimed the privilege against self-incrimination. No adverse inference arises from his claim of privilege. Nevertheless I propose to have regard to the findings of Tracey J in relation to the Bald Hills contempt matter. Although Mr MacDonald was not named as an individual respondent in the matter, and was not penalised in an individual capacity, his union had the capacity to contest the findings but chose not to do so. The evidence accepted by the Court was uncontested.

[35] In addition I consider it relevant to consider the extent of Mr MacDonald’s knowledge and involvement in court matters in which his conduct is relevant and/or he is a named respondent.

Is Mr MacDonald a Fit and Proper Person to hold the Entry Permit?

[36] As I have noted in other recent cases, the particular context of this application by the CFMEU, appears to me to be important. The relevant branch of the CFMEU has been found by the Federal Court to have engaged in conduct that evidences a continuing attitude of disobedience of the law and to have an organisational culture in which contraventions of the law have become normalised. In my view, this brings into focus the need for an applicant for right of entry permits with this branch of the union to have a strong commitment to complying with legal obligations. I consider that a commitment to complying with the law is more important than training and knowledge of legal obligations.

[37] Mr MacDonald has been granted a permit on two previous occasions. At the time those permits were granted he had not been found to have acted unlawfully. Since then he has been penalised by the Federal Court for breaches of industrial laws, the CFMEU has been fined for contempt arising from his conduct and he is a named respondent in three extant proceedings for further breaches of industrial laws. It is quite disturbing that he has had little involvement in the proceedings and appears to have little knowledge of them. He has not paid fines imposed on him and he appears to leave such matters for the union legal department to handle. More disturbing was his failure to demonstrate that he has learnt anything from these experiences. In his evidence before the Commission he did not profess any understanding of the nature of his transgressions. Nor was he able to explain in any logical way how his conduct would be different on future occasions. Very belatedly he expressed some regret for his actions with respect to the 2013 findings against him, but his proposed steps to avoid such conduct appear unrelated to the offending conduct in question.

[38] I note that Mr MacDonald has completed relevant training and apart from one completed court proceeding has only been personally penalised once for a breach of industrial law. Superficially these factors might be said to work in favour of a finding that he is a fit and proper person to hold a right of entry permit. However, his evidence and track record significantly undermines his claim to such a finding. I would expect that an official of several years standing, who has been directly or indirectly involved in a number of legal proceedings relating to his conduct, would demonstrate a clear knowledge of his legal obligations, a clear knowledge of where he may have transgressed in the past and a preparedness to comply with the law in the future even when his union may not demand such standards of behaviour. As Mr MacDonald fell well short of such demonstration I am not satisfied that he is a fit and proper person to hold a right of entry permit. I do not consider that any conditions that might be attached to the issue of his permit would alter my conclusion in the matter. The application for a permit is therefore dismissed.

VICE PRESIDENT

Appearances:

Ms S. Kelly of counsel, with Ms K. Reid, on behalf of the CFMEU.
Mr B. Avallone of counsel, with Mr F. Baldo and Ms N. Giarratana, on behalf of the Director.

Hearing details:

2016.

Melbourne.

18 May.

Final written submissions:

Fair Work Building Industry Inspectorate on 12 April 2016.

CFMEU on 20 April 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 [2013] FCA 1014.

 6 [2015] FCA 226.

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