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

[2015] FWC 5843

[2015] FWC 5843

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
(RE2015/773)

DEPUTY PRESIDENT GOSTENCNIK PERTH, 27 AUGUST 2015

Application for a right of entry permit for Fergal Joseph Doyle; fit and proper person; permit qualification matters; evidence of current attitude to exercise of entry rights and observance of law; satisfied Doyle is a fit and proper person to hold entry permit; application granted; permit to issue.

Introduction

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of an entry permit to its official, Mr Fergal Joseph Doyle. Mr Doyle is employed as an organiser within the Construction and General Division, Victoria-Tasmania Divisional Branch of the CFMEU.

[2] The Director of the Fair Work Building Industry Inspectorate (Director) has given notice under s.72 of the Fair Work (Building Industry) Act 2012 (BCII Act) that he proposed to make submissions in relation to the application. The Director opposes the grant of an entry permit to Mr Doyle.

Relevant statutory provisions and application

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

“512 FWC may issue entry permits

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.


513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

514 When the FWC must not issue permit

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

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

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

515 Conditions on entry permit

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

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

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

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

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

[4] In Maritime Union of Australia v Fair Work Commission and Another 1(MUA) a Full Court of the Federal Court of Australia recently considered the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3 – 4 of the Act. The Full Court observed the following:

“[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– 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 439–440 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 Act 1901(Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’” 2 

[5] The Full Court ultimately concluded that when the Commission is deciding whether to issue an entry permit pursuant to s.512 of the Act, those considerations relevant to the exercise of the power in s.513 of the Act are not confined, for example, to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the Commission – at least initially. However the prospect remains for judicial review founded upon, for example, alleged unreasonableness. 3  

[6] The Full Courtalso concluded that conditions may be imposed pursuant to s.515 of the Act to remedy or address deficiencies or reservations in respect of a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person was not fit and proper. 4 

[7] Before MUA was decided the relevant principles applicable to applications of this kind were usefully summarised by Vice President Hatcher in Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 5 as follows:

“ A ‘fit and proper’ standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

• The expression ‘fit and proper person’ in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.



• The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a ‘fit and proper person’ per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.



• The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.



• The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.



• The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.



• While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).



• Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.” 6 

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

[9] There is nothing in the Vice President’s summary which is inconsistent with the views expressed by the Full Court in MUA save that the summary needs to be modified to take into account the permit qualification matters and the assessment of the fitness and propriety of a proposed permit holder in light of the power to impose conditions when a permit is issued and the Full Court’s observations about weight attaching to the permit qualification matters. 7  With those modifications and the observation I have made in the preceding paragraph, I respectfully agree with and adopt the Vice President’s summary.

[10] I turn to consider the application.

Consideration

[11] Mr Doyle initially commenced employment with the CFMEU as an organiser in 1995 and worked for the CFMEU as an organiser until July 2011. 8 For a significant portion of that period he was an elected official of the CFMEU.9 Mr Doyle left his employment with the CFMEU in late July 2011 and for the period commencing shortly thereafter and until 11 May 2015, Mr Doyle worked for the Victorian Building Industry Disputes Panel (Disputes Panel).10 The Disputes Panel is a body consisting of an independent chair and two panel members sitting as a union employee representative and an employer representative respectively. Provision is often made in enterprise agreements which cover the CFMEU for disputes to be dealt with by the Disputes Panel before they are dealt with by this Commission.11 Mr Doyle sat as a member of the Disputes Panel in the capacity of union employee representative.12

[12] Mr Doyle commenced a further period of employment with the CFMEU as an organiser on 12 May 2015. 13

[13] Mr Doyle has held right of entry permits under the Act and under predecessor legislation during the period between 1995 and 2011 and he has not had any right of entry permit held by him suspended or revoked or had conditions imposed. 14  Similarly Mr Doyle has been the holder of entry permits in his capacity as an authorised representative of an employee organisation under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) during the period between 2005 and 2011 and has not had any entry permit issued to him under the OHS Act revoked or suspended or had conditions imposed.15 Mr Doyle is currently the holder of an entry permit under the OHS Act which was issued to him on 19 May 2015.16

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

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

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

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

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

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

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

[15] None of the above was disputed by the Director and I accept that this information as disclosed in the Declarations is accurate and correct.

[16] The Declarations also disclose that Mr Doyle has undertaken and completed two courses of training about the rights and responsibilities of a permit holder conducted by the Australian Council of Trade Unions. The most recent course of training undertaken by him was completed on 25 May 2015. Mr Doyle also gave evidence about his understanding of the rights and responsibilities of a permit holder under the Act. 17 Mr Doyle was not cross examined about his understanding of those rights and responsibilities and I accept that Mr Doyle’s evidence demonstrates that he has a very good understanding and I am satisfied that Mr Doyle has received appropriate training about the rights and responsibilities of a permit holder.

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

[17] The Declarations also disclose the following matters that are relevant to the permit qualification matter identified in s.513(1)(d) of the Act:

● On 29 October 2010 the Australian Building Construction Commissioner (ABCC) filed an application in the Federal Magistrates Court against Mr Doyle and the CFMEU. No judgement was published. The Federal Magistrates Court found that the CFMEU contravened s.500 of the Act by the actions of its official, Mr Doyle. The court imposed a penalty of $6,500.00 on the CFMEU. No penalties were imposed against Mr Doyle.

● On 7 October 2013 in Federal Court of Australia proceedings, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 18(FWBII Case), the CFMEU was ordered to pay a penalty of $155,000.00 for a contravention of s.43 of the Building and ConstructionIndustry Improvement Act 2005 (Cth)(BCII Act). The proposed permit holder was a named respondent in the above matter and was ordered to pay a penalty of $11,000.00 for his conduct contrary to ss.38 and 43(1)(a) of the BCII Act.

[18] The Declarations assert that apart from these matters Mr Doyle 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. These assertions are erroneous. I will deal with the failure to fully disclose relevant matters in the Declarations later in this decision.

[19] As the Director has pointed out in his submissions 19 the Declarations did not disclose that on 5 October 2011, in Lukies v Doyle & Anor,20(Lukies) the Federal Magistrates Court of Australia imposed on the CFMEU a penalty of $13,000 for contraventions of ss.756 and 768 of the Workplace Relations Act 1996 (Cth) (WR Act) arising out of an entry to premises by Mr Doyle. The Court relevantly ordered by consent as follows:

“1. Leave is granted to the applicant to discontinue the proceeding as against the first respondent.

. . .

3. A penalty of $13,000.00 be imposed upon the second respondent in respect of contraventions of ss.756 and 768 of the Workplace Relations Act 1996 (Cth) (now repealed), arising out of the entry of an official of the second respondent to 53 Princes Highway, Beaconsfield, on 22 May 2009.” 21

[20] Mr Doyle was the first respondent and the official referred to in paragraphs 1 and 3 of the order above.

[21] At the time of the contravening conduct, ss.756 and 768 were part of the right of entry scheme established by Part 15 – Right of Entry of the WR Act.

[22] Section 756 of the WR Act provided as follows:

“An official of an organisation who has a right under an OHS law to enter premises must not exercise that right unless the official:

(a) holds a permit under this Part; and

(b) exercises the right during working hours.”

[23] Section 768 of the WR Act provided as follows:

“(1) A person must not, in the circumstances mentioned in subsection (2), engage in conduct:

(a) with the intention of giving a second person the impression; or

(b) reckless as to whether a second person would get the impression;

that the first person, or a third person, is authorised by this Part to do a particular thing.

(2) The circumstances are:

(a) the first person or the third person (as the case requires) is not authorised by this Part to do that thing; and

(b) the first person knows, or has reasonable grounds to believe, that the first person or the third person (as the case requires) is not authorised by this Part to do that thing.”

[24] Mr Doyle’s contravening conduct arose out of his entry onto premises and resulted in the imposition of a pecuniary penalty on the CFMEU. It is apparent from the Statement of Agreed Facts filed in Lukies that Mr Doyle did not hold a valid entry permit as it had expired, but nonetheless proceeded to enter the premises. 22 This is a serious matter, and it may be inferred that Mr Doyle showed little regard for the rights of the occupier or person in control of the premises, to refuse entry to a person who had no legal right to be there.

[25] The Declarations also did not disclose that in Australian Building and Construction Commissioner v Doyle & Anor, 23 (ABCC Case)the first of the matters disclosed in the Declarations (being proceeding MLG1502/2010), an additional penalty of $6,500 was imposed on the CFMEU for a contravention of s.497 of the Act. Mr Doyle engaged in the contravening conduct in relation to which the penalty on the CFMEU was imposed. In that matter the Court imposed penalties totalling $13,000 on the CFMEU because of contravening conduct engaged in by Mr Doyle. The Court relevantly ordered by consent as follows:

“(1) A penalty of $6,500.00 be imposed on the Second Respondent for the contravention of section 497 of the Fair Work Act 2009 (Cth) that occurred on 19 October 2009.

(2) A penalty of $6,500.00 be imposed on the Second Respondent for the contravention of section 500 of the Fair Work Act 2009 (Cth) that occurred on 19 October 2009.

. . .

4) The Applicant have leave to discontinue the proceedings against the First Respondent.” 24

[26] The CFMEU is the second respondent referred to in paragraphs 1 and 2 of the above-mentioned order, and Mr Doyle the first respondent referred to in paragraph 4 of the order.

[27] Section 497 is part of the right of entry scheme established by Part 3–4 – Right of Entry of the Act and provides as follows:

“A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.”

[28] It is also apparent and contrary to the information in the Declarations that reasons for judgement in the ABCC Case were published by the court. 25 However, apart from giving credit to the parties for the production of an agreed statement of facts and consent on the orders, and accepting the applicant’s written submissions about the binding authority of a particular decision,26 the reasons for judgement do not shed any additional light on the circumstances of the contravening conduct beyond that which may be discerned from the statement of agreed facts27 that were filed in those proceedings.

[29] It is apparent from the agreed statement of facts that on 19 October 2009 Mr Doyle entered premises that were in the control of S J Higgins Pty Ltd, the principal construction contractor in relation to building work that was being undertaken at the premises. Whilst Mr Doyle was on the premises he was requested by a site manager employed by S J Higgins Pty Ltd to produce his entry permit. Mr Doyle refused to show his entry permit to the site manager and did not do so then or at a later time when a further request by the site manager was made. 28

[30] It is in relation to this conduct that the CFMEU agreed that Mr Doyle had further refused to produce for inspection his entry permit when requested to do so whilst he was on the premises and this amounted to a contravention of s.497 of the Act. 29

[31] It is also apparent from the agreed statement of facts that whilst on the premises referred to in the preceding paragraph on 19 October 2009, Mr Doyle:

● failed to attend the site offices to sign into the premises when requested to do so by a site manager employed by S J Higgins Pty Ltd;

● failed to produce his entry permit when requested to do so;

● after he refused to produce his entry permit be failed to leave the premises when requested to do so on a number of occasions by a site manager employed by S J Higgins Pty Ltd;

● failed to provide any notice of suspected contravention as required by s.88 of the OHS Act, until the conclusion of his visit;

● failed to produce to any representative of S J Higgins Pty Ltd his OHS entry permit as required by s.88 of the OHS Act; and

● continued to move about the premises inspecting work and equipment, despite all of the failures referred to above. 30

[32] It is in relation to this conduct that the CFMEU agreed Mr Doyle’s conduct involved intentionally hindering and/or obstructing various persons acting in a proper manner whilst he was on the premises and amounted to a contravention of s.500 of the Act. 31

[33] Mr Doyle’s contravening conduct showed a disregard for his rights and obligations of a permitted holder and the rights of an occupier or person in control of the premises on which he had entered.

[34] In the FWBII Case 32penalties totalling $11,000 were imposed on Mr Doyle in relation to conduct in which he had engaged and penalties of $110,000 were imposed on the CFMEU in relation to conduct engaged in by Mr Doyle and other officials of the CFMEU. Relevantly, the Federal Court ordered as follows:

“2. On or before 6 December 2013, the Fifth Respondent (Doyle) pay a penalty of $5,000 for his conduct on 31 August 2010 by engaging in:

2.1 a blockade of the entrance to the Cranbourne-Frankston Road site of the Peninsula Link Project, thereby preventing access to and from the site; and

2.2 a blockade of the entrance to the Seaford Compound of the Peninsula Link Project, thereby preventing vehicular access to and from the Seaford Compound –

such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act.

3. On or before 6 December 2013, the CFMEU pay a penalty of $35,000 for a contravention of s 43(1)(a) of the BCII Act by reason of being vicariously liable for the conduct referred to in paragraphs 1 and 2 above.

. . .

8. On or before 6 December 2013, Doyle pay a penalty of $6,000 for a contravention of s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by:

8.1 employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Lyndhurst Primary School Project Site at 70 Brookwater Way, Lyndhurst (the Lyndhurst Site), such involvement by Doyle being constituted by him having directed those employees to strike for the day; and

8.2 employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Cranbourne East Primary School Project Site at 50 Stately Drive, Cranbourne East (the Cranbourne East Site), such involvement by Doyle being constituted by him having directed those employees to strike for the day.

. . .

14. On or before 6 December 2013, the CFMEU pay a penalty of $65,000 for a contravention of s 43(1)(a) of the BCII Act by reason of being vicariously liable for:

14.1 the conduct of:

14.1.1. Doyle referred to in paragraph 8 above;

14.1.2. MacDonald referred to in paragraph 9 above;

14.1.3. Benstead referred to in paragraph 10 above;

14.1.4. Parker referred to in paragraph 11 above;

14.2 the conduct of Stephenson referred to in paragraph 12 above; and

14.3 the conduct of Powell referred to in paragraph 13 above –

such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act.” 33

[35] Section 43(1)(a) of the BCII Act relevantly provides that a person must not organise or take action, or threaten to organise or take action, with intent to coerce another person to (relevantly) employ a person as a building employee. Section 38 of the BCII Act relevantly provides that a person must not engage in unlawful industrial action.

[36] Neither party submitted that the BCII Act was not an industrial law within the meaning of s.513(1)(d) of the Act and I accept that it is. It also seems clear from the above that Mr Doyle’s contravening conduct was intentional.

[37] In my view, Mr Doyle’s contravening conduct described above speaks to his fitness and propriety, in as much as it seems clear that the conduct was unlawful and improper. It shows a pattern of behaviour which is consistent with a person who has little regard for industrial law and the rights of others under that law. As is evident from the summaries above Mr Doyle contravened ss.38 and 43 of the BCII Act and by reason of his conduct he caused the CFMEU to contravene ss.38 and 43 of the BCII Act. Mr Doyle’s contravening conduct also caused the CFMEU to contravene ss.497, 500, 756 and 768 of the WR Act. Mr Doyle’s conduct, at least during this period the subject of the proceedings described above, displays a general unwillingness to comply with industrial law and statutory requirements permitting the entry of union officials onto premises.

[38] Mr Doyle gave evidence that in relation to the abovementioned contravening conduct. Mr Doyle said he now understands the error of his actions and that he was remorseful for them. 34 Mr Doyle gave evidence that he understood the seriousness of his misconduct and that he appreciated the gravity of the conduct and the penalties imposed on him and on the CFMEU by the court in relation to his conduct.35 Mr Doyle’s evidence was that he was sorry for his actions that led to the past contraventions.36 Mr Doyle was not cross examined by the Director about this evidence.

[39] As I have earlier indicated Mr Doyle has recently completed a four year period of employment as a member of the Disputes Panel. Mr Doyle gave the following evidence about his experience at the Disputes Panel:

“And, as a result of your experience, sitting on that tribunal did you learn anything?---Yes.  I’ve learnt a great deal in relation to importance of following dispute settlements procedures, and I know how important it is for the parties to follow the dispute settlement procedure.  I've also developed a good working relationship with Mr Daniel Hodges, and also a close working relationship with Mr Simon Williams, and I respect Mr Simon Williams and I respect him as an elder in the industry and obviously as far as industrial relations go, and I found that a very worthwhile experience, and a very good experience myself personally.  And I just think personally I’ve become a lot more refined I supposed, for want of a better word, in the last four years.  You see things differently when you're away, you know, from organising over a period of the four years.  I think it’s been very beneficial for myself.

And has that experience changed your view about the way in which disputes should be dealt with in the building industry?---Yes, it has.  I think it’s important that, if you enter an agreement, you honour it.  If there's a dispute settlement procedure there you follow it.  And it’s fair to say that I now put more weight in the process, and following the process.” 37

[40] Mr Doyle was not cross examined by the Director about this evidence. I had the opportunity of observing Mr Doyle while he gave his evidence. I accept his evidence as genuinely given and truthful. Mr Doyle by his evidence did not seek to justify or excuse his past contravening conduct but accepted it as both serious and wrong. He expressed his remorse for that conduct and his evidence shows that he has learned a great deal about more appropriate and productive approaches to dispute resolution. It is in this context that I also accept Mr Doyle’s evidence as genuine and truthful that the grant of a permit is a privilege, that with that privilege comes an obligation to act in accordance with the law and that if he is given the privilege of holding an entry permit he would accept it as such and act according to the law. 38

[41] Further whilst the passage of time since the last occurrence of contravening conduct has not been significant, particularly as Mr Doyle has not been in the employ of the CFMEU for most of that period, in the circumstances of this case a much weightier countervailing consideration is the contemporary attitude of Mr Doyle to the exercise of entry rights, to dispute resolution and to respect for the law as expressed in his evidence, which as I have indicated already I accept as genuine and truthful. Although it might be said of Mr Doyle’s evidence that his expressed willingness to comply with the law is no more than a minimum requirement of any person holding an entry permit and should not be given any weight, I view Mr Doyle’s evidence in the context of a pattern of past contravening conduct, a genuine expression of remorse for that conduct, an understanding that the conduct was wrong and his learning during his period as a member of the Disputes Panel. Viewed in that context, Mr Doyle’s evidence demonstrates a significant positive alteration to his attitude and outlook in matters concerning the exercise of entry rights and the observance of industrial laws.

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

[42] The Director also referred to two further matters in which he maintained that Mr Doyle’s conduct has “come to the attention of the Courts with respect to contraventions of industrial laws”. 39

[43] In Gregor v Construction Forestry Mining and Energy Union 40(Gregor)the Statement of Agreed Facts annexed to the decision discloses that Mr Doyle and others engaged in the following conduct:

“185. From approximately 6.00 am and throughout the day on 25 February 2009, each of Hudson, Christopher, Washington, Spernovasilis, Edwards, and another CFMEU official, Fergal Doyle (Doyle) parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

186. From approximately 6.00 am and throughout the day on 26 February 2009, various CFMEU officials parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

187. From approximately 6.00 am and throughout the day on 27 February 2009, various CFMEU officials parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

188. From approximately 7.00 am and throughout the day on 2 March 2009, each of Christopher, Hudson, Washington, Tadic, Reardon, Berardi, Powell, Long, Graumanns, Doyle and two other CFMEU officials: Val Cakarun (Cakarun), Tom Watson (Watson) formed part of a picket line such as to block the front entrance gate to the RCH Site.

189. Further, from approximately 7.50 am and throughout the day on 2 March 2009 until 4.00 pm, each of Christopher, Hudson, Washington, Tadic, Reardon, Cakarun, Watson, Berardi, Powell, Long, Graumanns and Doyle parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site. 41

[44] In Alfred v Construction, Forestry, Mining and Energy Union (No 2), 42(Alfred) the CFMEU was found guilty of contempt of court.43 The Court had previously made orders restraining officers, employees or agents of the CFMEU from attending within 100 metres of the site in question 35.44 The relevant particulars of the contempt charge were as follows:

“During the relevant period, the respondent through numerous of its organisers and officials:

a. regularly attended the immediate vicinity of the main gate entrance of the Site;
b. maintained a significant physical presence at the main gate entrance of the Site;
c. left the crushed rock and left or maintained a 44 gallon drum, with the wood fire burning in it, directly in the main gate entrance as an impediment to persons or vehicles accessing or leaving the Site;
d. arranged for or otherwise caused or permitted the delivery of wood to continue the wood fire in the 44 gallon drum;
e. continued to use at or near the main gate entrance of the Site the deckchairs, gazebos, 44 gallon drum(s) and temporary fencing as impediments to persons or vehicles accessing or leaving the Site;
f. left at and around the main gate entrance of the Site CFMEU flags and signs with derogatory messages about Bovis Lend Lease Pty Ltd and Fulton Hogan Pty Ltd;

and by each and all of that conduct continued to prevent or hinder the access of any person or vehicle to the Site.
During the relevant period, the respondent by itself, its officers, employees or agents placed or left vehicles within 100 metres of the main entrance to the Site, specifically the following vehicles registered to the respondent and made available for use by its organisers and officals (sic).
a. on 21 May 2010, WOK-939, WOK-940, XQS-050;
b. on 24 May 2010, WML-264, WML-266, WTY-070;
c. on 25 May 2010, WML-268, WOK-939
d. on 26 May 2010, WOK-939;
e. on 27 May 2010, WOK-939, WML-264, XBU-609.

At the time of the making of the order at about 5pm on 20 May 2010, there were several things at the main gate entrance to the Site including:
a. CFMEU flags;
b. a large pile of crushed rock;
c. one or more 44 gallon drums;
d. firewood;
e. deck chairs;
f. temporary gazebos;
g. temporary fencing panels.

By sub-paragraph 1(d) of the Order, the respondent was required to refrain from placing or leaving any of those things within 100 metres of any entrance to the Site. The respondent by itself, its officers, employees or agents breached this requirement in sub-paragraph 1(d) of the Order by:
a. failing until about 1.38 pm on Friday 28 May 2010 to take any steps, or any effective steps, to remove those things from the main entrance to the Site or from within 100 metres thereof;
b. using one or more 44 gallon drum(s), the firewood, the gazebos and the deck chairs for the purposes of maintaining the picket at the main entrance to the Site until about 1:38 pm on Friday 28 May 2010.

Numerous of the respondent’s organisers and officials attended within 100 metres of the main entrance to the Site during the relevant period, namely Ralph Edwards, Mick Powell, Shaun Reardon, Elias Spernovasilis, Tom Watson, Gareth Stephenson, Noel Washington, Gerry Benstead, Derek Christopher, Fergal Doyle, Brendan Pitt and Matt Hudson.” 45

[45] The Director submitted that whilst Mr Doyle was not a respondent and no penalty orders were made against him in either of the above proceedings, Mr Doyle’s conduct as described above is relevant as evidence of Mr Doyle’s general willingness to comply with other common law or statutory requirements, his continued association with “improper conduct” and whether the Commission can have any confidence that such improper conduct will not occur again in the future. 46

[46] The CFMEU submitted that the conduct occurred on two days in early 2009 and (apparently) one day in May 2010. It submitted that the nature and extent of Mr Doyle’s “complicity” in any wrong doing (noting he was not charged or found guilty or penalised for anything) is not apparent. It submitted that the Director’s submission does not descend to identify anything in particular about Mr Doyle’s conduct and that the matters referred to do not evidence a persistent unwillingness to comply with or a lack of regard for, industrial laws. 47

[47] I am reluctant to give any weight to Gregor, the matter referred to above because it is apparent on the face of the judgement and the agreed statement of facts annexed thereto that whilst Mr Doyle participated in that which is described in the agreed statement as the “RCH 18 February to 2 March 2009 blockade” he, unlike other officials who also participated, was not said to have contravened any provision of the BCII Act and it seems that to the extent that Mr Doyle was involved in the blockade his conduct does not readily appear to have been a matter which resulted in the imposition of a penalty on the CFMEU by reason of the blockade. 48 The best that may be said about Mr Doyle’s conduct is that he was associating with other officials who were engaging in conduct in contravention of the BCII Act.

[48] As to the conduct in Alfred, it would seem that Mr Doyle and other officials attended the relevant premises inside the perimeter which had previously been proscribed by the Court’s order, and by that conduct the CFMEU was held to be in contempt of the order. Although I regard Alfred as relevant in my assessment of whether Mr Doyle is a fit and proper person to hold an entry permit as it informs that which is already clear from the other matters described earlier (namely, that Mr Doyle has in the past, displayed a disregard for the law and for the rights and the rights of others) for the reasons already given I regard Mr Doyle’s evidence of his current attitude towards the exercise of entry permit rights and the observance of law as far more compelling and as giving a more reliable indicator of his fitness and propriety.

Failure to disclose

[49] As indicated above, the Director identified that in the Declarations, Mr Doyle and the CFMEU had failed to fully disclose the number of matters relevant to the permit qualification matter described in s.513(1)(d) of the Act and did not accurately disclose the particulars of matters that had been identified.

[50] Mr Doyle gave evidence that at the time that he signed his Declaration he did not specifically remember the Lukies proceeding and he apologised for not disclosing it. 49 Mr Doyle said that it was not his intention to mislead or to hide his past contravening conduct.50 As to the failure to disclose the additional $6,500.00 penalty that had been imposed on the CFMEU rising from the ABCC Case, Mr Doyle gave evidence that he did not remember that the penalty had been imposed on the CFMEU.51 Whilst a memory lapse is understandable, particularly given the break from employment with the CFMEU, important declarations should not be completed based on memory alone. Declarations in support of such applications are important instruments which help to inform the Commission in the assessment it is required to make. Much greater diligence and care is required.

[51] In this regard, it is apparent that Mr Doyle relied on the assistance provided by another official of the CFMEU, in completing his declaration. Ms Kristen Reid is employed by the CFMEU as an industrial officer and assumed that position in May 2015 although she had been assisting in the legal department of the CFMEU since about August 2014. 52 Ms Reid had commenced preparing entry permit applications on behalf of officials of the CFMEU in January 2015.53 Ms Reid gave evidence that she was responsible for preparing the application and associated Declarations in relation to this application.54 Ms Reid gave evidence about the steps that she took in the preparation of the application and provided an explanation for the nondisclosure as follows:

“On or about 13 May 2015, in the process of preparing Mr Doyle’s application, I had a conversation with Mr Doyle about his permit qualification requirements and I asked Mr Doyle if he had any previous involvement in any matters, like contraventions and or penalties. I told Mr Doyle that he had to disclose any penalties against him or any contraventions, as well as any proceedings that he was named as a respondent.

Mr Doyle told me that he had some contraventions and had penalties issued against him. Mr Doyle could not remember the specifics and told me that they were a long time ago and for this reason he could not remember the details.

I told Mr Doyle that I would search the CFMEU internal database and the Fair Work Building Commission's website search engine. I told Mr Doyle not to worry too much because I would be able to find them all.

I told Mr Doyle this, because at the time, I was confident that my database enquiries would provide all of the necessary detail about his contraventions and penalties.

On or about 15 May 2015, I conducted a search of the CFMEU’ s internal records system in relation to Mr Doyle, by using “Fergal Doyle” as a search term in the CFMEU internal records system.

The purpose of conducting this search was to determine whether Mr Doyle had been convicted of an offence against an industrial law, a law of the Commonwealth, State or Territory and what the penalties were for the purpose of preparing the federal right of entry application.

This search highlighted two contraventions. The first contravention listed was in relation to the Australian Building Construction Commissioner (“ABCC”) application on 29 October 2010. I did not find a judgement and the internal search only brought up details of a penalty against the CFMEU.

The second contravention was the Director of the Fair Work Building Industry Inspectorate v CFMEU [2013] FCA 1014 case.

On or about 18 May 2015, being aware of the FWBC’s online resources through their website I conducted a further search by typing ‘Fergal Doyle’ in the search tab. This revealed one case being Director of the Fair Work Building Industry Inspectorate v CFMEU [2013] FCA 1014 case.

Having searched both the CFMEU internal data base and the FWBC online resources I satisfied myself that I had found all of Mr Doyle’s contraventions and listed those contraventions and penalties in the application.

It was my intention to disclose all relevant contraventions against Mr Doyle when preparing the application. I believed I had at the time of submitting the application that I satisfied myself that the proper inquires, of Mr Doyle, the CFMEU internal database and the FWBC database had been made.

Once I received the FWBC submissions in response to our application it was revealed to me that I had mistakenly made an administrative error in failing to disclose the proceeding MLG 859/2010.

If this matter had been revealed while I conducted the above searches it would have been disclosed on the application.

The applicant did not intend to withhold Mr Doyle’s contraventions and fines and when the application was submitted I was satisfied that I had made the proper inquiries of Mr Doyle and reviewed the records of the applicant and the FWBC’s online database.

Unfortunately, Iwas unaware that our internal search engine did reveal all documents in relation to Mr Doyle, until I received the FWBII submissions.

I realised, when I went back to check the CFMEU database, that unless the case number is known, the internal database does not always generate all of the relevant documentation. Idid not know this until after I received the FWBII submissions and went to check the CFMEU internal database against the FWBII submissions.

I have had a discussion about the internal database with Ralph Edwards, President of the applicant, and we are now looking into a more efficient way of uploading documents to ensure that our search terms, going forward, attract all relevant documents.

I am relatively new to my role as an Industrial Officer and to the preparation of applications. For the most part I have prepared right entry applications for organisers who have had no previous contraventions.

My intention was never to mislead the Fair Work Commission and I would have never filed the application if I had known that I had missed some contraventions and penalties. I am very sorry for my mistake and I undertake to be more careful in the future.” 55

[52] Ms Reid was not cross examined.

[53] The propositions that candour and full disclosure of relevant facts is required of applicants for a permit and that proposed permit holders should diligently assist in that regard are uncontroversial. In some cases the failure to disclose may demonstrate a lack of candour or a lack of diligence and might have a bearing on the assessment of whether the person on whom the duty to disclose rests, is a fit and proper person to hold an entry permit. However, I do not regard the failures to disclose apparent in this application as indicating a lack of candour. I accept Mr Doyle’s evidence to the effect that the failure to disclose was inadvertent and not deliberate. I also accept Ms Reid’s evidence to the same effect. There has been however a failure to exercise due diligence as is evident from both Mr Doyle’s and Ms Reid’s evidence reproduced above. For this, both she and Mr Doyle have apologised and it seems clear that the CFMEU are taking steps to rectify deficiencies in its internal database in order to ensure that in the future incidents of nondisclosures of relevant information do not occur.  56 Ms Reid will also conduct broader searches through the Commonwealth Law Portal.57 In the circumstances of this case and having regard to the explanation given and the apology rendered, both of which I accept, I do not regard the failure to disclose particular matters as particularly serious.

Conclusion

[54] The nature of the contravening conduct engaged in by Mr Doyle is conduct of a serious kind and appropriately it raises questions about his fitness and propriety to hold an entry permit. The contravening conduct was variously deliberate, caused inconvenience and disruption to or at construction projects, was part of a deliberate industrial strategy and showed a disregard for alternative and lawful means by which disputes may be resolved. 58 The contravening conduct also displayed a disregard for important industrial and other laws which regulate or proscribe particular conduct and which regulate conduct of a person who has licence to enter into the premises occupied or controlled by another person. The conduct also shows a disregard for the rights of others. Weighed against this is the fact that there are no other identified permit qualification matters which would tell against Mr Doyle’s fitness and propriety to hold a permit and the fact that Mr Doyle has recently received appropriate training about the rights and obligations of a permit holder and he seems to well understand those rights and obligations. Even so, without more, I would have serious misgivings about Mr Doyle’s fitness and propriety to hold a permit given his past history of contravening conduct.

[55] However as is evident in this case Mr Doyle has had the benefit of a period as a member of a dispute resolution body, the Disputes Panel, and it seems he has learned a great deal. Moreover, Mr Doyle gave direct evidence about his current attitude towards the holding of a permit, the exercise of rights as a permit holder, the benefit of following established dispute resolution procedures (which he has come to understand because of his Disputes Panel experience) and his willingness to comply with the law. He was also remorseful for his past conduct and accepted that it was wrong. That Mr Doyle gave evidence of this kind and exposed himself to cross examination by the Director is to his credit. As I have earlier indicated I accept his evidence as genuine and truthful. These are matters to which I attach significant weight. Ultimately the assessment to be made is not a punitive one aimed at continuing to punish a person for his past wrongdoing. The assessment is whether having regard to the permit qualification matters, some of which disclose past wrongdoing, Mr Doyle is now a fit and proper person to hold an entry permit. Taking into account the totality of the material and for the reasons already given, I am satisfied that Mr Doyle is a fit and proper person to hold an entry permit. Given this conclusion it is unnecessary to consider the question of conditions that might be imposed under s.515 of the Act.

[56] The application is therefore granted. An entry permit will be issued to Mr Doyle separately.

DEPUTY PRESIDENT

Appearances:

R Reitano of Counsel for the Construction, Forestry, Mining and Energy Union.

M Follett of Counsel for the Director of the Fair Work Building Industry Inspectorate.

Hearing details:

2015.

Melbourne:

August 12.

 1   [2015] FCAFC 56.

 2   Ibid at [13]–[17].

 3 Ibid at [42].

 4 Ibid at [43].

 5   [2015] FWC 1522.

 6 Ibid at [32].

 7 [2015] FCAFC 56 at [25] and [43].

 8   Exhibit 1 at [6] – [7].

 9 Ibid at [6].

 10 Ibid at [7].

 11   Transcript at PN 51.

 12   Transcript at PN 53.

 13 Exhibit 1 at [8].

 14   Exhibit 1 at [3] and [5].

 15   Ibid at [4] – [5].

 16 Ibid at [4].

 17   Transcript at PN 60– PN 66.

 18   [2013]FCA 1014

 19   Submissions of the Director of the Fair Work Building Industry Inspectorate, 17 July 2015 (Director’s Submissions).

 20   Federal Magistrates Court proceeding MLG859/2010.

 21   A copy of the Federal Magistrates Court’s order is at Annexure A of the Director’s Submissions.

 22   See Annexure D of the Director’s Submissions at [9]–[20].

 23 [2011] FMCA 1048.

 24   A copy of the Federal Magistrates Court’s order is at Annexure B of the Director’s Submissions.

 25   Ibid.

 26   Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72.

 27   A copy of the agreed statement of facts is at Annexure "F" to Director’s Submissions.

 28   ibid at [5], [6] and [12]–[13].

 29 ibid at [22].

 30 Ibid at [14].

 31 Ibid at [23].

 32 [2013] FCA 1014.

 33   A copy of the Fed Magistrates Court’s order is at Annexure C to Director’s Submissions.

 34 Exhibit 1 at [22].

 35   Ibid.

 36   Ibid.

 37   Transcript at PN 58 – PN 59.

 38   See Transcript at PN 60.

 39 Director’s Submissions at [58].

 40 [2011] FCA 808.

 41   Ibid - Annexure 1 - Joint Statement of Agreed Facts and Admissions at [185] –[189].

 42 [2011] FCA 557.

 43 Ibid at [9].

 44 Ibid at [3].

 45 Ibid at [7].

 46   Director's Submissions at [61.]

 47   Submissions of the CFMEU and Mr Doyle at [28] – [29].

 48 [2011] FCA 808 at [22] – [28].

 49 Exhibit 1 at [18].

 50   Ibid.

 51 Ibid at [21].

 52   Exhibit 3 at [1], [3] and [4].

 53 Ibid at [5].

 54 Ibid at [8].

 55   Ibid [8] – [26].

 56 See Exhibit 3 at [24].

 57   Transcript at PN 157 – PN 160.

 58   See Director’s submissions at [70]-[78]

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