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

[2017] FWC 5824

[2017] FWC 5824

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, WA Divisional Branch
(RE2017/657)

DEPUTY PRESIDENT BINET PERTH, 6 NOVEMBER 2017

Application for right of entry permit for Mr Bradley Upton – not satisfied that fit and proper person to hold entry permit.

[1] On 2 June 2017, the Construction, Forestry, Mining and Energy Union (CFMEU) filed an application (Application) pursuant to section 512 of the Fair Work Act 2009 (Cth) (FW Act) for a right of entry permit for Mr Bradley Upton (Mr Upton).

[2] On 23 June 2017, notification was received from the Australian Building and Construction Commission (ABCC) indicating that it intended to make submissions in respect of, and/or intervene in, the Application pursuant to section 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).

[3] On 28 June 2017, Senior Deputy President Hamberger issued an order (PR594130) granting an extension of Mr Upton’s current right of entry permit until 8 November 2017, or until such earlier time as this Application is heard and determined.

[4] On 1 August 2017, the Application was reallocated to the Chambers of Deputy President Binet for the hearing and determination of the matter.

[5] The Application was heard on 22 September 2017 (Hearing). Mr Upton gave written and oral evidence in support of the Application. The following witnesses provided statements in support of the Application:

● Mr Troy Millen, Director RHG Contractors (Mr Millen); and

● Mr Wayne Gray, Director and Owner Ceilcon Corporation Pty Ltd (Mr Gray).

Relevant Statutory Provisions

[6] The provisions concerning entry permits are found in Part 3-4 of the FW Act. The object of Part 3-4 is set out in section 480 of the FW Act:

“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 (MUA v FWC) [2015] FCAFC 56, the Full Court of the Federal Court (North, Flick and Bromberg JJ) observed:

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

[8] Section 512 of FW Act states that:

“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.”

[9] In The Maritime Union of Australia [2014] FWCFB 1973 at [23], a Full Bench 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 FW Act and observed that:

“…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. 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”.

[10] Section 513(1) of the FW Act sets out the matters that are to be taken into account in determining whether a proposed permit holder is a fit and proper person to hold a right of entry permit (Permanent Qualification Matters) as follows:

“513 Considering application

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

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

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

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

(i) entry onto premises; or

(ii) fraud or dishonesty; or

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

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

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

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

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

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

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

[11] The principles applicable to the assessment of whether a proposed permit holder is a fit and proper person to hold an entry permit can be summarised from the relevant authorities as follows: 2

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

b. Consideration of permit qualification matters is to be directed to the personal characteristics of the proposed permit holder pertinent to the discharge of the functions and the exercises of the rights and abilities associated with holding a permit.

c. The permit qualification matters must be considered in the context of whether the proposed permit holder is a fit and proper person to hold an entry permit, not whether the proposed permit holder is a fit and proper person per se.

d. Each of the permit qualification matters must be considered and given appropriate weight. 3

e. There is no statutory indication that any particular permit qualification matter should be given more weight than any other.

f. For a matter to be relevant for the purposes of section 513(1)(g), the matter must relate to the personal characteristics of the proposed permit holder and be pertinent to the discharge of the functions and the exercises of the rights and abilities associated with holding a permit.

Consideration

[12] The FWC may issue a permit to a proposed permit holder if the FWC is satisfied that the proposed permit holder is a fit and proper person to hold an entry permit. In deciding whether the official is a fit and proper person, the FWC must take into account the Permit Qualification Matters.

[13] Mr Upton successfully completed the Australian Council of Trade Unions Right of Entry Training Course on 31 May 2017. Prior to this, Mr Upton received FWC approved training on 26 February 2008, 22 December 2010, 25 February 2014 and 9 April 2015. It is not contested, and I accept, that Mr Upton has completed appropriate training about the rights and responsibilities of a permit holder in accordance with section 512(1)(a). 4

[14] It is not contested, and I am satisfied, that Mr Upton has not been convicted of an offence against an industrial law or an offence against the law of the Commonwealth, a State, a territory or a foreign country, involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. 5

[15] It is not contested, and I am satisfied, that Mr Upton has not been ordered to pay a penalty under the FW Act or any other industrial law in relation to action taken by him, other than being ordered on three occasions to pay a penalty under the FW Act as follows: 6

a. In Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 (Wheatstone Case), Gilmore J ordered that Mr Upton pay penalties of $3,000.00 and $1,000.00 for two contraventions of section 500 of the FW Act.

b. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Children’s Hospital Contraventions Case) [2017] FCA 491 (PCH Case), Barker J ordered that Mr Upton pay a penalty of $3,500.00 for a contravention of section 340 of the FW Act.

[16] The penalties imposed in the Wheatstone Case arose from two incidents which occurred on the Wheatstone Project. The first occurred on 8 October 2012 when Mr Upton visited the Wheatstone Project to hold discussions with workers. On arrival at the worksite, he was allocated a meeting room which was found by Justice Gilmour to be unfit for purpose. While Justice Gilmour accepted that the circumstances in which Mr Upton found himself led to understandable frustration and anger, Justice Gilmour concluded that those circumstances did not excuse Mr Upton’s conduct or operate to mitigate penalty. Mr Upton’s conduct was found to have involved the use of racially tainted obscene and offensive language as follows: 7

“That’s the AWU way, we don’t do things that way. We do things the fucking CFMEU way.”

“I won’t accept you treating the boys like fucking dogs. Fuck off.”

“Is this shithole place acceptable to you? Is this shithole good for you fucking American’s? This is not fucking America. You think you can treat us like shit, you fucking American’s. Australia’s won’t stand for this. You fucking America can’t push us around like we’re pieces of shit. We won’t put up with you fucking American’s here, not here.”

“You want to hit me? Go ahead and hit me you fucking American. Come on and hit me you fucking American. Hit me, go ahead.” 8

[17] Justice Gilmore described the conduct as: “…deplorable particularly so for someone acting in his official capacity” given there were other lawful avenues Mr Upton could have explored to address his concerns. 9

[18] The second incident occurred on 13 February 2013, when Mr Upton again attended the Wheatstone Project to hold discussions with workers and was again allocated a meeting room that was unfit for purpose. Mr Upton consequently held his meeting in an open area used mainly for residential purposes, which he did not have a right to enter. Justice Gilmore found that Mr Upton had acted in an improper manner, but that Mr Upton was ignorant at the time that his conduct was in contravention of the FW Act and that therefore the contravention was at the less serious end of the scale. 10

[19] The CFMEU submit that these are isolated incidents and do not indicate a pattern of improper behaviour and are not suggestive of future misconduct.

[20] The penalties imposed in the PCH Case arose from an incident which occurred on 25 January 2013 when Mr Upton attended a safety meeting, after which a vote was taken for industrial action. Mr Upton stood at the front entrance to the project, along with other officers of the CFMEU, and discouraged employees from working that day. On the day in question, Mr Upton was on annual leave and was not exercising a right of entry under the FW Act.

[21] The CFMEU submit that Mr Upton was not a central figure in the dispute, nor was he central to the day’s events, and was merely briefly caught up in a highly acrimonious industrial dispute. The CFMEU submit that the breach was “… somewhat technical in its nature …”, is not indicative of a lack of understanding by Mr Upton of his obligations as a permit holder, and is not suggestive of future misconduct. However, Justice Barker found that Mr Upton’s conduct was deliberate and that there was no evidence of contrition on Mr Upton’s part. The size of the $3,500.00 penalty imposed on Mr Upton is indicative that Justice Barker did not consider Mr Upton’s contravention merely technical or minor. 11

[22] It is not contested, and I am satisfied, that Mr Upton has not had an entry permit under the FW Act, or under a similar law of the Commonwealth, revoked, suspended or made subject to conditions except for the following two occasions on which an entry permit issued to Mr Upton under the FW Act was made subject to conditions: 12

a. In 2008, a condition not to enter or remain on a site with Mr Joseph McDonald was imposed on a previous entry permit issued to Mr Upton.

b. On 29 April 2014, conditions that Mr Upton should not be permitted to exercise a right of entry at the Wheatstone Project for the balance of the calendar year, and that clear obligations be placed on Mr Upton if he chose to exercise a right of entry from 1 January 2014 to the conclusion of the construction of the Wheatstone Project, were imposed on Mr Upton’s right of entry permit (Permit Conditions Case). 13

[23] It was conceded by the ABCC that the condition imposed in 2008 did not result from behaviour on the part of Mr Upton, but rather was a condition was placed on all entry permit holders in the WA branch of the CFMEU. It is not contested that the condition was complied with by Mr Upton until its expiration in 2010. In these circumstances, the imposition of the condition should not weigh against the assessment that Mr Upton is a fit and proper person.

[24] The CFMEU submit that the conditions imposed on Mr Upton in the Permit Conditions Case arise from the same events as the Wheatstone Case. However, a review of the reasons for decision of Deputy President McCarthy in Bechtel (Western Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union – Western Australian Branch [2013] FWC 10245 reveal that the conditions imposed on Mr Upton in the Permit Conditions Case were also imposed as a consequence of Mr Upton’s failure to ensure he held discussions only with employees he was entitled to meet with while exercising a right of entry on 20 and 21 March 2013. 14

[25] In relation to the October 2013 incident, Deputy President McCarthy found that “… Mr Upton endeavoured to provoke Mr Cravey to react physically” and that the abuse Mr Upton directed at Mr Cravey was “… strong, repeated and aggressive.” and was “…well outside any acceptable or tolerable limits even for a construction site.” 15 The Deputy President concluded that:

“I am satisfied that Mr Upton has not complied with his obligations in relation to his rights exercisable under the FW Act. There were no basic tenants of civility that underpin how the right must be exercised shown by Mr Upton but rather aggressive and abusive conduct that runs counter to the Objects of the FW Act and the rights provided under it.” 16

[26] In relation to section 513(1)(g) of the FW Act, the ABCC submitted that evidence of the CFMEU engaging in contraventions of industrial laws was a matter which was relevant to the granting of an entry permit to Mr Upton. Annexed to its submissions, the ABCC provided a list of matters in which it was found that the CFMEU had contravened various pieces of industrial legislation, a number of which did not involve conduct on the part of Mr Upton. 17

[27] Past contraventions of industrial and other relevant laws by an organisation can be relevant to the consideration of a proposed permit holder’s fitness to hold an entry permit, even where such contraventions do not involve conduct on the part of that proposed permit holder, where it is demonstrated that there is a susceptibility on the part of the proposed permit holder to comply with a direction from his or her employing organisation to engage in unlawful conduct. 18

[28] The ABCC submits that it is evident that Mr Upton is a person who is susceptible to complying with directions from his employer from his involvement in the PCH Case, in which Barker J found that Mr Joseph McDonald and Mr Michael Buchan were “… plainly influential in encouraging the contravening conduct…” by Mr Upton and the other less senior union officials involved in the contravention. 19 The ABCC also point to Mr Upton’s comment in the Wheatstone Case, where he was found to have said “[t]hat’s the AWU way, we don’t do things that way. We do things the fucking CFMEU way.”

[29] I am satisfied that this evidence does suggest some susceptibility on Mr Upton’s part to comply with directions of an employer who has a history of repeated breaches of industrial and other relevant laws.

[30] It is not contested, and I am satisfied, that no right of entry for industrial or occupational health and safety purposes that Mr Upton might have had a under a State or Territory industrial or occupational health and safety law has been cancelled, suspended or had conditions imposed. It is not contested, and I am satisfied, that Mr Upton 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 or occupational health and safety law.

[31] In relation to section 513(1)(g) of the FW Act, the CFMEU tended two affidavits from building industry employers, Mr Millen and Mr Gray, attesting that in their experience Mr Upton has complied with his obligations while exercising right of entry onto their respective worksites and has, at all times, conducted himself in a courteous and professional manner. The CFMEU also submitted that Mr Upton’s long service as an Organiser with the CFMEU, and the potential consequences for his livelihood and the services to the members of the CFMEU he serves if he does not secure an entry permit, are factors which are relevant considerations for the purposes of section 513(1)(g). 20

[32] The two affidavits tendered by the CFMEU are brief and contain limited information. For example, they do not make clear how often the deponent has had the opportunity to observe Mr Upton’s conduct. The nearly identical nature of the content of the affidavits raises some doubts about the weight which should be attached to the affidavits. No evidence was tendered from those employers affected by Mr Upton’s past contraventions in relation to any change in their experience of dealings with Mr Upton since those contraventions.

[33] While a failure to grant an entry permit may impact on Mr Upton’s livelihood, the consequences for his livelihood are not a matter relevant to whether he is a fit and proper person to hold an entry permit. The consequences to CMFEU members of a failure of Mr Upton to secure an entry permit is not a matter which is directed to the personal characteristics of Mr Upton and, therefore, not a matter relevant to whether he is a fit and proper person to hold an entry permit. Both, however, are matters which should have weighed upon Mr Upton whenever he exercised his right of entry, particularly on those occasions when his conduct fell below the required standard. 21

[34] Mr Upton has been employed by the CFMEU as an Organiser within an industrially volatile industry for more than nine years. He concedes he has had penalties and conditions imposed upon him as a consequence of misdemeanours on his part in the past. However, his evidence is that these related to a handful of site entries amongst thousands during the course of his employment with the CFMEU and can be explained by the unique and mitigating circumstances in which those incidents occurred. According to Mr Upton, his subsequent training about his obligations, his discomfort about the financial cost to members associated with his breaches of his obligations, and the imposition of disciplinary consequences on him by the CFMEU necessitating the relocation of his family to Perth at his own expense has impressed upon him the need to conduct himself lawfully. 22

[35] However, four months after the penalties were imposed on Mr Upton in the Wheatstone Case and six days after he admitted liability in the PCH Case, Mr Upton was involved in what has been subsequently found to be further contraventions of the FW Act. 23

[36] On 21 September 2017, Justice Barker handed down his decision in Australian Building and Construction Commissioner v Upton (The Gorgan Project Case) [2017] FCA 847 (Gorgan Case), finding that Mr Upton had contravened sections 346(a), 348 and 500 of the FW Act. The contraventions occurred on 3 December 2015 when Mr Upton exercised a right of entry to the Gorgan Project and addressed a group of employees which included a number of employees eligible for membership, but not members, of the CFMEU. Justice Barker found that Mr Upton addressed the group for about ten minutes in a manner which might best be described as a rant, during which he said, or words to the effect of:

“The fucking 90 dog cunts that resigned from the union the day after we fucking signed the EBA after we got the conditions we got now, this is a fucking union site. If you don’t fucking like it, fuck off somewhere else. We got you these conditions, we know who you are. We’re going to put your names of the back of the toilet doors …”

If you’re not in the union, you can fuck of somewhere else. This is a fucking union site, we have other union sites starting up next year and if you’re not in the union, you can fuck off too, you are not welcome.” 24

[37] Justice Barker was of the view that the threats made by Mr Upton during the rant inter alia:

“… negated choice as to whether or not a presently un-unionised employee should, or should not, join the union. Plainly, the only practical choice they had – if they were to avoid the opprobrium that would follow from the threat if implemented – was Hobson’s choice – no real choice at all. That was an unconscionable threat to make.” 25

[38] Justice Baker found that Mr Upton caused the non-unionised employee, who reported Mr Upton’s conduct to his employer, emotional distress and harm. 26

[39] The use of obscene and abusive language in the Gorgan Case mirrors the conduct for which penalties were imposed in the Wheatstone Case and reveals a pattern of repeated conduct.

Conclusion

[40] 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.

[41] Mr Upton was found to have contravened the FW Act and had penalties and/or conditions imposed in relation to incidents which occurred in 2012 and 2013 which had adverse impacts on both employers and employees. Respect for the rule of law is highly relevant to the issue of whether a proposed permit holder is a fit and proper person to hold an entry permit. I have considered each of the Permit Qualification Matters and have given weight to each. 27 While there is no statutory indication that any particular permit qualification matter should be given more weight, it is my view that further contraventions of the FW Act in 2015 occurring so closely in time to proceedings in relation to past contraventions is suggestive of a lack of genuine contrition and a propensity to continue to engage in unlawful conduct. This is highly relevant to the question of whether Mr Upton is a fit and proper person.

[42] The CFMEU provided a list of matters in which an entry permit has been issued where the proposed permit holder had been previously ordered to pay a penalty or been subject to an entry permit suspension. Of this list of twenty one matters, in only two cases have entry permits been granted where the proposed permit holder had been found liable for three or more breaches and/or had conditions imposed on their permit.

[43] Mr Upton’s circumstances can be contrasted to those of proposed permit holders who have been granted entry permits despite prior contraventions on the basis that those proposed permit holders had been involved in singular contraventions and/or had demonstrated genuine contrition by not subsequently engaging in unlawful conduct over a period of seven years or more. 28 Mr Upton’s circumstances can also be contrasted to those where the proposed permit holder has been able to demonstrate a changed attitude with evidence of proactive steps they have taken to ensure their own and other’s compliance with industrial legislation, combined with a period of more than five years free of contraventions29 His circumstances can be contrasted to those where the proposed permit holder has demonstrated the acquisition of specialist knowledge and/or experience to reduce the risk of contraventions occurring.30 Other than his testimony and the limited evidence contained in the two affidavits, there is no other evidence which might demonstrate a genuine change in attitude on Mr Upton’s part which would support the conclusion that Mr Upton is a fit and proper person.

[44] If the FWC is not satisfied that the proposed permit holder is a fit and proper person to hold an unconditional entry permit, the FWC may issue an entry permit subject to such conditions as the FWC considers appropriate. The FWC may impose these conditions to address its reservations in relation to the proposed permit holder which would otherwise lead to a conclusion that the proposed permit holder was not a fit and proper person. 31

[45] The CFMEU were invited to, and did propose, the following conditions:

“ If any findings are made or penalties imposed that are relevant to the permit qualification matters at s. 513(a) - (f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings or penalties imposed that were relevant to the permit qualification matters at s. 513(a) - (f) of the Fair Work Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty being imposed or the proceeding commenced.

• Mr Upton must undertake training approved by the Fair Work Commission on an annual basis in relation to Parts 3-1 and 3-4 of the Fair Work Act 2009 for the duration of the permit. Evidence of attendance at all such training and of its successful completion (or otherwise) shall be provided to the Fair Work Commission within two ·weeks of the training being undertaken by the permit holder each year that Mr Upton holds an entry permit.



• Under s. 510(1)(d) of the Fair Work Act 2009, a three month suspension be imposed if Mr Upton is ordered to pay a pecuniary penalty resulting from the .findings in the matter of ABCC v Upton (The Gorgon Projects Case) [2017] FCA 847.”

[46] I am not satisfied that the imposition of a condition requiring Mr Upton to report the commencement of proceedings or the making of findings that are relevant to the Permit Qualification Matters within two weeks of those events occurring addresses my concerns identified above. This is akin to locking the stable gates after the horse has bolted. 32 It might assist a more expeditious consideration of the suspension or revocation of the permit or the imposition of conditions but it does nothing to prevent the conduct occurring.

[47] The evidence is that Mr Upton has undergone regular training. Despite this training, he has continued to behave in a way which has resulted in penalties and conditions being imposed on him. His most serious contraventions involve him using obscene and offensive language. Mr Upton ought not require training to appreciate that he should afford employees and employers the most basic degree of civility. I am therefore not satisfied that a commitment to undertake training will address the type of behaviour that Mr Upton has displayed in the past.

[48] Similarly, I am not satisfied that pre-determining the term of a suspension if a penalty is imposed in the Gorgan Case addresses my concerns identified above. It might assist a more expeditious consideration of the suspension or revocation of the permit but it does nothing to prevent unlawful conduct occurring in the period between a conditional permit being granted and the handing down of a decision by the Federal Court in relation to penalties. Without the benefit of the reasons of the Federal Court, it might result in an outcome which is inconsistent with what might have been otherwise appropriate in the circumstances.

[49] Ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Upton for his past wrongdoing. The assessment is whether, having regard to the Permit Qualification Matters, some of which disclose past wrong doing, Mr Upton 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 not satisfied that Mr Upton is a fit and proper person to hold an entry permit or that there are conditions which might be imposed which would lead me to a different conclusion.

[50] The Application is therefore dismissed. An order to this effect (PR597508) will be issued separately.

DEPUTY PRESIDENT

Appearances:

K Sneddon for the CFMEU.

S Pemberton for the ABCC.

Hearing details:

2017.

Perth:

September 22.

Final written submissions:

Applicant and Respondent, 27 September 2017.

 1 [2015] FCAFC 56 at [15].

 2   Australian Salaried Medical Officers Federation [2017] FWC 3282 at [11] citing Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWC 1522.

 3   Australian Salaried Medical Officers Federation [2017] FWC 3282 at [12].

 4 Exhibit A2 at [7] and Exhibit R2 at [8].

 5 Exhibit A2 at [9] and Exhibit R2 at [9].

 6 Exhibit A2 at [10] and Exhibit R2 at [10].

 7   Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 at [20] – [28].

 8 Ibid at [23].

 9 Ibid at [28].

 10   Exhibit A2 at [14]-[20]; Exhibit R2 at [11]-[18] and Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 at [32] – [49].

 11   Exhibit A2 at [21]-[23]; Exhibit R2 at [19]-[28] and Australian Building and Construction Commission v Construction, Forestry Miing and Energy Union (Perth Children’s Hospital Contraventions Case) [2017] FCA 491.

 12   Exhibit A2 at [11] and Exhibit R2 at [29]-[30].

 13   Bechtel (Western Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union – Western Australian Branch[2013] FWC 2498.

 14   Ibid.

 15 Ibid at [54].

 16 Ibid at [62].

 17   Exhibit R3.

 18   Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[2014] FWCFB 5947 at [26] – [27]; Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141 at [37].

 19   Australian Building and Construction Commissioner v Construction, Forestry Mining and Energy Union (Perth Children’s Hospital Contraventions Case) [2017] FCA 491 at [189].

 20   Exhibit A2 at [25]-[32].

 21   Perkovic v Director of the Fair Work Building Industry Inspectorate [2015] FWCFB 5887 at [16].

 22   Exhibit A1.

 23   Australian Building and Construction Commissioner v Upton (The Gorgan Project Case) [2017] FCA 847.

 24   Ibid at [98]-[102]

 25   Ibid at [144]

 26   Ibid at [126]

 27   Australian Salaried Medical Officers Federation [2017] FWC 3282 at [12].

 28   Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch [2017] FWC 666 at [17]-[19]; Construction, Forestry, Mining and Energy Union – Construction and General Division, Victoria-Tasmania Divisional Branch [2016] FWC 3110 and Automomotive, Food, Metals, Engineering, Pritning and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) Victorian Branch [2017] FWC 3888.

 29   Maritime Union of Australia - Western Australian Branch [2017] FWC 182.

 30   Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch [2015] FWC 5843.

 31   Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [30] – [38].

 32   Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch [2015] FWC 2526 at [65].

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