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

[2017] FWC 999

[2017] FWC 999

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
(RE2016/1689)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 21 FEBRUARY 2017

Application for a right of entry permit – Darren James Roberts – fit and proper person considerations.

[1] On 7 December 2016 the Construction, Forestry, Mining and Energy Union Construction and General Division, WA Divisional Branch referred to in this decision as the CFMEU, lodged an application seeking that an entry permit be issued to their employee, Mr Darren Roberts. The application was referred to me and was the subject of a hearing on 16 February 2017. At this hearing the CFMEU and Mr Roberts were represented by Mr Swinbourn, of the CFMEU.

[2] Section 512 of the FW Act states:

“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.”

[3] The Fair Work Commission (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.”

[4] Section 513 states:

“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.”

[5] In the application, the CFMEU advised that Mr Roberts was an employee of the CFMEU and advised that Mr Roberts had not been convicted of offences against an industrial law, offences against a law of the Commonwealth involving entry onto premises, fraud or dishonesty, or the intentional use of violence against another person or intentional damage or destruction of property. The application confirmed that Mr Roberts had been ordered to pay a penalty under the FW Act and identified the amount in the matters involved. The application confirmed that Mr Roberts had not had revoked a right of entry but has had such a permit suspended and made subject to various conditions. The application confirmed that Mr Robert’s entry permit had not been cancelled, suspended or had imposed conditions on it for industrial or occupational health and safety purposes, and had not been disqualified from exercising or applying for a right of entry permit on that basis. The CFMEU asserted that Mr Roberts should be regarded as a fit and proper person to hold an entry permit.

[6] The Australian Building and Construction Commission was advised of the hearing of this matter but confirmed, on 13 February 2017 that it was not going to participate in the hearing on 16 February 2017, nor make submissions in the matter.

[7] It is also appropriate that I note that, attached to the application was a National Police Certificate for Mr Roberts. On my behalf, the Fair Work Commission Regulatory Compliance Branch made further enquiries of the CFMEU and sought further clarification about an offence detailed in that Certificate. On 25 January 2017 the CFMEU provided more detailed advice to the effect that, in November 2011, Mr Roberts participated in an industrial demonstration organised by another union. As a result of an incident which occurred during that demonstration Mr Roberts was instructed to cease loitering and was ultimately arrested for failing to do so. He did not provide his details and was ultimately charged with offences of loitering and refusing to provide his name and address. Mr Roberts was convicted of the charge of refusing to provide his name and address but was discharged without a penalty.

[8] The CFMEU provided further submissions and material in support of the application on 2 February 2017. This included an affidavit made out by Mr Roberts. Additionally, Mr Roberts gave evidence in this hearing. Mr Roberts’ evidence confirmed that he had received appropriate training about the rights and responsibilities of a permit holder through completion of the ACTU Federal Right of Entry on-line training programme. Mr Roberts recorded that he had been ordered to pay a penalty under the FW Act and that the CFMEU was ordered to pay a penalty in the same matter. In this respect, Mr Roberts referred to the Federal Court decision in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union. 1 Mr Roberts confirmed that his entry permit was suspended and made subject to conditions.2 Mr Roberts also recorded that his entry permit was suspended (with a commensurate ban) for a period of four months.3 Mr Roberts also confirmed that he had not had cancelled, suspended, or conditions imposed on an entry permit for industrial or occupational health and safety purposes and had not been disqualified by any court or other body from exercising or applying for an entry permit.

[9] Before summarising the evidence and information before me, I have summarised the submissions made by the CFMEU in support of the application. In these submissions, the CFMEU relied on the principles summarised by Hatcher VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 4 in the following terms:

“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of the s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised 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.”

[10] The CFMEU asserted that the application was in the proper form and was supported by the appropriate material.

[11] The CFMEU provided a certificate to confirm that Mr Roberts had received the requisite training in May 2016. The CFMEU asserted that none of the considerations in s.513(1)(a), (b), (c) or (f) went against the application. In terms of s.513(d) and (e), the CFMEU submitted that the penalties imposed on Mr Roberts and the CFMEU in the matter of Director of the Fair Work Building Industry Inspectorate v CFMEU 5 and his six-month suspension addressed in matter RE2013/1710 - s.508 application to restrict rights if organisation or official has misused permit rights, and the suspension addressed in Fair Work Commission v Darren Roberts,6 all related to a single incident which occurred on the Lend Lease Adelaide Oval redevelopment project in October 2013. The CFMEU position is that this was an isolated incident which was out of character for Mr Roberts and that it should not preclude him being found to be a fit and proper person to hold an entry permit.

[12] In terms of s.513(1)(g) the CFMEU confirmed that it and Mr Roberts had volunteered disclosures about a previous conviction but that this was not relevant to any determination that he was a fit and proper person to hold an entry permit.

[13] At this juncture it is appropriate that I briefly summarise the October 2013 Lend Lease Adelaide Oval redevelopment matter and subsequent proceedings. Mr Roberts’ behaviour on that site, together with the behaviour of various other CFMEU officials on a number of sites around the same time gave rise to an action I commenced of the Commission’s own motion pursuant to s.508 of the FW Act. That action resulted in a series of findings of misuse of Part 3-4 rights. A subsequent Full Bench of the Commission found misuses of Part 3-4 rights in relation to the Lend Lease Adelaide Oval project in the following terms: 7

“[204] We are satisfied that these rights were misused in that:

• No notice of entry was given as required by the FW Act or the WHS (SA) Act;



• To the extent that entry occurred without notice, the entry hindered the employer’s managers by distracting them from their planned activities and hindrance which magnified given the number of officials entering the site (s.500 of the FW Act); and



• The officials utilised the entry for the purpose of asserting a demand in relation to a permanent delegate being a purpose for which the right of entry does not extend.”

[14] The Full Bench continued:

“[211] We are satisfied that these rights were misused in that:

• No notice of entry was given as required by the FW Act or the WHS (SA) Act;



• To the extent that entry occurred without notice, the entry hindered the employer’s managers by distracting them from their planned activities (s.500 of the FW Act); and



• In proceeding on site, after signing in, without authority, the officials failed to give effect to a reasonable request, conveyed by signage at entry gates, that unauthorised entry should not occur.”

[15] In a subsequent decision 8 I addressed the actions I considered appropriate in relation to this behaviour and took into account the Full Bench findings in the following respects:

“[50] The evidence considered by the Full Bench went to a strategy directed by the Secretary of the CFMEU South Australian Branch, Mr Cartledge. The Full Bench stated:

“[194] Second, there was evidence of a strategy of some kind directed by the Secretary of the CFMEU SA Branch, Mr A Cartledge, affecting the manner in which entry was undertaken in relation to at least some of the Lend Lease entries between 30 October 2013 and 30 November 2013:

• During the Adelaide Oval entry of 30 October 2013, Mr D Roberts, when asked the purpose of the visit replied “This is the way of the world until your managers talk to our managers”;

• During the Adelaide Oval entry of 31 October 2013, Mr Roberts, in relation to not providing entry notices, said “this is the new way of the world”;

• During the Adelaide Oval entry of 12 November 2013, Mr Roberts, when asked to produce his permit, stated “This is being dealt with higher up the line”;

• During the Tonsley Park TAFE site entry of 30 October 2013, Mr M Gava, in the context of officials attending the site without giving notice, said “that’s the way its going to be from now on” and commented that “it was their intention to not provide entry notices and this was a directive from the secretary”;

• During the Adelaide Convention Centre site entry of 30 October 2013, Mr B Beattie, a Victorian union official responded to a request to identify the purpose of the visit by stating “We want to talk with Lend Lease/Baulderstone members. This is part of a national drive that is focussed on Lend Lease employees”;

• During the Tonsley Park Flinders University entry of 30 October 2013, when told he could not enter the site without an entry permit in place (clarified to be a reference to notice) Mr Gava said “[w]e are not leaving. This is the way it is done now. We are going for a walk on site”; and

• During the Tonsley Park Flinders University entry of 8 November 2013, when asked if he had submitted a notice, Mr B Pitt replied “No, we are not here under a right of entry notice”.”

(references removed)

[51] This evidence indicates that, while the misuses occurred at the four nominated sites, the strategy referred to by the Full Bench appears to be directed to Lend Lease rather than being directed at a particular site managed by Lend Lease. For example, on 30 October 2013 Mr Roberts referred to "your managers". On 12 November 2013. Mr Roberts referred to matters being "dealt with higher up the line". On 30 October 2013 Mr Beattie stated "We want to talk with Lend Lease/ Baulderstone members. This is part of a national drive that is focused on Lend Lease employees". Lend Lease operate on a national basis in the construction industry. Whilst there is no evidence that goes beyond South Australia I have concluded that any considerations of future behaviours should only be limited by this South Australian focus and should not be constrained to the four sites which were the focus of the misuses. Indeed, it is clear that one of these, the Adelaide Oval project, is now completed.

[52] I am not persuaded that the risk of repetition of the misuses is limited to CFMEU officials coming from other states. The misuses found by the Full Bench generally involved both local and interstate officials. The training provided by Ms Kazakoff included only certain of the CFMEU officials involved in the misuses. The misuses involved multiple officials, including some officials not generally involved in construction work and other, unidentified officials.

[53] I have concluded that action pursuant to s.508(2) should be taken by the FWC. I consider this is appropriate given the Full Bench findings, the very limited confidence which can be taken from the CFMEU position and my conclusion there is a significant potential for further misuse. In this respect I have concluded that the circumstances of this matter mean that it is appropriate for the FWC to take action to preserve the integrity and balance of the right of entry arrangements which are permitted pursuant to Part 3-4 of the FW Act.”

[16] I determined that a number of CFMEU officials had entry rights that were to be suspended for one year, unless or until the CFMEU demonstrated to me that those officials had completed a right of entry training programme which includes specific reference to the matters canvassed in both the Full Bench decision, and my decision. The form of that training was prescribed. A ban on new entry permits to be issued over that period of time was imposed. Mr Roberts was excluded from that one-year suspension on the basis that I was satisfied that he had only recently undertaken training that met the specified requirements.

[17] Notwithstanding this, I determined that Mr Roberts was one of four CFMEU officials whose entry rights should be suspended for a period of six months, with that suspension itself to be suspended such that it would only apply in the event that further misuses involving any of those officials relative to Lend Lease in South Australia were established to the Fair Work Commission within that following 12 month period. In addition, I attached various conditions on the exercise of entry permits by CFMEU officials relative to Lend Lease sites in South Australia. In general terms, these required provision of written advice to Lend Lease with a minimum of 24 hours’ notice and not more than 14 days’ notice. That notice was to be in the form of an entry notice consistent with the provisions of the Regulations under the FW Act. At the same time, and through the same communication channel, officials were required to provide a copy of this notice to the Director of Fair Work Building and Construction. Additionally, a CFMEU official holding an entry permit was required to carry their permit on any Lend Lease South Australian site and provide it, if requested to do so. The officials were to be escorted by a nominated Lend Lease escort at all times and were required to comply with instructions given by that escort. Officials were required to ensure that any discussions with employees were held during designated breaks or outside of work times.

[18] I note that no cause for further consideration of that suspension was identified to the Fair Work Commission and consequently, no further suspensions arose directly from the s.508 action of the Commission’s own motion.

[19] However, the same events which led to those considerations by the Commission were subsequently considered by the Court. In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 9 the Court made findings of contraventions on the part of Mr Roberts and various other CFMEU officials in 2013. Justice White summarised the issue in the following terms:

“1. The Director of the Fair Work Building Industry Inspectorate (the Director) alleges contraventions by the Construction, Forestry, Mining and Energy Union (the CFMEU) and its officials of provisions in the Fair Work Act 2009 (Cth) (the FW Act) at various Lend Lease Building Contractors Pty Ltd (Lend Lease) building sites in Adelaide in October and November 2013. The Director seeks declarations as to the contraventions and the imposition of penalties.

2. In the main, the Director alleges that officials of the CFMEU acted in an improper manner, in contravention of s 500 of the FW Act, while exercising, or seeking to exercise, rights of entry on the building sites. However, in relation to three officials the Director also alleges contraventions of s 348 of the FW Act and, in relation to two, contraventions of s 346 of the FW Act. Those provisions proscribe adverse action and coercive conduct of defined kinds. In relation to one official the Director alleges a contravention of s 499 of the FW Act.

3. Some of the CFMEU officials are alleged to have contravened the FW Act on more than one occasion, and two (Mr Gava and Mr Beattie) at more than one building site.

4. These reasons contain the Court’s findings with respect to the alleged contraventions. Consideration of the penalties to be imposed and of other consequential orders in respect to those contraventions found to be established has been deferred to a separate hearing.

5. Some of the officials admitted the contraventions alleged against them and the CFMEU admitted that it too had contravened the FW Act by the admitted conduct of those officials. Consideration of the orders to be made in respect of the admitted contraventions has been adjourned pending the determination of the remaining matters.

…

“19. Each individual respondent admitted that he had entered the building sites alleged in his case on the day or days alleged by the Director, although some did not admit the Director’s allegations concerning the time at which the entry was made or its duration.

20. Each individual respondent held, at the time of the entry, a permit issued by the FWC pursuant to s 512. With one exception, each individual respondent acknowledged that he had not, before entering the relevant site, given its occupier any entry notice, let alone a notice which complied with s 518 of the FW Act. The exception is the seventh respondent (Mr McDermott) who, on 13 November 2013, provided an entry notice under the Work Health and Safety Act 2012 (SA) (the WHS Act) in respect of the Adelaide Oval site.

21. The FWC had not issued an exemption certificate to any of the individual respondents.

22. Each of the individual respondents, other than Mr Roberts and Mr Kirner, admitted that he was at the time of his entry employed by the CFMEU. Mr Roberts and Mr Kirner denied that they were employees but accepted that they were officers of the CFMEU at relevant times.

23. The CFMEU admitted that each individual respondent was acting at the relevant time within the scope of his actual or apparent authority and that, if the conduct of an individual respondent was in contravention of the FW Act, then s 793(1) had the effect that it was also to be taken to have contravened the provision in question.

24. Given the CFMEU’s acceptance of its liability under s 793 in respect of any contravention by an individual respondent which was found to be established, the Director did not press claims which he had made in the alternative to the effect that the CFMEU should also be found liable as an accessory pursuant to s 550 of the FW Act.

25. None of the individual respondents gave evidence and none adduced any other evidence (other than by cross examination of the Director’s witnesses).”

[20] His Honour made findings specific to Mr Roberts in the following terms:

“177. On 30 October 2013, six CFMEU officials entered the Adelaide Oval site. They were the seventh respondent (Mr McDermott), the eighth respondent (Mr Long), the ninth respondent (Mr Harrison), the tenth respondent (Mr Roberts), the eleventh respondent (Mr Stephenson) and the twelfth respondent (Mr Kirner). None of these officials had given forewarning of their intention to visit the site that day, let alone notice of entry pursuant to s 487. This was unusual because, before 30 October 2013, CFMEU officials had always provided notices of entry at least 24 hours in advance of their proposed visits.

178. The Director alleges that each of the respondents was exercising, or seeking to exercise, the s 484 right and that, in doing so, each acted in an improper manner.

179. The Director led evidence from two witnesses as to the events on 30 October. These were Mr Ising, the Site Operations Manager and Mr Jackson, a Site Manager. Both are Lend Lease employees.

180. As with the other Lend Lease witnesses, I considered Mr Ising and Mr Jackson to give honest and credible evidence. I regard their evidence as a reliable basis for the findings of fact which follow.

181. Mr Ising saw the CFMEU officials enter through Gate 6 and go to the site office. He recognised Mr McDermott, Mr Roberts, Mr Stephenson and Mr Kirner as they had attended previously. All the officials were wearing clothing and hard hats with CFMEU logos and insignia. Each of the officials completed the signin register (but none provided a contact telephone number).

182. Mr Ising approached the group and spoke to them outside the site office. Mr Long and Mr Harrison then introduced themselves to him. Mr Long was from Melbourne and Mr Harrison from Canberra. Mr Ising then had a conversation with Mr McDermott to the following effect:

Mr Ising: What is the purpose of this visit?
Mr McDermott: We are taking a look around your site.
Mr Ising: Neither you or any of the other visitors have an entry notice.

183. While Mr Ising was having this conversation with Mr McDermott, the other officials were standing in a group nearby within “a couple of metres”. I am satisfied that each heard the conversation between Mr Ising and Mr McDermott as each immediately started walking away from Mr Ising and toward the eastern stand. I infer that they were responding to Mr Ising’s statement by this conduct.

184. Mr Ising followed the officials. He observed them speaking briefly to workers as they walked along. Mr Kirner told Mr Ising “I want to catch up with the seating contractor”. This was Sebel.

185. On the eastern stand level one concourse, some of the CFMEU officials spoke to some workers. Mr McDermott and possibly some of the other officials said to the workers words to the effect of “there’s going to be a meeting at 9.30”.

186. The CFMEU officials then split in to smaller groups. Mr McDermott and Mr Long walked to the plaza level and transport corridor. Mr Jackson followed them. There were a number of workers in these areas and Mr McDermott and Mr Long stopped to speak briefly to several. Mr Roberts went to the basement. Mr Ising located him there and began to accompany him. The remaining officials were unescorted and the evidence did not disclose their movements.

187. In the basement Mr Ising had a conversation with Mr Roberts to the following effect:

Mr Ising: What is the purpose of this visit?

Mr Roberts: This is the way of the world until your managers talk with our managers.

188. Mr Ising continued to walk near to Mr Roberts and observed him speak briefly with a number of workers.

189. Workers began gathering for a meeting with the CFMEU officials outside the basement lunchrooms. The meeting commenced at approximately 9:40 am, by which time the other officials had also arrived at the lunchroom.

190. On 30 October 2013, there were approximately 500600 workers on site, and of these, 100150 attended the meeting in the basement lunchroom area. Some of these, 6 to 8, were employees of Lend Lease and some were employees of contractors carrying out work on the site. The meeting continued until about 10:00 am.

191. Mr Roberts and Mr McDermott then approached Mr Ising and Mr Jackson. The other officials were nearby as they spoke. Mr Roberts made a statement to the following effect to Mr Jackson and Mr Ising:

The workers have raised some issues relating to dust on site, water coolers and toilet locations. You’ve got two hours to address these issues. A further site meeting will be held at 12.30 on site. We’re remaining on site until then.

Neither Mr McDermott nor Mr Roberts gave any further details of these issues and did not state what they wanted done concerning them.

192. While the CFMEU officials were waiting for the 12:30 meeting, they stayed in the area near to the lunchroom or walked around the surrounding area. At one stage while the officials and Mr Ising and Mr Jackson were standing in a group, Mr Roberts said, in relation to not having provided notices of entry, “this is the new way of the world”. He also described rights of entry as a “farce”.

193. Mr Ising made arrangements for additional water coolers and toilets to be brought onto the site. He said, and I accept, that he believed at the time that Lend Lease had more than enough water coolers and toilets for the number of workers on the site but that he made the arrangements in order to avoid providing a reason for a confrontation.

194. At about 12:10 pm, Mr McDermott telephoned Mr Ising, and they had a conversation to the following effect:

Mr McDermott: We want to catch up with you before the 12.30 meeting regarding the items that Darren [Roberts] raised with you.
Mr Ising: I’ll meet you on the eastern concourse level 1.

195. Mr Ising went straight to the eastern concourse and spoke to Mr Roberts:

Mr Ising: Where is Mick [McDermott]?
Mr Roberts: I don’t know.
Mr Ising: Mick called me to catch up prior to the meeting. I’ll speak to all of you together. I’m not going to tell one bloke a story and then have to tell the next bloke the same story.

196. What then occurred was described by Mr Ising as follows:

[48] Mr Roberts then became quite aggressive and acted threateningly towards me. He was almost screaming at me and was being loud and obnoxious. He was putting his face right up close to mine. I felt threatened by how loud and close he was.

[49] While he was doing this, he kept repeating words to the effect of “You don't care about workers.”

[50] At one point, I said to him words to the effect of “Calm down, I want to have a civil conversation”, but Mr Roberts continued the behaviour.

[51] I then said to Mr Roberts words to the effect of “The only place this conversation is going is down a bullying and harassment line.”

[52] Mr Roberts then moved about ten metres away from me and then said “I just want to smash someone right now.”

[53] Simon [Jackson] and some construction workers were within two to fíve metres of me during my conversation with Mr Roberts.

197. Mr Roberts admitted in the Defence that Mr Ising may have perceived him as being aggressive and that Mr Ising had told him to “calm down” or words to similar effect.

198. Mr McDermott and Mr Long arrived on the concourse at about 12:20 pm. Mr Ising then spoke to Mr McDermott, Mr Long and Mr Roberts, saying words to the following effect:

Mr Ising: Lend Lease is prepared to double up drink fountains at the current locations in the east stand and to add a drink fountain in the middle of the east stand level 1. In relation to the dust, currently there’s a street sweeper being used and this gets attended to on an as need basis. Lend Lease is also prepared to add a further two single toilets to level 1 of the east stand. There are already some in the basement.
Mr Roberts: We’ll address the workers at 12.30 and advise.

199. In fact, the meeting between the workers and the CFMEU officials commenced at about 1:00 pm outside the lunchroom. Mr Roberts and Mr McDermott spoke to the workers during the meeting. It concluded at about 1:15 pm and the workers returned to work.

200. All of the officials other than Mr Kirner were at the meeting. After the meeting had concluded, a conversation to the following effect took place:

Mr Ising: Where is our sixth man [referring to Mr Kirner]?
Unidentified official: He’s had to piss off to some other duties.
Mr McDermott: We want you to make the improvements that you suggested earlier.
Mr Roberts: Baulderstone [Lend Lease] must walk around site with blinkers on to not see the issues raised ... Why [are] petrol and diesel forklifts operating in the basement? There’s not enough ventilation down there.
Mr McDermott: These items would not be an issue if there was a walking steward on site. The workers could go to him direct rather than officials dealing with this.
Mr Ising: There is currently a site delegate on site who was previously voted in by the workers.
Mr McDermott: You still need a walking steward. The CFMEU is pushing for walking stewards at all sites. Here, Tonsley and the Convention Centre. H&Y [Hansen Yuncken] have stewards at the new Royal Adelaide Hospital project and the 50 Flinders Street projects.

201. Mr Ising said, and I accept, that Mr Roberts was aggressive, loud and rude when he raised the issue about the forklifts in the basement. Mr Ising said that the issues raised were baseless as the forklifts operated on gas and not on petrol or diesel.

202. Mr Jackson also deposed to the attitude of the CFMEU officials while on site as follows:

While they were on site, the officials were quite aggressive and direct in their approach towards Lend Lease’s management staff. It was not a comfortable environment. The officials were being arrogant, highhanded and dismissive and disregarded instructions given by the Lend Lease management. They did not seem to care that they were on site illegally.

203. As can be seen, this passage of evidence was conclusionary in nature and did not particularise the CMFEU officials who were said to have acted in the ways described. Accordingly, I consider it appropriate to regard this as evidence of Mr Jackson’s perception of the attitude of the CFMEU officials without attributing his description to any particular official.

204. The CFMEU officials left the site at approximately 1:35 pm.

Adelaide Oval site: 30 October 2013 – the contraventions

Mr McDermott, Mr Roberts and Mr Stephenson

205. Each of Mr McDermott, Mr Roberts and Mr Stephenson admit their contraventions of s 500 at the Adelaide Oval on 30 October, and the CFMEU admits its contraventions constituted by their conduct. These respondents admitted that they had entered the Adelaide Oval for the s 484 purpose, that they had done so without providing a notice of entry, and that they had held discussions with workers while on the site.

206. I observe that the admissions of these respondents, particularly those of Mr Roberts, did not extend to all the aspects of their conduct to which I have referred in the findings above. The evidence of Mr Ising and Mr Jackson justifies those findings, even in the absence of formal admissions.”

[21] In his subsequent penalty decision 10 his Honour stated:

71. I consider that, subject to one qualification, the evidence strongly supports the Director’s submission. I am satisfied that, in late October 2013, the CFMEU had decided upon a form of concerted action which involved deliberate entry onto Lend Lease building sites without providing a notice of entry. It is not necessary to make findings about the purpose of the campaign but I note that, on several occasions during the subject entries, reference was made, whether expressly or by implication, to the CFMEU wish that Lend Lease employ a permanent CFMEU delegate on each site. Whatever its purpose, I am satisfied that the CFMEU and its officials were engaged in a concerted campaign at Lend Lease sites in Adelaide in deliberate defiance of the requirements in the FW Act regarding the exercise of rights of entry. I agree that the conduct of the respondents on 30 and 31 October 2013 should be assessed in that light. It means that the contraventions are to be regarded as deliberate and premeditated. This is a significant matter of aggravation.

72. The qualification relates to the entries at the Adelaide Oval site on 12 and 13 November 2013. These entries seem to be qualitatively different from the entries on 30 and 31 October: they did not involve the attendance of multiple organisers, including organisers from outside South Australia; the conduct on those occasions appears to be different from that occurring on 30 and 31 October 2013; the entries on those dates appear to have been prompted by concerns about the cricket match which was to commence on 13 November 2013, and the entry on 13 November did not involve a contravention of s 500 at all. I am not satisfied that these entries were part of the concerted campaign by the CFMEU as alleged by the Director.

…

78. That observation is pertinent in the present case because the matter on which the respondents rely presently is the CFMEU’s motive for the campaign. The respondents’ purpose does not warrant the conclusion that everything done in pursuit of that purpose was part of a single course of conduct. The concerted campaign of the CFMEU may explain the conduct of its officials but it does not, at least by itself, provide the requisite interrelationship between the contraventions to warrant the application of the single course of conduct principle.

79. In my opinion, it is appropriate to approach the matter on the basis discussed by Wells J in Tichy in the passage quoted in Royer, namely, by considering whether the conduct of the respondents comprising two or more contraventions can be properly characterised as constituting two or more incursions into contravening conduct and not incidents in “one multifaceted course of [unlawful] conduct”.

…

84. The qualification relates to the declaration proposed with respect to Mr Roberts’ conduct at Adelaide Oval on 30 October 2013. Counsel submitted that the proposed declaration that Mr Roberts had contravened s 500 by, amongst other things, “speaking in an aggressive, loud, rude and threatening manner to the Site Operations Manager” was not supported by the findings in the Liability Judgment and, accordingly, should not be made. I do not accept that submission. Mr Ising, whose evidence I regarded as reliable, said in the evidence quoted at [196] of the Liability Judgment that in the interchange which he had with Mr Roberts at about 12.10 pm on 30 October 2013:

Mr Roberts then became quite aggressive and acted threateningly towards me. He was almost screaming at me and was being loud and obnoxious. He was putting his face right up close to mine. I felt threatened by how loud and close he was ... Mr Roberts then moved about 10 m away from me and then said “I just want to smash someone right now”.

Mr Ising also described Mr Roberts’ conduct when raising the issue about the forklifts in the basement, as having been “aggressive, loud and rude”: see the Liability Judgment at [201]. Mr Roberts had admitted in his filed defence that Mr Ising may have perceived him as being aggressive and that he had been told by Mr Ising to “calm down”.

…

86. I am satisfied, having regard to the evidence at the trial and the admissions by some respondents that it is appropriate for each declaration proposed by the Director to be made. The declarations will have utility, do concern a matter of public importance and an expression of the Court’s disapproval of the conduct is warranted. I will however, make some modifications to their form.”

[22] The Orders 11 made with respect to Mr Roberts were in the following terms:

“180. A penalty is to be imposed on Mr Roberts in respect of his contravention of s 500 of the FW Act at the Adelaide Oval site on 30 October 2013.

181. I have referred earlier to the passages in the Liability Judgment in which the circumstances of Mr Roberts’ contravention are described. It is appropriate however, to mention some features of Mr Roberts’ conduct which differentiate his position from that of his colleagues.

182. On my findings, at [196], Mr Roberts behaved in an aggressive and threatening manner towards Mr Ising in the conversation at about 12.10 pm. Again, at about 1.15 pm, Mr Roberts behaved in an aggressive, loud and rude manner and, on my findings, raised a complaint which was baseless. The penalty to be imposed on Mr Roberts should take account of these aspects of his conduct.

183. Mr Roberts commenced as an organiser with the CFMEU in 2001 and has held an entry permit ever since. It is to his credit that he has no previous record of contraventions of industrial laws. It is also to Mr Roberts’ credit that he made an early admission of his contravention, although I note that that admission did not extend to all aspects of his conduct alleged by the Director.

184. The respondents also submitted, and the Director did not dispute, that Mr Roberts has not been found to have contravened any industrial law since 30 October 2013.

185. The Director submitted that a penalty in the range of $2,000 - $4,000 is appropriate in the case of Mr Roberts. The respondents on the other hand contended for a penalty in the range $1,500 - $2,500. I consider that the aggressive and threatening behaviour of Mr Roberts should be reflected in a higher penalty than would otherwise have been appropriate. I impose a penalty of $2,200.”

[23] In addition, I note that the Court imposed a penalty on the CFMEU of $22,500.

[24] As a consequence of that Court decision the Fair Work Commission then commenced an action of its own motion pursuant to s.510 of the FW Act. In summary terms, this section requires that the Commission must revoke or suspend entry permits in certain circumstances. One of those involves an order to pay a pecuniary penalty in relation to a contravention of this part of the FW Act by a permit holder. That action of the Commission’s own motion was referred to me and in a decision 12 issued on 29 June 2016. I referred to the different character of the considerations undertaken by the Court to those previously considered by the Fair Work Commission.13 I concluded that, pursuant to s.510(1) Mr Roberts’ entry permit should be suspended for a period of four months and that a ban on the issue of any further entry permit would apply over this same time.

[25] For the sake of completeness, I note that this decision was the subject of an appeal. In the subsequent appeal decision the Full Bench dismissed the appeal. 14

The evidence in this matter

[26] Mr Roberts gave evidence in support of the granting of an entry permit. His evidence went to his involvement in the building and construction industries and with the CFMEU. Mr Roberts’ evidence went to the events of October 2013 and his behaviour subsequent to that incident. His evidence went to the manner of his use of his entry permit and the extent to which, if he was not issued with an entry permit, he would struggle to perform his union duties. Mr Roberts stated:

“51. I consider that I have a good understanding of the right of entry regime and the obligations placed upon me.

52. My overall history as a permit holder shows that I understand my obligations as a permit holder and, except for on a single occasion, I have complied with these obligations.

53. If I am issued a new entry permit I will comply with all my right of entry obligations in the future and any conditions that the Commission sees fit to impose on me.” 15

[27] In response to various questions which I asked of him, Mr Roberts provided further information. He confirmed that the CFMEU had paid the fine imposed upon him by the Court. He advised that this arrangement reflected the agreement reached on the cessation of his employment with the South Australian Branch of the CFMEU.

[28] In relation to the October 2013 incident, Mr Roberts advised that his actions did not reflect an instruction given to him by the CFMEU notwithstanding that the entries were obviously planned. In the context of continuing industrial action being publicly proposed by the CFMEU, and the CFMEU record of infringements of industrial laws, I sought further confirmation from Mr Roberts about his preparedness to refuse to participate in any unlawful actions that might be requested of him, or proposed to him, by the CFMEU. Mr Roberts advised: 16

“SDP O’Callaghan: What do you say to me that you are going to do if the CFMEU request you, or require you, to take action which would be inconsistent with those right of entry obligations that you understand?

Mr Roberts: I would refuse to do it. The consequences are far greater. I’ve had four months without a right of entry permit over sixteen and a half years of being a union official that was a privilege to be and a privilege to help members and potential members, certainly in the construction industry and I wouldn’t want to jeopardise that in the future.”

Findings

[29] Mr Roberts has a good understanding of the freedom of association requirements implicit in the general protections provisions. He has a good understanding of his obligations as a permit holder. Mr Roberts has indicated that he understands that the actions he took in October 2013 were absolutely inconsistent with the behaviour required of him as a permit holder. Mr Roberts has also explicitly confirmed that, if he was asked to act contrary to his obligations as a permit holder he will refuse to undertake actions of that nature. I have assumed that Mr Roberts understands the potential ramifications of adopting such a position in terms of how he might be regarded within the CFMEU.

[30] I have considered the requirements of s.513 on the material before me.

[31] In terms of s.513(1)(a), Mr Roberts has received training about the rights and responsibilities of a permit holder.

[32] I am satisfied that Mr Roberts has not been convicted of an offence against an industrial law consistent with s.513(1)(b).

[33] In terms of s.513(1)(c), there is no evidence that confirms a conviction which involves one of these offences.

[34] Mr Roberts has been ordered to pay a financial penalty under the FW Act. I have taken the Court decision in this regard into account later in this decision.

[35] Mr Roberts’ entry permit has been suspended and made subject to conditions. Those suspensions, and conditions, related to the October 2013 Lend Lease Adelaide Oval redevelopment incident. I have further considered this incident shortly.

[36] In terms of s.513(1)(g) Mr Roberts has acknowledged a conviction for failing to provide his name and address in 2012. No penalty applied in that respect. I have concluded that Mr Roberts’ behaviour in this regard reflected his enthusiasm for a cause in support of a group of workers not associated with the CFMEU and his poor judgement in failing to comply with police requests. I do not consider that this conviction is pertinent to the manner in which he conducts himself as an entry permit holder. In any event, I have concluded that Mr Roberts now understands that the police may request that he provide his name and address and that, in this event he is obligated to comply with such a request.

[37] The factors I have considered in s.513(1) do not all support the granting of an entry permit to Mr Roberts. Consequently, a conclusion on balance needs to be arrived at. In reaching a conclusion in this respect I have had regard to the extent to which the FW Act requires that a balance be struck between the rights of Union officials and those of the occupier of building sites.

[38] The only incident which give rise to concern about Mr Roberts being regarded as a fit and proper person to hold an entry permit relates to the October 2013 Lend Lease Adelaide Oval redevelopment incident. There can be no doubt that was a serious and significant transgression. I have considered Mr Roberts’ circumstances in the context of the majority position in CFMEU v Director of the Fair Work Building Industry Inspectorate (referred to hereafter as Tadic). 17 In that matter the majority adopted the following position:

“[86] We agree that it is highly relevant to consider an applicant’s attitude and track record relating to compliance with the relevant legal obligations, however, we consider it erroneous to elevate a context of past contraventions of industrial or other relevant laws by an organisation so that it automatically operates to impose a ‘higher bar than normal’ for an individual to clear in order to satisfy the Commission that he or she is a fit and proper person to hold an entry permit, regardless of his or her past behaviour.

[87] We believe that there was error in the decision-making process of the Vice President because he framed the task of considering whether Mr Tadic was a fit and proper person to hold an entry permit with the opening statement “In my view this context establishes a higher bar than normal for considering whether Mr Tadic is a fit and proper person to hold the right of entry permit in question.”58 On our reading of s.513(1) of the Act and our consideration of the authorities referred to above, we do not consider this approach was open to him and we have concluded he acted on a wrong principle in doing so. On the basis of this error in the decision making process, we have decided to uphold the appeal and quash the Vice President’s decision to reject the grant of an entry permit to Mr Tadic.”

[39] At the conclusion of the hearing in this matter, I invited the CFMEU to advise me of its position about the extent to which Mr Roberts’ advice in this respect could be taken into account. The subsequent CFMEU position was that:

“During today’s hearing before the Senior Deputy President we were asked by his Honour to consider whether his question to Mr Roberts regarding what Mr Roberts would do if he were asked, requested or directed to break the law by the Applicant was inappropriately or unfairly put in light of the majority decision in the Tadic Decision. I note that my characterisation of his Honour’s question is based on my recollection and notes from the hearing, and that if I have misrepresented the question, and the issue that was raised by his Honour, I apologise for doing so and ask that clarification of the question and issue be provided.

Based on my understanding of the question and issue, it is the Applicant’s position that the question was neither unfair or inappropriately put to Mr Roberts in the context of Mr Roberts own personal characteristics. That is, whether or not as a matter of character Mr Roberts has a personal propensity to not comply with industrial laws is an appropriate and relevant consideration for the Commission.

However, if the context of the question is about the propensity of Mr Roberts to comply with industrial laws because he is employed by the Applicant (i.e. the CFMEU) given the Applicant has demonstrated past behaviours and attitudes to not comply with industrial laws, then the question is inappropriate as it establishes a higher bar for Mr Roberts to satisfy above that which other proposed permit holders would need to satisfy owing to the identity of the organisation that he is employed by. We believe that this approach is consistent with the position of the Majority in the Tadic Decision (at paras [86] and [87]).

Finally, we note that the answer Mr Roberts gave to the question, that is, he would refuse to follow a direction, request, etc. by the Applicant to break the law, is a matter that goes favourably to his character and whether he is a fit and proper person to hold an entry permit Applicant.”

[40] In that context it appears to me that the CFMEU’s history and on-going approach of disregarding its legislative obligations must be a relevant factor in this respect. Indeed, the potential for on-going unlawful activity on the part of, at least some components of the CFMEU was not challenged in this matter and, I have concluded that the frequency of Court deliberations about that behaviour, puts it beyond question. The findings of the Full Bench of the FWC and of the Court confirm that the Adelaide Oval Redevelopment incident was part of a “strategy” adopted by the CFMEU, notwithstanding that the Court noted that Mr Roberts’ behaviour on that site required differentiation. That strategy led to Mr Roberts breaching his right of entry obligations. Mr Roberts’ undertaking to ensure that he complies with his obligations as a permit holder in the future, even in the face of demands which may be put on him by the CFMEU is of a nature which I consider supports a finding that he should be regarded as a fit and proper person to hold an entry permit. Contrary to the CFMEU position, I have taken Mr Roberts’ undertaking into account in that it represents advice from a former CFMEU Official and a current employee which confirms that he will not breach his right of entry obligations, notwithstanding that working for the CFMEU must increase the likelihood that this union is continuing to propose actions in breach of industrial laws.

[41] Having taken the advice provided to me by Mr Roberts into account, I am satisfied that he is a fit and proper person to hold an entry permit. I have taken the majority position in Tadic into account and I have found Mr Roberts to be a fit and proper person substantially because he has satisfied me that he will comply with his obligations in an environment where he may be encouraged not to do so. The CFMEU shows no sign of seeking to comply with workplace relations obligations and the Adelaide Oval Redevelopment incident exemplifies the type of situation with which Mr Roberts may be confronted. I have reviewed his circumstances from the premise that he is likely to be expected to participate in unlawful right of entry activity and he has given categorical advice that he will refuse to do so. Had I simply considered the “normal” union circumstances to assess Mr Roberts as a fit and proper person, I may not have reached the same conclusion because of the seriousness of his involvement in the Adelaide Oval Redevelopment incident and the likelihood of similar strategies on the part of the CFMEU in the future..

[42] My conclusions in this regard are supported by Mr Robert’s behaviour, prior to October 2013, but, more particularly, after that date which confirm his normal conduct.

[43] I have considered the extent to which, pursuant to s.515, conditions on entry permit should be imposed. I do not consider this to be necessary in Mr Roberts’ circumstances. Not only has he undergone the relevant training, but he has recognised the obligations relevant to the responsible application of a right of entry permit.

[44] The application for a right of entry permit is granted and a permit will be issued accordingly.

Appearances:

M Swinbourn for the CFMEU and Mr Roberts.

Hearing details:

2016.

Adelaide (and Video-link to Perth)

February 16.

<Price code C, PR590363>

 1   [2016 ] FCA 413

 2 In this respect he referred to a proceeding commenced in the Fair Work Commission of the Commission’s own motion pursuant to s. 508, where his entry permit was suspended for a period of six months, with that suspension being itself suspended for a period of 12 months

 3   [2016 ] FWC 4052

 4   [2015 ] FWC 1522

 5 [2016] FCA 413

 6   [2016 ] FWC 4052

 7   [2014] FWCFB 2709

 8   [2014 FWC 3907

 9 [2015] FCA 1293

 10 [2016] FCA 413

 11   SAD 300 of 2014, Reasons for Judgment, paras 180 - 185

 12   [2016] FWC 4052

 13   para [29]

 14   [2016 ] FWC FB 6696

 15   Exhibit CFMEU3, paras 51-53

 16   Audio Recording – Transcript 16 February 2017, 2:14:48

 17   [2016 ] FWCFB 6058

Printed by authority of the Commonwealth Government Printer