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

[2016] FWC 2239

[2016] FWC 2239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch
(RE2016/136)

Construction, Forestry, Mining and Energy Union of Workers, The
(RE2016/137)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN PERTH, 8 APRIL 2016

Application for an entry permit – fit and proper person – previous actions

[1] On 27 January 2016 the Construction, Forestry, Mining and Energy Union and the Construction Forestry, Mining and Energy Union of Workers, referred to in this decision as the CFMEU lodged applications seeking that an entry permit be issued to their employee, Mr Tawa Harris. The applications were referred to me and were the subject of a hearing, in Perth on 9 March 2016. At this hearing the CFMEU and Mr Harris were represented by Mr Borgeest, of counsel, pursuant to a grant of permission made under s.596(2)(a) of the Fair Work Act 2009 (the FW Act).

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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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

[4] In the applications, the CFMEU advised that Mr Harris was an employee of the CFMEU and 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. The applications advised that Mr Harris had never been convicted of an offence against an industrial law, or of an offence involving entry onto premises or of fraud or dishonesty or the intentional use of violence against another person or intentional damage or destruction of property. Furthermore, the CFMEU advised that Mr Harris has never been ordered to pay a penalty under the FW Act or other industrial law nor had any other person been ordered to pay a penalty in respect of such action. The CFMEU advised that Mr Harris had not had a right of entry or occupational health and safety permit under the FW Act or similar legislation, revoked, suspended or made subject to conditions.

[5] The CFMEU advised that:

“there are matters concerning current or recent proceedings in the Federal Circuit Court of Australia, and the Federal Court of Australia, to which the proposed permit holder is or has been a respondent and which may be proper to disclose, particulars of which are set out in the Disclosure Statement attached to this application.” 1

[6] Attached to the application was a declaration made out by Mr Harris in which he confirmed the information in the application and added information about various proceedings commenced, concluded, or continuing in the Federal Magistrates Court and the Federal Court of Australia.

[7] The CFMEU provided further information about these proceedings before and during the hearing on 9 March 2016. Additionally, Mr Harris gave evidence in this hearing.

[8] Before summarising the evidence and information before me, it is appropriate that I summarise the submissions made by the CFMEU in support of the applications. In these submissions, the CFMEU relied on the principles endorsed by a Full Bench of the FWC in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union – Construction Division, Queensland Northern Territory Divisional Branch 2in the following terms:

“[6] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 Vice President Hatcher has helpfully set out the principles relevant to the interpretation and application of s. 512 and 513(1) as follows:

“[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.” 3

[9] The CFMEU confirmed that Mr Harris had received the requisite training in January 2013 and further training in January 2016. A copy of the certificate of the completion of that training was provided. The CFMEU asserted that none of the considerations in s.513(1)(a)-(f) went against the application. In terms of s.513(1)(g) the CFMEU confirmed that it had volunteered disclosures about various court proceedings that might be considered relevant but that these disclosures should not prevent the issuing of an entry permit.

[10] I have summarised the specific disclosures in the following terms. Firstly, Mr Harris was a respondent to a proceeding in the Federal Magistrates Court in January 2013. The applicant in that matter was BGC Construction Pty Ltd. I have referred to this matter as the BGC matter. The CFMEU provided a copy of the claim and the defence filed by Mr Harris. The claim asserted that Mr Harris, who was at that time an employee of the CFMEU, entered a work site without approval, authorisation, or entry notices and refused to leave when requested to do so. Mr Harris was alleged to have had discussions with various employees before leaving the premises. The defence filed in the BGC matter advised that Mr Harris attended the site for less than 10 minutes and that his conduct was not hindering, obstructive or improper behaviour of a permit holder. The allegations were otherwise refuted. The CFMEU advised that the BGC matter was discontinued without any findings or admissions of wrong doing.

[11] Secondly, Mr Harris was one of a number of respondents, including the CFMEU, to proceedings in the Federal Court of Australia in May 2013. This matter related to industrial activity at a hospital site in Perth. I have referred to it as the Perth Hospital matter. Applications were brought by Fair Work Building and Construction and by John Holland Pty Ltd. The CFMEU advised that, prior to the trial of these matters, the respondents entered comprehensive admissions to the allegations raised in the Fair Work Building and Construction proceedings. Further, that the John Holland application relative to the Perth Hospital matter was resolved by the granting of final injunctive relief. Consent Orders were made by the Court 4 on 30 November 2015.

[12] These Orders restrained Mr Harris (and the other respondents) from:

“2. The First to Twelfth Respondents, and each of them, are restrained until 31 December 2017 from:

(a) organising or engaging in any industrial action at or in the vicinity of the New Children’s Hospital on the corner of Winthrop Ave and Monash Ave in Perth (Site);

(b) doing any act which in any way obstructs or hinder or interferes with the passage of any person, whether on foot or in a vehicle proceeding to or from the Site;

(c) abusing, threatening, besetting or harassing by words or gestures or physically harming, or attempting to physically harm, any persons approaching, leaving or on the Site;

(d) standing in line or in any other formation on any roadway, lane or footpath in the path of vehicular or pedestrian traffic approaching or leaving the Site;

(e) aiding, abetting, counselling, procuring or inducing, or being in any way by act or omission directly or indirectly, knowingly concerned in or party to, any conduct that is restrained by paragraphs (a)-(d) above.” 5

[13] These Orders applied until 31 December 2017 which the CFMEU acknowledge covered the duration of the Perth Hospital project. I note that the Orders provided a capacity for costs to be sought in the event that an anticipated, but undisclosed payment, was not made to John Holland Pty Ltd by the CFMEU. With respect to the other actions relative to the Perth Hospital matter, the issue of penalty is yet to be determined by the Court.

[14] The third matter relates to an action bought in the Federal Court of Australia, by Fair Work Building and Construction in relation to Mr Harris and another CFMEU official’s use of entry rights relative to a multistorey car park construction in Joondalup in May 2015. I have referred to this as the Joondalup matter. This proceeding also cites the CFMEU. In this matter it is alleged that Mr Harris entered the site without lodging an entry notice and subsequently refused to leave the site when requested to do so. The CFMEU advised that the allegations are contested and that this matter is listed for trial in May and June 2016.

[15] Fourthly, Fair Work Building and Construction has initiated proceedings in the Federal Court of Australia against the CFMEU, Mr Harris and five other officers or members of the CFMEU in relation to conduct at a construction site at Perth Airport on 22 October 2013. I have referred to this as the Perth Airport matter. The CFMEU advised that the respondents to this matter made admissions in a Statement of Agreed Facts and Admissions and that these admitted facts include the admission that Mr Harris attended the site on 22 October 2013 and was a party to actions which prevented or dissuaded persons from entering the site and performing work that day. Mr Harris’ involvement in the CFMEU’s contravention of s.348 of the FW Act was admitted. The CFMEU advised that, whilst the matter was the subject of a hearing on 30 July 2015, no decision on the imposition of pecuniary penalties has been issued at this stage.

[16] The CFMEU’s position with respect to these specific disclosures is that:

“Mr Harris has been found to have contravened the Fair Work Act 2009 by obstructive conduct on four days in 2013, in the course of two industrial disputes. In neither case was Mr Harris said to have been an organiser of the industrial action, or a key player in the controversial events. In no case was his conduct alleged to have been anything other than merely obstructive: there have been no allegations, let alone findings or admissions, of otherwise improper or affronting behaviour.

Other than the particular admitted conduct in course of two disputes in 2013, there have been no findings of misconduct relevant to the exercise of the Commission’s discretion.

In all of the circumstances, the Commission ought be satisfied that Harris is a fit and proper person to hold an entry permit.” 6

[17] Mr Harris gave evidence in this matter. His evidence went to his involvement in the building and construction industries and with the CFMEU. He advised that the primary purpose of his job as an organiser was to keep in touch with members on sites and help them resolve any difficulties they may have. He stated:

“In my work as an organiser, and in my previous work as an occupational health and safety representative, the most important tools that I have had to solve problems with are good relationships with workers and good relationships with site management. As a general rule, it’s always much easier and quicker to resolve important issues if I can engage site management in a professional, problem-solving sort of conversation.” 7

[18] Mr Harris confirmed the training he had recently undertaken.

[19] In response to various questions which I asked of him, Mr Harris provided limited further information about his actions relative to various of these specific disclosures. In relation to the BCG matter he advised that he entered that site to request financial support from CFMEU members to assist the family of a member of the local Mauri community and that he understood he had been allowed onto that site.

[20] In relation to the Perth Hospital matter, Mr Harris confirmed that he had not personally made any payments relative to this action. I directed his attention to the Court Order 8 and in particular to that aspect of the Order which states:

“3. (a) On 25 January 2013, the Fifth Respondent (Harris) took adverse action against the Employers in contravention of s 340 of the FW Act by reason of the matters in (b), (c) and (d) below.

(b) Between approximately 5:30 am and 6:20 am and between 7:10 am and 8:15 am on 25 January 2013, Harris:

(i) stood with other CFMEU officers at the front entrance gates to the Site;

(ii) stood in a manner designed to discourage Project employees from entering the Site; and

(iii) stood in the knowledge that one of more of them occupied the entrance to the Site so that, unless he or others stood aside, no Project employee could enter the Site.

(c) By reason of the conduct in (b), Project employees were prevented and dissuaded from entering the Site that day.

(d) The conduct in (b) and (c) thereby prevented the exercise of the Employers’ Workplace Rights.” 9

[21] Mr Harris advised that whilst he was not able to define adverse action he was aware that persons could not be prejudiced by virtue of their membership, or non-membership of a union. He advised that with respect to the events of 25 January 2013 he was following instructions.

[22] I directed Mr Harris’ attention to that aspect of the Order which stated:

“10. (a) On 30 January 2013, Harris took adverse action against the Employers in contravention of s 340 of the FW Act by reason of the matters in (b), (c) and (d) below.

(b) Between approximately 6:00 am and 6:45 am on 30 January 2013, Harris:

(i) stood with other CFMEU officers at the front entrance gates to the Site;

(ii) stood in a manner designed to discourage Project employees from entering the Site;

(iii) stood in the knowledge that he occupied the entrance to the Site so that, unless he stood aside, no Project employee could enter the Site; and

(iv) attempted to physically prevent employees from entering the Site to commence work.

(c) By reason of the conduct in (b), together with the conduct of others, Project employees were prevented and dissuaded from entering the Site that day.

(d) The conduct in (b) and (c) thereby prevented the exercise of the Employers’ Workplace Rights.

11. On 30 January 2013, the CMFEU contravened s 340 of the FW Act by reason of the conduct of Harris, as referred to in paragraph 10 above.” 10

[23] Mr Harris indicated that he disagreed with this aspect of the Order and that the actions he took reflected the position being advocated by the CFMEU.

[24] In relation to the Order issued by Barker J on 30 November 2015 11 I referred Mr Harris to the following finding:

“4. On 18 July 2013, the Fifth Respondent (Harris) engaged in conduct against John Holland in contravention of s 346 of the FW Act by:

(a) organising, inciting, participating and controlling a blockade and protest at the Project which prevented the attendance and performance of work by Project employees until approximately 9.30 am, and which disrupted a large concrete pour scheduled for that day; and

(b) engaging in the conduct in (a) because John Holland engaged in industrial activity, within the meaning of s 347(b)(iv) of the FW Act, by not complying with the whole-of-site EBA Demand.” 12

[25] Mr Harris disagreed with this finding and advised that he did not organise the blockade or protest and that CFMEU management told him to talk with his members.

[26] I note that Mr Harris declined to respond to certain of my questions on the advice of Mr Borgeest.

[27] In relation to the Perth Airport matter Mr Harris advised that he was not directly following CFMEU instructions, that he made up his own mind about the actions he should take and put himself in a position which he thought would assist the CFMEU position.

[28] I note that Mr Harris advised that he never entered sites without giving the requisite notice, apart from his involvement in safety issues. 13

[29] I have reached the following conclusions relative to Mr Harris’ activities which have been or are the subject of litigation. He has a limited understanding of the freedom of association requirements implicit in the general protections provisions, 14 but understands that employees have a right to become, or not to become, union members. He has demonstrated a preparedness to disrupt work when he considers that to be in the interests of the CFMEU and/or its members. There is nothing to indicate that Mr Harris has actually paid a financial penalty in relation to his disruptive activities. There is nothing that indicates to me that Mr Harris is at all remorseful relative to the disruptive activities he has engaged in or that he intends to alter his past patterns of behaviour.

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

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

[32] In terms of s.513(1)(b), findings that Mr Harris breached s.340 and s.346 of the FW Act were made in relation to the Perth Hospital project. 15

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

[34] There is nothing that establishes that Mr Harris has been ordered to pay a financial penalty. That said, I have noted that financial penalties may be applied to Mr Harris in matters not yet finalised. I deal with those issues later in this decision.

[35] There is nothing to indicate that a permit issued to Mr Harris in the past has been revoked, suspended or made subject to conditions. Furthermore, in terms of s.513(1)(f) there is nothing to indicate that Mr Harris has had an entry permit revoked, suspended or made subject to limitations in relation to occupational health and safety purposes.

[36] As the CFMEU noted, it is s.513(1)(g) that forms the primary basis for my considerations. In considering this factor, I have noted that s.191 of the Evidence Act 1995 states:

“191 Agreements as to facts

(1) In this section:

agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.

(2) In a proceeding:

(a) evidence is not required to prove the existence of an agreed fact; and

(b) evidence may not be adduced to contradict or qualify an agreed fact;

unless the court gives leave.

(3) Subsection (2) does not apply unless the agreed fact:

(a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding; or

(b) with the leave of the court, is stated by a party before the court with the agreement of all other parties.”

[37] Mr Harris has been found and has admitted to be party to various actions which demonstrate a blatant disregard for the provisions of the FW Act. Some of these events have been admitted by the CFMEU but even in the case of the Perth Hospital matter, Mr Harris does not appear to appreciate that his conduct was inappropriate. It appears to me that his standard of appropriate behaviour is founded on his belief of what is good for the CFMEU. In relation to the Perth Hospital Project he explained his actions on the basis that he “was advocating what we were doing.” 16 Further, he appeared to disagree with the extent to which there was any admission of liability on the part of the CFMEU for the establishment of a picket in May 2013. Mr Harris’ position relative to his past conduct does not indicate that he has a clear understanding of the import of his past behaviours or any commitment to change his behaviour.

[38] The position adopted by Mr Harris in this respect provides no indication that he is a fit and proper person to hold a right of entry permit or that he has demonstrated a capacity to comply with the FW Act irrespective of either CFMEU instructions or his own assessment of what is good for the CFMEU. In reaching this conclusion I have noted that I gave Mr Harris ample opportunity to demonstrate his personal bonafides in the course of the hearing on 9 March 2016. Apart from confirming that the CFMEU represented his moral compass, he did not avail himself of those opportunities.

[39] Two matters involving Mr Harris have yet to be finally determined. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 17 Gostencnik DP stated:

“Although the Bateman declarations disclose this proceeding for the purposes of the permit qualification matter described in s. 513(1)(d) of the Act, strictly speaking, since a penalty is yet to be imposed I do not consider it in that context and instead I regard the matter disclosed as being relevant for the purposes of s. 513(1)(g) of the Act.” 18

[40] Whilst the material before me relating to the conduct and attitude adopted by Mr Harris does not persuade me that he is a fit and proper person to hold an entry permit, the Joondalup matter which is yet to be determined, does not establish the basis for any alternative position.

Conclusion

[41] In reaching a conclusion in this matter 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. It is simply not enough for Mr Harris to assert that he gives the requisite notice for the exercise of entry rights. His overall patterns of behaviour must be taken into account in order to assess whether this balance will be assisted by issuing him with an entry permit. Those behaviours show repeated instances where he has demonstrated a lack of regard for the obligations established by the FW Act. Mr Harris’ participation in actions designed to force results sought by the CFMEU through industrial actions is not able to be easily reconciled with his assertion that he works toward negotiated solutions. The evidence before me is that Mr Harris has willingly been a party to actions where he simply ignores the law. Mr Harris has not utilised the opportunity to demonstrate or even seriously assert that he has adopted a changed approach. Accordingly, I am not satisfied that Mr Harris is a fit and proper person to hold an entry permit.

[42] The applications for a right of entry permit are dismissed.

Appearances:

T Borgeest of counsel for the Construction, Forestry, Mining and Energy Union and Mr Harris.

Hearing details:

2016.

Perth:

March 9.

 1   Form F42, Application by CFMEU, para 2

 2   [2015] FWCFB 6035 (9 October 2015)

 3   Ibid [6]

 4   Exhibit A1, Disclosure Bundle, Federal Court of Australia, Court Order No: (P) WAD133/2013

 5   Ibid [2]

 6   Exhibit A1, paras 29–31

 7   Exhibit A2, para 8

 8   Exhibit A1, Disclosure Bundle, Federal Court of Australia, Court Order No: (P) WAD16/2014

 9   Ibid [3]

 10   Ibid [10]–[11]

 11   Exhibit A1, Disclosure Bundle, Federal Court of Australia, Court Order No: (P) WAD135/2014

 12   Ibid [4]

 13   Sound recording, 9 March 2016, 9.32 a.m.

 14   Fair Work Act 2009 (Cth) Part 3-1

 15   Exhibit A1, Disclosure Bundle, Federal Court of Australia, Court Order No: (P) WAD135/2014 and Court Order No: (P) WAD16/2014

 16   Sound recording, 9 March 2016, 9.33 a.m.

 17   [2015] FWC 4450 (20 July 2015)

 18   Ibid [15]

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