Construction, Forestry, Mining and Energy Union – Gerard Benstead

[2016] FWC 4256

[2016] FWC 4256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Construction, Forestry, Mining and Energy Union – Gerard Benstead
(RE2016/393)

VICE PRESIDENT HATCHER SYDNEY, 15 JULY 2016

Application for a right of entry permit – Gerard Benstead.

Introduction and background

[1] On 8 March 2016 the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application under s.512 of the Fair Work Act 2009 (Cth) (FW Act) for the issue of an entry permit to Mr Gerard Benstead. Mr Benstead has been employed by the CFMEU as an organiser since December 2004. He was first issued with an entry permit under the Workplace Relations Act 1996 (WR Act) on 21 June 2004. The most recent entry permit issued to him (under the FW Act) expired on 20 April 2015. It was not returned to the Commission upon expiry because Mr Benstead had lost it.

[2] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 the Director of the Fair Work Building Industry Inspectorate (Director) was notified of the lodgement of the application. Having been so notified, the Director elected to exercise his right under s.72 of that Act to make submissions in relation to the matter. The Director opposed the issue of an entry permit to Mr Benstead.

[3] Under s.512 of the FW Act the Commission may issue an entry permit to an official if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the FW Act sets out the matters that the Commission must take into account in deciding whether the official is a fit and proper person and provides 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.

(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] Section 515 of the FW Act sets out the circumstances in which the Commission may impose conditions on an entry permit.

515 Conditions on entry permit

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

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

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

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

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

[5] The CFMEU’s application included a declaration made by Mr John Setka, the Secretary of the Victorian/Tasmanian Branch of the Construction and General Division of the CFMEU. That declaration disclosed a number of court proceedings involving Mr Benstead as follows (numbering added):

“(1) Federal Court proceeding John William Draffin v CFMEU & Ors [2009] FCA 243:

• The CFMEU was ordered to pay a penalty of $18,000 for contravening s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act). Furthermore, the CFMEU was ordered to pay a penalty of $2,000 for contravening s 45 of the BCII Act and a penalty of $750 for breaching s.298P of the Workplace Relations Act 1996 (Cth) (WR Act).



• A penalty of $2,000 was imposed on the proposed permit holder (Benstead) for breach of s.43 of the BCII Act The penalty was wholly suspended for 12 months from the date of the order. If the respondents were not found to have breached any provision of the BCII Act as a result of conduct occurring within 12 months of the orders, they would not be obliged to pay the penalties.

This decision was appealed by the Australian Building and Construction Commissioner (ABCC) – Federal Court Proceeding John William Draffin v CFMEU & Ors [2009] FCAFC 120:

• The CFMEU was ordered to pay a penalty of $50,000 for contravening s 43 of the Building and Constructions Industry Improvement Act 2005 (Cth) (the BCII Act), a penalty of $2,000 for contravening s.45 of the BCII Act and a penalty of $750 for breaching s 298P of the WR Act.



• The court increased Benstead's penalty of $2,000 to $8,000 for breach of s 43 of the BCII Act. Additionally, the Full Court imposed a penalty of $1,250 on Benstead for breach of s.45 of the BCII Act and $750 for breach of s 298P of the WR Act.



• Benstead was not obliged to pay one half of the said penalties if he had not been adjudged to have breached, within 12 months of the date of the order, any provision of the BCII Act or any freedom of association provision of the Fair Work Act 2009 (FW Act).

(2) Federal Magistrates Court proceeding John Holland Pty Ltd v Gerard Benstead & Anor [2009] FMCA 1065:

• The proceeding against the first respondent (Benstead) was dismissed.



• The CFMEU, was ordered to pay a penalty of $12,500 to the applicant for its contravention of s.38 of the BCII Act on 11 March 2009.



• The CFMEU, was ordered to pay a penalty of $12,500 to the applicant for its contravention of s.38 of the BCII Act on 24 March 2015.

(3) Federal Magistrates Court proceeding Michelle White v Gerard Benstead & Ors [2011] FMCA 920 (19 August 2011), MLG469/2010:

• A penalty of $2,000 was imposed upon Benstead in respect of a contravention of s.500 of the FW Act, arising out of his entry to 833 High Street, Reservoir on 14 August 2009.



• A penalty of $1,000 was imposed upon the second respondent, Bill Beattie, in respect of a contravention by Benstead of s 503 of the FW Act, arising out of his entry to 833 High Street, Reservoir on 14 August 2009.



• A penalty of $10,000 was imposed upon the CFMEU in respect of contraventions of ss.500 and 503 of the FW Act, arising out of the entry of 2 CFMEU officials (Benstead and Beattie) to 833 High Street, Reservoir on 14 August 2009.

(4) Federal Court proceedings Alfred v CFMEU (No. 2) [2011] FCA 557:

• The CFMEU was ordered to pay a fine of $150,000 for contempt of court. The conduct of the CFMEU which constituted the contempt included the conduct of Benstead.

(5) Federal Court proceeding Director of the Fair Work Building Industry Inspectorate v CFMEU [2013] FCA 1014, VID342/2012:

• A penalty of $3,000 was imposed upon Benstead for a contravention of s.38 of the BCII Act for being involved (within the meaning of s.48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors, working at the Aitken Creek Primary School Project Site, Craigieburn (the Aitken Site), such involvement by Benstead being constituted by him having directed those employees to strike for the day.



• The CFMEU pay a penalty of $65,000 for contravention of s 43(1)(a) of the BCII Act by reason of being vicariously liable for the conduct of 6 officials, including Benstead.

(6) On 22 February 2016 the Director of the Fair Work Building Industry Inspectorate commenced proceedings in the Federal Court, Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors, VID167/2016.

• At the time of lodging this application there has been no findings made against the Respondents.”

[6] Mr Setka’s declaration also disclosed that the entry permit numbered RE2011/2883 (issued 20 April 2012) was issued to Mr Benstead with the following condition attached:

“This permit is issued with the condition that the permit holder must only use his permit in the company of another holder who has no condition imposed upon his or her permit. See decision [2012] FWAD 963 issued 16 March 2012.”

[7] Mr Benstead confirmed the correctness of the above disclosures in his declaration dated 8 March 2016 which accompanied the application.

[8] In relation to the first matter disclosed in the application (Draffin v CFMEU), the first instance judgment of the Federal Court 1 (Marshall J) described the facts upon which Mr Benstead was found to have contravened ss.43 and 45 of the Building and Construction Industry Improvement Act 2005 (BCII Act) and s.298P of the WR Act as follows:

“16 NOVEMBER 2005

[12] On 16 November 2005, Mr Nicholls and Mr Lorens attended the site to perform traffic management duties. At about 8.00 am, Mr Allen told them not to set up the site. At about the same time, Mr Benstead told Mr Moncrieff of Monjon that Mr Benstead had a problem with Monjon providing traffic management services on site. He told Mr Moncrieff that traffic management services work was covered by the National Building and Construction Industry Award 2000 (“the Award”). Mr Benstead told Mr Moncrieff that as Monjon employees were employed on AWAs they were not entitled to the benefit of the Award.

[13] Mr Benstead then attended the site and told Walton’s site manager, Mr Le, what he had told Mr Moncrieff and said that Monjon should not perform traffic management services at the site.

[14] Mr Oliver had a telephone conversation with Mr Walton, of Waltons, on this day. Mr Oliver told Mr Walton that he had an issue with Monjon performing traffic management services work which was covered by the Award.

[15] Mr Fraser, the site project manager, spoke to Mr Benstead and then telephoned Mr Walton advising him that as Walton could not afford to have problems on the site, Monjon was no longer to be on the site.

[16] At about 10.30 am, a meeting occurred in Mr Allen’s office at the site. As well as Mr Allen, Messrs Moncrieff, Lorens and Nicholls attended. Mr Allen told the meeting that he had been directed by Mr Benstead not to allow Monjon to perform traffic management services. He said his hands were tied and that Mr Moncrieff should “go deal with the union”.

[17] After the meeting Mr Moncrieff told Mr Lorens and Mr Nicholls to leave the site as it appeared Monjon would not be allowed to perform traffic management services at the site. Monjon ceased to perform services on the site from that morning but was paid for the day. Walton did not further engage Monjon to perform traffic management services at the site.

REFUSAL TO ENGAGE

[18] Walton refused to engage Monjon as an independent contractor to provide traffic management services on the site for reasons which included the reason that Monjon was entitled to the benefit of AWAs with its employees. Walton’s decision was made after receiving pressure from the Union, through Mr Benstead and Mr Oliver.”

[9] The Full Court’s judgment in the appeal on penalty 2 characterised the factual position as follows:

“[3] Mr Allen, Mr Benstead and Mr Oliver are officers of the Union. The contraventions of the legislation which were ultimately admitted by all of the respondents involved the exertion of pressure and coercion on a construction company by the Union, Mr Allen, Mr Benstead and Mr Oliver. The pressure and coercion were applied in a successful attempt to have the company cease to use the services of a sub-contractor which employed workers under Australian Workplace Agreements ("AWAs").”

[10] As stated in the application, the Full Court imposed penalties on Mr Benstead (in substitution for those imposed at first instance) of $8,000 for breach of s.43 of the BCII Act, $1,250 for breach of s.45 of the BCII Act, and $750 for breach of s.298P of the WR Act. Mr Benstead was not obliged to pay half the penalties if within 12 months he was not adjudged to have breached any provisions of the BCII Act or any of the freedom of association provisions of the FW Act. The CFMEU was penalised the amount of $50,000 for breach of s.43 of the BCII Act.

[11] In relation to the second matter disclosed in the application (John Holland v Benstead), the consent orders made by the Federal Magistrates Court (Turner FM) on 12 November 2009 3 dismissed the proceeding insofar as it concerned Mr Benstead and imposed two penalties of $12,500 each on the CFMEU for breaches of s.39 of the BCII Act on 11 March 2009 and 24 March 2009 respectively. The accompanying Reasons for Judgment refer (at [3]) to the parties having reached and filed an agreed statement of facts. The statement includes the following matters relevant to Mr Benstead (noting that the CFMEU was the second respondent):

“The 11 March industrial action

12. At around 7:15 am on 11 March 2009, the First Respondent Benstead, an employee and officer of the CFMEU, entered the Site where construction was being undertaken on the Mental Health Unit. The First Respondent Benstead states that he attended the site in response to occupational health and safety concerns of his members.

13. At around 8:30am, and again at 10:20am, on 11 March 2009, employees of the sub-contractors at the Site entered the lunch shed near the Mental Health Unit in the company of the First Respondent Benstead.

14. On 11 March 2009, following the latter meeting with the First Respondent Benstead, the employees of the sub-contractors engaged in industrial action, namely they failed or refused to perform any work at all from about 10:34am on that day (“the 11 March 2009 Industrial Action”). The Applicant had not directed or authorised the employees to cease or stop work.

15. For the purposes of s.37 and s.38 of the BCII Act, the 11 March 2009 Industrial Action was unlawful industrial action.

16. For the purposes of s.69 of the BCII Act, the conduct of the First Respondent Benstead referred to at paragraphs 12 to 14 above was:

(a) Conduct of an officer of the Second Respondent acting in that capacity; and

(b) Pursuant to s.69(1)(b) of the BCII Act, conduct of the Second Respondent.

17. In the premises, the Second Respondent admits it:

(a) engaged in the 11 March 2009 Industrial Action; and

(b) thereby contravened s.38 of the BCII Act.

The 24 March 2009 industrial action

18. At around 6:55am on 24 March 2009, the First Respondent Benstead entered the site where construction was being undertaken on the Mental Health Unit. The First Respondent Benstead states that he attended the site in response to the occupational health and safety concerns of his members.

19. On the morning of 24 March 2009 and during normal working hours, the First Respondent Benstead and the employees of the sub-contractors attended a meeting.

20. On 24 March 2009, following the meeting with the First Respondent Benstead, the employees of the sub-contractors failed or refused to perform any work on that day (“the 24 March 2009 Industrial Action”). The Applicant had not directed or authorised the work to stop.

21. For the purposes of s.37 and s.38 of the BCII Act, the 24 March 2009 Industrial Action was unlawful industrial action.

22. For the purposes of s.69 of BCII Act, the conduct of the First Respondent Benstead set out at paragraphs 20 to 22 above was:

(a) conduct of an officer of the Second Respondent acting in that capacity; and

(b) pursuant to s.69(1)(b) of the BCII Act, conduct of the Second Respondent.

23. In the premises, the Second Respondent admits it:

(a) engaged in the 24 March 2009 Industrial Action; and

(b) thereby contravened s.38 of the BCII Act.”

[12] In relation to the third matter disclosed in the application (White v Benstead), the orders made by the Federal Magistrates Court (Riethmuller FM) on 19 August 2011 4 (which were proposed by the parties) included orders that Mr Benstead (the first respondent) pay a penalty of $2,000 arising out of his entry to a worksite on 14 August 2009 in breach of s.500 of the FW Act, and that penalties of $1,000 and $10,000 be paid by Mr William Beattie and the CFMEU respectively arising out of that entry. The accompanying Reasons for Judgment record the following facts which gave rise to the penalties:

“[2] On 14 August 2009 in early afternoon, two union officials, the first and second respondents, arrived at the front gates of the Preston Pump project site (‘the site’) where work was being carried on and had a conversation with the security guard who did not want to allow them onto the site. They pressed their way forward onto the site, despite not having given notice of entry and therefore, not having a right of entry to the site at that time.

[3] The first and second respondents say that they had been contacted by employees on the site but I am not provided with any information as to what the specific purpose of the visit was or the complaint or request of their employees were. It seems to me in those circumstances, I should not proceed on the basis that the employees’ request had some particular urgency that might, in some way, mitigate in the circumstances.

[4] The issues between the site management and the union officials continued until eventually work was interrupted and the police were called. The police were advised by the union officials that they had a right to be on the site when they did not. The whole incident, however, did not last terribly long, and within half an hour of their arrival the two union officials were escorted off the site by the police.

[5] Whist the matter has taken some time to come before me, the result of that has been an agreed statement of facts together with agreements between the parties as to what they submit are the appropriate penalties in the facts and circumstances of this particular case, having regard to the conduct of the legislative scheme as a whole and the general principles that apply in determining penalty in these types of circumstances.”

[13] The Reasons for Judgment subsequently stated that “There does not appear to be any contrition involved in this case…” 5 and characterised the breaches as “flagrant”.6

[14] The Reasons for Judgment proceeded on the basis of an agreed statement of facts which described the contravening conduct of Mr Benstead and the other CFMEU official involved in the following terms:

“14 August 2009 – Benstead and Beattie enter the Site

The Entry

9. On 14 August 2009, at approximately 2.00pm, Benstead and Beattie arrived at the front gates to the Site, and had a conversation with Shawn Green, security guard, and agent or representative of Baulderstone (Green), which conversation including the following matters:

(a) Green said to Benstead and Beattie:

“you know you can’t come on site”;

(b) Benstead ignored Green and walked passed him onto the Site;

(c) once Benstead was on the Site, Green said:

“Hey you’re not allowed to come on site. Get back here.”

(d) Benstead ignored Green’s directive to leave the Site; and

(e) Beattie followed Benstead on to the Site (the Entry)

10. At the time of the Entry:

(a) neither Benstead nor Beattie had provided Baulderstone, as occupier of the Site, with an entry notice (within the meaning of s.518 of the FW Act) with respect to the Entry, as required by s.487 of the FW Act;

(b) Benstead and Beattie were aware of the above omission (the failure to provide an entry notice).

…

14 August conduct

12. Whilst Benstead and Beattie were present on the Site:

(a) Benstead, accompanied by Beattie, and without authority from Baulderstone:

(i) identified himself as being “from the union” to a number of Employees; and

(ii) handed out business cards to a number of Employees;

(b) Benstead had a conversation with Jason Fleming, Civil Foreman an agent or representative of Baulderstone (Fleming), which conversation included the following matters:

(i) Fleming said to Benstead:

“You can’t just barge in, you need to go about things the right way, Gerard. You haven’t given 24 hours notice.”

(c) The respondents state that Benstead and Beattie attended the site in response to a request from a member of the CFMEU who was working on the site. The Applicant does not agree that this request was made, but will do so for the purpose of these Agreed Facts.

(d) Benstead, in Beattie’s presence and without authority from Baulderstone, attempted to initiate discussions with the Employees by interrupting them whilst they were:

(i) engaged in the building work, specifically

(ii) preparing for a large concrete pour at the Site which was to occur the next day; and/or

(iii) cutting plywood with a circular saw; and

(iv) not on a meal break or other break within the meaning of s.490(2) FW Act.

(e) Benstead and Beattie had a discussion with Raymond Mowat, General Site Foreman, and agent or representative of Baulderstone (Mowat), which conversation included the following matters:

(i) Mowat said to Benstead and Beattie:

“Excuse me, guys, what are you doing on site and do you have appropriate paperwork?”

(ii) Benstead and Beattie did not:

i. identify the purpose of their presence at the Site; or

ii. produce authority documents as required by s. 489 of the FW Act.

(iii) Mowat said to Benstead and Beattie repeatedly that:

“You are not welcome on site because you do not have proper paperwork.

You can’t come on site because you have not given your 24 hours notice.”

(iv) Benstead or Beattie said to Mowat that:

(f) “We just want to talk to the guys. We have a right to be on site. The guys have some issues they want to talk to us about”.

(g) Andrew Mehegan, Project Engineer (Mehegan) called Victoria Police to report Benstead and Beattie’s presence on the Site;

(h) Benstead and Beattie were aware that Victoria Police had been called as a result of their presence on the site and they stated that following, that:

“We are not leaving until the police arrive.”

(i) two members of Victoria Police, Constables Cartledge and Muntener, arrived at the Site in response to Mehegan’s telephone call;

(j) Benstead and Beattie had a conversation with Constables Cartledge and Muntener, which conversation included the following:

(i) Constable Cartledge directly questioned Benstead and Beattie as to why they were at the Site and told them that they were not welcome;

(ii) Benstead and Beattie failed to respond to Constable Cartledge’s questioning;

(iii) Constable Muntener said to Benstead:

“You need 24 hours’ notice and the correct paperwork and you need to bring that paperwork with you”;

(iv) Constable Muntener asked Benstead and Beattie for identification;

(v) Benstead and Beattie provided Constable Muntener with union business cards;

(vi) Constable Cartledge questioned Beattie for a second time as to why he was on the Site;

(vii) Beattie asserted to Constable Cartledge that he had a right to be on site in order to speak to CFMEU members present;

(k) Constables Cartledge and Muntener directed Benstead and Beattie to leave the Site, with immediate effect;

(l) A second Victoria Police unite arrived at the Site;

(m) Constable Muntener or Constable Cartledge told Benstead and Beattie that that they would “be arrested” if they did not leave the site;

(n) Constable Muntener directed Benstead and Beattie to:

“Go out the main gate.”

(o) Benstead and Beattie were escorted off the Site at approximately 2.30pm by Constables Cartledge and Muntener (the 14 August conduct).”

[15] In relation to the fourth matter disclosed (Alfred v CFMEU No.2), the Federal Court (Tracey J) on 2 June 2011 7 fined the CFMEU $150,000, and ordered it to pay $150,000 for indemnity costs for contempt of an order made by the Court. The order was an interim one issued on 20 May 2010 which bound the CFMEU, its officers, employees and agents, and in substance required the cessation of a blockade of a construction site. In defiance of the order, a number of CFMEU officials including Mr Benstead maintained the blockade over the period 21 May to 28 May 2010. The agreed statement of facts in the matter recorded that Mr Benstead participated in the blockade of the site entrance on 19 May 2010 and helped organise the attendance of picketers at the site on 24 May 2010.

[16] In a separate but related judgment issued by the Federal Court (Tracey J) on 2 June 2011 (Alfred v CFMEU) 8 which was not disclosed in the application, the same conduct the subject of the contempt finding in Alfred v CFMEU No.2 was found to constitute contraventions of ss.38 and 44 of the BCII Act. A penalty of $100,000 was imposed on the CFMEU. As noted at paragraph [12] of that judgment, s.69 of the BCII Act deemed the conduct of officers or agents of a union, when acting in that capacity, to be the conduct of that union.

[17] In relation to the fifth matter disclosed (FWBII v CFMEU), the Federal Court (Gordon J) in a judgment issued on 7 October 2013 9 made the following order against Mr Benstead:

“10. On or before 6 December 2013, the Sixth Respondent (Benstead) pay a penalty of $3,000 for a contravention of s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Aitken Creek Primary School Project Site at 51-81 Grevilla Street, Craigieburn (the Aitken Site), such involvement by Benstead being constituted by him having directed those employees to strike for the day.”

[18] The CFMEU was also ordered to pay a penalty of $65,000 for a contravention of s.43(1)(a) of the BCII Act by reason of being vicariously liable for the conduct of a number of officials, including that of Mr Benstead (order 14). Such conduct was described in the order as “being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act”. Mr Benstead’s conduct was described in greater detail in the agreed statement of facts and admissions entered into by the parties and annexed to the judgment as follows:

“Aitken Creek Primary School

[103] At about 8:20 am on 11 November 2010, Benstead entered the Aitken Creek Primary School Project site (the Aitken Site) to hold discussions with workers at the site.

[104] Soon after, Benstead told Adam Re, Abigroup Contractors Site Engineer, that he would be holding a meeting and handed Re a CFMEU flyer about the Peninsula Link dispute.

[105] At about 8:30 am that day, Benstead conducted a meeting outside the main entrance of the Aitken Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

[106] During the above meeting, Benstead directed the employees present at the meeting not to perform any further work that day at the Aitken Site in response to the Peninsula Link dispute.

[107] As a result of the direction by Benstead at the meeting, the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Aitken Site that day refused to perform further work for the remainder of the day.

[108] The refusal by those employees to perform further work on 11 November 2010 at the Aitken Site:

(a) constituted building industrial action within the meaning given that term by s 36 of the BCII Act;

(b) was motivated by purposes that included advancing an industrial objective of the CFMEU, namely that particular CFMEU members, including the four identified members, be employed by Abigroup Contractors on the Peninsula Link Project;

(c) was not excluded action; and

(d) was unlawful industrial action in contravention of s 38 of the BCII Act.

[109] By reason of the conduct referred to above, Benstead counselled and procured the contravention of s 38 of the BCII Act by employees of both Abigroup Contractors and the Abigroup sub-contractors at the Aitken Site and was involved in that contravention within the meaning of s 48(2) of the BCII Act.

[110] By reason of the matters above, Benstead contravened s 38 of the BCII Act.”

[19] In relation to the sixth matter disclosed, on 23 February 2016 the Director instituted proceedings in the Federal Court against the CFMEU and two of its officials, one of whom is Mr Benstead. The Director alleges that Mr Benstead on 22 April 2015 engaged in conduct in breach of ss.346 and 348 of the FW Act. Mr Benstead has filed a defence in the matter in which he denies the contraventions alleged. I was advised that the hearing of the matter will occur in December 2016 and that no evidence has yet been filed.

[20] Since the application was filed, the Director has instituted further proceedings 10 in the Federal Court against Mr Benstead (as well as the CFMEU and a large number of other CFMEU officials). In a statement of claim filed on 24 March 2016, it is alleged that Mr Benstead on 22 May 2015 contravened ss.346 and 348 of the FW Act. I was advised that (as at the time of the hearing before me) the matter was in its early stages and Mr Benstead had not yet filed a defence.

[21] The condition imposed upon Mr Benstead’s most recent entry permit resulted from the decision of Delegate Nassios of 16 March 2016 11 to issue him with that permit. In his decision, the Delegate referred to and considered Draffin v CFMEU, John Holland v Benstead, White v Benstead and Alfred v CFMEU No.2. His overall conclusions as to whether Mr Benstead was a fit and proper person and should be issued with an entry permit were as follows:

“[66] Mr Benstead’s disregard for various aspects of industrial law, and in particular his right of entry contravention in White v Benstead is not only inconsistent with the object in subsection 480(c) of the Act of safeguarding the right of occupiers of premises and employers “to go about their business without undue inconvenience” but also presents a danger that such persons will effectively be prevented from conducting their business if a future dispute arises.

[67] On the other hand, the penalties that have been imposed upon Mr Benstead and the CFMEU in the four matters referred to above should also be considered in the context of his service as an official of the CFMEU for a period of 8 years. I also note that the penalties imposed on Mr Benstead are at the lower end.

[68] The conduct complained of occurred during November 2005, March and August of 2009, and May 2010. Fair Work Australia records indicate that Mr Benstead has held an entry permit since June 2004, and returned his previous entry permit (RE2007/2905) with this application, although the permit was returned late.

[69] I have also taken into account the favourable reference of Mr Gardiner, a building industry participant, with some knowledge of Mr Benstead’s behaviour on a work site.

Conclusion

[70] Overall, there is a very fine line between whether Mr Benstead is or is not a fit and proper person to hold a right of entry permit.

[71] Nevertheless, I have decided to grant a permit to Mr Benstead subject to imposing a condition upon his permit.

[72] In accordance with section 515 of the Act I will issue a permit to Mr Benstead with a condition that he must only use his permit in the company of another permit holder who has no condition imposed upon their permit.”

[22] In respect of Mr Benstead’s loss of his most recent entry permit, a statutory declaration made by him on 22 September 2015 and sent to the Commission on that day stated the following:

“1. I am an organiser employed by the Construction, Forestry, Mining and Energy Union (CFMEU) Victorian/Tasmanian Branch, Construction & General Division.

2. I have lost my original copy of my right of entry permit, permit number RE2011/2883.

3. I do not know how, when or where I lost my original copy of my permit.

4. I have not required or attempted to use my expired permit to enter premises since its expiry.

5. I realised my permit had expired on 22 September 2015.

6. I understand that it is my responsibility to return my permit on expiry and I apologise for my oversight.”

Evidence

[23] Mr Benstead made a statement of evidence for the purposes of the proceedings dated 8 March 2016. The CFMEU adduced additional oral evidence from him, and he was cross-examined by the Director. In his statement Mr Benstead identified his role within the CFMEU and his work and qualifications in the building and construction industry prior to becoming a CFMEU organiser. He said that he had successfully completed the ACTU online training program on “Right of Entry under the Fair Work Act 2009” on 10 October 2015, and attached the certificate he had received for this.

[24] Attached to Mr Benstead’s statement were two letters. One, from John McManus, the Construction Director of Probuild Constructions (Aust) Pty Ltd, was explicitly described as a letter of reference and was dated 15 December 2016. It stated:

“I have known Gerard Benstead over the last several years in my role as Construction Director of Probuild and whilst in each other's representative roles of Builder and Union Organiser, our dealings are quite often about differences of opinion and/ or disputes and I have always found Gerard to be respectful, conciliatory and polite.

I will say he is passionate and believes strongly in his cause, but at all times I have found him to be courteous, considerate and willing to listen.

In my dealings with Gerard I cannot say we have experienced any indiscretions/ breaches of industrial legislation and that I believe he would respect the right of entry provision when entering our sites in the future should he be issued an entry permit.”

[25] The other letter, sent by Max Findlay of MFA Group Construction, was addressed to Mr Setka and dated 11 January 2016. The letter advised that his business was no longer operating, and he thanked Mr Brendon Murphy and Mr Benstead “for their association with us”.

[26] In his oral evidence in chief, Mr Benstead was asked about the FWBII v CFMEU matter, and said that he went to the site to “have some talks with the workers” and “I thought the best way to do that was probably to … get the workers outside the gate to have a meeting with them and I proceeded to do that and I think they left the site”. He did not recall all of the issues which needed to be discussed. 12 He accepted that a stoppage occurred for the rest of the day after the meeting, which ran for 10-15 minutes. The following exchange then occurred:

“Is there anything you would like to say to the Tribunal about your role in that dispute?---Well, other than - I suppose the way I look at it would be this, that you learn a bit from these experiences and I'd like to think I go about my job in a professional way in the way I go around the sites and I want to think I change as I go through the journey a bit.  So maybe if there were some mistakes made on that particular day, I wouldn't have thought that I would go about things exactly the way things were done on that day.

THE VICE PRESIDENT:  What was the mistake made on that particular day?---Well, I probably should have made more effort in trying to keep the troops on the job, I would say.

Was it at your instigation that they left the site?---Well, it would have been - there would have been people that would have brought that up at the meeting and I probably, to a certain extent, let it happen - right - when, in actual fact, I probably could have - in my role, I probably could have played a more positive role in stopping that from happening.

So when you had the meeting, was that itself a stop work meeting?---Yes.

And you caused the meeting to occur?---Yes, but it was outside the gate.  I thought maybe that might have been a little bit different, but it probably still falls under the banner of - - -

How long had you been a CFMEU official when this incident occurred?---Five years, I would say.” 13

[27] I later asked Mr Benstead whether he had subsequently been involved in any further stop work meetings since that incident, but the CFMEU’s counsel objected to the question on the basis of a claim to the privilege against exposure to civil penalties and the matter was not pressed. 14

[28] In cross-examination by the Director, Mr Benstead was taken to the decisions in Draffin v CFMEU. He said that, at the time, he did not understand that a penalty had been imposed on him personally, and he had no recollection of paying the penalty himself. 15 In relation to John Holland v Benstead, Mr Benstead accepted that his conduct led to penalties being imposed on the CFMEU.16

[29] Mr Benstead was asked a number of questions about the events which led to the findings of contravention in White v Benstead. His evidence about the matter included the following:

“Did you say to the police that you had a right to be on the site?---Yes.

Why did you say that?---Because we believed there was probably some safety issues on the site.

Had you given notice?---Well, obviously not, but sometimes when there's serious safety issues on the site, that might not have happened.

The rules don't matter?---I don't know about the rules, but if I was going to try and save someone's life and I was worrying about giving them an entry permit, I probably possibly wouldn't be doing my job a hundred per cent.

THE VICE PRESIDENT:  Do you know when you found out about the safety issues?---Well, you could see.

Did you go to the site because you had been informed of a safety issue?---Yes, I think so.

Do you know when you were informed about that?---Well, sometimes we would have got there and we would have noticed, I think.  I cannot recall exactly every detail.  It might have been a situation of going there and noticing some breaches to the OH&S Act or regulations and us trying to intervene to try and get a safe work environment for the employees on site.

Does that mean that you entered the site without knowing that there were any safety issues on the site, that is, you only found them after you had entered the site?---Well, you could see.  I remember that site was - it wasn't one where you - there was no gates or anything around.  There might have been - you're saying there was a guard there, but I don't think there was any gates or anything around it.

Well, why did you go there in the first place?---Well, we go around to different sites as a matter of doing - going to different sites as a matter of course, doing our job with members there.  We probably had members there.  There might have been a call put out to us.” 17

[30] Mr Benstead was taken to the agreed statement of facts in White v Benstead, but professed not to remember many of the events admitted in that statement. He assumed that the CFMEU paid the penalty imposed on him in the matter, and had no recollection of paying himself. 18 Likewise in relation to FWBII v CFMEU he said he did not pay the penalty himself,19 and he could not recall whether he actually knew at the time of the judgment that a penalty had been imposed on him individually.20

[31] When asked about the loss of his previous permit, Mr Benstead said he did not recall how, when or where he lost it. 21 He was asked when he last exercised his right of entry using the permit, and answered “Well, I'm not sure, but I would have had a photocopy of one”.22 In relation to the period from April 2015, when the permit expired, to September 2015, when Mr Benstead realised the permit had expired and he had lost it, he was asked: “Are you saying that you had been exercising a right of entry in that time?”,23 the CFMEU’s counsel objected and again invoked the privilege against exposure to civil penalties. The Director did not press the question in light of the objection.24 The following exchange then occurred in relation to the missing permit:

“THE VICE PRESIDENT:  Mr Benstead, I am still a bit lost about how the permit went missing.  Was it in your possession or is it somewhere else?---Well, I thought I had the original copy, but I might have just photocopied one and there might have been an original one in the office, so when I come to find out that it had expired, I also discovered that it was a photocopied one and when I went to look for the original one, I couldn't find it.

How did you realise it had expired?---I must have flicked through my paperwork and found out because it would have coincided with an AREO permit, maybe, that I would have had to administer.” 25

[32] This matter was returned a little while later in Mr Benstead’s evidence:

“THE VICE PRESIDENT:  Why did you photocopy your right of entry rather than use the original?---I can't recall.  I think I only realised it was photocopied when I looked in my thing there and I went to show somebody in the office and they said, "Oh, no, that's not the original copy", so somewhere during the journey, I must have photocopied it.

MR AVALLONE:  Does everybody leave their original at the office?---I don't know, I'm not sure.

Do you know of anyone else whose original has been lost?---I don't recall, I don't know.

The only one you are aware of is you?---Yes.” 26

[33] Mr Benstead referred to having recently been refused entry to a site where he had a safety concern because of his lack of an entry permit. When he was asked how he had been doing his job since April 2015 without an entry permit, he answered:

“Well, I might have been invited on it by some of the people. I mean, there's provisions in the agreement for them to invite me in. There's provisions in the Act for them to invite me in.” 27

[34] The Director then sought to follow this up with a question to the effect of whether, on every occasion Mr Benstead had entered premises since April 2015, he had done so as an invitee, but this was objected to by the CFMEU’s counsel on the basis of Mr Benstead’s privilege against self-exposure to a civil penalty. After some debate, I upheld this objection. 28

[35] In re-examination, Mr Benstead could not explain what the CFMEU’s practice had been in relation to the keeping of permits, but said that the CFMEU now placed more emphasis on ensuring individuals had “a copy of the original document” and that if he was issued with a new permit, he would keep it with him the whole time and ensure that it was returned (on expiry). 29 He was asked about his recollection of the White v Benstead matter, and answered as follows:

“Well, I think my recollection is that we got a call about some occupational health and safety issues on the job - right - some serious breaches to the Occupational Health and Safety Act and regulations. We would have gone to the site. I think the presence of a security guard, so the statements go, was on the gate. Obviously we were more focused on sorting out the occupational health and safety problems on the job and we would have entered the site, as it says, and we would have tried to move the blokes from, I think it was, in my recollection, some sort of deep excavation that was taking place on the job. They didn't want us on the site, obviously. They called their safety manager, their safety manager come out and asked us to leave, we said we had got serious concerns about the site, they rang the police. I remember the police being - it's the only time - sometimes the police are called and they try and work out a bit of a compromise and they treat you with respect and all the rest of it, but this one police officer was very, very aggressive and virtually said, "I'm locking you up if you don't leave right now", and that sort of stuff. I do recall it was a Friday afternoon and so I thought, "Well, I don't really want to spend the night in gaol", so we decided to leave at that particular stage. That's about the guts of what I can remember out of that particular incident.” 30

[36] In relation to Draffin v CFMEU, John Holland v Benstead, White v Benstead, Alfred v CFMEU No.2 and FWBII v CFMEU, Mr Benstead gave the following evidence:

“You accept that they were serious matters?---Yes.  But a number of these things go back a few years and I would like to think over that period of time that I've already changed the way I do things.

When you say you have already changed the way you do things, when do you think that change happened, Mr Benstead?---I think they were over a period of - a reasonably short period of time.  So I'd like to think since then I've gone about it in a professional way.

If the Commission issues you with a permit from this application, how will you conduct yourself in the future?---I would like to think that I would be a professional person that's going to follow the guidelines of the Fair Work Act.” 31

Submissions

[37] The Director submitted that:

• the conduct of Mr Benstead in Draffin v CFMEU, John Holland v Benstead, White v Benstead, Alfred v CFMEU No.2 and FWBII v CFMEU was improper, unlawful and demonstrated a persistent unwillingness to comply with and a lack of regard for the provisions of industrial laws;



• the current proceedings against Mr Benstead in the Federal Court point to the possible recurrence of improper conduct if granted a new entry permit;



• Mr Benstead has not demonstrated repentance for his previous conduct, and the Commission can have no confidence that he has accepted the unlawful nature of his actions and will not act in a similar fashion in the future;



• there is no reason to assume that merely because of the effluxion of time since his previous contraventions, Mr Benstead has become a reformed person in the absence of substantial and credible evidence to that effect;



• Mr Benstead’s employer, the CFMEU, was itself an organisation with a propensity to engage in unlawful behaviour, and there could be no confidence that it would provide him with adequate training, incentives and support as a permit holder;



• his loss of his last entry permit, and the unexplained fact that he does not know when he lost it and took many months if not years to realise that he had lost it, gives rise to doubts as to how seriously Mr Benstead took his statutory responsibilities and privileges as a permit holder;



• the loss of the entry permit also raises serious questions given that it would be reasonable to conclude that Mr Benstead regularly sought and seeks to enter premises and would need to have ready access to his entry permit if an occupier of premises requested him to produce it for inspection; and



• the CFMEU had not proposed any conditions to address these concerns, and in the circumstances it had not been demonstrated that Mr Benstead was a fit and proper person to hold an entry permit.

[38] The CFMEU submitted:

• the matters of Draffin v CFMEU, John Holland v Benstead, White v Benstead and Alfred v CFMEU No.2 having been considered in the decision of the Delegate in 2012, which resulted in a finding that Mr Benstead was a fit and proper person to hold an entry permit, the principle of consistency in administrative decisions required that these maters not be litigated;



• the relevant enquiry was whether there were new, relevant considerations that, standing alone or together with the earlier relevant matters, compel the conclusion that Mr Benstead was not a fit and proper person;



• the decision in FWBII v CFMEU, which post-dated the Delegate’s decision,involved conduct which occurred in 2010 at a single site and on a single day, in the context of a large industrial dispute involving the CFMEU and a number of its officials, did not involve any misuse of Mr Benstead’s entry permit, and did not involve violence, threats or other improper behaviours;



• the effluxion of time since the earlier matters, which involved four contraventions in a period of six years and then no contraventions since 2010, and the approved training undergone by Mr Benstead, must be given appropriate weight in considering FWBII v CFMEU;



• the current proceedings before the Federal Court were not relevant considerations given that no findings have yet been made against Mr Benstead and the allegations made against him are entirely untested;



• if Benstead was not granted an entry permit, his rights and obligations as a permit holder under s.83 of the Occupational Health and Safety Act 2004 (Vic) would be significantly impaired;



• Mr Benstead had a long history in the construction industry, had held a permit for many years, and had “properly exercised the rights and obligations of a permit holder countless times in that period”; 32



• there was unchallenged evidence that Mr Benstead had complied with the condition on his previous permit;



• the references in support of Mr Benstead must be given significant weight in his favour;



• Mr Benstead had demonstrated his remorse and regret for his behaviour when he said that he had learned from his mistakes;



• Mr Benstead’s loss of his last permit was regrettable but did not show any lack of respect for the permit; and



• on balance the Commission could be satisfied that Mr Benstead was a fit and proper person to hold an entry permit.

Consideration

[39] The principles applicable to consideration of an application for an entry permit may be summarised as follows 33:

• 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.



• Conditions may be imposed pursuant to section 515 to remedy or address deficiencies or reservations in respect to an officer of an applicant, which deficiencies or reservations could otherwise lead to the conclusion that the person was not “fit and proper”. The permit qualification matters must be considered in light of the power to impose conditions under s.515.

[40] I will deal with the permit qualification matters specified in s.513(1) in turn.

Paragraph 513(1)(a)

[41] As earlier stated, Mr Benstead completed the approved ACTU online right of entry course on 10 October 2015. Although this must be given weight in the assessment of his fitness and propriety to hold an entry permit, its weight in all the circumstances is diminished by the fact that this was over nine months ago.

Paragraphs 513(1)(b) and (c)

[42] I am satisfied that Mr Benstead has never been convicted of an offence against an industrial law or an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty, intentional use of violence against another person or intentional destruction of property.

Paragraph 513(1)(d)

[43] Draffin v CFMEU, White v Benstead and FWBII v CFMEU all fall to be considered under s.513(1)(d), since they resulted in penalties being imposed on Mr Benstead under industrial laws for contraventions of those laws. John Holland v Benstead and Alfred v CFMEU must also be considered under s.513(1)(d) because in those matters the CFMEU was ordered to pay penalties under industrial laws in relation to action taken by Mr Benstead.

[44] Of these matters, White v Benstead raises the most serious concerns about Mr Benstead’s fitness and propriety to hold an entry permit. It involved a serious breach of s.500 of the FW Act in that Mr Benstead (together with another CFMEU official) entered a worksite without having given any notice of his proposed entry and having no legal basis to do so, pushed past security guards who sought to prevent his entry, failed to identify the purpose of his entry, interrupted employees who were at work for the purpose of holding discussions, disobeyed directions to leave, and eventually had to be escorted out of the site by police. The conduct exhibited was of a person who had no regard whatsoever to the legal obligations and responsibilities in the FW Act attaching to entry to employers’ premises.

[45] The contravention occurred in 2009. Usually it might be considered that the passage of time since then, and the lack of any further contravention concerning entry to premises since that time, would significantly diminish the adverse weight to be given to this matter. The fact that the Delegate issued Mr Benstead with an entry permit in 2012 with knowledge of this contravention would also have to be taken into account. However, I was particularly disturbed by Mr Benstead’s evidence before me about this matter. The agreed statement of facts presented to the Court in 2011 made no mention of Mr Benstead attending the site for safety reasons, only that he attended at the request of a CFMEU member. It was an agreed fact that Mr Benstead did not identify any specific purpose for the visit to the representatives of the occupier of the premises, only that “We just want to talk to the guys … The guys have some issues they want to talk about”. I am entitled to assume that the agreed statement of facts was entered into on Mr Benstead’s instructions. I find it inconceivable that, if Mr Benstead had in fact attended the site to deal with a pressing safety concern, he would not have identified this as the purpose of his attendance and request that action be taken to rectify it. It is equally inconceivable that this would not have been included in the agreed statement of facts if it had occurred.

[46] Mr Benstead did not, in his statutory declaration supporting the application or his written statement of evidence, attempt to explain his conduct in White v Benstead on the basis that he was attending the site to deal with a safety issue. This was something which emerged during his oral evidence before me. I have earlier set out the relevant aspects of that evidence. The difficulties with it are plainly apparent. Mr Benstead began by suggesting that no notice of the site attendance had been given because of “serious safety issues”. 34 He said he thought he went to the site because he had been informed of safety issues, but then suggested that the safety issue was not identified until he attended the site and he may have just visited there as a matter of course in the performance of his duties. He professed to lack a clear remembrance of what happened, but in re-examination he recalled that “we got a call about some occupational health and safety issues on the job”,35 and claimed that he told the occupier’s safety manager that he had “serious concerns about the site…”.36

[47] Mr Benstead’s evidence about this contravention was inconsistent with the agreed statement of facts and also internally inconsistent. It is simply not credible and I do not accept it. It demonstrates to me a refusal to accept responsibility, almost seven years after the event, for a contravention described by the Court as “flagrant”, and evinces no recognition of the need to comply with the right of entry provisions in the FW Act.

[48] The other contraventions were all serious and demonstrated a readiness to engage in unlawful conduct. It again may be accepted that there had been a considerable passage of time since those contraventions (the latest being in 2010). However I am not persuaded that Mr Benstead has learnt anything from the findings made against him in these matters. For example, in relation to FWBII v CFMEU, his concession was no more than “maybe if there were some mistakes made on that particular day”, he would not “go about things exactly the way things were done on that day”. 37 When asked to identify the “mistake”, he said he “probably should have made more effort in trying to keep the troops on the job”.38 This failed to give any recognition to the fact that he had entered the worksite in question (whether lawfully or not is unclear) and procured the employees to engage in a stop-work meeting outside the site gate, which after about 15 minutes led to them abandoning work for the day.

[49] Mr Benstead’s statement in his evidence that “I would like to think that I would be a professional person that's going to follow the guidelines of the Fair Work Act” 39 I find to be weak and unconvincing. Therefore, notwithstanding the passage of time, I consider that the contraventions found and penalties imposed in Draffin v CFMEU, White v Benstead and FWBII v CFMEU, John Holland v Benstead and Alfred v CFMEU must still weigh heavily against a conclusion that Mr Benstead is a fit and proper person to hold an entry permit.

Paragraph 513(1)(e)

[50] I am satisfied that on no occasion has an entry permit issued to Mr Graauwmans under the FW Act or a similar law of the Commonwealth been revoked or suspended. However, as disclosed in the CFMEU’s application, the entry permit issued to Mr Benstead by the Delegate in 2013 was made subject to a condition to the effect that he exercise entry rights only in the company of a person with an unconditional entry permit. That is a matter which must be given weight, since the imposition of this condition was the result of the Delegate’s conclusion that, having regard to Draffin v CFMEU, John Holland v Benstead, White v Benstead, Alfred v CFMEU No.2 and his late return of his expired permit, there was only a fine line between whether he was or was not a fit and proper person to hold an entry permit.

[51] There was no evidence that Mr Benstead had not complied with the condition on his last entry permit. Nor was there any evidence that circumstances had arisen whereby Mr Benstead had had to comply with the condition on that permit since, as is discussed later, there was no evidence that Mr Benstead has ever used that permit lawfully or at all.

Paragraph 513(1)(f)

[52] I am satisfied that no court, person or other body under a State or Territory industrial law or OHS law has ever cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes which Mr Benstead had under that law or disqualified Mr Benstead from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.

Paragraph 513(1)(g)

[53] A number of matters I consider to be relevant under s.513(1)(g). First, and in Mr Benstead’s favour, there is the reference from Mr McManus of Probuild Constructions. I accept that it demonstrates that in his dealings with Probuild Constructions, Mr Benstead has not engaged in any unlawful or improper behaviour. It has some weight to that extent. However I do not consider that it can be extrapolated from that reference that Mr Benstead is unlikely to engage in such behaviour in respect of other occupiers of premises in the future. The second “reference”, being the letter from Mr Findlay of MFA Group Construction, says nothing of substance about Mr Benstead’s general behaviour or character, and accordingly I do not consider it relevant.

[54] Second, the decision in Alfred v CFMEU No.2, in which the CFMEU was found to be guilty of contempt of an order of the Court by reason of the conduct of a number of its officials, including Mr Benstead, is plainly of relevance under s.513(1)(g). However the conduct of Mr Benstead which contributed to that outcome was the same as in Alfred v CFMEU. Accordingly I will not assign the conduct weight adverse to Mr Benstead additional to that I have given it under s.513(1)(d).

[55] Third, I consider that it is relevant that Mr Benstead lost his most recent entry permit, and as a result was unable to return it when it expired (in contravention of s.517(1), which is a civil penalty provision). I regard this as a matter of significant weight adverse to a finding of fitness and propriety for the following reasons:

(1) The conduct had occurred after Mr Benstead had failed to return his previous permit until after it expired, which was taken into account as an adverse matter in the Delegate’s 2012 decision to issue him with a permit. It should have been clear to Mr Benstead, if he had read the Delegate’s decision, that he only obtained an entry permit on that occasion on a fine balance.

(2) Mr Benstead could give no explanation as to how, when or where he lost the permit.

(3) Mr Benstead did not realise that he had actually lost the permit until September 2015, long after the permit had expired in April 2015. Mr Benstead’s evidence was that he had a photocopy of the permit, so it should have been obvious when its expiry date had passed. That alone should have prompted him to take some action many months before he did so.

[56] The above bespeaks a continuing lack of care or concern about the requirement to have a current and valid entry permit in order to effect lawful entry to worksites.

[57] Fourth, there is no evidence before me that Mr Benstead has in recent years ever actually exercised right of entry under the FW Act in a lawful manner. It is not clear when Mr Benstead last had in his possession a current and valid entry permit. At the very latest it was in April 2015, but it may well have been months or years before that. Apart from suggesting that he had entered premises consensually as an invitee, there is no evidence as to how Mr Benstead has gone about entering premises lawfully since he lost his permit. The privilege against self-exposure to civil penalties was invoked in order to object to questions about this. Although the High Court has left it unclear whether this privilege applies to a non-judicial tribunal such as this Commission 40, the practice of the Commission has been to proceed on the basis that the privilege applies, and I proceeded (as did counsel for the Director) on the same basis. Accordingly such questions were not required to be and were not answered. On the assumption that the privilege applies, I am not entitled to draw any adverse inference from this. However, it remains the case that there is simply no evidence about this matter.

[58] The position may extend further. As earlier stated, the CFMEU submitted that Mr Benstead had “properly exercised the rights and obligations of a permit holder countless times” since becoming a CFMEU organiser. Not only was there no evidence before me to support that proposition, there was no evidence of any occasion in which Mr Benstead had lawfully and properly exercised right of entry under the FW Act or the WR Act before that. That does little to inspire confidence that he will do so in the future if issued with an entry permit. Indeed, having realised that he lost his permit back in September 2015, it appears that the only reason that the CFMEU eventually lodged an application (in March 2016) for Mr Benstead to be issued with a new permit was that he was unable to obtain entry to a particular site on a single occasion.

[59] Finally, I consider that the current proceedings before the Federal Court, although relevant, cannot be afforded any significant weight in the consideration of Mr Benstead’s fitness and propriety, given that the allegations in the statements of claim are as yet untested, no findings of contravention have yet been made, and the Director did not attempt to prove the allegations in the statement of claim by evidence adduced before me.

Conclusion

[60] Having identified the matters required to be taken into account under s.513(1), it is necessary to weigh those matters and arrive at an overall conclusion as to whether Mr Benstead is, for the purpose of s.512, a fit and proper person to hold an entry permit.

[61] I am ultimately not satisfied that Mr Benstead is a fit and proper person to hold an unconditional entry permit because I do not have confidence that he recognises and takes seriously the need to comply with the right of entry obligations contained in Pt.3-4 of the FW Act having regard to:

• the serious contraventions of industrial laws, including the right of entry provisions of industrial laws, he has committed in the past;



• the lack of any credible indication that he accepts responsibility for these contraventions and has formed an intention not to repeat such conduct in the future;



• the entirely unexplained loss of his most recent entry permit, together with his failure to notice its expiry date; and



• the lack of evidence that Mr Benstead has in the last year or more, if ever, lawfully exercised a right of entry.

[62] I have given consideration as to whether any conditions could be attached to an entry permit which would address these concerns and allow me to conclude that Mr Benstead is a fit and proper person to be issued with a conditional entry permit. I cannot think of any. Neither the CFMEU nor the Director proposed any conditions by way of a case in the alternative. In the circumstances I consider that the CFMEU should be given an opportunity to propose conditions which might deal with my concerns and the Director should have an opportunity to respond. I direct as follows:

(1) The CFMEU shall, within seven days of the date of this decision, file in the Commission and serve on the Director, any conditions on an entry permit to be issued to Mr Benstead it may wish to propose together with submissions in support.

(2) The Director shall file in the Commission and serve on the CFMEU any submissions in reply, including any counter-proposal for conditions, within 14 days of the date of this decision.

VICE PRESIDENT

Appearances:

S. Kelly of counsel for the Construction, Forestry, Mining and Energy Union.

B. Avallone of counsel for the Director of the Fair Work Building Industry Inspectorate.

Hearing details:

2016.

Melbourne:

5 May.

 1 [2009] FCA 243; (2009) 179 IR 83

 2 [2009] FCAFC 120; (2009) 189 IR 145

 3 [2009] FMCA 1065

 4 [2011] FMCA 920

 5   Ibid at [13]

 6   Ibid at [16]

 7 [2011] FCA 557

 8 [2011] FCA 556

 9 [2013] FCA 1014

 10   VID261/2016

 11   [2012] FWAD 963

 12   Transcript PNs 36-37

 13   Transcript PNs 49-55

 14   Transcript PNs 58-62

 15   Transcript PNs 139-148

 16   Transcript PNs 184-185

 17   Transcript PNs 221-229

 18   Transcript PNs 245-246

 19   Transcript PN 291

 20   Transcript PN 302

 21   Transcript PN 491

 22   Transcript PN 501

 23   Transcript PN 505

 24   Transcript PNs 506-522

 25   Transcript PNs 523-524

 26   Transcript PNs 573-576

 27   Transcript PN597

 28   Transcript PNs 598-618

 29   Transcript PNs 630-634

 30   Transcript PN 644

 31   Transcript PNs 658-660

 32   Submissions of the CFMEU dated 2 May 2016 at 26.

 33   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 at [32], modified having regard to Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [30]-[38] and [43] and Director of the Fair Work Building Industry Inspectorate v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWCFB 3358 at [13]-[14]

 34   Transcript PN 223

 35   Transcript PN 644

 36   Ibid

 37   Transcript PN 49

 38   Transcript PN 50

 39   Transcript PN 660

 40   Daniels Corporation International Pty Ltd v Australian Competition and Consumer (2002) 213 CLR 543 at [31]; Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at [24]; cf. Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; Police Service Board v Morris (1985) 156 CLR 397.

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