Construction, Forestry, Mining and Energy Union of Workers

[2015] FWC 2138

[2015] FWC 2138

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union of Workers
(RE2015/104)

Construction, Forestry, Mining and Energy Union
(RE2015/306)

VICE PRESIDENT HATCHER SYDNEY, 27 MARCH 2015

Application for a right of entry permit - Graham Pallot.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 26 March 2015.

[2] This matter involves applications by two organisations under s.512 of the Fair Work Act 2009 (FW Act) for the issue of right of entry permits (entry permits) to Mr Graham Pallot. The first (RE2015/104) is by the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW), a transitionally recognised association under Schedule 1 of the Fair Work (Registered Organisations Act) 2009 (FWRO Act). Under clause 3 of Schedule 1 of the FWRO Act, the provisions of the FW Act apply to a transitionally recognised association in the same way as they apply in relation to an organisation, meaning that the CFMEUW has the capacity to apply for entry permits for its officials under s.512 of the FW Act. The second (RE2015/306) is by the Construction, Forestry, Mining and Energy Union (CFMEU), an organisation registered under the FWRO Act. Mr Pallot is an official of each applicant organisation. His current entry permits for each organisation have expired within the last month. I will deal with the two applications together because the issues and facts in both matters are the same.

[3] In accordance with s.74(a) of the Fair Work (Building Industry) Act 2012 the Director of the Fair Work Building Industry Inspectorate was notified of the lodgement of the two applications. Having been so notified, the Director has declined to exercise his right under s.72 of that Act to make submissions in relation to the matter.

[4] Section 512 of the FW Act provides that the Commission may issue an entry permit to an official of an applicant organisation if the Commission is satisfied that the official is a fit and proper person. Section 513(1) provides that in deciding whether the official is a fit and proper person, the Commission must take into account the “permit qualification matters” identified in paragraphs (a)-(g). In the recent decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 1, the Commission summarised the principles relevant to the interpretation and application of s.512 and s.513(1) as stated in a number of Full Bench decisions 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.

[5] I will deal with the permit qualification matters specified in s.513(1) in turn. In relation to paragraph (a), I am satisfied that Mr Pallot has received appropriate training about the rights and responsibilities of a permit holder. In an affidavit affirmed on 12 March 2015, Mr Pallot gave the following evidence about his training in this respect, which I accept:

“16. I have attended three training courses in the past eight years regarding my rights and responsibilities as a permit holder.

17. My first training was in 2006 and was given by the CFMEU's national industrial officer. My two subsequent sessions, in December 2011 and January 2015 have both been given by our in-house lawyer at the WA Branch.

18. All of the sessions went into some detail about not only the rights I have when exercising entry but also the responsibilities I have as a permit holder. Each session lasted approximately one hour.

19. Given my almost daily use of my entry permit and the ongoing training I have received I am very confident that I understand the environment in which entry permits are used and I have a real understanding of my role and what is expected of me as a permit holder.”

[6] In relation to paragraph (b), the declarations accompanying the two applications both make the disclosure that Mr Pallot “has been convicted of an offence against an industrial law, namely: * Brookfield Multiplex FSH Contractor Pty Limited v McDonald [2014] FCA 359 - contravention of s.348 and s.417 of the Fair Work Act 2009”. However, I consider this disclosure to be incorrect. Contravention of s.348 or s.417 of the FW Act does not constitute an offence; both sections are civil remedy provisions. Having perused the Federal Court (North J) decision in Brookfield Multiplex FSH Contractor Pty Limited v McDonald 2(Brookfield Multiplex Decision), it is clear that the Court did not purport to convict Mr Pallot of any offence, but only imposed a civil penalty upon him of $3,500. Mr Pallot’s evidence was that he had “no transgressions against an industrial law or other laws save for one stain” (that is, the Brookfield Multiplex Decision). There is nothing before me to suggest that Mr Pallot has ever been convicted of an offence against an industrial law, and I am satisfied that he has not been.

[7] As to paragraph (c), I am satisfied that Mr Pallot has never been convicted of 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.

[8] In relation to paragraph (d), Mr Pallot was, as earlier mentioned, ordered to pay a penalty in the Brookfield Multiplex Decision of $3,500. In that decision, the facts of the matter were briefly described by North J as follows:

“[8] On 15 February 2013, a meeting was organised by the first and second respondents at the Fiona Stanley Hospital Project site. The first respondent addressed the meeting, which was attended by 400 workers. The result of the meeting was that the workforce did not attend work at the sites on 15 and 16 February 2013.

[9] It is an agreed fact that the first respondent intended by what he said at the meeting that the strike action would coerce the applicants to resolve an issue which had arisen between a subcontractor and the CFMEU in relation to an employee of the subcontractor working on another site. The employee was in a coma as a result of a bicycle accident.

[10] It also an accepted fact that the actions of the first and second respondent resulted in two days of strike action and amounted to contraventions of ss 348 and 417 of the Fair Work Act.”

[9] Mr Pallot was the person referred to as the second respondent. The first respondent was Mr Joseph McDonald, a fellow CFMEU official. It appears from the Brookfield Multiplex Decision that the contravening conduct on his part was his role in organising the meeting which led to unlawful industrial action occurring on 15 and 16 February 2013. The decision also makes reference to there having been entry to a construction site by Mr Pallot (with Mr McDonald) for the purpose of conducting the meeting without the authority or consent of the relevant construction companies 3, but it is unclear on the face of the decision whether this was part of the admitted unlawful conduct. The maximum penalty available to the Court in relation to him was $10,200.4 In setting the penalties to be imposed, the Court said:

“[20] Just as in the exercise of sentencing in criminal cases, so in the fixing of the amount of civil penalties the process undertaken by the Court requires, in the end, an instinctive synthesis of all the relevant factors. And, at the end of the process the Court must have regard to the totality principle to ensure that the final figure properly reflects the entire circumstances of the contravention. Thus, the approach taken by the parties in this case was to view the conduct in totality without disaggregating each of the contraventions.

[21] The applicants pointed to a number of factors which should be taken into account when fixing the penalties.

[22] The CFMEU is a large, established and sophisticated industrial association, while the first and second respondents occupied senior positions within the organisation. The contraventions were conscious and deliberate. Both the first and second respondents entered the construction site without authority or the consent of the applicants. The strikes had an adverse effect on the construction of three significant public and private hospitals and medical research facilities, which are important to the people of Western Australia. The strikes affected a substantial number of subcontractors and employees of the subcontractors. They occurred over two days and they caused significant loss and damage.

[23] The applicants pointed to the discreditable records of non-compliance with the requirements of industrial laws of both the first and third respondents. In their written submissions, the applicants provided a table of industrial cases in which the first and third respondents were involved. Although no analysis was made of previous occasions on which the first and third respondents have been involved in contraventions of the industrial laws, the list of cases covers a substantial period dating back to 2006 and involves 11 different cases. That list gives perhaps an overly broad picture. The number of contraventions seems to have been less in later than in earlier times. Nonetheless, the first and third respondents do not cavil with the applicants’ contention that the past contraventions present a picture of unlawful conduct by the first and third respondents for a significant period and on a number of occasions.

[24] The applicants accept that the respondents are entitled to the benefit of the totality principle. The parties took a broad view of the contraventions. Rather than treating each of the contraventions individually, the parties accepted that all of the contraventions relate to the strike action over two days; that is to say, they relate to one set of circumstances.

[25] The applicants also contend that there has been no contrition or corrective conduct by the respondents. But the applicants accept that the respondents are entitled to some credit for their admissions, which narrowed the issues and meant that the hearing occupied less than one day. On the other hand, the applicants were required to prepare for trial. The agreement came late in the proceedings and did not save the applicants from a great amount of preparation, including obtaining evidence of loss. This required an analysis of the expense of running the construction sites for the two days of the strike, as well as engaging experts to give evidence about the calculation of delay.

[26] The applicants also accept that it is relevant to take into the account the fact that the first respondent is subject to an agreed injunction against entering sites conducted by the applicants or related corporations until 31 December 2016.

[27] There is one aspect of the applicants’ approach which was controversial. The applicants accepted that the first and second respondents’ reasons for taking and encouraging the strike action were to support an injured worker. Mr Neil SC argued in his oral submissions that this element should not be taken into account because s 19 of the Fair Work Act exempts from the definition of industrial action, action which is concerned with imminent safety threats. Safety issues are dealt with by the Act. If the nature of the safety concerns do not exempt the conduct from the definition of industrial action, then, so it was argued, the safety issues cannot be relevant to the fixing of penalties for unlawful action.

[28] This does not follow. In fixing the penalties the Court is concerned with unlawful action. The question which the Court must ask itself is where on the scale of unlawfulness the particular action falls. It is an agreed fact that the purpose of the strike action was an attempt to benefit a worker, albeit a worker employed by a subcontractor employed on a different site. This fact is relevant to the decision the Court must ultimately make and to the severity of the civil penalty imposed, and should be taken into account. It demonstrates that the contravention is of a lower magnitude of wrong-doing than a contravention in which the motivation for the industrial action was for some entirely self-interested purpose.
. . .
[31] In the end, there are two factors which point in this case to the penalty being fixed at the lower rather than the higher end of the range proposed.

[32] First, that the motivation for the industrial action was to support an injured worker on another site. Second, the degree of cooperation by the respondents in the resolution of the matter.

[33] Consequently, the penalty against Mr McDonald is fixed at $9,500. The penalty against Mr Pallot is fixed at $3,500. The penalty against the CFMEU is fixed at $48,000.”

[10] It was also noted in the Brookfield Multiplex Decision that the respondents had agreed to payment of compensation of $250,000 to the applicants, and to the grant of an injunction against Mr McDonald preventing him from visiting sites at which work was undertaken by the applicants until 31 December 2016. 5

[11] The agreed statement of facts in the matter discloses further that the conduct of Mr Pallot admitted to be in contravention of ss.348 and 417 of the FW Act involved organising the meeting for the purpose of discussing a demand that the respondents pay for 24/7 cover for the injured worker, attending the meeting and not disassociating himself from what Mr Mc Donald said in circumstances where he knew that industrial action would be the probable result, being present when a motion was passed at the meeting which led to the industrial action, and also being present when the industrial action commenced, and that Mr Pallot engaged in this conduct with the intent of coercing the respondents to comply with the demand concerning the injured worker. The agreed statement of facts does not disclose that Mr Pallot’s unauthorised access to the site constituted any part of the admitted unlawful conduct.

[12] In relation to this matter, Mr Pallot said in his affidavit that, in the context of his career working for the applicants, it was an “isolated incident”, and added:

“22. The responsibility that I have to represent the views and demands of the Union's members and my obligations under the legislation sometimes requires treading a fine line, and over my long career as a Union Official I feel that I have always managed to stay on the right side of the line.

23. In this instance I accept that I strayed over the line and this was an error of judgment on my part.

24. As explanation, but not an excuse, the incident was done with the best of intentions and was done in support of a worker who at the time had just come out of a coma and there was some issues around his income support.

25. I accepted responsibility for my actions, admitted what had happened to the Court and paid a penalty.

26. I have neither before, nor after, this incident breached the legislation and my intention every time I attend a construction site is to comply with the legislative provisions. My long career I feel is a testament to my ability to understand and work within the laws in place at the time.”

[13] Mr Pallot went on in his affidavit to say:

“From my failing I have learnt lessons and I apply these to my day to day organising. This ensures that my future conduct will be in compliance with the legislation.”

[14] I consider the relevant aspects of the Brookfield Multiplex Decision in relation to Pallot may be summarised as follows:

• The contravention involved participation in the organisation and conduct of a meeting which led to two days of unlawful industrial action and which was intended to coerce acquiescence to a demand concerning an injured worker.



• The conduct and the action was in support of an injured worker, which meant that it was to be characterised as involving a lower magnitude of seriousness.



• This was the first and only time that Mr Pallot, in a long career as a union official, has been found to have contravened an industrial law and penalised.



• Mr Pallot accepts that it was an error of judgment on his part, and admitted the contravention to the Court.

[15] In relation to paragraph (e) of s.513(1), Mr Pallot has never had a permit issued to him under the Act or a similar law of the Commonwealth revoked or suspended. As a result of a decision issued in 2008 6, Mr Pallot did have a condition imposed on his entry permit, namely that he not enter or remain on a site with Mr McDonald unless Mr McDonald was there by invitation. This condition did not arise from any unlawful or improper conduct on the part of Mr Pallot, but rather that of Mr McDonald. Mr Pallot complied with the condition until it expired in 2010. In relation to paragraph (f), 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 Pallot had under that law or disqualified Mr Pallot from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.

[16] In relation to paragraph (g), the applicants have placed before me two affidavits which are in the nature of character references concerning Mr Pallot’s conduct as a union official. The first is an affidavit affirmed by Ms Jayne Liddicoat on 12 March 2015. Ms Liddicoat is the Human Capital Manager of Mammoet, a major crane/heavy lift company. She states that she has dealt with Mr Pallot since 2008 in connection with several large infrastructure projects, and that whenever Mr Pallot had exercised his right of entry to hold discussions with Mammoet’s employees, he had complied fully with the legislative regime, had given the requisite notice in proper form, had complied with all his obligations whilst on site, and that she found him to be “courteous, professional and always mindful of his obligations as a permit holder”. She expresses the opinion that Mr Pallot was a fit and proper person to hold a right of entry permit. The second affidavit was affirmed by Mr J.J. O’Connor on 11 March 2015. Mr O’Connor is a self-employed industrial relations consultant who has been engaged by various construction companies on large infrastructure projects, and was formerly a Commissioner of the Australian Industrial Relations Commission and, prior to that, the Western Australian Branch Secretary of the Transport Workers’ Union of Australia. Mr O’Connor has likewise had dealings with Mr Pallot where he had exercised his right of entry, and likewise says Mr Pallot has always done so lawfully and appropriately and is a fit and proper person to hold an entry permit. I consider these to be relevant matters for the purpose of s.513(1)(g).

[17] I also consider it to be relevant, as Mr Pallot deposed in his affidavit, that possession of an entry permit is necessary to effectively represent the members of the applicant organisations, in particular those members who work in the North West of Western Australia, and that those members may potentially suffer detriments to their conditions or safety without effective union representation.

[18] 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 Pallot is, for the purpose of s.512, a fit and proper person to hold an entry permit. His contravention of ss.348 and 417 of the FW Act on 15 February 2013 is obviously a serious matter and must be given significant weight, because it calls into question his respect for industrial law and therefore the extent to which there can be confidence that he will ensure compliance with the FW Act’s requirements concerning the exercise of entry powers in the future. However, I place greater weight on the following matters:

• The contravention recorded in the Brookfield Multiplex Decision is the only occasion in which Mr Pallot has been found to have contravened any industrial law in a career as a union official spanning almost 25 years.



• The contravention was not in the most serious category.



• Mr Pallot understands that it was an error of judgment to engage in the conduct that he did. I am satisfied that he now understands the requirement not to organise or engage in unlawful industrial action, even if it is in support of what he perceives to be a humanitarian cause. Mr Pallot confirmed this was the case in his oral evidence.



• The contravention occurred over two years ago, and there has been no recurrence of unlawful conduct.



• Mr Pallot has never been found to have contravened any law pertaining to the exercise of rights of entry, and the evidence demonstrates that he exercises those rights lawfully and appropriately.



• Mr Pallot has engaged in training concerning the exercise of right of entry powers and requirements, and therefore has the requisite knowledge concerning these matters to ensure compliance.



• It is necessary for Mr Pallot to have an entry permit to be able to effectively represent the members of the applicant organisations.

[19] On an overall balance of the matters I have taken into account, I am satisfied that Mr Pallot is a fit and proper person to hold the entry permits applied for. I am further satisfied that I should exercise the discretion conferred by s.512 in favour of issuing Mr Pallot with those entry permits. I do not consider, taking into account the permit qualification matters I have identified, that there is any reason to consider the imposition of conditions under s.515 on the entry permits to be issued.

[20] The applications are granted. I order that an entry permit be issued to Mr Pallot as an official of the CFMEU. I also order that an entry permit be issued to Mr Pallot as an official of the CFMEUW.

VICE PRESIDENT

Appearances:

K. Sneddon for the Construction, Forestry, Mining and Energy Union of Workers and the Construction, Forestry, Mining and Energy Union.

Hearing details:

2015.

Sydney:

26 March.

 1   [2015] FWC 1522 at [32]

 2 [2014] FCA 359

 3   Ibid at [22]

 4   Ibid at [15]

 5   Ibid at [11]

 6   Jeff Radisich v Michael Buchan[2008] AIRC 896 at [12]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562507>