Construction, Forestry, Mining and Energy Union – Robert Graauwmans

[2016] FWC 4180

[2016] FWC 4180

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union – Robert Graauwmans
(RE2016/506)

VICE PRESIDENT HATCHER SYDNEY, 15 JULY 2016

Application for a right of entry permit – Robert Graauwmans.

Introduction and background

[1] On 4 April 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 Robert Graauwmans. Mr Graauwmans is employed by the CFMEU as an organiser. In that capacity he has continuously held entry permits (first under the Workplace Relations Act 1996 and then under the FW Act) from 31 May 2006 until the expiry of his most recent permit on 19 April 2016.

[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 Graauwmans.

[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 or Commission proceedings involving Mr Graauwmans as follows (numbering added):

“(1) On 7 March 2008 in White v CFMEU [2011] FCA 192, VID698 of 2009, the Federal Court made the following orders:

• A penalty of $105,000 was imposed on the CFMEU for contravening sections 38 and 43 of the Building and Construction Industry Improvement Act 2005 (Cth) ("BCII Act") on 16 and 28 May 2008 by:

(i) Engaging in unlawful industrial action, in that members who were employees of Abigroup engaged in unlawful industrial action for one day; and

(ii) by organising or taking action with the intent to coerce Abigroup to employ redundant employees to perform building work and to allocate particular responsibilities to the redundant employees.

• Graauwmans was named as the third respondent in this proceeding. A penalty of $5,000 was imposed upon Graauwmans for contravening sections 38 and 43 of the BCII Act.

(2) On 16 April 2012 in Australian Building and Construction Commission (ABCC) v Graauwmans & CFMEU, MLG912 of 2011, a statement of agreement facts and agreed penalties was entered into by the parties to this proceeding. The following orders were made:

• Graauwmans was ordered to pay a penalty of $5,000 for contravening s 38 of the BCII Act for action taken on 17 August 2010.



• The CFMEU was ordered to pay a penalty of $30,000 for contravening s 38 of the BCII Act in respect of action the action taken by Graauwmans on 17 August 2010.

(3) In Abigroup Contractors Pty Ltd v CFMEU & Ors, BRG123 of 2013, Graauwmans was named as the second respondent. On 1 May 2014 Judge Burchardt made orders by consent that the Applicant discontinue the proceedings. There were no admissions of liability and no findings were made against the respondents.

(4) In Bechtel Construction (Australia) Pty Ltd v CFMEU & Ors, QUD442 of 2014, Graauwmans was named as the eighth respondent. The matter was discontinued.

(5) On 7 March 2016, Vice President Watson handed down his decision in The Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors [2016] FWC 811, RE2014/1389.

• This decision concerned an application by the Director of the Fair Work Building Industry Inspectorate pursuant to s 508 of the Fair Work Act 2009 (FW Act), alleging several officials of the CFMEU, including Graauwmans, misused rights of entry to premises under Part 3-4 of the Fair Work Act 2009 (FW Act).



• All of the misusing in this matter arose in relation to sites occupied by Lend Lease and all of them date back to a period of about 6 months between 21 January 2014 and 1 July 2014 (also see Order in Lend Lease Building Pty Ltd T/A Lend Lease; Lend Lease Building Contractors Pty ltd (formally Baulderstone Pty Ltd) T/A Lend Lease; Lend Lease Engineering Pty Ltd (formerly Abigroup Contractors Pty Ltd) T/A Lend Lease v CFMEU; CEPU; & Ors, matter number RE2014/761).



• On 11 March 2016 the CFMEU lodged an appeal against this decision and also sought a stay of the decision.



• The orders that relate to Graauwmans were stayed pending the hearing and determination of the CFMEU appeal, listed for hearing on 11 May 2016 before the Full Bench of the Fair Work Commission.




(6) The CFMEU is aware of a Federal Court proceeding commenced by the Director of the Fair Work Building Industry Inspectorate on 24 March 2016 (Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors, matter number VID260 of 2016). At the time of filing this application the proposed permit holder has not been served with this proceeding in accordance with the Federal Court Rules 2011.”

[6] Mr Setka’s declaration also disclosed that the entry permit numbered RE2012/1399 (issued on 19 April 2013) was issued to Mr Graauwmans with the following condition attached:

“If any findings made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a)-(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a)-(f) of the Fair Work Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding commenced. See decision [2013] FWCD 452 issued 25 March 2013.”

[7] Mr Graauwmans confirmed the correctness of the above disclosures in his declaration dated 4 April 2016 which accompanied the application.

[8] In relation to the first matter disclosed in the application, the decision of the Federal Court (Kenny J) in White v CFMEU recorded the following agreed facts in relation to Mr Graauwmans: 1

“(b) Mr Graauwmanns engaged in industrial action at the Pigdon site on 28 May 2008. He parked his car across the gate and refused to move it when asked to do so. He conducted a meeting of employees and told them it was a CFMEU lock out and opposed Abigroup’s efforts to persuade the employees to return to work.”

[9] The order made by the Court in White v CFMEU against Mr Graauwmans was:

“4. A penalty of $5,000 be imposed upon the third respondent for:

(a) contravening s 38 of BCII Act on 28 May 2008 by engaging in unlawful industrial action at Pigdon for about 4 hours; and

(b) contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i) employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii) allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.”

[10] The judgment records the contraventions as having been admitted.

[11] In relation to the second matter disclosed in the application (ABCC v Graauwmans), Federal Magistrate Riley made an order by consent on 16 April 2012 in matter (P)MLG912/2011 which included the following order against Mr Graauwmans:

“1. A penalty of $5,000 be imposed on the first respondent in respect of one contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).”

[12] The agreed statement of facts in the matter included the following in relation to Mr Graauwmans:

“24 June 2010

9. On 24 June 2010, Elstone had employees working on the Project at the Site.

10. Graauwmans had concerns about what he believed were a number of occupational health and safety issues associated with Elstone.

11. On 24 June 2010, during the luncheon break between around 1pm and 1.30pm, Graauwmans:

(a) conducted a meeting outside the Site with the Direct Employees and the Subcontractor Employees;

(b) In that meeting, informed the Direct Employees and the Subcontractor Employees that the CFMEU was concerned that Elstone was only paying its employees on the Project under the Modern Award and the CFMEU did not want Elstone employing workers on the Site on less than the site wages and conditions in the Agreement;

(c) facilitated a vote of the Direct Employees and the Subcontractor Employees not to work with Elstone on the Project under those circumstances.

12. On 24 June 2010, at approximately 2pm, Graauwmans had a conversation with Arnold McGill, McConnell Dowell's Project Manager, at the crib shed area in which Graauwmans Informed McGill that:

(a) the employees on Site had voted that any time Elstone come back to work on the Site the employees would walk off Site;

(b) the CFMEU did not want Elstone working on the Site when their employees were being paid less than the site conditions under the Agreement.

The Stoppage

13. On 17 August 2010, Elstone had some employees return to the Site to perform work on the Project.

14. At approximately 6.40am, Graauwmans arrived on Site and walked into McGill's office. He asked McGill if he could meet with the workers before shift start. He also said to McGill: "I'm here to remind the blokes what they voted for'' and "Ralph has directed us to follow through with the action." Graauwman's reference to "Ralph" was a reference to the President of the CFMEU Construction and General Division Victorian Branch, Ralph Edwards, and the reference to "action" was the workers refusing to work while Elstone were on Site.

15. Graauwmans conducted the meeting. As he had done on 24 June 2010, he again spoke to the Direct Employees and the Subcontractor Employees about Elstone not paying its employees the site conditions and the CFMEU's objection to this. Graauwmans reminded the workers that on 24 June 2010 they had voted to stop work if Elstone was on Site.

16. After the meeting all the Direct Employees and Subcontractor Employees left the site and performed no work for the day (the Stoppage).

17. At around 7.10 am, as the workers were leaving the Site, Graauwmans spoke with McGill and Construction Manager, Peter Saw, at the main entrance to the Site in the course of which a discussion took place the substance of which was as follows:

Graauwmans:	“Look what the boys are doing, what have you got to say for yourself now, they have voted to go home.”
Saw:	“What they are doing is illegal.”
Graauwmans:	“Yeah I know, but I don't care.”
Graauwmans:	“Caught between a rock and a hard place. This is to send a message to politicians and other subbies. I have been speaking to [Darren] Cheeseman and Minister Pakulas (sic).”
Graauwmans:	“How can it happen that they (Elstone) are paid less than the site EBA?”
McGill:	“McConnell Dowell has asked all the questions it can ask and Elstone are paying above the building and construction general on site award but below the site EBA. Their pay rates are In accordance with the modern awards.”
Graauwmans:	“I don't believe modern awards are right.”
McGill:	“Where is the action going to take things? The boys are going to miss a day's pay.”
Graauwmans:	“The boys can make up the day's pay later in the job.”
McGill:	“It doesn't work like that, they don't make up for their lost pay later in the job.”
Graauwmans:	“They may not get their money or make up for it on this project. It's to protect workers' conditions.”
McGill:	“McConnell Dowell is signed up to an EBA and McConnell Dowell has done everything it can.”
Graauwmans:	“McConnell Dowell agreed to use legitimate companies and it's a message for other contractors and subcontractors.”
McGill:	“CFMEU doesn't have a list of legitimate companies. McConnell Dowell does not ask if companies belong to the CFMEU. McConnell Dowell asks companies If they work on commercial sites.”
Graauwmans:	“I asked you 8 weeks ago”.

18. The reference to 8 weeks ago was a reference to the 24 June 2010 when Graauwmans told McGill that the workers would not work if Elstone was on Site.

19. The stoppage disrupted work on the project that day.

20. By the Stoppage, the Direct Employees and the Subcontractor Employees engaged in building industrial action that was unlawful industrial action within the meaning of s.37 of the BCII Act and in so doing contravened s.38 of the BCII Act.

21. By facilitating the meeting, and by addressing the workers as he did, Graauwmans was involved in the contravention in that he encouraged, counselled, procured, induced or was knowingly concerned in or party to the contravention of s.38 of the BCII Act by the Direct Employees and the Subcontractor Employees.

Admitted contraventions of section 38 BCII Act by the CFMEU and Graauwmans

22. Graauwmans admits that by his conduct on 17 August 2010, by operation of section 48(2) of the BCII Act, he also contravened section 38 of the BCII Act.”

[13] White v CFMEU and ABCC v Graauwmans were considered in the decision 2 of Delegate Furlong in relation to the issue of Mr Graauwmans’ last entry permit in 2013. The Delegate said in this decision (footnote omitted):

“[41] The judgement of Kenny J in White v CFMEU sets out conduct undertaken by the CFMEU to apply pressure on Abigroup to employ particular employees whose positions had been made redundant. The penalty imposed on the CFMEU was substantial and reflective of the conduct of the nine officials that were prosecuted, some of which I dealt with in my decision in relation to an application for a permit under s.512 for Mr Ralph Edwards. Mr Graauwmans contributed to the unlawful industrial action undertaken by the CFMEU in a manner that was clearly inconsistent with the purpose of right of entry provisions at s.480(c) of the Act.

[42] I have taken into account that the penalties imposed on the CFMEU in White v CFMEU did not arise solely as a consequence of Mr Graauwman’s conduct. However, it is not possible to precisely quantify or approximate the share of the penalties which is directly attributable to Mr Graauwmans.

[43] Although I do not have the benefit of published reasons for the penalties imposed in ABCC v Graauwmans, I note that the penalties are not insubstantial and that proceedings against Mr Graauwmans were commenced on 30 June 2011 and the matter finalised in April 2012.
...
Conclusion

[47] In this case, on balance, I find that Mr Graauwmans is a ‘fit and proper person’, taking into account the permit qualification matters, for the purpose of s.512 of the Act. However, such a finding is a fine distinction and there are many circumstances and factors indicating that Mr Graauwmans should not enjoy the rights and privileges attached to the issuing of a permit.

[48] The gravity of the conduct in White v CFMEU and the fact that the penalty imposed in ABCC v Graauwmans was so recent, namely April 2012, give reason to impose conditions on this particular entry permit.”

[14] The condition imposed by the Delegate on Mr Graauwmans’ entry permit was that disclosed in Mr Setka’s declaration, as earlier set out.

[15] In relation to the fifth matter disclosed in the application, on 24 December 2015 Vice President Watson of this Commission handed down his decision in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 3 (DFWBII v CFMEU). The matter concerned an application made by the Director alleging misuse of entry rights by ten of the CFMEU’s officials, one of which was Mr Graauwmans. The following findings were made concerning Mr Graauwmans’ conduct (noting that the evidence of the witnesses referred to was not the subject of any cross-examination):

“Monash University Green Chemicals Futures Building—Clayton, Victoria
...

1 April 2014

[256] Mr Jancev’s and Mr Speirs’ evidence is that at 8am on 1 April 2014 they saw Mr Long and Mr Graauwmans near the site enclosures which are near the site amenities. Mr Speirs enquired as to the reason for their visit. Mr Long replied that the CFMEU was focusing on the fire emergency plans nationally and was checking all Lend Lease sites. At Mr Speirs’ suggestion, they continued the discussion about the site emergency evacuation plan in the nearby coffee shop. More specifically, they discussed how the crane driver would get out in the event of a fire.

[257] Mr Speirs’ evidence is that he had an exchange with Mr Long and Mr Graauwmans in which he asked them to show their right of entry permits and whether they had provided 24 hours’ notice. Mr Long replied ‘We haven’t got them, you know we don’t do that’. Mr Graauwmans also refused, saying words to the effect of ‘I haven’t got them’. Mr Speirs told them they could not go on site.

[258] Mr Speirs’ evidence is that the discussion concerning the retrieval of the crane driver in the event of a fire continued. During the conversation, Mr Long said that there was an imminent risk to the crane driver and the crane should immediately stop work.

[259] At the end of the conversation, which had lasted for 15-20 minutes, Mr Long said ‘We are going on site to check what you have written in your emergency plan is what you are actually doing.’ Mr Speirs again advised them that they were not authorised to be on site, but they entered the site regardless.

[260] Mr Speirs’ evidence is that when he got back to the office he realised that he had taken the wrong evacuation plan with him to the coffee shop. Further, he identified a need to add an additional step to the Crane Management Plan. Mr Speirs located Mr Long and Mr Graauwmans at approximately 9.40am and advised that he would explain the revised additional crane procedure to the crane crew.

[261] Mr Long and Mr Graauwmans left the site at approximately 9.50am.

...

[263] The Director submits that the evidence demonstrates that rights were misused by Mr Long and Mr Graauwmans in that they:

• Failed to produce their entry permits when requested to do so by the occupier, contrary to s.497 of the Act.



• Failed to, prior to or immediately upon entering the site, take all reasonable steps to give written notice under s.88 of the Occupational Health and Safety Act 2004 (Vic), including a description of the suspected contravention.



• Refused to comply with a direction from the occupier not to enter the site.

...
[267] I find that Mr Long and Mr Graauwmans entered the site for a prescribed purpose and misused the entry rights by failing to produce their entry permits, failing to give an appropriate notice and refusing to comply with a direction not to enter the site.

Telstra New Data Centre—Clayton, Victoria

[268] Mr Jago’s evidence is that at approximately 10am on 1 April 2014, he was told that Mr Long and Mr Graauwmans had arrived at the Treforest Drive entrance to the Telstra New Data Centre site in Clayton, Victoria, with Mr Harris and had requested to speak with him. Mr Jago met them at the entrance of the construction site and asked why they were there. They replied ‘You know why we are here’. Mr Jago’s evidence is that he said ‘I don’t know why you are here but I am guessing it is something to do with the events in Sydney’. Mr Long confirmed that was correct, and that they wanted to inspect the Fire and Emergency Evacuation Procedure and Plan.

[269] Mr Jago told the organisers that they could not come onto the site unless he viewed and confirmed their current Federal right of entry permit or WHS/OHS Act permit. Mr Long said ‘We are not going to show you the permit’. Mr Jago repeated the request and Mr Long again replied that he was not going to show his permit. Mr Jago requested that Mr Graauwmans and Mr Harris show their entry permits. They both refused.

[270] Mr Jago’s evidence is that he then said ‘If you cannot show me your permits you cannot come on site.’ Mr Long said ‘We are going to come on site anyway whether you like it or not’. They then walked on to the building site. Mr Jago felt compelled to accompany them because as he is responsible for the health and safety of everyone who comes onto the site, he does not want people wandering around the site unsupervised who do not have an adequate understanding of the site. Further, he did not want the organisers to disrupt work.

[271] Mr Jago’s evidence is that Mr Long told him that they wanted to look at the fire and emergency evacuation procedure. As Mr Jago wanted to keep the organisers off the Building Site, he took them to the induction room. Mr Jago states that they spent about 15 minutes in the induction room reviewing the Fire and Emergency Evacuation Procedure, then approximately 15 minutes in the site office reviewing the Fire and Emergency Evacuation Plan.

[272] Mr Jago’s evidence is that he and Mr Hope, Construction Manager, walked Mr Long, Mr Graauwmans and Mr Harris back down to the building site with the intention of escorting them through and off the Building Site. However, Mr Long then asked to see inside the building and check the fire extinguishers, emergency exits and the Emergency Warning Intercommunication System. Mr Long, Mr Graauwmans and Mr Harris spent about 15-20 minutes checking those things. Mr Jago stayed with them for reasons previously stated. At approximately 11am Mr Jago and Mr Hope escorted Mr Long, Mr Graauwmans and Mr Harris off the site.
...
[274] The Director submits that the rights were misused by Mr Long and Mr Graauwmans in that they:

• Refused to produce their permits for inspection when requested to do so by the occupier, contrary to s.497 of the Act



• Refused to comply with a direction from the occupier not to enter the site



• Failed to, prior to or immediately upon entering the site, take all reasonable steps to give notice under s.88 of the OHS Act (Vic), including a description of the suspected contravention



• Distracted Lend Lease management from their normal duties.

...
[279] I find that Mr Long and Mr Graauwmans entered the site for a prescribed purpose and misused their entry rights by failing to give notice of their visit, failing to show their permits when requested, and by entering the site after being told not to do so.

Monash Health Translation Precinct, Monash Medical Centre, Melbourne
...
1 April 2014

[281]Mr Wavish’s evidence is that at approximately 10.45am on 1 April 2014, Mr Long and Mr Graauwmans approached him on the site. Mr Wavish states that it seems that they had entered the site from the digilock gate off the narrow laneway that is the site entry for construction workers, instead of coming to the Project Office and signing in.

[282]Attached to Mr Wavish’s statement were photographs of the signage around the gates of the site requiring all visitors to report to the site office. The site register for 1 April 2014 shows that neither Mr Long nor Mr Graauwmans signed the register as required.

[283]Mr Wavish states that he knew Mr Long, but not Mr Graauwmans. Mr Graauwmans introduced himself as ‘Robbie’. Mr Wavish asked for his surname, but he would not provide it.

[284]Mr Wavish’s evidence is that he asked Mr Long and Mr Graauwmans to advise of the purpose of their visit and to show him their entry permits. Mr Long said that they had come to check Lend Lease’s OHS and evacuation plans to check Lend Lease’s procedures on how to get a crane driver down in the event of an emergency.

[285]Mr Wavish again asked them if they had a right of entry permit and Mr Long said, ‘You know we don’t issue them. Why do you keep asking?’ Mr Wavish told them that if they did not have a permit, they would have to leave the site. They did not leave.

[286]Mr Wavish states that Mr Long and Mr Graauwmans insisted on discussing the safety issues they had raised. Mr Wavish’s evidence is that he took them to the lunch rooms to discuss the issues. He believed the best place to discuss the issues was in the lunch rooms, which are located inside of the perimeter fencing of the Project, but away from the construction area.

[287]Whilst they were in the lunch room, Mr Harris arrived at about 11am to join the conversation. A discussion ensued about the site emergency plan and procedures. Mr Long requested to see the site emergency plan and had a thorough look at it once it was provided to him. He queried why Lend Lease would take a first aid injury victim down to the medical facility considering that the project is actually a hospital.

[288]Mr Wavish’s evidence is that Mr Long then said to him, ‘How are we going about getting a couple of my men placed on the job as a peggy, labourer or traffic controller?’ Mr Long advised him that it was out of his jurisdiction and that the he would need to talk with Mr Broadhead, to which Mr Long replied ‘Think outside the square’. Mr Wavish’s evidence is that by that comment, he understood that Mr Long was suggesting that he talk to the subcontractors on the Project about engaging members of the CFMEU who wished to work on the Project.

[289]Mr Wavish’s evidence is that Mr Long and Mr Graauwmans then started querying the emergency procedures in relation to getting crane drivers down. Mr Wavish’s evidence is that he advised that the crane was not due to go up on the site until 10 May 2014. Mr Long said ‘You need to get this emergency site plan water tight.’

[290]At approximately 11.10am, Mr Wavish told the officials that he was too busy to continue discussions and had to keep moving. Mr Long, Mr Graauwmans and Mr Harris got up and left the lunch rooms. Mr Wavish observed that they left the site at approximately 11.15am.
...
[292] The Director submits that the rights were misused by Mr Long and Mr Graauwmans in that:

• Mr Long and Mr Graauwmans failed to report to the site office and sign-in in the site visitor register at the site office when requested to do so by the occupier (by signage), this being a reasonable request to comply with an OHS requirement that applied to the site, contrary to s.499 of the Act



• Mr Long and Mr Graauwmans failed to produce their permits for inspection when requested to do so by the occupier, contrary to s.497 of the Act



• Mr Long and Mr Graauwmans failed to, prior to or immediately upon entering the site, take all reasonable steps to give notice under s.88 of the Occupational Health and Safety Act 2004 (Vic), including a description of the suspected contravention



• Mr Long and Mr Graauwmans failed to leave the site when asked, contrary to s.500 of the Act (hinder and obstruct)



• Mr Long used the entry for a collateral and improper purpose, namely to ask Mr Todd Wavish of Lend Lease repeatedly about “getting a couple of my men placed on the job as a peggy, labourer or traffic controller”



• Mr Long and Mr Graauwmans distracted Lend Lease management from their normal duties.

...
[298] I find that Mr Long and Mr Graauwmans entered the site for a prescribed purpose and misused their entry rights by entering the site without providing notice and against the express statement of the occupier’s representatives.”

[16] On 7 March 2016 Vice President Watson issued a further decision, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 4 (DFWBII v CFMEU (2)) in which he made orders consequential upon the findings he had made in his decision of 24 December 2015. In respect of a number of CFMEU officials, orders were made revoking, banning the issue of and/or suspending the operation of entry permits. However no such order was made in respect of Mr Graauwmans. The decision relevantly stated:

“[67] In these proceedings Mr Graauwmans was found to have misused his right of entry on three sites, all on 1 April 2014. The sites included the Monash University Green Chemicals Futures Building, Telstra New Data Centre and Monash Health Translation Precinct.
...
[71] The permit held by Mr Graauwmans is due to expire on 19 April 2016. The Director submits that this permit be suspended until expiry and a ban then imposed on the issue of a new permit until 6 months from the date of Order. He submits that the Conditions referred to below should then be imposed for the next six months.

[72] In my view it would be appropriate to consider the circumstances of Mr Graauwmans’ prior conduct in the context of his application for a new permit. That consideration should include a full review of his conduct over previous years and the appropriateness of future conditions on the issue of his permit.”

[17] In addition to his specific conclusions concerning Mr Graauwmans, Vice President Watson also determined in DFWBII v CFMEU (2) that for the next 12 months all entry permits currently or in future issued to, amongst others, officials of the Victorian/Tasmanian Branch of the Construction & General Division of the CFMEU should contain a number of conditions as follows:

“1. if a proposed entry in Queensland or Victoria is for a purpose described in Subdivisions A and B of Division 2 of Part 3-4 of the Act, the permit holder must give the occupier of the relevant site at least 24 hours' (but no more than 14 days') written notice of an intended site entry:

i. in the form of an entry notice consistent with the provisions of the Regulations under the Act;

ii. which specifies: the particular suspected contravention or purpose for which the entry is sought; the time at which the entry is sought; and for an entry to hold discussions with employees, all employers to which the proposed entry will relate; and

iii. give a copy of the notice to the Director at the same time as it is given to the site manager of the occupier of the site.

2. if a proposed entry in Queensland or Victoria is for the purpose of inquiring into a suspected contravention or contraventions of the relevant State OHS legislation, the permit holder must give the occupier 24 hours' written notice except where the permit holder has a reasonable concern that (a) there has been or is contravention of the relevant OHS legislation and (b) that contravention gives rise to a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.

3. the permit holder shall only enter a building or construction site in Queensland or Victoria after:

i. wearing all personal protective equipment required at that site,

ii. presenting at the site office and waiting for an escort to arrive,

iii. identifying himself, including providing his full name,

iv. signing his name in the visitors' book.

4. the permit holder shall not enter a building or construction site in the company of, or in concert with, a CFMEU official or employee who does not hold an entry permit;

5. in the event of entry not in compliance with these conditions, the permit holder shall leave the site immediately upon the request of an agent of the occupier;

6. the permit holder shall, whilst on any such site in Queensland or Victoria:

i. carry, and provide for inspection on request by the occupier, his entry permit and a copy of the entry notice;

ii. comply with the lawful instructions given by a representative of the occupier; and

iii. ensure that any discussions with employees under s.484 are held during designated breaks.

7. If any findings are made or penalties imposed that are relevant to the permit qualification matters in s.513(1)(a)-(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a)-(f) of the Fair Work Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding commenced.”

[18] DFWBII v CFMEU (2) was the subject of an appeal by the CFMEU. On 27 May 2016 a Full Bench issued a decision 5 in which it made the following orders:

“[13] By consent:

(a) The appeal is upheld.

(b) The second Decision in [2016] FWC 811, save for that part which affects Mr Kera and Mr Parker, is quashed.

(c) The orders in PR577987 and PR578000 are quashed.

(d) The matter, being the question of what orders if any should be made arising from the first Decision, excluding the question of whether orders should be made against the CFMEUQ, is remitted to Vice President Catanzariti for a full rehearing.”

[19] The rehearing referred to in the above orders has not yet occurred.

[20] In relation to the sixth matter disclosed in Mr Setka’s declaration, the Statement of Claim filed by the Director in the Federal Court (which, by the time of the hearing before me, had been served on the CFMEU and Mr Graauwmans) named Mr Graauwmans as the third respondent and alleged that on 25 and 28 March 2015 he contravened s.355 of the FW Act by organising or taking action in order to coerce a construction company to employ a particular person.

[21] Although it was not mentioned in the application, Mr Graauwmans was referred to in the decision of the Federal Court (Tracey J) in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) 6, which concerned conduct in breach of the FW Act taken by the CFMEU in relation to the Bald Hills Wind Farm Project (Bald Hills Decision). Mr Graauwmans was not a respondent to the proceedings, and no declarations were made about his conduct nor was any monetary penalty imposed upon him. The reference in the decision was as follows (emphasis added):

“[57] On 18 March 2014 a further meeting took place which was attended by representatives of International Cranes and the CFMEU. One of the International Cranes’ managers who was present, Mr Adam Leggett, advised the CFMEU representatives that Senvion had a policy under which Mr Stavlic could not be on the site until the WorkSafe investigation had cleared him. The CFMEU’s representatives (including Mr Stephenson) contended that Mr Stavlic should be on site. At about this time one of the CFMEU’s representatives at the meeting, Mr Rob Graauwmans, Branch Council Member Geelong Zone, told an International Cranes manager that, unless Mr Stavlic was reinstated by 24 March 2014, the CFMEU’s organisers had been told to shut down International Cranes.”

Evidence and submissions

[22] Mr Graauwmans made a statement of evidence for the purposes of the proceedings, which was dated 4 May 2016, and was cross-examined upon that statement by the Director. The evidence which he gave in his witness statement relevant to the issues in dispute is summarised as follows:

• as a CFMEU organiser he was responsible for the local government areas of Whitehorse, Knox and Boorandarra in Melbourne, and had State-wide responsibility for mobile cranes and wind farms.



• he was Co-Chair of the Crane Industry Consultative Committee;



• before being employed by the CFMEU he had worked in the building and construction industry for over 25 years as a crane driver, rigger and OH&S representative;



• his work was principally done on building sites, and involved dealing with occupational health and safety issues, attending to queries from members and negotiating enterprise agreements;



• he tried to take a proactive role in resolving issues, and his involvement usually had the effect of settling disputes at an earlier stage than might otherwise have been the case;



• he has held an entry permit continuously since 31 May 2006, and has also continuously held an entry permit under s.83 of the Occupational Health and Safety Act 2004 (Vic) over that period;



• he often uses his permits to access work sites, and if he did not have one his capacity to access members and potential members would be restricted, and it would be more difficult for him to address their issues and represent them;



• he successfully completed approved right of entry training on 10 February 2009, 25 May 2012 and 22 January 2016;



• the Lend Lease matter arose from concerns about evacuation and emergency procedures held by the CFMEU arising from a fire and a crane collapse at two Lend Lease sites in Sydney;



• Lend Lease responded by instituting a program of strict adherence to right of entry requirements at all its sites and adding its own requirements;



• the matter was settled by way of a consent order 7 made by the Commission (SDP Watson); and



• he was served with the application and statement of claim in VID260/2016 on 11 April 2016, and had not yet taken legal advice in relation to the matter.

[23] In cross-examination, Mr Graauwmans gave the following evidence:

• in relation to White v CFMEU, he did not recall agreeing to any facts, did not recall that any penalty was imposed upon him, certainly did not personally pay any penalty, did not recall being legally represented in the matter, did not recall the matter going to court, and had never seen the Court’s decision in the matter before;



• once shown them, he accepted that the agreed facts relevant to him in White v CFMEU were correct;



• in relation to ABCC v Graauwmans, he did not recall the critical facts, and did not recall any penalty being imposed upon him; and



• in relation to DFWBII v CFMEU, he had not seen the decision containing the adverse findings made against him and was not aware that the CFMEU’s appeal did not challenge those findings.

[24] An issue arose in relation to the tension between Mr Graauwmans’ evidence of lack of knowledge of White v CFMEU, ABCC v Graauwmans and DFWBII v CFMEU, and his confirmation in his statutory declaration of 4 April 2016 of the disclosures about these matters in the application. Ms Kristin Reid, the CFMEU’s employed legal officer who prepared the application and the declaration, gave evidence that she had taken Mr Graauwmans through the application, including the disclosures in Mr Setka’s declaration, before asking him to sign his declaration.

[25] The Director submitted that:

• White v CFMEU and ABCC v Graauwmans arose for consideration under s.513(1)(d);



• DFWBII v CFMEU and the Bald Hills Decision arose for consideration under s.513(1)(g);



• the current proceedings against Mr Graauwmans in the Federal Court also needed to be taken into account;



• the findings against Mr Graauwmans in White v CFMEU, ABCC v Graauwmans and DFWBII v CFMEU were demonstrative of improper conduct which was likely to recur if a new entry permit was issued to him;



• Mr Graauwmans had not expressed any repentance about the conduct he was found to have engaged in in White v CFMEU, ABCC v Graauwmans and DFWBII v CFMEU, so that the Commission could have no confidence that he has accepted the unlawful nature of his actions and would not act in the same fashion in the future;



• the effluxion of time since Mr Grauuwmans was last penalised for unlawful behaviour (April 2012 in ABCC v Graauwmans) should be given little weight, given there was no evidence that he had reformed his previous unlawful propensities and having regard to the recent findings that he misused his entry rights in DFWBII v CFMEU;



• Mr Graauwmans’ 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;



• the CFMEU had not proposed any conditions under s.515 which might address the identified concerns.

[26] In reply to the Director’s submissions, the CFMEU submitted:

• White v CFMEU and ABCC v Graauwmans had been taken into account in the decision of the Delegate in 2013 to issue Mr Graauwmans with an entry permit, and the principle of consistency in administrative decision-making required that the consideration of these matters not be re-litigated;



• these matters were only relevant to the extent that, taken in conjunction with matters which had arisen since Mr Graauwmans was last issued a permit, they bore upon the question of his present fitness to be issued a permit;



• the findings in DFWBII v CFMEU had to be considered in context, namely that the dispute between the CFMEU and Lend Lease concerning right of entry was resolved by consent orders which defined and restricted the entry rights of CFMEU permit-holders including Mr Graauwmans and which had been complied with by him;



• the findings in DFWBII v CFMEU did not involve any purported exercise of entry rights, deception, disruption to work, coercion, violence or threats;



• the Commission in DFWBII v CFMEU (2) did not see fit to revoke or suspend Mr Graauwmans’ entry permit arising from those findings;



• the Bald Hills Decision and the current Federal Court proceedings should not be treated as relevant matters;



• there was no evidential basis to consider, having regard to his record over ten years, that Mr Graauwmans was likely to re-offend;



• the Director’s submission about lack of repentance failed to have regard to the period of time which had elapsed since the contraventions in White v CFMEU and ABCC v Graauwmans; and



• the consideration of fitness and propriety was a matter personal to Mr Graauwmans, and the CFMEU’s record was not relevant in that context.

Consideration

[27] The principles applicable to consideration of an application for an entry permit may be summarised as follows 8:

• 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 s.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.

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

Paragraph 513(1)(a)

[29] Having regard to the evidence given by Mr Graauwmans concerning his satisfactory completion of approved right of entry training, I am satisfied that he has received appropriate training about the rights and responsibilities of a permit holder.

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

[30] I am satisfied that Mr Graauwmans 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)

[31] White v CFMEU and ABCC v Graauwmans are required to be taken into account under s.513(1)(d) because in each matter Mr Graauwmans was required to pay a penalty under the Building and Construction Industry Improvement Act 2005 (BCII Act) and the CFMEU was also required to pay a penalty because of Mr Graauwmans’ conduct. There was no dispute that the BCII Act was an “industrial law” for the purpose of s.513(1)(d).

[32] I consider that both matters must be given considerable weight in the consideration of Mr Graauwmans’ fitness and propriety. White v CFMEU involved the organisation of and engagement in unlawful industrial action for coercive purposes. ABCC v Graauwmans involved the organisation of unlawful industrial action. Both matters are indicative of an unwillingness on Mr Graauwmans’ part at the time to comply with industrial laws. It is clear that in Delegate Furlong’s 2013 decision to issue Mr Graauwmans with an entry permit subject to a condition, the conclusion that he was a fit and proper person was reached on a fine balance having regard to these two matters.

[33] The passage of time since these contraventions occurred (in White v CFMEU the conduct was in 2008, and in ABCC v Graauwmans it was in 2010) and the fact that they did not involve any breach of right of entry requirements mean, in my view, that the two matters cannot by themselves be given decisive weight against the conclusion that Mr Graauwmans is a fit and proper person under s.512. However they remain matters of significant concern given that Mr Graauwmans has never expressed any contrition for his conduct or even demonstrated any real understanding that he contravened industrial laws. Indeed, the most alarming aspect of his evidence before me was that he did not recall, and perhaps has never actually known, that penalties were imposed upon him in both matters. He certainly did not personally pay the penalties. Although Ms Reid’s evidence, which I accept, was that she took Mr Graauwmans through the application and his declaration which disclosed these two matters shortly before the application was filed, this does not seem to have succeeded in penetrating Mr Graauwmans’ consciousness since he had no real recollection of the matters disclosed when he gave oral evidence approximately eight weeks later. His explicit reference to these matters in his witness statement must also be regarded as curious in this context. None of this suggests that White v CFMEU and ABCC v Graauwmans are matters of any significance in Mr Graauwmans’ mind.

Paragraph 513(1)(e)

[34] 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 him by the Delegate in 2013 was made subject to a condition to the effect that he notify the Commission of findings, penalties or proceedings relevant to the permit qualification matters in s.513(1)(a)-(f). It is apparent from the Delegate’s decision that the condition was imposed because of his concern about White v CFMEU and ABCC v Graauwmans. As such, there is a substantial overlap with the consideration already given to those matters under s.513(1)(d). There was no suggestion that Mr Graauwmans had failed to comply with the condition.

[35] It is also to be noted that the effect of the decision in DFWBII v CFMEU (2) would have been to impose further conditions on Mr Graauwmans’ previous entry permit, as earlier identified. Because that decision has now been quashed on appeal, those conditions do not arise for consideration under s.513(1)(e). Those conditions will be however considered in a different context, as later explained.

Paragraph 513(1)(f)

[36] 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 Graauwmans had under that law or disqualified Mr Graauwmans from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.

Paragraph 513(1)(g)

[37] I consider that the findings made against Mr Graauwmansin DFWBII v CFMEU are relevant matters which must be assigned significant weight under s.513(1)(g). Those findings were to the effect that at three Lend Lease worksites on 1 April 2014, Mr Graauwmans misused his entry rights. The CFMEU is correct to submit that this did not involve any deception, disruption to work, coercion, violence or threats, but that is a fairly low bar. What his conduct did involve was a failure to comply with basic right of entry obligations such as the provision of notice, the production of his entry permit on request, and the refusal to leave the sites where right of entry had not properly been exercised. It may be accepted that Mr Graauwmans acted as part of a campaign to check Lend Lease’s emergency evacuation procedures in light of two very serious safety incidents at Lend Lease sites in Sydney, and that he appears to have acted as a subordinate to another official, Mr Long. However there appears to me to have been no reason why Mr Graauwmans could not have undertaken this exercise in an entirely lawful manner by giving the requisite notice and producing his entry permit on request. Certainly Mr Graauwmans did not advance any explanation for his conduct in his evidence before me. He did not express any contrition about the conduct the subject of the findings, and apparently had not even seen the decision in DFWBII v CFMEU.

[38] This conduct occurred during the currency of Mr Graauwmans’ most recent entry permit, about two years ago, and after the findings of contravention and penalties imposed in White v CFMEU and ABCC v Graauwmans. I consider that it demonstrates a simple and pointless disregard of legal obligations applying to the exercise of the right of entry.

[39] In relation to the other matters disclosed in the application:

(1) The third and fourth matters were discontinued and therefore I do not consider them to be relevant.

(2) The current proceedings before the Federal Court, although relevant, cannot be afforded any significant weight in the consideration of Mr Graauwmans’ fitness and propriety. At this stage, there is only a statement of claim which makes allegations of contraventions of the FW Act against him, and the proceedings are some distance from being heard. There was no attempt by the Director to prove the allegations in the statement of claim by evidence adduced before me.

[40] Finally, the finding in the Bald Hills Decision, although relevant, cannot in my opinion be afforded significant weight given that Mr Graauwmans was not a respondent in that matter and accordingly was not given an opportunity to be heard. There was no finding that he had contravened any law.

Conclusion

[41] 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 Graauwmans is, for the purpose of s.512, a fit and proper person to hold an entry permit.

[42] The findings I have made in relation to s.513(1)(a)-(c) and (f) weigh in favour of a finding that Mr Graauwmans is a fit and proper person under s.512. The finding in relation to s.513(1)(e) largely overlaps with the s.513(1)(d) finding for the reasons earlier given. The findings I have made in relation to s.513(1)(d) and (g) give rise to two principal concerns:

(1) Mr Graauwmans evinced no contrition for or even recognition or recollection of the fact that in 2008 and 2010 he had committed serious contraventions of industrial laws.

(2) Mr Graauwmans misused his entry rights by disregarding his basic obligations under the FW Act on multiple occasions on 1 April 2014. Again there was no contrition for or recognition of these contraventions, and Mr Graauwmans appeared unaware that findings of contravention had even been made against him.

[43] I recognise that there are mitigating factors applicable to the 2014 contraventions, including that Mr Graauwmans acted in pursuit of legitimate safety concerns, he was acting as a subordinate, and that there was no finding that his conduct had caused any damage. Nonetheless the concerns I have identified cause me to lack confidence that, if issued with an unconditional entry permit, Mr Graauwmans would take all reasonable steps to ensure that he complied with the requirements in Part 3-4 of the FW Act concerning the use of the rights attaching to that entry permit. For that reason, I do not consider that he is a fit and proper person to be issued with an unconditional entry permit.

[44] However, I am currently minded to conclude that Mr Graauwmans would be a fit and proper person to be issued with an entry permit that was subject to conditions that served to emphasise the need for him to comply with the relevant requirements of Part 3-4 of the FW Act, allowed his compliance to be monitored by the Director, and placed the continuance of his permit at risk if he failed to do so. Provisionally, I consider that the following conditions, modelled on the conditions proposed in paragraph [114] of DFWBII v CFMEU (2) for the CFMEU’s officials in its Construction and General Division in Victoria and Queensland Branch generally but adapted to the circumstances applicable to Mr Graauwmans, would be suitable for this purpose:

(1) If a proposed entry is for a purpose described in Subdivisions A and B of Division 2 of Part 3-4 of the Fair Work Act 2009, the permit holder must give the occupier of the relevant site at least 24 hours' (but no more than 14 days') written notice of an intended site entry that complies with s.518 of that Act and is in the form prescribed in Schedule 3.3 of the Fair Work Regulations 2009, and provide a copy of the notice to the Director at the same time as it is given to the site manager of the occupier of the site.

(2) If a proposed entry is for the purpose of inquiring into a suspected contravention or contraventions of the relevant State OHS legislation, the permit holder must give the occupier 24 hours' written notice except where the permit holder has a reasonable concern that (a) there has been or is contravention of the relevant OHS legislation and (b) that contravention gives rise to a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.

(3) The permit holder shall only enter a building or construction site after:

(a) wearing all personal protective equipment required at that site,

(b) presenting at the site office and waiting for an escort to arrive,

(c) identifying himself, including providing his full name,

(d) signing his name in the visitors' book.

(4) The permit holder shall not enter a building or construction site in the company of, or in concert with, a CFMEU official or employee who does not hold an entry permit.

(5) In the event of entry not in compliance with these conditions, the permit holder shall leave the site immediately upon the request of a representative of the occupier.

(6) The permit holder shall, whilst on any such site:

(a) carry, and provide for inspection on request by the occupier, his entry permit and a copy of the entry notice;

(b) comply with the lawful instructions given by a representative of the occupier; and

(c) ensure that any discussions with employees under s.484 are held during designated breaks.

(7) If any findings are made or penalties imposed that are relevant to the permit qualification matters in s.513(1)(a)-(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s.513(1)(a)-(f) of the Fair Work Act 2009, then the permit holder is to notify the Fair Work Commission within two weeks of the finding being made, the penalty imposed or the proceeding commenced.

[45] The Director and the CFMEU did not themselves propose any conditions to be attached to any entry permit that might be issued, and have not had any opportunity to make submissions about the conditions provisionally proposed above. Accordingly I will provide the parties with an opportunity to make such submissions, in writing, before I proceed to make any final orders. I direct as follows:

(1) The Director shall file in the Commission and serve on the CFMEU any written submissions he wishes to make in relation to the proposed conditions within seven days of the date of this decision.

(2) The CFMEU shall file in the Commission and serve on the Director any written submissions it wishes to make in relation to the proposed 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 [2011] FCA 192 at [30]

 2   [2013] FWCD 452

 3   [2015] FWC 6889

 4   [2016] FWC 811

 5   [2016] FWCFB 3241

 6 [2015] FCA 407

 7   PR561155

 8   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, 230 FCR 15 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]

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