Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate

[2014] FWCFB 7194

[2014] FWCFB 7194

DECISION

Fair Work Act 2009
s.604 – appeal against decision
Construction, Forestry, Mining and Energy Union (Jarvis)
v
Director of the Fair Work Building Industry Inspectorate
(C2014/1232)
Director of the Fair Work Building Industry Inspectorate
v Construction, Forestry, Mining and Energy Union (Jarvis)
(C2014/5482)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 21 OCTOBER 2014
COMMISSIONER WILSON

Appeal against decisions [2014] FWCD 1004 of Mr Enright granting right of entry permits - decision making process - appeal upheld.

[1] On 30 June 2014 Mr Enright (the Delegate), acting on delegation under s.625(2)(g) of the Fair Work Act 2009 (Cth) (the FW Act), issued a decision[1]in which he granted a right of entry permit, with conditions, to Mr Timothy Jarvis. Mr Jarvis is an official of the Construction, Forestry, Mining and Energy Union (the CFMEU). The Delegate’s decision concerned an application by the CFMEU under s.512 of the FW Act for an entry permit to be issued to Mr Jarvis. The CFMEU has sought permission to appeal that part of the Delegate’s decision which imposes conditions on the permit issued to Mr Jarvis and the Director of the Fair Work Building Industry Inspectorate (the Director) has sought permission to appeal the Delegate’s decision to issue Mr Jarvis with a permit. This decision deals with both appeals.

[1][2014] FWCD 1004

[2] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (FWC) powers on appeal are only exercisable if there is error on the part of the primary decision maker.[2]There is no right to appeal and an appeal may only be made with the permission of the FWC. Section 604 provides:

[2]This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager)

under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

[2014] FWCFB 7194

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if
the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.

[3] Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[3]The public interest is not satisfied simply by the identification of error, or a preference for a different result.[4]In

[3]O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Alllied v Lawler [2011] FCAFC 54 at [44]-[46].

[4]GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services

GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified

some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[5]

[5](2010) 197 IR 266 at [27]

[4] Other than the special case in s.604(2), the grounds for granting permission to appeal

are not specified. The Explanatory Memorandum to what is now s.604 states, at paragraph
2328:

“Subject to the Appellant demonstrating an arguable case of appealable error, it is intended that FWA should have a broad discretion as to the circumstances in which it can grant permission to appeal. Some examples of considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include:

● that the decision is attended with sufficient doubt to warrant its reconsideration; and

● that substantial injustice may result if leave is refused.”[6]

[6]Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481

[5] An appeal may only be made by a ‘person who is aggrieved by a decision’. In the

present matter the Director contends that he is a ‘person aggrieved’ by the Delegate’s
decision, within the meaning of that expression in s.604(1).

[6] The CFMEU submits that the Director is not a ‘person aggrieved’ within the meaning of s.604(1) of the FW Act. There are two limbs to this submission. First, it is argued that the Director’s powers to make submissions and to make applications (pursuant to ss.10 and 72 of the Fair Work (Building Industry) Act 2012, (the FW (BI) Act) are to be read expressio unius

est exclusion alterius, that is, the express mention of one thing is the exclusion of another. In

this context it is submitted that the Director’s function ‘to make applications to the FWC’ (see s.10(d), the FW(BI) Act), ‘must be read conformably with the provisions of the FW Act which make specific provision for the type of applications which the Director or an inspector might make’. The second limb of the CFMEU’s submission is that the Director does not fall within the accepted definition of a ‘person aggrieved’.

[7] For the reasons given in [2014] FWCFB 7154 we do not find the CFMEU’s submissions on this issue persuasive. We are satisfied that the Director has a sufficient interest to be characterised as a person aggrieved by the Delegate’s decision, having regard to the Director’s statutory functions and the fact that the Director had a right (and exercised that

[2014] FWCFB 7194

right) to make submissions in the proceedings at first instance. We find that the Director is a ‘person aggrieved’ within the meaning of s.604(1) of the FW Act and hence has standing to appeal the Delegate’s decision.

[8] We now turn to the legislative provisions relevant to the issue of right of entry permits before considering the submissions advanced in the appeals.

[9] Provisions governing right of entry for officials of organisations are contained in Part 3-4 of Chapter 3 of the FW Act. The object of that Part is as follows:

480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter

premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions

with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and

representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue

inconvenience.

[10] In order to exercise the rights of entry to premises conferred by Division 2 of Part 3-4 of the FW Act, an official of a registered organisation must hold a current entry permit issued by the Commission. Subdivision A of Division 6 of Part 3-4 concerns the issue, expiry and return of such entry permits. The provisions of the Subdivision relevant to the determination of these appeals are as follows:

512 FWC may issue entry permits

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

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;

[2014] FWCFB 7194

(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 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.

514 When the FWC must not issue permit

The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official's exercise of; or

(b) prevents the official from exercising or applying for;

a right of entry for industrial or occupational health and safety purposes under a State or

Territory industrial law or a State or Territory OHS law.

515 Conditions on entry permit

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

[2014] FWCFB 7194

(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).

[11] The use of the permissive word ‘may’ in s.512 suggests that the power to grant a permit is discretionary,[7]and no party before us contended otherwise. The discretion to issue a permit is only exercisable ‘on application by an organisation’ and only if the Commission is satisfied that the official is ‘a fit and proper person to hold the entry permit’. The descriptor ‘a fit and proper person’ in s.512 is not defined, but takes its meaning from its context.[8] A permit cannot be issued in the circumstances set out in s.514.

[7]See Ex parte Gleeson [1907] VR 368 at 373; Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shake Employees’

[8]Australian Broadcasting Tribunal v Bond 91990) 170 CLR 321 at 380

[12] Taking into account context, the terms of s.512 and the activities to be engaged in by a person if an entry permit is issued, the descriptor ‘a fit and proper person’ is to be applied by reference to the suitability of the official of the applicant organisation to hold the entry permit.[9]. Further, the question of whether a person is a fit and proper person to hold an entry permit necessarily requires a consideration of the rights which may be exercised by the holder of such a permit, the limitations on the exercise of those rights and the responsibilities to be discharged in the exercise of those rights, as was explained by the Full Bench in The Maritime

Union of Australia:

“[25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer 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. These are all to be found in Part 3-4 of the Act.”[10]

[9]The Maritime Union of Australia [2014] FWCFB 1973 at [23]

[10]Ibid at paragraph [25]

[13] Subsection s.513(1) of the FW Act provides that the Commission ‘must take into account’ a number of matters (described as “permit qualification matters”) specified in paragraphs (a)-(g) of the subsection in considering whether an official is a fit and proper person to hold an entry permit. To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko Wallsend[11]sense, that is matters which the decision maker is bound to take into account.[12]Further as Wilcox J observed in Nestle Australia Ltd v

Federal Commission of Taxation (Cth);

“To take a matter into account means to evaluate it and give it due weight, having regard to all

other relevant factors. A matter is not taken into account by being noticed and erroneously

discarded as irrelevant.”13

[2014] FWCFB 7194

[11](1985-1986) 162 CLR 24.

[12]See Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206 at [15], applied in CFMEU v Queensland Bulk Handling Pty Ltd

[14] 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.512(1).14

[15] While the weight to be attributed to a particular permit qualification matter will generally be a matter for the first instance decision maker an Appeal Bench may, of course, intervene if the resultant decision is unreasonable or plainly unjust in the House v Kingsense,15 that is:

“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” [citations omitted]

The Delegate’s Decision

[16] In the proceedings at first instance the Director submitted that the Delegate should refuse to issue an entry permit to Mr Jarvis on the basis that he has failed to demonstrate that he possesses the requisite fitness and propriety to hold such a permit. In the alternative the Director submitted that if the Delegate determined that a permit should be issued then certain conditions should be imposed on the permit. In support of its primary submission the Director advanced the following points:

(i)    the CFMEU’s history of contravening provisions of various industrial legislation;

(ii)   the penalties imposed on Mr Jarvis and the CFMEU in four previous cases:

 Hogan v Jarvis16 the Court penalised Mr Jarvis $7,260 contravening s.38 of the

Building and Construction Industry Improvement Act 2005 (the BCII Act) and the

CFMEU $36,300 as a result of Mr Jarvis and another official contravening s.38 of the BCII Act;

 Lend Lease v CFMEU17 the Court penalised Mr Jarvis $6,450 for contravening

s.38 of the BCII Act, and the CFMEU $550,000 as a result of actions taken in part
by Mr Jarvis and other officials contravening s.38 of the BCII Act;

 FWBII v Sutherland18 the Court penalised the CFMEU $50,000 as a result of actions taken in part by Mr Jarvis and other officials contravening s.38 of the BCII Act; and

 FWBC v CFMEU19 the Court penalised the CFMEU $99,000 as a result of

actions taken in part by Mr Jarvis and other officials contravening s.43(1)(b) of
the BCII Act.

(iii) the failure of the applicant and Mr Jarvis to make a full and frank disclosure of the
additional orders made in respect of Mr Jarvis in Lend Lease v CFMEU.

[2014] FWCFB 7194

[17] The Delegate considered each of the permit qualification matters at paragraphs [38] to

[91] of his decision. In summary terms the Delegate’s findings in respect of the permit
qualification matters are as follows:

 s.513(1)(a): Mr Jarvis has received the ‘appropriate training’.20

 s.513(1)(b): The Delegate’s decision states: ‘The declarations do not disclose any

such convictions against Mr Jarvis. There is no other evidence before me that

suggests otherwise’.21

 s.513(1)(c): The Delegate’s decision states: ‘The declarations do not disclose any

such convictions against Mr Jarvis. There is no other evidence before me that

suggests otherwise’. 22

 s.513(1)(d): The Delegate noted that Mr Jarvis and the CFMEU were ordered to pay

penalties in Hogan v Jarvis and in Lend Lease v CFMEU, for contravening the BCII Act, in relation to action taken by Mr Jarvis and others. He also noted that the CFMEU was ordered to pay a penalty for contravening the BCII Act in FWBII v

Sutherland and FWBC v CFMEU, in relation to action taken by Mr Jarvis and

others.23

 s.513(1)(e): The Delegate’s decision states: ‘The declarations do not disclose that

any such permits issued to Mr Jarvis having ever been revoked, suspended or made subject to convictions. There is no other evidence before me that suggests otherwise’.24

 s.513(1)(f): The declarations did not disclose any material relevant to this permit

qualification matter and there was no other evidence before the Delegate suggesting

otherwise.25

 s.513(1)(g): The Delegate considered the extent of the disclosures in relation to the

Lend Lease v CFMEU matter and concluded that ‘while Mr Jarvis and the CFMEU

may not have disclosed each relevant detail ... the disclosure was adequate’26. The

Delegate also took into account the history of Mr Jarvis’ compliance with s.517.27

[18] In relation to the permit qualification in matter at paragraph 513(1)(d) the Delegate concluded that the BCII Act was an ‘industrial law’ for the purposes of that qualification

matter.28 The Delegate gave detailed consideration to the facts and circumstances in Hogan v

Jarvis, Lend Lease v CFMEU, FWBII v Sutherland and FWBC v CFMEU at paragraphs [4],

to [7], [22] and [63] to [95] of his decision.

[19] The Delegate also considered, and rejected, the Director’s submission that the CFMEU’s history of contravening industrial laws was a relevant consideration to be taken into account pursuant to s.513(1)(g), at paragraphs [96] to [100] of his decision. In view of the recent Full Bench decision in Director of the Fair Work Building Industry Inspectorate vCFMEU29 there is no challenge to that aspect of the Delegate’s decision.

[20] The Delegate’s consideration of the permit qualification matters is set out at paragraph [117] to [137] of his decision,:

“[117] My task in the present matter is to determine whether Mr Jarvis is a “fit and proper person” to hold the entry permit for which application is made taking into account the nature of the powers that are bestowed pursuant to the grant of such a permit within the statutory

[2014] FWCFB 7194

regime set out in Part 3-4 of the Act, the activities that he will potentially be engaged in when exercising such powers and the ends to be served by such activities. In order to make this determination, I must take into account the “permit qualification” matters set out in paragraphs (a) to (g) of section 513(1) of the Act. Those matters are to be taken into account and applied in a way that assists me in determining whether Mr Jarvis is a “fit and proper person to hold the entry permit”.

[118] I have carefully considered all of the available circumstances of this matter and have had
particular regard to the permit qualification matters for the purposes of s.512 of the Act.

[119] I have taken into account the conduct and resultant penalties imposed upon both Mr Jarvis and the CFMEU in Hogan v Jarvis and in Lend Lease v CFMEU and note that Lend

Lease suffered more than $1 million in losses and damages as a result of the unlawful conduct

of a number of unions including the CFMEU and Mr Jarvis.

[120] I have also taken into account the penalties imposed upon the CFMEU in FWBII v

Sutherland and in FWBC v CFMEU. I have also taken into account the conduct of Mr Jarvis

that was found to have occurred in those matters and which led to the imposition of those
penalties.

[121] I have considered the comments of Federal Magistrate Burnett in Hogan v Jarvis regarding Mr Jarvis’ failure to provide an entry notice in accordance with the Act. I have considered that failure by Mr Jarvis to be a deliberate disregard for the statutory requirements and responsibilities of a permit holder. Such responsibilities are an important component of the right of entry training for permit holders, which Mr Jarvis has undertaken before applying for his previous permits.

[122] I have also noted Federal Magistrate Burnett’s comments and the comments of Justice Collier in FWBC v CFMEU regarding concern that previous penalties imposed upon the CFMEU have not appeared to have been sufficient to deter the CFMEU from continuing to undertake similar conduct.

[123] The total quantum of penalties imposed upon Mr Jarvis under the BCII Act in the above four matters totals $13,710. The total quantum of penalties imposed upon the CFMEU in all of the four matters mentioned in paragraphs [4] - [7] above totals $735,000. Whilst I acknowledge, as noted above, that none of the abovementioned penalties imposed upon the CFMEU arose as a consequence of actions taken solely by Mr Jarvis, nevertheless it is evident that the conduct of Mr Jarvis in the four matters mentioned above has contributed to the imposition of those penalties.

[124] The FWBC has submitted that a permit holder who has engaged in unlawful industrial action should give the Commission significant cause for concern as to whether such a person is ‘fit and proper’ to enjoy the privileges and powers that are entrusted to such a position. The FWBC further submitted that the fact that Mr Jarvis has engaged in unlawful industrial action himself and engaged in conduct that was designed to negate the choice of employers, resulting in the CFMEU being found to have engaged in coercion are “serious matters’ that must be taken into account.

[125] I accept these submissions and readily concede that the facts and circumstances to which I have referred in this decision, and the substantial nature of the penalties imposed as a consequence, have raised serious concerns regarding Mr Jarvis’ demonstrable lack of regard for provisions of industrial legislation.

[126] I have also taken into account the fact that the conduct engaged in by Mr Jarvis in

Hogan v Jarvis, Lend Lease v CFMEU, FWBII v Sutherland and FWBC v CFMEU occurred in

[2014] FWCFB 7194

November 2009 (determined in 2012), May 2011 (determined in 2012), February 2011
(determined in 2013), and November 2010 (determined in 2013), respectively.

[127] Another relevant consideration includes the role Mr Jarvis performs as an Organiser of the CFMEU including the provision of advice, support and assistance to its members. This is relevant to the objects set out in s.480(a)–(b) of the Act in relation to the rights of registered organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions and the rights of employees to receive information and representation from officials of such organisations.

[128] The CFMEU have consistently put to the Commission that it is essential for Mr Jarvis to possess a current permit in his role as an organiser and that the absence of an entry permit would effectively curtail his ability to perform his duties.

[129] I have also taken into account the fact that subject to exceptions in late 2010 to early 2011 and since January of 2014, Mr Jarvis has been a permit holder under the Act and its predecessor legislation, and an organiser of the CFMEU since 29 August 2007.

Conclusion

[130] I am troubled by the circumstances of this matter. Having regard to Mr Jarvis’ training and experience as an organiser, the facts, conduct and issues in Hogan v Jarvis; Lend Lease v

CFMEU; FWBII v Sutherland and in FWBC v CFMEU lead me to the conclusion that Mr

Jarvis has made conscious and calculated decisions to engage in unlawful industrial action while disregarding lawful alternatives and in so doing has failed to give proper regard to the rights and responsibilities of a permit holder. Examples of these decisions are included in

Hogan where the Court found the unlawful industrial action engaged in had been planned,

deliberately unlawful industrial action and in Lend Lease in which Mr Jarvis was ordered to
pay a penalty for four separate contraventions.

[131] The contraventions evidence an historical pattern of disregard for the provisions of industrial legislation by engaging in and contributing to actions which have led to the findings of contraventions of the BCII Act as outlined in the four cases referred to throughout the decision. The materials demonstrate a paucity of remorse or contrition in those cases. In my view, these are serious issues.

[132] Mr Jarvis must in my view, accept that in making conscious and calculated decisions to engage in unlawful industrial action while disregarding lawful alternatives he consequentially puts at grave risk the right to enjoy the privileges and powers that are entrusted by the Parliament to permit holders.

[133] However, I have also considered the important balancing and potentially mitigating factors which include that the most recent contravention occurred more than three years ago in the context of Mr Jarvis holding an entry permit between January of 2011 and January of 2014. In addition, the CFMEU urges the Commission to draw the ‘inference that previous matters have had a scarifying effect on Mr Jarvis and that he has learnt from his previous experiences’ and that deprivation of a permit may have the effect of jeopardising his ongoing employment with the Union.

[134] Further, I accept that Mr Jarvis is employed as an organiser and is neither a senior or elected official of the CFMEU and I note that Mr Jarvis has been without an entry permit since 31 January of 2014 awaiting the outcome of this current application. Prior to the expiration of Mr Jarvis’ permit in January 2014, the CFMEU had not taken the opportunity to seek an extension under s. 516(2) of the Act although I acknowledge that since that time, the CFMEU have continued to correspond with the Commission in relation to the urgency of the matter. I

[2014] FWCFB 7194

also acknowledge that the CFMEU submission dated 28 April 2014 refers to the potential
jeopardy to Mr Jarvis’ ongoing employment in the circumstances of further delay.

[135] The FWBC made a submission in relation to what might be described as a propensity to engage in a particular manner as well as the prospects of Mr Jarvis re-offending by suggesting that the succession of contraventions may tend to point to the possibility of a recurrence of improper conduct by Mr Jarvis if granted a new permit. I have considered that submission in the context of the FWBC having included that Mr Jarvis’ most recent contravention was in 2011.

[136] If there is such a thing as a ‘fine line’ between being satisfied or not satisfied about whether an applicant is a fit and proper person to hold an entry permit in accordance with s 513 of the Act then this application must fall within that characterisation.

[137] Having carefully considered all of the available circumstances of this matter and having particular regard to the permit qualification matters for the purposes of s.512 of the Act, I have concluded on fine balance that I am satisfied that Mr Jarvis is currently a “fit and proper person” to hold an entry permit.”

[21] The Delegate then turned to deal with whether any specified conditions should be

imposed on the permit to be issued and decided to impose a specified condition. We deal
later with the condition imposed.

The Appeal

[22]      The decision to issue a permit is, as we have mentioned, a discretionary decision. In

Coal and Allied v AIRC the High Court addressed the concept of error in the context of an

appeal from a discretionary decision, in these terms:

“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate

court may exercise its own discretion in substitution for his if it has the materials for

doing so.”30

[23]      It is convenient to deal with the Director’s appeal first.

[24] The grounds of appeal are expressed in general terms. The Delegate’s submissions

identify the relevant issues in terms of three alleged errors in the decisions subject to appeal,
as follows:

(i) The Delegate erred in the House v The King31 sense by finding that Mr Jarvis was a fit and proper person for the purposes of s.512 of the FW Act, despite the acceptance of substantial evidence of repeated and deliberate contraventions of the BCII Act, the imposition of significant penalties for such conduct and the ‘paucity of remorse or contrition’.32 It is submitted that the Delegate did not disclose any evidence or

[2014] FWCFB 7194

reasoning to explain the making of ‘such a counter-intuitive and unreasonable
decision’.

(ii) Further, actual error in the exercise of discretion by the Delegate is said to be evident by the resulting decision as to the imposition of conditions, and the reasons for doing so, which plainly demonstrate that the Delegate had applied an incorrect test to the question of whether Mr Jarvis was a “fit and proper person”. The conditions were imposed because of the conclusion by the Delegate that there was a significant risk of ‘the potential repetition of such (offending) conduct’.33 A finding to that effect cannot be readily reconciled with the “fit and proper person” finding, and indicates a significant error in the exercise of his discretion under s.512.

(iii) No proper exercise of the discretion under s.512 can be taken to have occurred in circumstances in which it is decided that the only manner in which it is safe to issue a permit to Mr Jarvis is if, inter alia, he is not permitted to exercise the permit alone, and must be accompanied at all material times by another permit holder with an unconditional permit.

(iv) The Delegate was in error in taking into consideration, in a way that tipped the balance in favour of Mr Jarvis, the mere fact of the time that had passed since his last contravention.34

[25]      For reasons which will become apparent we need only deal with the second of the

alleged errors.

[26] The second alleged error is said to be manifest from the Delegate’s decision to impose a condition on Mr Jarvis’s permit.

[27] After expressing his satisfaction that Mr Jarvis was a ‘fit and proper person’ to hold an

entry permit (at [137]) the Delegate went on to consider whether any specified conditions
should be imposed on the permit to be issued,:

“[138] Each of the submissions refer to the issue of conditions. As I have earlier indicated, the FWBC urged that the Commission should exercise its discretion to refuse to issue an entry permit to Mr Jarvis and alternatively, that if the Commission determined that Mr Jarvis is a “fit and proper person” to hold an entry permit, then specified conditions should be imposed on any permit issued to him pursuant to s. 515 of the Act.

[139] The CFMEU submitted that a permit should be issued to Mr Jarvis without any conditions but that if a condition were to be applied it should not be in the form proposed by the FWBC.

[140] While I am satisfied on fine balance that Mr Jarvis is currently a fit and proper person to hold an entry permit, his conduct in each of the four cases referred to throughout the decision gives rise to a considerable and ongoing concern about the potential repetition of such conduct and I propose to impose conditions upon the permit.

[141] The authority for the Commission to impose conditions on an entry permit appears at

s.515 of the Act:

“515 Conditions on entry permit

[2014] FWCFB 7194

(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).”

[142] The Explanatory Memorandum to the Act states that the decision to impose conditions on a permit is “entirely at the discretion of [the FWC]”. Having carefully considered and taken into account the permit qualification matters and since my concern is that similar conduct may occur in the future I have decided to apply conditions in the following terms:

“If any findings are made or penalties imposed that are relevant to the permit qualification matters at s.513(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(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.”

“The permit holder must only use his entry permit:

a) in the company of another permit holder who has no condition imposed upon their
entry permit; and
b) after providing 24 hours notice to the Director of the Fair Work Building Industry
Inspectorate of his intention to enter premises where building work is being performed.”

[28] The Director submits that the Delegate’s view that he is not confident that Mr Jarvis will properly exercise the obligations and duties of a permit holder in the future should have dictated a finding that he was not a fit and proper person to be granted the permit in the first place.

[29] The exercise of discretion under s.515 is governed by the same permit qualification matters as control the decision under s.512, albeit against a background in which there exists a

prior determination that the relevant official is a fit and proper person to hold a permit.35 The

Director submits that to purport to decide that Mr Jarvis was a fit and proper person to hold a permit while the Delegate held and expressed the opinion that a reporting and accompanying condition must be imposed upon him, demonstrates a flawed understanding of the process and the relationship between ss.512 and 515. It is also submitted that if the Delegate held the views that he expressed in paragraphs [140] and [142] of his decision, then he was in error in failing to take those views into account in deciding that Mr Jarvis was a fit and proper person.

[30] The CFMEU submits that unless the conduct urged upon the Delegate to consider by the Director is of a disentitling nature, there is nothing inconsistent or contradictory in finding that a person is fit and proper to hold a permit regardless of the established fact. In those circumstances, and given the power reposed in the Commission by s.515, the imposition of conditions on an entry permit purportedly directed to the matters which have generated the concern cannot be said to be ‘internally inconsistent and contradictory’.

[2014] FWCFB 7194

[31] Contrary to the CFMEU’s submissions we have concluded that the reasons given for

the imposition of the condition are in conflict with the Delegate’s anterior decision to issue a
permit to Mr Jarvis based on a finding that he was a fit and proper person.

[32] Sections 512 and 515 have been interpreted as operating sequentially, so that considerations of whether conditions should be attached to an entry permit under s.515 do not arise unless and until a determination has been made under s.512 that the relevant person was a fit and proper person to hold an entry permit.36 An alternate construction whereby the consideration under s.512 of whether a person is fit and proper to hold an entry permit might include an assessment of fitness to hold an entry permit with conditions, as well as fitness to hold an unconditional entry permit, was considered and rejected by a recent Full Bench decision in CEPU v The Director of the Fair Work Building Industry Inspectorate37. No party in the proceedings sought to challenge the Full Bench decisions to which we have referred.

[33] In the decision subject to appeal the Delegate first concluded ‘on fine balance’ that Mr Jarvis ‘is currently a fit and proper person to hold an entry permit’ (at [137]) before turning to whether any specified conditions should be imposed on an entry permit issued to Mr Jarvis (at [138] to [142]). The adoption of such a sequential approach was consistent with authority, but it is the reasons given by the Delegate for the two sequential decisions which give rise to difficulty.

[34] The reason given by the Delegate for imposing the specified condition on the permit is apparent from paragraphs [140] and [142] of the decisions subject to appeal, that is:

“[140] [Mr Jarvis’s] conduct in each of the four cases referred to throughout the decision gives rise to a considerable and ongoing concern about the potential repetition of such conduct ...

[142] ... my concern is that similar conduct may occur in the future ...”

[35] It is clear from the above extract that the Delegate had ‘a considerable and ongoing concern’ that Mr Jarvis would engage in similar conduct (to that in the four previous cases referred to) in the future. Such a consideration is plainly relevant to the anterior question of whether Mr Jarvis is a fit and proper person to hold a permit at all. Indeed having formed such a view it became a consideration which the Delegate was bound to take into account in determining the anterior question. Yet there is no direct reference to this consideration in that part of the Delegate’s decision which deals with the issue of whether Mr Jarvis was a fit and proper person to hold a permit.

[36] The circumstances in the four cases are dealt with at paragraphs [63] to [95] of the decision subject to appeal. The Delegate’s consideration of these matters is set out at paragraphs [117] to [137] of the decision subject to appeal (set out at [20] of this decision). Relevantly, the decision subject to appeal states:

“[130] I am troubled by the circumstances of this matter. Having regard to Mr Jarvis’ training and experience as an organiser, the facts, conduct and issues in Hogan v Jarvis; Lend Lease v CFMEU; FWBII v Sutherland and in FWBC v CFMEU lead me to the conclusion that Mr Jarvis has made conscious and calculated decisions to engage in unlawful industrial action while disregarding lawful alternatives and in so doing has failed to give proper regard to the rights and responsibilities of a permit holder...

[2014] FWCFB 7194

[131] The contraventions evidence an historical pattern of disregard for the provisions of industrial legislation by engaging in and contributing to actions which have led to the findings of contraventions of the BCII Act as outlined in the four cases referred to throughout the decision. The materials demonstrate a paucity of remorse or contrition in those cases. In my view, these are serious issues...

[132] Mr Jarvis must in my view, accept that in making conscious and calculated decisions to engage in unlawful industrial action while disregarding lawful alternatives he consequentially puts at grave risk the right to enjoy the privileges and powers that are entrusted by the Parliament to permit holders. ...

[135] The FWBC made a submission in relation to what might be described as a propensity to engage in a particular manner as well as the prospects of Mr Jarvis re-offending by suggesting that the succession of contraventions may tend to point to the possibility of a recurrence of improper conduct by Mr Jarvis if granted a new permit. I have considered that submission in the context of the FWBC having included that Mr Jarvis’ most recent contravention was in 2011.”

[37] The CFMEU submits that the Delegate did take into account his concern that Mr Jarvis may engage in future improper conduct of the type in the four cases referred to in his assessment of whether Mr Jarvis is a fit and proper person to hold an entry permit. Further it is submitted that the Delegate did this expressly at paragraph [135] of his decision.

[38] At paragraph [135] the Delegate refers to the Director’s submission as to the prospects of Mr Jarvis reoffending and ‘the possibility of a recurrence of improper conduct by Mr Jarvis if granted a new permit’. But the Delegate fails to properly address the Director’s submission and makes no finding as the likelihood of Mr Jarvis engaging in improper conduct if granted a new permit. Notably no mention is made of the fact that the Delegate had ‘a considerable and ongoing concern’ that Mr Jarvis would engage in similar conduct in the future. While the failure to mention a matter does not necessarily mean that a decision maker has failed to take that matter into account we have concluded that such an inference should be drawn in this case. The mention of a relevant consideration in one context and its omission in another gives rise to the inference that when it was not mentioned it was not considered.

[39] It is apparent from the Delegate’s reasons that the decision to issue a permit to Mr Jarvis was finely balanced. At paragraph [136] of the decisions the Delegate says:

“If there is such a thing as a ‘fine line’ between being satisfied or not satisfied about whether an

applicant is a fit and proper person to hold an entry permit in accordance with s 513 of the Act

then this application must fall within that characterisation.”38

[40] Where the decision subject to appeal was finely balanced the failure to take into

account a relevant consideration may well have had a significant effect upon the outcome of
the matter. In such circumstances appellate intervention is appropriate.

[41] We have concluded that the decision subject to appeal is attended by sufficient doubt to warrant its reconsideration and on that basis we grant permission to appeal.

[42] In determining that Mr Jarvis was a fit and proper person the Delegate failed to take into account a relevant consideration, namely the Delegate’s ‘considerable and ongoing concern’ about whether Mr Jarvis would engage in similar conduct (to that in the four cases mentioned previously) in the future. On the basis of this error in the decision making process we have decided to uphold the appeal and quash the decision to issue a permit to Mr Jarvis.

[2014] FWCFB 7194

The application by the CFMEU for a permit to be issued to Mr Jarvis will be referred to
Deputy President Gostencnik for rehearing and determination

[43] It must also follow that the entry permit issued to Mr Jarvis is revoked. An order to

that effect is issued separately in PRPR556589. Mr Jarvis is required pursuant to s.517(1) to
return the entry permit to the Commission within 7 days of the date of the order.

[44] In the circumstances it is unnecessary to consider the CFMEU’s appeal in respect of the conditions imposed by the Delegate.

PRESIDENT

Appearances:

Mr. A. Herbert of counsel with Mr. B. Vallence; for the Director of Fair Work Building

Industry Inspectorate

Mr. E. White of counsel with Mr. C. Massey (Hall Payne Lawyers); for CFMEU

Hearing details:

2014.
9 and 10 October.

Melbourne

Printed by authority of the Commonwealth Government Printer
<Price code C PR556503 >

13 (1987) 16 FCR 167 at 184. See also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [103]-[112], referred to with

approval in Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23 at [267], and

Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497 at [25])

14 Peko Wallsend, op at 41 per Mason J, with whom Gibbs CL and Dawson J agreed. Also see Sean Investments Pty Ltd v

Mac Kellar (1981) 31 ALR 3 at 375.

15 Peko Wallsend, Ibid at 41 per Mason J.

16 (2012) FMCA 189

17 [2012] FCA 1144

18 10 July 2013, BRG1008/2011

19 [2013] FCA 846

20 [2014] FWCD 1004 at [38]

21 Ibid at [41]

22 Ibid at [42]

23 Ibid at [43]

24 Ibid at [44]

25 Ibid at [45]

26 Ibid at [108]

27 Ibid at [49]

28 Ibid at [51]

29 [2014] FWCFB 5947

30 Coal and Allied v AIRC (2000) 203 CLR 194 at [21]

31 (1936) 55 CLR 499.

32 [2014] FWCD 1004 at [131]

33 Ibid at [140] and [142]

34 Ibid at [133] and [137]

35 The Maritime Union of Australia [2014] FWCFB 1973 at [43] and [44].

36 See The Maritime Union of Australia [2014] FWCFB 1973

37 [2014] FWCFB 4397

38 [2014] FWCD 1004

(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal &

Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013]

FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian

Taxation Office [2014] FWCFB 1663

Federation (1917) 24 CLR 85 at 96-97; Ward v Williams (1955) 92 CLR 496 at 505. Also see s.33(2A) of the Acts Interpretation Act 1901 (Cth), which was in operation at the time the FW Act commenced, see s.40A of the FW Act.

[2012] FWAFB 7551.