Construction, Forestry, Mining and Energy Union-Western Australian Branch

[2018] FWC 1621

[2018] FWC 1621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.516 - Application to extend entry permit

Construction, Forestry, Mining and Energy Union-Western Australian Branch
(RE2018/141)

DEPUTY PRESIDENT BINET PERTH, 19 MARCH 2018

Application for extension of right of entry permit for Walter Vincio Molina - Application to extend permit RE2015/265 - extension order under s.516.

[1] On 14 February 2018, the Construction, Forestry, Mining and Energy Union (CFMEU) filed an application (Extension Application) with the Fair Work Commission (FWC) seeking to extend the period of operation of the current right of entry permit of Mr Walter Molina (Mr Molina) pursuant to section 512 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Extension Application and an application pursuant to section 512 of the FW Act (RE2018/116) for a new entry permit for Mr Molina (Permit Application) were allocated to my Chambers on 9 March 2018.

[3] Section 516 provides:

“516 Expiry of entry permit

(1) Unless it is revoked, an entry permit expires at the earlier of the following times:

(a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2);

(b) when the permit holder ceases to be an official of the organisation that applied for the permit.

(2) The FWC may extend the period of 3 years referred to in paragraph (1)(a) by a specified period if:

(a) the organisation that applied for the permit (the old permit) has applied for another entry permit for the permit holder; and

(b) the application was made at least 1 month before the old permit would otherwise have expired under that paragraph; and

(c) the FWC is satisfied that the old permit is likely to expire before the FWC determines the application.

(3) The period specified must not be longer than the period that the FWC considers necessary for it to determine the application.

(4) The FWC must not extend the period under subsection (2) if:

(a) the FWC has requested or required the organisation or permit holder to provide copies of records or documents, or to provide any other information, in relation to the application; and

(b) the organisation or permit holder has not complied with the request or requirement; and

(c) the FWC is satisfied that the organisation or permit holder does not have a reasonable excuse.”

[4] The right of entry permit currently held by Mr Molina (Old Permit) was issued on 20 March 2015 (RE2015/265) and is due to expire on 20 March 2018 1.

[5] The CFMEU lodged thePermit Application on 7 February 2018. I am satisfied that the CFMEU lodged the Permit Application at least one month before the Old Permit was due to expire.

[6] The Permit Application was accompanied by statutory declarations made by Mr Molina and Mr Michael Buchan, Secretary of the WA Divisional Branch of the CFMEU (Mr Buchan). The declarations disclosed matters which, pursuant to section 513(1) of the FW Act, require consideration in determining whether Mr Molina is a fit and proper person to hold an entry permit.

[7] The Permit Application has been listed for hearing and determination in Perth at 10am Thursday, 12 April 2018.

[8] I am therefore satisfied that the Old Permit will expire before the FWC determines the Permit Application.

[9] The CFMEU has not failed to comply with any request or requirement to provide information in relation to the Permit Application.

[10] I am therefore satisfied that the requirements of subsections 516(2) and (4) of the FW Act have been satisfied.

[11] On 28 February 2018, the Australian Building and Construction Commissioner (ABCC Commissioner) gave notice that he intended to intervene in the Extension Application pursuant to section 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).

[12] Both the ABCC Commissioner and the CFMEU filed written submissions in relation to the Extension Application. Both the ABCC Commissioner and the CFMEU declined an invitation to make oral submissions. This matter has been determined based on the written submissions filed by the CFMEU and the ABCC Commissioner.

[13] The ABCC Commissioner submitted that not withstanding that the requirements in sub-sections 516(2) and (4) of the FW Act had been satisfied, that the power to grant an extension to an entry permit is discretionary and that the FWC ought not exercise that discretion in favour of granting the Extension Application because:

“… the FWC cannot reach a positive satisfaction, on a preliminary assessment that Mr Molina is a fit and proper person …”

[14] CFMEU submit that the ABCC Commissioner’s assertion that the Extension Application should be refused by the FWC on this basis is incorrect because:

•  it requires the FWC to read into sub-section 516(2) of the FW Act a requirement to consider the fit and proper person test in the exercise of its discretion to grant an extension of an entry permit;

•  the scheme in section 516 of the FW Act makes clear that the Extension Application and Permit Application are distinct considerations; and

•  there is no support from prior decisions of the FWC that the fit and proper person test is a relevant consideration for the granting of an extension of an entry permit.

[15] Section 516(2) of the FW Act provides a mechanism to ensure that the capacity of a permit holder to enter premises lawfully is not disrupted by administrative delays of the FWC between the expiration of a previous permit and the granting of a new permit.

[16] An extension can not be granted pursuant to sub-section 516(2) of the FW Act in the absence of an application for a new permit and can not be granted for a period any longer than necessary for the FWC to determine the application for a new permit.

[17] It would be contrary to the clear purpose of sub-section 516(2) of the FW Act, and therefore an improper exercise of the discretion, to grant an extension in circumstances when it is obvious that a new permit would not be granted.

[18] However it is clear from the scheme of the FW Act that an application for an extension of an existing permit and the application for a new permit are two distinct and separate processes. It is not therefore necessary in the exercise of the discretion to grant an extension to determine that a new permit would be granted.

[19] The ABCC Commissioner asserts that Mr Molina is not a fit and proper person to hold an entry permit and therefore that Permit Application must fail when it is heard and determined.

[20] Section 513(1) of the FW Act sets out the matters that are to be taken into account in determining whether a proposed permit holder is a fit and proper person to hold a right of entry permit (Permit Qualification Matters) 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.”

[21] The ABCC Commissioner concedes that there is no evidence in relation to the Permit Qualification Matters contained in sub sections 516(1)(a),(b) or (c) of the FW Act which might form a basis for the FWC to refuse the Permit Application when it is heard and determined.

[22] The ABCC Commissioner has identified penalties totalling $16,600 imposed on Mr Molina in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 (Broad Airport Case), Brookfield Multiplex Engineering and Infrastructure Pty Ltd v McDonald [2014] FCA 389 (Mundaring Water Treatment Case) and Radisich v Molina & Ors (No.3) [2012] FMCA 419 (Perth Airport Case) for contraventions of the FW Act and other industrial laws which are relevant to the Permit Qualification Matters contained in section 513(1)(d) of the FW Act. The contraventions which led to these penalties occurred in 2008 and 2013. The penalties imposed in the Mundaring Water Treatment Case and the Broad Airport Case were taken into account by Deputy President Lawrence, when he determined Mr Molina’s existing permit, but did not lead the Deputy President to refuse to grant the permit. 2

[23] The penalty imposed in the Broad Airport Case is the largest of three penalties imposed on Mr Molina and no doubt is a matter which would be given some considerable weight in the determination of the Permit Application.

[24] The ABCC Commissioner has also identified a suspension and the imposition of conditions on an earlier permit held by Mr Molina relevant to the Permit Qualification Matters contained in sub-sections 513(1)(e) and (f) of the FW Act.

[25] The suspension and conditions were placed on Mr Molina’s permit on 18 November 2008 in Jeff Radisich v Michael Buchan, Doug Heath, Walter Molina and Construction, Forestry Mining and Energy Union[2008] AIRC 896 (Permit Suspension Case). The suspension and conditions imposed in the Permit Suspension Case were considered by Deputy President Lawrence when he determined the application for Mr Molina’s existing permit but they did not lead the Deputy President to refuse to grant the permit. 3

[26] With respect to sub-section 513(1)(g) of the FW Act the ABCC Commissioner reports that Mr Molina is currently a respondent in civil penalty proceedings before the Federal Court in Australian Building and Construction Commissioner v Walter Molina & Anor WAD 393/2017 (Perth Stadium Case).

[27] However the ABCC Commissioner notes that the Perth Stadium Case proceedings have not concluded and states that he does not ask the FWC to draw any adverse inference from the fact that Mr Molina is a respondent in an unresolved proceeding. At the highest the FWC might take allegations of further misconduct into account when considering the credibility of any assertions by Mr Molina that he regrets past contraventions and is unlikely to engage in future contraventions of industrial or related laws. 4

[28] The ABCC Commissioner also submits that Mr Molina is susceptible to direction by his employer, the CFMEU, to engage in further unlawful conduct and that this is an additional relevant consideration for the purposes of sub section 513(1)(g) of the FW Act.

[29] Past contraventions of industrial and other relevant laws by an organisation can be relevant to the consideration of a proposed permit holder’s fitness to hold an entry permit. This may be the case even where such contraventions do not involve conduct on the part of that proposed permit holder, if it is demonstrated that there is a susceptibility on the part of the proposed permit holder to comply with a direction from his or her employing organisation to contravene industrial and other relevant laws.⁵

[30] It is a matter of public record that the CFMEU has a long and extensive history of contravention of industrial and other relevant laws. The ABCC Commissioner says that a susceptibility on the part of Mr Molina to comply with directions on the part of his employer to contravene industrial law is evidenced by the fact that Mr Molina was in the company of the CFMEU WA former Assistant State Secretary, Mr Joseph McDonald and/or the CFMEU WA State Secretary, Mr Buchan during the events that were the subject of the Broad Airport Case, Mundaring Water Treatment Case and Perth Airport Case.

[31] It is unsurprising that Mr Molina was accompanied by his colleagues when he was performing his duties as a union organiser. The mere fact that Mr Molina was accompanied by other CFMEU officials of itself does not establish that Mr Molina is susceptible to direction by the CFMEU to engage in unlawful conduct in the future. Evidence of such susceptibility would need to be identified. See for example Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch [2017] FWC 5824 at [28].

[32] Based on the submissions of the ABCC Commissioner there is a possibility that the Permit Application may be refused however I am not satisfied that the Permit Application will be refused. For example, the CFMEU may make submissions which provide a context to the inappropriate conduct identified by the ABCC and/or submit evidence which demonstrates that Mr Molina genuinely regrets his past conduct and does not have a propensity to engage in future contraventions of industrial or related laws. Depending on the nature of the submissions and evidence of the CFMEU in the Permit Application it is possible that when all the Permit Qualification Matters are taken into account, that the CFMEU will be able to establish that Mr Molina is a fit and proper person to hold an entry permit.

[33] In these circumstances, in the exercise of my discretion pursuant to section 516 of the FW Act, I extend Mr Molina’s Old Permit by three months or such earlier time as the Permit Application is heard and determined.

[34] An order to this effect will be issued.

DEPUTY PRESIDENT

<PR601298>

 1   Construction, Forestry Mining and Energy Union – Construction and General Division, WA Divisional Branch [2015] FWC 1786 [2015] FWC 1786.

 2   Ibid.

 3   Ibid.

 4   Construction, Forestry, Mining and Energy Union – Construction and General Division SA Divisional Branch [2017] FWC 1227 at [65].

5 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[2014] FWCFB 5947 at [26] – [27]; Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141 at [37].

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