Craig Kelly

[2021] FWC 6297

[2021] FWC 6297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Craig Kelly
(RE2021/1004)

DEPUTY PRESIDENT COLMAN MELBOURNE, 9 NOVEMBER 2021

Application for a right of entry permit for Mr Craig Kelly – permit issued

[1] The Australian Workers’ Union (AWU) has made an application under s 512 of the Fair Work Act 2009 (FW Act) for the issuance of a right of entry permit to Mr Craig Kelly. Mr Kelly is an organiser employed by the AWU.

[2] The Australian Building and Construction Commissioner (‘ABCC’) gave notice pursuant to s 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) that he intervened in the proceeding and wished to be heard in relation to the application. The parties filed written submissions and requested that I determine the AWU’s application on the papers. I consider that it is appropriate to do so.

[3] The AWU contends that the Commission should be satisfied that Mr Kelly is a fit and proper person to hold a right of entry permit under Part 3-4 of the FW Act and that it should issue a permit without conditions. The ABCC contends that, because Mr Kelly was recently ordered by the Federal Court to pay penalties for contraventions of the FW Act and the BCIIP Act (Australian Building and Construction Commissioner v AWU[2021] FCA 861 (‘the OneSteel case’)), the Commission should have grounds to doubt that Mr Kelly is a fit and proper person to hold a right of entry permit, and that, if the Commission determines that Mr Kelly is a fit a proper person and issues a permit to Mr Kelly, the permit should be subject to a condition that he undertake further training provided by an independent legal practitioner.

[4] Section 512 of the FW Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation, if it is satisfied that the official is a ‘fit and proper person’ to hold the entry permit. The Commission’s discretion to issue an entry permit must be exercised having regard to the ‘permit qualification matters’ set out in s 513(1) of the FW Act. That section 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.”

[5] The principles that apply to the Commission’s consideration of an application for a right of entry permit are well established and need not be restated here.

[6] The materials filed by the AWU in support of the application for the issuance of an entry permit to Mr Kelly comprised declarations by Mr Kelly and Mr Ben Davis, the Victorian branch secretary of the AWU, as well as an application document, and a witness statement made by Mr Kelly dated 7 October 2021.

[7] In respect of the permit qualification matter in s 513(1)(a), the AWU submitted that Mr Kelly had completed the union’s approved right of entry training course on 31 August 2021, that this training is appropriate training for the purposes of s 513(1)(a), and that the Commission should conclude that the consideration in s 513(1)(a) therefore weighs in favour of a conclusion that Mr Kelly is a fit and proper person to hold a permit. I agree. I note that a certificate attesting to Mr Kelly’s completion of the training was submitted to the Commission, and that in my view the training course, which has previously been endorsed by the Commission, is appropriate training about the rights and responsibilities of a permit holder.

[8] As to the permit qualification matters in ss 513(1)(b) and (c), the AWU noted that Mr Kelly and Mr Davis had both declared that Mr Kelly has not been convicted of an offence against an industrial law, nor has he been charged with any offences falling within the categories set out in s 513(1)(c). I accept the information in the declarations. These considerations weigh in favour of a conclusion that Mr Kelly is a fit and proper person.

[9] The declarations of Mr Davis and Mr Kelly also attest that Mr Kelly has not previously had a federal permit revoked, suspended or made subject to conditions, and that Mr Kelly has not had a State or Territory entry permit cancelled, suspended or made subject to conditions, nor has Mr Kelly been disqualified under a State or Territory law from exercising or applying for an entry permit. I accept the information in the declarations. These considerations, found in ss 513(1)(e) and (f), weigh in favour of a conclusion that Mr Kelly is a fit and proper person to hold a right of entry permit.

[10] The ABCC did not contest the AWU’s contentions in respect of the permit qualification matters in the above mentioned provisions. Its submissions focused on the significance of the permit qualification matter in s 513(1)(d) in light of the imposition of penalties on Mr Kelly by the Federal Court in the OneSteel case, which the AWU properly disclosed in its application.

[11] The OneSteel case concerned an application by the ABCC for civil penalties and declarations in relation to contraventions by Mr Kelly and the AWU of s 46 of the BCIIP Act and s 475(2) of the FW Act. Briefly stated, the background is as follows.

[12] On 23 October 2018, a number of employees of OneSteel Reinforcing Pty Ltd (OneSteel) attended an ACTU ‘Change the Rules’ rally. Following the rally, OneSteel managers began interviewing employees about their absences from work at the time of the rally. On 31 October 2018, Mr Kelly attended the workplace and discussed the interviews with employees. He thought that employees appeared angry and upset by the interviews. The health and safety representative told Mr Kelly that he did not think it was safe for the employees to continue working. Mr Kelly spoke with company managers, who told him that the company had a right to speak to employees about their attendance at the rally. Mr Kelly spoke to the employees and then, as noted in the Court’s decision, arranged for them to leave work for the remainder of the day. Mr Kelly left the site, but returned in the mid-afternoon and advised the company that afternoon shift employees would not continue to work unless the day shift was paid in full and the employee interviews were suspended. The company rejected the request. Mr Kelly then organised for afternoon shift employees to leave work, and for the three night-shift employees not to attend for work.

[13] Mr Kelly admitted three contraventions: first, that on 31 October 2018, he organised employees of OneSteel to take industrial action in contravention of s 46 of the BCIIP Act; secondly, that on 31 October 2018, he made a request that OneSteel pay employees in respect of a period of industrial action in contravention of s 475(2) of the FW Act; and thirdly, that on 1 November 2018, he again organised employees of OneSteel to take industrial action in contravention of s 46 of the BCIIP Act.

[14] The AWU admitted that, by the operation of ss 94(1)(a) and 95(1)(b) of the BCIIP Act and s 793(1) of the FW Act respectively, it had contravened s 46 of the BCIIP Act in respect of Mr Kelly’s two contraventions of s 46, and that it had contravened s 475(2) of the FW Act in respect of Mr Kelly’s contravention of that provision.

[15] Justice Bromberg imposed on Mr Kelly penalties of $2,700 in respect of each of his two contraventions of s 46 of the BCIIP Act, and a penalty of $1,600 for his contravention of s 475 of the FW Act. His Honour imposed on the AWU penalties of $25,000 for each of its two contraventions of s 46 of the BCIIP Act, and a penalty of $30,000 in respect of its contravention of s 475 of the FW Act.

[16] The AWU accepted that, in light of the OneSteel case, the permit qualification matter in s 513(1)(d) weighs against the granting of its application for a right of entry permit to be issued to Mr Kelly. It contended however that the Commission should have regard to particular passages in the judgment of Bromberg J which were relevant to the Commission’s consideration of the question of whether Mr Kelly is a fit and proper person to hold a right of entry permit, and in particular the consideration in s 513(1)(d). First, his Honour had made the following observations about the nature of the unprotected industrial action organised by Mr Kelly:

“[35] The respondents also contended that the seriousness of the contraventions was diminished by the fact that Kelly genuinely believed that it was lawful for the workers to attend the rally organised by the ACTU. In this respect, the respondents said that Kelly’s conduct should be regarded as voluntary but not deliberate.

[36] It is not necessary for me to determine whether attendance at a political rally constitutes “industrial action” for the purposes of the BCIIP Act. Kelly was not challenged either as to the genuineness or reasonableness of his belief that a refusal to work to attend at a political rally is not unlawful and I accept that he genuinely and, subjectively speaking, not unreasonably believed that to be so. However, his conduct in organising the industrial action was nevertheless deliberate. I do not accept that Kelly did not appreciate that the industrial action taken on 31 October and 1 November (as distinct from that taken to attend the rally) was not unlawful. Kelly’s genuine belief that the workers being interviewed by OneSteel had not acted unlawfully by attending the rally and that the workers were being unfairly treated by being interviewed does, however, inform the extent to which he believed that his conduct was justified. In that respect, I note that OneSteel management did not protest when told that the workers would attend a rally. I also accept Kelly’s evidence that he was motivated to assist the workers because, having told them that it was lawful to attend the rally, he felt guilty that he had put them in trouble. Further, I accept the AWU’s contentions that in organising the industrial action Kelly was genuinely concerned about the health and safety of the workers due to the workers being distracted, angry and upset by the interviews which OneSteel were conducting.

[37] Those considerations demonstrate that, though unlawful, Kelly’s behaviour was, at a subjective level, genuinely regarded by him as reasonably justified. True it is that options short of industrial action may have been available to Kelly to further the cause he was pursuing. To some extent, the weight to be afforded to these considerations is therefore diminished by the existence of more reasonable alternatives to address the unfairness and the unsafe working conditions Kelly had in mind. Nevertheless, these considerations deserve some weight. To my mind, they inform the seriousness of the contraventions in question because they demonstrate that the need for specific deterrence is somewhat lower than it would have been in their absence. That is so because they enable the conduct to be characterised as a specific reaction to peculiar circumstances which is unlikely to recur in the context of the lessons likely learned through this proceeding. The conduct can therefore be regarded as isolated rather than driven by systemic factors which, if not appropriately addressed by specific deterrence, would likely result in conduct of a like kind being repeated.”

[17] The AWU also emphasised his Honour’s reference to Mr Kelly’s contrition and regret for the conduct:

“[72] The need for specific deterrence is not substantial in the case of Kelly. He has no prior history of offending. His offending which is the subject of this proceeding occurred in peculiar and isolated circumstances which are less likely to be repeated given the lessons he will have now learned. His ongoing training as part of the AWU’s compliance regime should further assist him to help avoid the errors of judgement and apparent ignorance of industrial laws which seem, at least in part, to have driven the instant contraventions. His contrition and regret is genuine. His cooperation in relation to this proceeding is deserving of its full weight as a discounting factor. His capacity to pay is that of an ordinary working person.”

[18] The AWU contended that Mr Kelly’s contravening conducted occurred in the unique circumstances associated with the OneSteel case, and that Mr Kelly had clearly demonstrated remorse for his actions. In this connection, it relied on Mr Kelly’s declaration filed in support of the AWU’s application, in which he stated that he was very remorseful for his conduct and appreciated the seriousness of his actions. It also relied on Mr Kelly’s witness statement, in which Mr Kelly said that he had no intention of ever getting himself and the AWU into this type of situation again, and that he was committed to future compliance with industrial laws. The AWU noted that there had been no further concerns about Mr Kelly’s conduct over the three years that have passed since the contravening conduct occurred, nor was there any evidence that Mr Kelly has misused any entry rights in the course of his many years of service as a union official, during which he had held entry permits since 2006. It said that the Commission can be confident Mr Kelly will continue to use his entry rights appropriately and lawfully in the future.

[19] The AWU submitted that these considerations, together with the positive weight associated with the other permit qualification matters, meant that the Commission should conclude that Mr Kelly is a fit and proper person to hold a permit, and that it was unnecessary for the Commission to impose a condition.

[20] The ABCC contended that the conduct to which Mr Kelly had admitted in the OneSteel case was inconsistent with the attributes required of a permit holder, namely compliance with the law at all times, and that this calls into question whether Mr Kelly is a fit and proper person to hold an entry permit. Mr Kelly had admitted that on 31 October 2018, he organised 51 employees across the three shifts to engage in unlawful industrial action, and that on the following day he organised industrial action to be taken by 26 employees. The ABCC emphasised that Justice Bromberg had concluded that the contraventions of s 46 of the BCIIP Act were both deliberate and objectively serious contraventions, that they were calculated to exert pressure by exposing OneSteel to loss and damage, and that OneSteel had in fact suffered loss and damage. The contraventions of s 475(2) of the FW Act had also been found to be serious and deliberate, even if Mr Kelly had not necessarily meant to act unlawfully in this respect. The ABCC further contended that, although the Court found that at a subjective level Mr Kelly had genuinely regarded his actions to be reasonably justified, it had also noted that options short of industrial action may have been available and that the weight to be afforded to this consideration was therefore diminished to some extent.

[21] The ABCC contended that Mr Kelly had adopted an approach that the ‘ends justified the means’, preferring the interests of the AWU and its members to the imperative of acting lawfully. It said that this should inform how the Commission weighs Mr Kelly’s expression of remorse, as well as the likelihood of Mr Kelly committing future contraventions.

[22] The ABCC questioned whether Mr Kelly’s conduct in the OneSteel case could be regarded as out of character, in light of his evidence to the Court that he had not intended to break the law and the absence of any express statement by Mr Kelly that he accepted the Court’s conclusions. The ABCC said that it remained unclear why Mr Kelly now says that he has a better understanding of industrial laws associated with industrial action, including the prohibition on seeking payments for periods of industrial action. It submitted that Mr Kelly had previously believed that he was acting lawfully, when in fact he was not, and that unless Mr Kelly could demonstrate that he accepts that he broke the law, as well as a clear understanding of how he did so, there is a risk that he will break the law in the same way again.

[23] The ABCC submitted that, subject to the imposition of a condition, the Commission might reach a state of satisfaction that Mr Kelly is a fit and proper person to hold a right of entry permit. The condition it proposed was that Mr Kelly be required to undertake annual training on Parts 3-1, 3-3 and 3-4 of the Fair Work Act 2009 (Cth) and Chapters 5 and 6 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), that the training be provided by an independent legal practitioner experienced in industrial relations, and that evidence of the successful completion of such training be provided to the Commission. The ABCC said that similar conditions have been imposed by the Commission in other permit applications, and that such additional training would assist Mr Kelly to understand his wrongdoing and provide greater assurance that he would avoid contraventions in the future.

Consideration

[24] The permit qualification matters in s 513(1)(a), (b), (c), (e) and (f) all weigh in favour of granting the application. The only permit qualification matter that weighs against the issuance of a permit to Mr Kelly is that in s 513(1)(d). I regard Mr Kelly’s contraventions as a serious matter. However, several factors should be taken into account in assessing this consideration.

[25] First, Mr Kelly has declared to the Commission that he is very remorseful for his contravening conduct. There is a distinction between simply acknowledging that one’s conduct has contravened the law, and an expression of contrition for that conduct. The latter recognises that the conduct was wrong. As I have said elsewhere, a person who has expressed remorse for a contravention can more persuasively assert that there will be no recurrence of the relevant conduct. A person who is contrite wishes that the contravention had not occurred. Remorse is a powerful motivator that may weigh in favour of a conclusion that further contraventions are unlikely (see Arturo Menon [2021] FWC 433 at [37]; and Paul Taylor [2021] FWC 431 at [31]). Genuine contrition for conduct in respect of which a penalty has been imposed is a relevant factor in considering the significance of the permit qualification matter in s 513(1)(d).

[26] I accept that Mr Kelly’s statement of remorse is a genuine one. I note that in his witness statement, Mr Kelly said that he felt personally responsible for the circumstances in which members had come to be interviewed by the company about their attendance at the rally, and also that he had no intention of ever getting himself or the AWU into this type of situation again, by which I understand him to mean a situation in which he is subjected to penalties, for which his union then also becomes liable, as occurred in the OneSteel case. I consider that Mr Kelly is concerned for his members and his union and is aware of the implications that his conduct may have for them. I accept Mr Kelly’s statement that he is committed to future compliance with industrial laws. It is appropriate, as the ABCC acknowledged, that I give due weight to the regret and remorse he has expressed in respect of his conduct, both in these proceedings and before the Court (see [42] of the OneSteel case).

[27] Secondly, it is appropriate to take into account Mr Kelly’s otherwise unblemished record. Mr Kelly has held a federal right of entry permit for many years and had not been found to have contravened the FW Act before the conduct that was the subject of the OneSteel case. The contravening conduct occurred over 3 years ago, and there has been no further contravening conduct by Mr Kelly since that time.

[28] Thirdly and relatedly, I consider that Mr Kelly’s contravening conduct was, as the AWU contended, out of character. It occurred in unique circumstances on two days, three years ago. This conduct should be seen in the context of Mr Kelly’s lengthy service as a union official. In my view, these considerations are not diminished by the absence of a detailed account from Mr Kelly of his reflections on his contravening conduct and how he has come to understand that it was unlawful. He has admitted his contraventions. This is a recognition that he broke the law. The Court’s declarations, read together with its exposition of the background facts and the admitted contraventions, made clear to Mr Kelly why the conduct contravened the FW Act. Further, even if, as the ABCC contended, Mr Kelly’s actions reflected a philosophy of the ends justifying the relevant means, Mr Kelly has affirmed, and I accept, that he is remorseful for his actions and that he is committed to future compliance with the industrial laws. I infer from this that he has abandoned any view that the ends might justify the means.

[29] Finally, in the particular circumstances of the present matter, I do not consider it to be relevant that there is no evidence as to whether Mr Kelly personally paid the penalties imposed on him by the Court.

[30] I am satisfied that Mr Kelly is a fit and proper person to hold a right of entry permit. Because I have reached this state of satisfaction, it is not necessary to consider the suggestion of the ABCC that a condition be imposed on Mr Kelly’s permit requiring that he undertake regular training.

[31] My conclusion that Mr Kelly is a fit and proper person to hold a permit enlivens the discretion conferred on the Commission under s 512. Absent any discretionary reasons not to issue a permit, the appropriate course is to grant the application. I exercise my discretion in favour of issuing Mr Kelly with an entry permit. The application is granted, and an entry permit will be issued to Mr Kelly separately.

DEPUTY PRESIDENT

Determined on the papers

Printed by authority of the Commonwealth Government Printer

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