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
•13 JULY 2015
| [2015] FWCFB 3358 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2015/2437)
PRESIDENT JUSTICE ROSS | MELBOURNE, 13 JULY 2015 |
Appeal against decision [[2015] FWC 1522] of Vice President Hatcher in matter number C2015/1278 - right of entry permit – permission to appeal refused.
Introduction
[1] This decision deals with an appeal by the Director of the Fair Work Building Industry Inspectorate (Director) against a decision 1 of Vice President Hatcher on 19 March 2015 and an Order2 on the same day issuing a right of entry permit (with conditions) to Mr Peter Mooney. The Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) had made an application to the Fair Work Commission (Commission) for the issuing of such a permit on 21 July 2014.
[2] At the commencement of the proceedings we granted the Director permission to be represented by Mr N Harrington of counsel having regard to the provisions of s.596(2)(a) of the Fair Work Act 2009 (FW Act). We were satisfied it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter as the appeal raised issues of statutory construction. Further, there was no submission from the CEPU opposing such representation.
Statutory provisions
[3] Sections 512, 513 and 515 are the provisions of the FW Act are relevant to this appeal. They are as follows:
SECT 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.
SECT 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:
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.
SECT 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).
Nature of the appeal
[4] Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker. 3 An appeal may only be made with the permission of the Commission; there is no right to appeal.
[5] If we are satisfied that it is in the public interest to do so, we must grant permission to appeal. In GlaxoSmithKline Australia Pty Ltd v Colin Makin 4 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues 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...”
Background to Mr Mooney’s application for a permit
[6] In his decision the Vice President usefully set out the factual background that predated the application before the Vice President (footnotes omitted):
“[4] Mr Mooney has been an official of the Victorian Divisional Branch of the Electrical, Energy and Services Division of the CEPU for about 16 years, and continuously held entry permits under the Act and predecessor legislation until 2013. … On 25 July 2013, the CEPU applied for Mr Mooney to be issued with a further entry permit given that his existing entry permit had expired. The Director [of FWBII] opposed the issue of a further permit.
[5] In a decision issued on 1 April 2014 (First Decision), Mr Enright, acting as a delegate of the Commission (Delegate), refused the application on the basis that he was not satisfied that Mr Mooney was a “fit and proper person” as required by s.512 …
[14] The CEPU applied for permission to appeal, and appealed, the First Decision. Its primary ground of appeal was that the Delegate failed to properly exercise his jurisdiction by taking into account as permit qualification matters under s.513(1) matters that were not relevant to the exercise of entry permit rights… In its decision (Appeal Decision) the Full Bench rejected this submission, concluding (consistent with the earlier Full Bench decision in The Maritime Union of Australia) that s.513(1) was not to be read down so that only those permit qualification matters which were relevant to the exercise of entry permit rights were to be taken into account.
[15] On this basis the Full Bench determined that the Delegate was correct to take the decisions in Martino, Stuart, Cozadinos, and Hardwick into account as permit qualification matters.
[16] The CEPU also submitted in its appeal that the Delegate had erred by failing to take into account the dates of the conduct which caused penalties under industrial laws to be imposed on Mr Mooney and the time which had passed since the last instance of offending conduct by Mr Mooney in March 2009. This submission was dealt with by the Full Bench as follows:
[28] The CEPU’s submission that the Delegate erred by not taking into account the period of time that had passed since the occurrence of the last conduct for which Mr Mooney was penalised has some force. As at the date of the Decision, that period was in excess of five years. If an official has for a significant period of time not engaged in any conduct required to be taken into account under s.513(1)(b)-(f), that will usually be an important if not critical consideration in an assessment of the official’s fitness to hold an entry permit, since it provides a sound basis upon which to have confidence that the official understands the need to comply with industrial and other relevant laws and will therefore diminish the weight to be given to any earlier permit qualification matters. Beyond identifying the dates of the occurrence of the conduct involved in each permit qualification matter, the Delegate did not disclose in the Decision that he gave any consideration or weight to the fact that there had been no offending conduct on the part of Mr Mooney for over five years. This would appear to involve House v The King error.
[29] However, as the FWBC’s submissions pointed out, this issue was simply not raised in the CEPU’s submissions to the Delegate. Those submissions were entirely concerned with the proposition that there were no matters required to be taken into account under s.513(1) based upon what the CEPU contended was the proper construction of that provision, and the subsidiary proposition that Mr Mooney had never been the subject of any adverse finding in respect of his compliance with right of entry laws. The CEPU made no submission concerning the conduct of Mr Mooney in Martino, Stuart, Cozadinos,or Hardwick, including the time which had passed since the occurrence of that conduct.
[30] A party will not usually be permitted to raise merit arguments on appeal which were not advanced at first instance. No submission was advanced by the CEPU as to why this principle should be departed from here. We therefore decline to interfere with the Decision on the basis of the CEPU’s submission that the Delegate failed to take into account the five years which had passed since Mr Mooney last engaged in conduct giving rise to a permit qualification matter.
[17] The Full Bench also rejected a final submission made by the CEPU that the Delegate erred in failing to consider whether conditions could be imposed under s.515 in order to address any issues concerning Mr Mooney’s fitness to hold an entry permit…
[18] The CEPU was granted permission to appeal, but the appeal was dismissed. In reaching this conclusion, the Full Bench made the following observation:
[36] We emphasise that this conclusion does not mean that Mr Mooney is permanently or indefinitely prevented from obtaining an entry permit. Indeed it does not appear that there is any impediment to the CEPU making a further application under s.512 for Mr Mooney to be issued with an entry permit forthwith. If such an application is made, the CEPU will have the opportunity to make appropriate submissions concerning the permit qualification matters applying in Mr Mooney’s case - particularly the matters of Martino, Stuart, Cozadinos and Hardwick - and Mr Mooney will have the opportunity if he wishes to give evidence in support of the application. With the assistance of any such submissions and evidence, the Commission will be able to give appropriate consideration to the permit qualification matters and other relevant matters, including whether the passage of time since Mr Mooney last engaged in conduct for which he was required to pay a penalty under industrial laws demonstrates that he has acquired an understanding of the need to comply with such laws and is fit and proper to hold an entry permit.”
[7] The decision of the Full Bench in CEPU v Director of the Fair Work Building Industry Inspectorate 5 (referred to by the Vice President as the “Appeal Decision”) was delivered on 7 July 2014.
[8] On 21 July 2014 the CEPU made a new and further application for Mr Mooney to have a right of entry permit. It was this application that was dealt with by the Vice President.
[9] In support of the application Mr Mooney gave evidence by way of a witness statement. The Vice President set out the relevant evidence:
- he was a branch organiser with the CEPU, and had been in that role for 16 years;
- during that period, his duties had routinely involved entering workplaces using his entry permit (when he had one), entering workplaces with the consent of the employer, participating in industrial disputes and dispute resolution procedures, negotiating enterprise agreements and organising protected industrial action;
- he had a general understanding of applicable workplace laws;
- he was also generally aware of right of entry laws, assisted by the ACTU training courses he had completed;
- his most recent such training course was completed on 19 September 2014;
- in the last five years he had not been involved in conduct that had caused a penalty under an industrial law to be imposed on him and had not been convicted of an offence under an industrial law, and he had never in his 16 years as a branch organiser been found to have improperly used his right of entry permit;
- he understood the need to comply with workplace law, including right of entry laws;
- he did not agree that many industrial laws were fair or warranted, but notwithstanding this understood the general need to comply with them;
- his non-disclosure of past contraventions in earlier applications in 2010 and 2013 was due to unintentional inadvertence in signing a document without reading it carefully enough;
- he had learnt from this mistake, and now took greater care to read documents that he signed and seek legal advice; and
- he believed he was a fit and proper person to hold an entry permit. 6
[10] The Vice President then set out in some detail the nature of the evidence Mr Mooney gave under cross-examination and in answer to questions from the Vice President. 7
Abuse of process
[11] Before dealing with each of the permit qualification matters in s.513 of the FW Act, the Vice President was required to deal with a submission made by the Director that the application for a right of entry permit:
“should be dismissed without an adjudication on the merits on the basis that it constituted an abuse of process, in that it sought to re-litigate the same issues which had been litigated in the CEPU’s application and had been rejected in the First Decision and the Appeal Decision.” 8
[12] The Vice President disposed of the abuse of process issues on the following basis (footnotes omitted):
“[28] There is significant doubt as to whether the principles of abuse of process applied by courts to inter-party litigation have relevance to the current proceeding. The consideration of whether an entry permit should be issued to a person is an administrative process which does not necessarily (and has not traditionally) required any formal hearing process. The Director is not a “party” to the present matter against whom any substantive order under the Act may be made; rather he is a voluntary participant who has chosen to exercise his right under s.72 of the Fair Work (Building Industry) Act 2012 to make submissions about a matter under the Act which involves a “building industry participant” (being Mr Mooney as an official of a union covering building industry employees).
[29] In Rogers v The Queen Mason CJ identified two aspects of abuse of process as relevant to a situation where a party seeks to litigate a second time a case which has already been disposed of by earlier proceedings:
“...first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.”
[30] Certainly, the first aspect has no application here. The Director cannot be said to be subject to any “vexation, oppression and unfairness” because, as already stated, he has appeared in the matter voluntarily and cannot be said to be a “party” in the sense that he can be subject to any order made in the proceedings that is binding upon him or has any direct effect upon him.
[31] More fundamentally, the Director’s characterisation of the CEPU’s application as an attempt to re-litigate a case that has already been rejected is misconceived, and accordingly no issue of the administration of justice being brought into disrepute arises. There is nothing in the Act which prevents a further application for the issue of an entry permit to a particular person being made (either at all or in any particular time period) in circumstances where an earlier application in respect of that person has been rejected. In its current application, the CEPU submits that the passage of time since Mr Mooney last contravened an industrial law and his recognition of the need to comply with applicable industrial laws justify the grant of an entry permit to him on this occasion. As earlier noted, there was no case of that nature advanced at first instance in relation to the previous application for Mr Mooney to be issued an entry permit. In those circumstances, the Director’s abuse of process submission has no substance and is rejected.”
[13] The Vice President then summarised the relevant principles when considering whether a person is a fit and proper person to hold an entry permit:
- 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. 9
[14] The approach identified by the Vice President was not challenged on appeal, however we observe that the summary should now be modified to take into account the decision of the Full Court of the Federal Court in Maritime Union of Australia v Fair Work Commission 10and specifically the need to consider the permit qualification matters in light of the power to impose a condition or conditions on an entry permit when it is issued.
[15] The Vice President then considered each of the permit qualification matters in s.513 of the FW Act as set out below. None of these findings were challenged on appeal.
Training about rights and responsibilities - s.513(1)(a)
[16] The Vice President found that he was:
…satisfied that Mr Mooney has received appropriate training about the rights and responsibilities of a permit holder. [He accepted] Mr Mooney’s evidence that he had completed the ACTU training course concerning right of entry under the Act on 19 September 2014 (as well as on previous occasions). The ACTU training course is one approved by the Commission for the purpose of s.513(1)(a). 11
Convictions against industrial law - s.513(1)(b)
[17] The Vice President found that, “…Mr Mooney has never been convicted of an offence against an industrial law.” 12
Convictions involving fraud, dishonesty or intentional use of violence - s.513(1)(c)
[18] The Vice President found that,
“…Mr Mooney has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty, intentional use of violence against another person or intentional destruction of property.” 13
Orders to pay a penalty under an industrial law in relation to action taken by the official - s.513(1)(d)
[19] The Vice President found that:
“… Mr Mooney has been ordered to pay a pecuniary penalty under an industrial law in relation to action taken by him on four occasions, in the matters of Martino, Stuart, Cozadinos, and Hardwick. I have earlier summarised the quantum of those penalties, the industrial laws which were found to have been contravened, the dates of the contravening conduct, and the nature of that conduct so far as it can be identified from the decisions in those matters. I agree with the conclusions reached by the Delegate in the First Decision concerning these matters which have been quoted at paragraph [10] above, in particular that during the period in which the contraventions occurred (from November 2004 to March 2009) Mr Mooney showed a “demonstrable lack of regard for the provisions of industrial legislation” in a way which raises serious questions about whether there can be a proper basis for confidence that he would properly and lawfully exercise the rights attaching to an entry permit with the attendant conditions, limitations and responsibilities.” 14
Permits revoked, suspended or made subject to conditions under Commonwealth law - s.513(1)(e)
[20] The Vice President found that “…Mr Mooney has never had a permit issued to him under the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions.” 15
Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law - s.513(1)(f)
[21] The Vice President found 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 Mooney had under that law or disqualified Mr Mooney from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.” 16
Other relevant matters - s.513(1)(g)
[22] The Vice President said he “considered a number of matters to be relevant” as follows:
“[37] …The first is that Mr Mooney has not engaged in any conduct that has been found to be in contravention of an industrial law for the last six years, which I regard to be a significant period. It is a longer period than the period during which the contraventions dealt with in Martino, Stuart, Cozadinos, and Hardwick occurred.
[38] Secondly, Mr Mooney has given evidence that he understands the need to comply with industrial laws, even those he disagrees with, and has a general understanding of those laws. His evidence in this respect contained in his witness statement of 6 November 2014 was fortified by the evidence he gave in the course of the Director’s cross-examination of him, the salient aspects of which I have earlier set out. In his evidence Mr Mooney demonstrated that he understood that non-protected industrial action was unlawful and could not be undertaken and that there were lawful means, including engaging in dispute resolution procedures, to achieve appropriate outcomes for the CEPU’s members. He firmly rejected propositions put to him by the Director to the effect that being a strong union organiser required non-compliance with the law from time to time and that the end of achieving a successful outcome for the CEPU’s members justified the means of engaging in unlawful industrial action. Mr Mooney also gave further confirmation that while he disagreed with some aspects of current industrial laws, including limitations on the right to take industrial action, this did not affect his intent to comply with those laws.
[39] The Director properly raised with Mr Mooney his quoted remarks in the LaTrobe Valley Express article of 17 July 2014. It may be accepted that those remarks, on their face, evince a lack of recognition on the part of Mr Mooney that he had failed to have a new entry permit issued because, primarily, of the unlawful conduct for which he had been penalised in the cases of Martino, Stuart, Cozadinos, and Hardwick and therefore a lack of understanding about the significance of that conduct. However, as Mr Mooney explained in the course of his oral evidence …, those remarks were “off the cuff” and were made in the context of his disappointment after the unsuccessful CEPU appeal in 2014 in circumstances where he felt (and the evidence demonstrated) that he “had been doing all the right things for some time”. Mr Mooney also said that “if I had my time again I probably wouldn’t have made any comments”, which I take to be an indication of regret about those remarks.
[40] Mr Mooney’s response to my question concerning whether he would obey a direction from a superior CEPU official to engage in unlawful industrial conduct was somewhat too equivocal, although on one view the question itself was unfairly hypothetical in nature. However, it is at least the case that Mr Mooney did not say that he would obey such a direction, and he said would try to talk the superior official out engaging in conduct of that nature.”
[23] Consequently, the Vice President said he accepted “Mr Mooney’s evidence that he (now) understands the need to comply with applicable industrial laws, including right of entry laws.” 17
[24] The Vice President then identified two other matters that he considered relevant as follows:
“[42] Thirdly, I take into account that Mr Mooney failed to disclose the penalties imposed upon him in Martino, Stuart, Cozadinos, and Hardwick in applications in 2010 and 2013 for entry permits (noting that the former application resulted in Mr Mooney being issued with an entry permit). That is a serious matter. I accept Mr Mooney’s evidence that this was not an intentional deception, but a result of inadvertence on his part in not properly reading a document he was asked to sign. Nonetheless that involved the making on two occasions of an incorrect declaration to this Commission, and must be regarded as a lack of diligence on his part of a very serious degree. However I also take into account Mr Mooney’s evidence, to which I have earlier referred, that he had learnt from this mistake and now took greater care to read documents that he signed and seek legal advice about them.
[43] The fourth matter I consider to be relevant is the fact that Mr Mooney was refused an entry permit as a result of the decision of the Delegate in 2014, affirmed on appeal, that he was not a fit and proper person to hold such a permit. However, that refusal was largely on the basis of the contravening conduct penalised in Martino, Stuart, Cozadinos, and Hardwick and Mr Mooney’s non-disclosure of those matters in two entry permit applications - matters which I have already taken into account. Therefore this matter is one which, in substance, largely overlaps with other matters already discussed.”
[25] Finally, the Vice President determined that two matters were not relevant to the decision before him:
“[44] ….The first is the decision in ACCC v IPM. For the reasons stated in paragraph [26] of the Appeal Decision, which I have earlier quoted, that is not a matter relevant to whether Mr Mooney is a fit and proper person to hold an entry permit. The second, which was raised by the Director, was that Mr Mooney did not disclose in the declaration accompanying the current application that he had been refused an entry permit by the Delegate last year on the basis that he was not a fit and proper person. I do not consider that there was any need to disclose to the Commission one of the Commission’s own decisions, affirmed on appeal, that was issued so recently. It does not bear in any way upon Mr Mooney’s fitness to hold an entry permit.”
Taking the matters into account
[26] Having considered each of the s.513 matters and made findings in respect of them, the Vice President then turned to taking them into account in the context of deciding whether Mr Mooney is a “fit and proper person” to hold the entry permit for which application had been made.
[27] The Vice President said:
“[45] 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 Mooney is, for the purpose of s.512, a fit and proper person to hold an entry permit. The penalties imposed on Mr Mooney in Martino, Stuart, Cozadinos, and Hardwick are matters which must be given significant weight because of the questions they raise as to whether there is a basis for confidence that Mr Mooney would make proper and lawful use of an entry permit if issued with one. However, I place greater weight on the facts that Mr Mooney has never in 16 years as a union official (during most of which he has held an entry permit) been found to have contravened right of entry laws, that he has not engaged in any conduct in the last six years found to be in contravention of any industrial law, and has given evidence which I have accepted that he understands the need to comply with industrial laws and has a general knowledge of the applicable requirements of those laws. Mr Mooney’s failures to disclose his past contraventions in the 2010 and 2013 applications are a significant matter, but in terms of his suitability to hold an entry permit from this point in time forward are, in my view, largely neutralised by the fact that he has made a proper disclosure in this application and has given evidence, which I have accepted, that he has learned to take greater care and obtain legal advice in relation to documents that he is required to sign. The fact that Mr Mooney has recently received Commission-approved training about the rights and responsibilities of an entry permit holder is also a further matter which weighs in his favour. The other matters I have referred to I regard as being neutral in my assessment of the CEPU’s application.”
Conclusion on ‘fit and proper person’
[28] The Vice President concluded in respect of whether Mr Mooney is a “fit and proper person” to hold an entry permit as follows:
“[46] I consider therefore that there is a sound basis for confidence that, if issued with an entry permit, Mr Mooney will properly and lawfully exercise the rights attaching to such a permit. I am satisfied that Mr Mooney is a fit and proper person to hold an entry permit. I am further satisfied that I should exercise the discretion conferred by s.512 in favour of issuing Mr Mooney with an entry permit.”
Conditions to be imposed
[29] In the alternative to opposing Mr Mooney being granted a permit the Director submitted that three conditions should be imposed on Mr Mooney’s permit, under s.515(1) of the FW Act, as follows:
(1) The permit holder must undertake training approved by the Fair Work Commission on an annual basis in relation to Parts 3-1, 3-3 and 3-4 of the Fair Work Act 2009 (Cth) for the duration of the permit. Evidence of attendance at such training shall be provided to the Fair Work Commission within 2 weeks of the training being undertaken by the permit holder.
(2) 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.
(3) 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. 18
[30] The Vice President decided the matter of whether to impose conditions on Mr Mooney as follows:
“[47] ….I consider that there should be conditions imposed on the entry permit to be issued to Mr Mooney under s.515(1) of the Act. The Director proposed three conditions which I have earlier set out. I relation to the first proposed condition, I consider it to be appropriate only insofar as it would require annual training in relation to the right of entry provisions in Part 3-4 of the Act. I consider the second proposed condition concerning notification to be appropriate. I am not satisfied that the third proposed condition, which would require that Mr Mooney only exercise rights of entry in company with another official with a unconditional entry permit and upon prior notice being given to the Director, is appropriate or necessary. The practicability of such a condition was not raised with Mr Mooney when he gave evidence, and it is therefore unclear whether Mr Mooney would be able effectively to exercise rights of entry under the Act if such a condition was imposed.”
Ground of appeal
[31] The Director relied upon one ground of appeal against the Vice President’s decision. The Director submitted that, “the Vice President erred in finding that the CEPU’s application made under section 512 of the Fair Work Act 2009 (Cth) did not constitute an abuse of the process of the Commission or is otherwise such that it should not be adjudicated on its merits and be dismissed.”
Public interest
[32] The Director submitted that the appeal enlivened the public interest (consistent with decision in GlaxoSmithKline) because it raised:
“….important questions of law and procedure in respect of the following matters,
(a) the manner in which the conventional abuse of process principles operate in this particular statutory jurisdictional setting;
(b) extent to which an organisation making application for an entry permit might make a second application in short time and upon matters that were available to be agitated in the first application;
(c) the question of when, and in what circumstances in this statutory administrative decision-making setting, an Anshun estoppel might arise upon the making of a second application for an entry permit.” 19
[33] The reference to an Anshun estoppel is a reference to a decision of the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd 20. In summary the principle is that an Anshun estoppel arises where an issue is raised in a proceeding for the first time in circumstances where the issue properly belonged to the subject of the earlier proceedings but, by negligence, omission or accident, was not raised in the earlier proceedings.
[34] The Director submitted that:
“A jurisdictional error was exposed in the decision of the Vice President because he failed to find an abuse of process in the making of the … Application by the organisation for an entry permit for … Mr Mooney. The Vice President ought to have turned his mind to, and determined … that:
(a) in the circumstances of the...facts/arguments there raised, an Anshun estoppel existed to prevent the [CEPU] from agitating application upon matters previously available to it; and
(b) it followed, the … Application was an abuse of process. 21
[35] The jurisdictional error was more narrowly confined by the submission that the Vice President “failed and/or refused to consider the Anshun estoppel submissions as an element of the abuse of process submission.” 22 The Director relied upon Edwards v Guidice23 in asserting that “a failure to adjudicate and provide reasons on a material legal submission is jurisdictional error”24 and other authorities, all of which we have had regard to.
Submissions of the Respondent
[36] The CEPU submitted that permission to appeal ought not be granted. 25 It submitted that the Application before the Vice President did not rely upon “precisely the same material”26 as that before the Delegate and that the Application before the Vice President “involved new facts that weren’t in existence in the …” Application before the Delegate. In particular the CEPU pointed to the fact that since the Application before the Delegate:
(a) … Mr Mooney had engaged in and completed new right of entry training, for which he obtained a certificate;
(b) … a further full year and more had passed in which Mr Mooney had continued to perform the duties of organiser, deal with industrial laws, participate in bargaining, enter work places, interact with Employers and service employees, all whilst not breaching any workplace laws or the like;
(c) …the time since Mr Mooney’s last contravention of industrial laws had increased by a further year and more. 27
[37] In those circumstances the CEPU submitted that “there is clearly no abuse of process … nor Anshun estoppel.” 28
Consideration of the appeal
[38] We consider the Director’s basis of appeal concerning the Vice President failing to give real and genuine consideration to the Anshun estoppel issue is without merit.
[39] The decision in Edwards v Guidice, upon which the Director relies, is of no assistance in relation to the submission that the Vice President failed to adjudicate the Anshun estoppel submission. Edwards v Guidice concerns a requirement that when a statute directs the tribunal to take account of certain matters the decision maker is obliged to make relevant findings in respect of those matters. That is not the case here. To the extent that the Vice President was required to make findings about each of the matters under s.513 of the FW Act he did so.
[40] The Director further relied upon Linfox Australia Pty Ltd v Fair Work Commission 29 (and the authorities referred to therein) in support of its failure to adjudicate point. It is worth restating the guiding principles to be derived from the decision of the Full Court of the Federal Court of Australia in that matter:
(a) it is not necessary for those making a decision to refer to “every piece of evidence and every contention” made by a party;
(b) although reasons for decision are not to be scrutinised with an eye to discerning error where none truly exists more may be expected of experienced and legally qualified members of [the Fair Work Commission] who have had the benefit of written submissions filed by experienced legal practitioners;
(c) but there remains no unqualified and universally applicable legal requirement to refer to every submission advanced. Much depends upon the importance of the submission to the claims being made;
(d) a failure to address a submission which is “significant” and which touches upon the “core duty” being discharged or which is “centrally relevant” to the decision being made may in some circumstances found a conclusion that it has not been taken into account and may thereby expose jurisdictional error. 30
[41] It is apparent from the decision of the Vice President that he squarely dealt with the Appellant’s submission that the Application before him was an abuse of process. More specifically, while not expressly referring to Anshun estoppel, the Vice President addressed whether the Application before him was an attempt to re-litigate matters that were before the Delegate. The Vice President rejected that submission as “misconceived”. The Vice President continued,
“In its current application, the CEPU submits that the passage of time since Mr Mooney last contravened an industrial law and his recognition of the need to comply with applicable industrial laws justify the grant of an entry permit to him on this occasion. As earlier noted, there was no case of that nature advanced at first instance in relation to the previous application for Mr Mooney to be issued an entry permit. In those circumstances, the Director’s abuse of process submission has no substance and is rejected.” 31
[42] A fair reading of the Vice President’s decision results in the conclusion that the Vice President did not fail to address the Anshun estoppel submission (even if he did not use that phrase). The Anshun estoppel submission was but a part of the abuse of process submission with which the Vice President engaged and rejected. We are not persuaded that the decision of the Vice President was exposed to jurisdictional error in this regard.
[43] Further we discern no error in the Vice President’s conclusion that there was no abuse of process (or that the issue of Anshun estoppel) arises in this matter. At the time that the Vice President considered the application before him, in December 2014, nearly 17 months had passed since the time of the application that had been made before the Delegate (the applications themselves having been made nearly 12 months apart). The matters considered by the Vice President included the evidence contained in the witness statement of Mr Mooney made on 6 November 2014 and the oral evidence he gave on 22 December 2014. This evidence was not available to the Delegate.
[44] In our view, the Vice President evidently and quite properly considered all that he was required to consider under s.513 of the FW Act. Three of those matters were not before the Delegate and could not have been because they occurred after the Delegate made his decision on 1 April 2014 (having decided the matter on the papers), namely:
(a) the training undertaken by Mr Mooney on 19 September 2014;
(b) another full year had passed in which Mr Mooney had not breached any workplace laws; and
(c) another year had passed since Mr Mooney’s last breach of a workplace law in March 2009.
[45] These three matters were relied upon by the Vice President in finding that Mr Mooney was a fit and proper person to hold a right of entry permit (albeit with conditions) and are relevantly to be seen in light of the fact that a right of entry permit operates for 3 years. This is not a case where there has been a mere effluxion of time since the first application for a permit was made. Mr Mooney has undertaken training and, in the exercise of his duties as a CEPU official during the 12 months referred to, he has not breached any workplace laws (albeit recognising that Mr Mooney was in a slightly different position because he did not possess a right of entry permit during that time). Further, Mr Mooney gave evidence before the Vice President and was cross-examined. Sworn evidence from Mr Mooney and cross examination of him did not occur before the Delegate, nor was it available to the Delegate because of the limited nature of the delegation. These are material changes in circumstances that existed when the Delegate decided the application that was before him.
[46] Additionally, the nature of the proceedings is also relevant to the abuse of process point. An application for a right of entry permit is not a proceeding for the enforcement of an existing legal right and nor is it an inter partes proceeding. In considering such an application the Commission must take into account the relevant statutory material and make a decision based on the material before it at that time. Then is no statutory prohibition on an unsuccessful applicant making a further application at a future point in time. These features all tell against the proposition advanced by the appellant.
[47] In those circumstances we are not persuaded that abuse of process and or Anshun estoppel principles were enlivened in this matter. This was the approach taken by the Vice President and with which we discern no error.
Conclusion
[48] For the foregoing reasons, we are not persuaded the Vice President made a jurisdictional error or any other appealable error in issuing a right of entry permit (with conditions) to Mr Peter Mooney. We are also not satisfied it is in the public interest for us to grant permission to appeal. Permission to appeal is refused.
PRESIDENT
Appearances:
N. Harrington, counsel, for the Director of the Fair Work Building Industry Inspectorate.
G. Borenstein, advocate, for the Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Hearing details:
2015
Melbourne
May 22
1 [2015] FWC 1522.
2 PR562018.
3 Coal and Allied v AIRC (2000) 203 CLR 195 at 203-4 Gleeson CJ, Gaudron and Hayne JJ.
4 [2010] FWAFB 5342 at [27].
5 [2014] FWCFB 4397
6 [2015] FWC 1522 at [19].
7 [2015] FWC 1522 at [20].-[23]
8 [2015] FWC 1522 at [25].
9 [2015] FWC 1522 at [32].
10 [2015] FCAFC 56
11 [2015] FWC 1522 at [33].
12 [2015] FWC 1522 at [34].
13 Ibid.
14 [2015] FWC 1522 at [35].
15 [2015] FWC 1522 at [36].
16 Ibid.
17 [2015] FWC 1522 at [41].
18 [2015] FWC 1522 at [27].
19 Submissions of the Appellant, 1 May 2015, para 6.
20 (1981) 147 CLR 589 at 598 and 602.
21 Submissions of the Appellant, 1 May 2015, para 8.
22 Submissions of the Appellant, 1 May 2015, para 52.
23 (1999) 94 FCR 561 at [10] per Moore J.
24 Submissions of the Appellant, 1 May 2015, para 57.
25 Submissions of the Respondent, 15 May 2015, para 8.
26 To use the phrase relied upon the Appellant from the decision of JA Hayne in DA Christie Pty Ltd v Baker [1996] 2 VR 582.
27 Submissions of the Respondent, 15 May 2015, para 10.
28 Submissions of the Respondent, 15 May 2015, para 12.
29 (2013) 240 IR 178.
30 (2013) 240 IR 178 at para 47.
31 [2015] FWC 1522 at [31].
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