Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
[2015] FWCFB 6035
•9 OCTOBER 2015
| [2015] FWCFB 6035 [Note: Judicial review of this decision [QUD1157/2015] pending.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(C2015/3799)
VICE PRESIDENT CATANZARITI | SYDNEY, 9 OCTOBER 2015 |
Appeal against decision [2015] FWC 2158 of Deputy President Lawrence at Sydney on 13 April 2015 in matter number RE2014/1091.
Introduction
[1] This is an appeal by the Director of the Fair Work Building Industry Inspectorate (Appellant) against a decision1 (Decision) of Deputy President Lawrence in relation to granting a right of entry permit to Michael Ravbar as Divisional Branch Secretary of the Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland Northern Territory Divisional Branch (Respondent) under s.513 of the Fair Work Act 2009 (the Act).
[2] Prior to the hearing of the appeal, Mr Herbert of Counsel sought permission to appear for the Appellant and Mr Reitano of Counsel sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
Statutory Framework
[3] Under s.512 of the Act, the Fair Work Commission (Commission) may, on an 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 an entry permit. In decided this, the Commission must take into account the “permit qualification matters” set out in s.513(1).
[4] Section 513(1) of the Act is set out below:
“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] Sections 512–513 are within Part 3–4 of the Act, entitled ‘Right of Entry’. The objects of Part 3–4 are set out at s.480:
“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.”
[6] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 Vice President Hatcher has helpfully set out the principles relevant to the interpretation and application of s. 512 and 513(1) as follows:
“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of the s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland[2014] FWCFB 7154and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:
● 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.
Nature of the Appeal
[7] 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. 2 An appeal may only be made with the permission of the Fair Work Commission (the Commission); there is no right to appeal.
[8] Section 604 of the Act provides:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage 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.
(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).
(2) A person may appeal the decision by applying to the FWC.”
Background to Mr Ravbar’s application for a permit
[9] On 19 June 2014 applications were lodged for right of entry permits for officials of the CFMEU. The covering letter was signed by Michael Ravbar as Divisional Branch Secretary. One of the officials seeking a permit was Mr Ravbar himself. The matter at first instance related to Mr Ravbar’s application.
[10] Attached to the application was a declaration by Ms Ingham, Mr Ravbar’s Assistant Decisional Branch Secretary, that Mr Ravbar satisfied the “fit and proper person” test, as required by s.512. The declaration addressed each of the “permit qualification matters” set out in s.513(1) of the Act. Mr Ravbar’s declaration was in similar terms.
[11] The declarations referred to:
- the training undertaken by Mr Ravbar in March 2012 in accordance with s.513(1)(a);
- Construction, Forestry, Mining and Energy Union [2002] FCA 585 (Hamberger). He was found to have contravened s.298P(3)(a) and (b) of the Workplace Relations Act 1996. This involved penalties of $750 and $7,500;
- the fact that Mr Ravbar has not been convicted of an offence in relation to entry to premises, fraud or intentional violence or destruction of property;
- the fact that Mr Ravbar had been named as a respondent in Fair Work Commission matter RE2012/1068 which was an unresolved matter; and
- the fact that Mr Ravbar’s permit had not been revoked, suspended or been made subject to conditions.
[12] The Deputy President has helpfully summarised the procedural history and position of the parties at first instance in the Decision as follows:
- That the Builders Laborers Federation was also the subject of a penalty in Hamberger.
- Matter BRG771/2012 which relates to the Queensland Children’s Hospital Project is not disclosed.
“[8] On 18 July 2014 the Chief Counsel of FWBC, as delegate of the Director of the Fair Work Building Industry Inspectorate, gave written notice to the Commission of its lodgement of submissions in respect of this matter. A general and a specific submission were lodged by FWBC on that day.
[9] The general submission was made pursuant to s.72 of the Fair Work (Building Industry) Act 2012 and addressed the principles which apply to the Commission’s decisions under s.512. It was submitted that “the Commission should approach all applications by the CFMEU with caution”. The submission analysed the main components of s.513 and referred to some of the major cases decided by the Commission in considering applications under s.512. It sketched the background to the development of a statutory scheme of right of entry in Australia from its limited 1973 role of investigating suspected contraventions until the current Fair Work Act provisions.
[10] Attached to the submission was a table summary of some 96 cases in which the CFMEU has contravened “workplace standards established by various pieces of industrial legislation in Australia”.
[11] The FWBC submits that the CFMEU has a history of non-compliance with industrial laws. Accordingly, the Commission should exercise caution when dealing with any right of entry application by the CFMEU. Given the “systematic and cultural problems of non-compliance within the CFMEU” the Commission should conduct hearings in which the FWBC should be heard.
[12] The FWBC’s specific submission referred in more detail to the Hamberger decision. The CFMEU was ordered to pay a penalty of $7,500 (reduced to $3,000 on appeal) and Mr Ravbar $750. It also noted that Mr Ravbar was a respondent in Bechtel Construction (Australia) Pty Ltd v Construction Forestry Mining and Energy Union & Ors (RE2012/1068) before the Commission and Lend Lease Engineering Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors (BRG771/2012) before the Federal Court. It was submitted that Mr Ravbar is a senior officer of an organisation that has shown a “continuing attitude of wilful disobedience to the law”. He is therefore not a “fit and proper person” within s.513(1) to hold an entry permit.
[13] The FWBC alleges that the CFMEU and Mr Ravbar did not fully disclose all matters in their declarations, in particular:
[14] The FWBC also takes issue with the fact that the training undertaken by Mr Ravbar was over two years ago.
[15] The decision in Hamberger was attached to the specific submission. The FWBC submits that the Commission should take into account the nature and circumstances of the contravening conduct, not just the penalty imposed. Mr Ravbar was involved in a serious contravention which amounted to “improper conduct” and for which he showed no contrition.
Applicant’s Submission in Reply
[16] The Applicant lodged a submission in response to the two FWBC submissions, which I have summarised above, on 4 August 2014. The main points made were:
[17] The penalty in Hamberger and the circumstances of Mr Ravbar’s involvement in the case were fully disclosed. The case is a matter of public record and therefore a full summary of all the details was not necessary.
[18] Contrary to the FWBC submission, the BLF did not receive a penalty in Hamberger. In any event Mr Ravbar has never been an official of the BLF.
[19] The proceedings in RE2012/1088 were disclosed.
[20] The proceedings in BRG771/2012 were inadvertently omitted from the application. The Applicant apologised for this. No decision had been issued leading to a contravention. Therefore, the matter did not strictly need to be disclosed.
[21] The conduct described in Hamberger occurred over 15 years ago. It did not involve a breach of right of entry laws. He had not engaged in prohibited conduct since that time.
[22] The matters to be considered by the Commission under s.513 are matters relating to the individual and his/her conduct. The power and duties given are peculiar to the permit holder. The conduct of the CFMEU is therefore not a relevant matter.
[23] In summary, the Applicant submitted that Mr Ravbar was a fit and proper person to hold a right of entry permit and the application should be granted forthwith.
Decision at First Instance
[13] In his decision, the Deputy President considered the permit qualification matters in s.513 of the Act. The findings in relation to s513(a)-(f) are not challenged in this appeal and are as follows:
“Subsection (a)
[55] Mr Ravbar completed the appropriate ACTU course in March 2012. Some issue was taken as to the length of time since the training took place. However, I do not find the period to be unreasonable. Mr Ravbar has been a union official since about 1990 and Divisional Secretary since about 2007. He is the Chief Executive Officer of the Divisional Branch. He is also a member of the various Federal governing bodies of the CFMEU. I am sure he is well aware of the contents of the Fair Work Act2009, the Fair Work Registered Organisations Act 2009 (RO Act) and the Fair Work (Building Industry) Act 2012 (Building Industry Act). I am also sure that he is aware of the issues raised in the right of entry cases covering the CFMEU that I have referred to in this decision.
Subsection (b)
[56] The application and declarations disclosed that Mr Ravbar had been convicted of an offence in Hamberger. This was a contravention of s.298P(3) of the Workplace Relations Act 1996. This is a civil penalty provision. In any event, the disclosure was made. It is dealt with more fully below.
Subsection (c)
[57] Mr Ravbar has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry into premises, fraud or dishonesty, intentional use of violence against another person or intentional destruction of property.
Subsection (d)
[58] Mr Ravbar has been ordered to pay a penalty under an industrial law, $750 in Hamberger. I note that this decision was made in 2002. It related to actions in early 1999, over 16 years ago. The actions were an attempt to get an employer to take action against an employee because he refused to join the union. In my view, the long period of time since the actions and the nature of the actions mean that they do not weigh heavily against the granting of a permit to Mr Ravbar.
Subsection (e)
[59] As a result of the Bechtel Appeal decision, dealt with extensively above, Mr Ravbar’s permit has not been revoked or suspended.
Subsection (f)
[60] No State or Territory Court has taken cancellation, suspension or other action against Mr Ravbar.”
[14] After considering each of the matters referred to 513(a)-(f), the Deputy President made the following relevant findings in relation so s.513(1)(g), which are the focus of this appeal:
“Subsection (g) - Other Matters the Commission Considers Relevant
[61] I accept that there is a duty on an Applicant to disclose all relevant matters. I find that the Applicant did disclose fully with respect to Hamberger. The case and the penalty are referred to in the declarations. The details are a matter of public record. Some of the aspects of the case that the FWBC submitted should have been disclosed did not go against Mr Ravbar, such as the role of the BLF.
[62] The Applicant did disclose the litigation (RE2012/1068) that subsequently became the Bechtel and Bechtel Appeal decisions.
[63] The Applicant did not disclose the Federal Court litigation between the CFMEU and Lend Lease (BRG771/2012) to which Mr Ravbar was a respondent. The Applicant apologised for this omission. Given that there had been no decision, and still has not been to my knowledge, this is understandable. The litigation should have been disclosed but its non-disclosure does not weigh greatly against the Applicant.
[64] Overall, I am satisfied that the level of disclosure by the Applicant was of a reasonable standard which should not weigh against the granting of a permit.
[65] The main thrust of the FWBC’s attack was on Mr Ravbar’s responsibility as Divisional Branch Secretary for the contraventions of the Divisional Branch whilst Mr Ravbar has been the Secretary. I have had regard the Full Bench’s comments in paragraph [27] of Kong quoted above.
[66] The FWBC details the seven matters in which branch officials contravened industrial laws leading to penalties of $926,710. They all involved industrial action engaged in contrary to the building industry legislation applicable at the time. The evidence was that the action was in support of various industrial and/or health and safety agendas of the Applicant.
[67] As I have already mentioned, Mr Herbert undertook an extensive analysis of the CFMEU rules which were tendered in evidence. I accept that Mr Ravbar is the Executive Officer under the rules responsible for the affairs of the Branch. Of course, his role is subject to the control of the democratically elected governing bodies of the union. The argument about Mr Ravbar’s responsibility for each of the seven breaches relies on the analysis of the rules.
[68] I accept that Mr Ravbar would come within the term used by the Full Bench in Kong: “an official with management responsibility in an organisation”. However, there is no specific evidence linking these seven breaches to the personal characteristics or involvement of Mr Ravbar or his suitability to hold a right of entry permit. It is not sufficient, in my view, to rely on the theoretical operation of the rules without concrete evidence as to Mr Ravbar’s conduct. Nor is it sufficient to rely on an assertion as to the CFMEU’s “history of non-compliance with industrial laws” and its “culture of wilful disobedience”. It cannot be said that Mr Ravbar is “responsible” for the actions of all CFMEU officials in a manner which is consistent with principles established by Full Benches to deal with right of entry permits.
[69] As the Full Bench pointed out in Kong there are a range of remedies available under the Act, the RO Act and the Building Industry Act against the Applicant and Mr Ravbar, as its Secretary, to deal with the alleged conduct of its officials. I am not satisfied that this ground of attack is consistent with the Commission’s established approach to the application of s.513(1). Nor am I satisfied that it is an appropriate use of the right of entry provisions.
[70] The Applicant was criticised for not providing a more detailed witness statement from Mr Ravbar which could have been the subject of cross-examination. I do not think that this criticism is justified. There was no specific allegation in relation to Mr Ravbar’s personal conduct to be answered. The courts’ decisions in the seven matters which the FWBC relied on were tendered and dealt with extensively in submissions. There was no evidence that Mr Ravbar was “a ring-master in a union office in a managerial position who was sending his organisers out to breach the law” (Transcript PN394). Rather, the general picture which emerges is of the union determinedly pursuing its industrial and health and safety agendas and its activity coming into collision with the industrial legislation. There are remedies under that legislation to deal with that conduct if breaches are found to occur.”
[15] Having made the above findings in respect of s. 513, the Deputy President held that Mr Ravbar was a “fit and proper person” and made the following ultimate findings:
“[71] It is now necessary to balance the matters that I have considered above under s.513(1) and come to an overall conclusion as to whether Mr Ravbar is, for the purpose of s.512, a fit and proper person to hold a right of entry permit.
[72] Mr Ravbar has been a union official for 25 years and has been Branch Secretary for eight years. He holds a senior position within the CFMEU nationally. He has received one penalty during that period and that was for events that occurred 16 years ago. He has never been found to have contravened right of entry laws. In the conflict-ridden world of the construction industry he has a relatively clean record. Overall, I have found that the level of disclosure by the Applicant was reasonable and should not be a bar to the granting of the permit. Finally, I have found that the objection to the granting of the permit based on the industrial transgressions of the Applicant and other officials does not have sufficient evidentiary links to the personal characteristics of Mr Ravbar.
[73] I therefore find that these factors do not prevent Mr Ravbar from being considered a “fit and proper person”.
[74] I do not consider that it is appropriate and useful to impose conditions on the entry permit under s.515(1) of the Act. Given his position, the right of entry permit would not be utilised by Mr Ravbar on a regular basis in the same way as a Branch Organiser. Nonetheless, it is an important symbol and every union official in Australia would expect to have one. No conceivable condition would be of any practical utility in the circumstances.
[75] Accordingly, I am satisfied that Mr Ravbar is a fit and proper person as required by s.512.
[76] I therefore grant the application for an entry permit to Mr Ravbar, pursuant to s.512.
[77] This decision will be referred to the Regulatory Compliance Branch of the Commission which will issue the new permit, subject to the return of the current permit.
[78] Finally, I note that the Applicant lodged an application pursuant to s.516(2) of the Act to extend Mr Ravbar’s previous permit for two months pending the decision in this matter. I listed the extension application (RE2015/326) for a telephone programming conference on 6 March 2015. Given this decision, the file in RE2015/326 can be closed.
The Appeal
[16] In the Notice of Appeal various grounds were raised that were further amplified by written submissions and oral submissions at the hearing.
Appellant’s submissions
[17] In relation to the issue of public interest, the Appellant submitted in its written submissions that the appeal enlivened the public interest because it raised important questions of law and procedure in respect of the correct principles to be applied in the making of a decision as to the grant of a right of entry permit under the Act and, in particular, the following matters:
(a) the extent to which a senior officer of an industrial organisation who holds a position of clear authority over the role and functions of organisers and other industrial staff, and who has a wide general authority over the conduct and management of a branch of the organisation under the registered rules of the organisation, is taken to be accountable for extensive and repeated breaches of industrial laws by the staff over whom he has authority, for the purposes of an assessment of that officer under section 513(1)(g) of the Act;
(b) the scope and effect of the observations of the Full Bench in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[2014] FWCFB 5947 at [27] (referred to herein as Kong), which were referred to, but not applied, by the Deputy President;
(c) the extent to which the Commission is entitled to ignore the terms of the rules of the organisation and insist on the provision of only direct or “concrete” evidence of the involvement of such an officer in extensive and repeated contraventions of industrial laws by others employed by the branch, and the circumstances in which it is proper and necessary for the Commission to draw adverse inferences from proved facts;
(d) the inferences, if any, that are to be taken to arise from an election on the part of the applicant to call no evidence of any kind (other than answering the statutory questions) from any officer, including the person on whose behalf the application is brought, to explain or ‘neutralize’ the extensive evidence before the Commission proving a history of serious and repeated contraventions of industrial laws by employees of the branch over which the officer presides.
[18] In relation to the grounds of appeal, the Appellant in its written submissions contended that the Deputy President made the following errors in the Decision, each of which were said to be of the kind referred to in House v King:
(a) The non-disclosure of significant litigation in which Mr Ravbar and the CFMEU were involved was accorded no apparent weight, despite the seriousness of that issue;
(b) The import and seriousness of the even actions against the Branch during Mr Ravbar’s tenure was inaccurately summarised and inappropriately trivialised and downplayed, to the extent that grave contraventions of industrial laws were described as “the union determinedly pursing its industrial and health safety agendas and its activity coning into collision with the industrial legislation” Five errors are disclosed by these comments:
(i) Firstly, is not for the Commission to downplay such serious breaches of the law, and to empathise with the perpetrator, but to accept the state of the law and the views of courts with jurisdiction in such matters, that the contraventions were serious offending conduct.
(ii) Secondly, the role of the Commission is to assess whether the Applicant for a permit was implicated in any way in those contraventions, and to decide the effect that such matters had upon his general integrity, and his preparedness to disobey or to direct or tolerate such disobedience by others, which assessment was not undertaken at all.
(iii) Thirdly, the inaccurate trivialisation of those matters reveals a failure to properly take such serious matters into account and to afford them proper weight at all. To describe and downplay a contravention of any law as constituting a “collision” bespeaks error. The alleged pursuit of industrial and health safety agendas does not justify the imposition of the will of the CFMEU by force in contravention of the law;
(iv) Fourthly, this issue suggests a reason why an erroneous approach to the Kong question was taken. It is open to find that the Commission was not prepared to draw any inferences adverse to Mr Ravbar from the evidence of contraventions and the terms of the rules, because the Commission did not share the view of the courts and the law as to the seriousness of that conduct. If so, this is a significant error of principle.
(v) Fifthly, the was no evidence or material before the FWC by which the Deputy President could have made such a statement or finding, rather a number of the court decisions put before the Commission revealed that officials, over whom Ravbar exercised ultimate managerial control, were motivated by unlawful or undisclosed purposes.
[19] At the hearing, the parties were directed by the Full Bench to focus on the key ground of appeal, which was whether it should have been implied by the Deputy President when dealing with section 513(1)(g), that Mr Ravbar was responsible for any of the conduct giving rise to the penalties involving contraventions by the CFMEU.
[20] The crux of the Appellant’s submissions on this point were that given that the application for the grant of right of entry was made by Mr Ravbar who was working in a managerial role under the rules of the CFMEU, the granting of the permit should not have occurred in circumstances where the CFMEU was found on a number of counts on numerous occasions to have engaged in serious contraventions that can be attributable to the divisional branch of which Mr Ravbar was the Secretary during the time and there were close to one million dollars’ in penalties that occurred on his watch.
[21] Counsel for the Appellant emphasised that he was not making the general submission that a manager is necessarily ineligible for a right of entry permit because of the misconduct of those they manage. Rather, the Appellant argued that Mr Ravbar in particular, by virtue of his special position as Secretary, operating under the rules of the CFMEU in a particular Division, should not have been granted a permit against a backdrop of the serious and numerous contraventions resulting in penalties that occurred during his tenure. Counsel for the Appellant argued that it cannot be assumed that Mr Ravbar as imprimatur or director was not behind various contraventions.
[22] In the Appellant’s submission, if an organiser is sent out in the field to break the law, the person who sends them is equally culpable as is the person who goes and does the unlawful act and this goes to matters of general integrity pursuant to 513(1)(g) and adverted to by the Full Bench in Kong.
Respondent’s submissions
[23] The Respondent submitted that the Deputy President properly considered each of the matters that he was bound to take into account, that is, those matters referred to in ss. 513(1)(a) to (g) at [54]-[70] of the Decision and there can be no attack on his failure to consider each of the matters. In the Respondent’s submission, the Deputy President did not take into account the Appellant’s reliance upon the contraventions of the organisation and the rules in the way the Appellant suggested he should and nor was he bound to do so. There was nothing unreasonable about the way in which the Deputy President approached the matters that were relevant and he accorded them such weight as he considered appropriate in the circumstances.
[24] In the Respondent’s submission, there was no evidence that Mr Ravbar was responsible for any of the conduct giving rise to the decisions or penalties involving contraventions by the CFMEU. The Respondent contended that the Appellant’s’ submission that Mr Ravbar was complicit in all of the contraventions because of the position he held under the Rules of CFMEU, was absurd and unreasonable. This proposition was deal with at [65]-[70] of the Decision and rejected by the Deputy President. In the Respondent’s submission, it should also be rejected on appeal. The Appellant relied on the rules as raising ‘the inescapable inference’ that Mr Ravbar had the power and the opportunity to give directions and/or tolerate and/or take steps. However, in the Respondent’s submission, the Appellant failed to identify what the relevant steps or directions or tolerances were in these specific circumstances. The Respondent contended that the Appellant did not identify any circumstances in which Mr Ravbar could have done anything to prevent any of the contraventions and that there was no evidence putting Mr Ravbar geographically, temporally or otherwise near any of the contraventions.
[25] Moreover, the Respondent submitted that while the Appellant criticised the Deputy President for failing to attempt to discover what inferences may arise from the material before him, the Appellant did not undertake that task itself. In the Respondent’s submission, the Deputy President did not refuse to draw inferences, but rather, could not be sufficiently satisfied so as to rely on the theoretical operation of the rules, without relevant evidence as to Mr Ravbar’s conduct or complicity in any alleged misconduct, and this position was reasonably open to him.
[26] The Respondent submitted that, in the Appellant’s submissions, it misapplied the decision of Kong to the facts of the present case. In Kong the Full Bench was dealing with the submission that the CFMEU’s history of contraventions should have been taken into account in relation to the grant of a permit to Mr Kong because of his susceptibility as an organiser to comply with directions of his employer to engage in unlawful conduct. The Full Bench in Kong dealt with this submission by analysing the operation s.512 and s.513 and concluding that they called for an assessment of the relevant personal characteristics of the individual whose suitability for a permit was being assessed. The Full Bench concluded that ss. 513(1)(g) was also directed to questions of the suitability of the particular individual for whom the entry permit was being sought, and that any matters entertained under that paragraph had to relate to the personal characteristics of that person. 3 The Full Bench observed that, in relation to Mr Kong, there was no suggestion that any of the identified contraventions involved any act or omission on the part of Mr Kong. In the Respondent’s submission, the same conclusion applied in the present matter with equal force, as there was no evidence at all as to any act or omission on Mr Ravbar’s part such that would connect him with any of the contraventions. The ‘suggestions’ referred to in Kong must be read properly, as a suggestion based on evidence, rather than speculation and assumption. In any event, the Respondent submitted that the observations in Kong at [27] upon which the Appellant relies were mere obiter dicta.
[27] In respect of the Appellant’s submission that the Deputy President was in error in failing to accord no ‘apparent weight’ to the ‘non-disclosure’ of ‘significant litigation’, the Respondent submitted that this matter was not one that the Commission was required to consider. The assessment of what weight is to be given to a matter in the course of a discretionary exercise is one for the decision maker, and will not of itself constitute appealable error. 4 Further, the Deputy President considered this issue at [63] of the Decision and noted that Mr Ravbar apologised for the omission. The Deputy President also noted that no decision had yet been given in that matter which made the non-disclosure understandable. The Deputy President held that this particular non-disclosure did not weigh greatly against Mr Ravbar.
[28] In response to the submission that the Deputy President did not take into account the evidence of Mr Ravbar in the Bechtel matter, the Respondent submitted that the Deputy President was fully cognizant of the Bechtel matter and dealt with it at length in the decision at [32] to [44].
[29] In response to the five alleged errors identified by the Appellant in their written submissions and discussed above, the Respondent characterised them as exaggerated and unhelpful. The Respondent submitted that there was no basis for the offensive submission that the Deputy President downplayed serious breaches of law or empathised with the perpetrators anywhere in the decision. A fair reading of paragraph 70 of the Decision leads to the conclusion that there was no evidence before the Deputy President as to Mr Ravbar’s involvement with any breaches, and he could therefore not conclude from the evidence that Mr Ravbar was responsible for directing breaches of the law. The Respondent submitted that the Appellant’s submissions on error ignore the findings of the Deputy President at paragraphs 68 to 70, to the effect that there was insufficient evidence before the Commission to support the conclusions sought by the appellant or to prevent the Deputy President from being satisfied about Mr Ravbar’s good character. The Respondent submitted that the Appellant’s submissions were, in essence, an attempt by the Appellant to have the matter looked at afresh by the Full Bench which is not permissible. 5 Furthermore, the submissions completely failed to deal with the findings and reasoning of the Deputy President at [68] to [70] and the correct application of Kong. There was no evidence to inculpate Mr Ravbar in any of the offences referred to, and the Appellant failed to confront the distinction between evidence of personal involvement in alleged contraventions or offences by the CFMEU and those of the organisation or of others.
[30] In summary, the Respondent submitted that permission to appeal should not be granted, as the appeal did not raise any matters of principle or public interest. The appeal rises no higher than a complaint that the Deputy President did not find the facts in dispute as the Appellant wanted them to be found. Even if the Commission were of the view that there was an important issue in dispute about the approach to permit application by senior union officials, the Respondent submitted that this was not an appropriate case in which to decide that issue because of the dearth of relevant material adduced by the Appellant.
Consideration
[31] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the public interest to do so. 6 The test of assessing whether the public interest is enlivened is discretionary, involving a broad value judgement.7 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,8 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...”
[32] Otherwise, the grounds for granting permission to appeal include that the decisions is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 9
[33] In all the circumstances of this case, we are not minded to grant permission to appeal on the basis of any of the grounds raised by the Appellant for the reasons set out below.
[34] In these proceedings the Appellant has invited the Full Bench to conclude that misconduct by Mr Ravbar should be implied when dealing with section 513(1)(g). In the decision at first instance, the Deputy President took the view that there was no evidence before him linking Mr Ravbar to the contraventions by the CFMEU, and that no such implication could be made. In these circumstances, the Deputy President found that it was not sufficient to rely on the operation of the rules to imply misconduct without concrete evidence. Nor was it sufficient to rely on the assertion of the CFMEU’s history of non-compliance with industrial laws and cultural wilful disobedience.
[35] In granting a permit to a person who is fit and proper, the Commission is required to have a certain level of satisfaction as to the evidence about an individual and their level of general integrity. Forensically, bearing in mind the seriousness of taking away a right of entry permit, the Commission needs to be satisfied that it is done appropriately in all of the circumstances. The Appellant has argued that the Respondent did not, at any point in the proceedings at first instance, attempt by evidence of any kind, to seek to rebut the allegedly clear inferences that were being suggested about Mr Ravbar’s involvement in the contraventions. We note that this issue was picked up at paragraph [70] of the Decision where it was squarely examined by the Deputy President:
“[70] The Applicant was criticised for not providing a more detailed witness statement from Mr Ravbar which could have been the subject of cross-examination. I do not think that this criticism is justified. There was no specific allegation in relation to Mr Ravbar’s personal conduct to be answered. The courts’ decisions in the seven matters which the FWBC relied on was tendered and dealt with extensively in submissions. There was no evidence that Mr Ravbar was “a ring-master in a union office in a managerial position who was sending his organisers out to breach the law” (Transcript PN394). Rather, the general picture which emerges is of the union determinedly pursuing its industrial and health and safety agendas and its activity coming into collision with the industrial legislation. There are remedies under that legislation to deal with that conduct if breaches are found to occur.”
[36] We consider that there were no facts in evidence before the Deputy President or on appeal that supported an inference that Mr Ravbar omitted to take any reasonable steps to ensure that others under his control failed to comply with the law, or encouraged or directed or tolerated a general culture of non-compliance with the law.
[37] We accept the submissions of the Respondent that the Appellant misread Kong. Applying Kong to the circumstances of the matter before us, our inevitable conclusion is that there was no evidence before the Deputy President to support a finding that the CFMEU’s history of contraventions said anything about Mr Ravbar’s personal conduct, character or reputation, either as relevant to the exercise of rights of entry under the Act, or at all. 10
[38] The appeal process is not intended to provide an avenue for an unsuccessful party to re-run their case or redress deficiencies in the manner in which their case was run at first instance. 11 With respect, an examination of the appeal grounds of the Appellant, fail to demonstrate any error on the part of the decision maker at first instance and are, as the Respondent rightly characterised, riddled with unsubstantiated hyperbole. All relevant circumstances and matters before the Deputy President were considered, none were given undue weight and the Deputy President’s findings were not unreasonable or plainly unjust.
Conclusion
[39] We have reviewed all of the relevant material before the Commissioner. We are not persuaded an arguable case of appealable error has been demonstrated by the Appellant. No basis upon which the public interest is attracted has been identified. We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, as required by s.400(1), permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
A Herbert of counsel instructed by B Vallence for the Appellant.
R Reitano of counsel instructed by L Tiley for the Respondent.
Hearing details:
8 July
2015
Brisbane
1 CFMEU – Construction and General Division, Queensland Northern Territory Divisional Branch [2015] FWC 2158
2 Coal and Allied v AIRC (2000) 203 CLR 194 at 203–4 per Gleeson CJ, Gaudron and Hayne JJ.
3 Kong at [24]
4 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194
6 Fair Work Act 2009, s.604(2).
7 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210 at [6].
8 [2010] FWAFB 5343 at [27].
9 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210 at [7].
10 Kong at [27].
11 Melbourne Stadiums Ltd v Sauter [2015] FCAFC 20 at [128]; Esso Australia Pty Ltd v Australian Workers Union & Ors[2015] FWCFB 210 at [17] (citing KA Murphy v SF Finance Pty Ltd (unreported, Print P1395, AIRCFB, 29 May 1997); Curtis v Darwin City Council (2012) 224 IR 174 at [80]).
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