Fair Work Commission

[2013] FWC 9343

[2013] FWC 9343[Note: An appeal pursuant to s.604 (C2013/7662) was lodged against this decision - refer to Full Bench decision dated 28 February 2014 [[2014] FWCFB 1443] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights

Fair Work Commission
(RE2013/1710)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 27 NOVEMBER 2013

Section 508 application of the Commission’s own motion - possible misuse of permit rights - apprehension of bias.

[1] This decision deals with an application that I should exclude myself from further consideration of a matter initiated of my own motion pursuant to s.508 of the Fair Work Act 2009 (the FW Act). The s.508 matter is currently described as a review of entry practices followed by various officials of the Construction, Forestry, Mining and Energy Union (CFMEU) relative to Lend Lease Building Contractors Pty Ltd on 30 October 2013.

[2] At the initial hearing of this matter on 21 November 2013, Mr Reitano, of counsel represented the CFMEU. Mr Earls of the Master Builders Association of South Australia represented Lend Lease Building Contractors Pty Ltd (Lend Lease). Mr Dowd, of counsel appeared for Fair Work Building and Construction which gave notice that it sought to make submissions in this matter pursuant to s72 of the Fair Work (Building Industry) Act 2012. Permission was granted to Mr Reitano and Mr Dowd pursuant to s.596(2)(a) of the FW Act.

[3] At the commencement of the proceedings on 21 November 2012 the CFMEU sought that I disqualify myself from further pursuing the matter because of an apprehension of bias arising from statements I made in s.418 proceedings on 31 October 2013 and 1 November 2013 and, subsequently, statements in a decision 1 issued on 1 November 2013. In summary form the CFMEU position was that those statements, considered in the context of the test in Heap v AIRC2 would indicate to a fair minded lay observer that rights of entry were being exercised and breached such that a fair hearing, or the perception of a fair hearing could not be assured.

[4] In order to consider the CFMEU position, the background to the s.508 matter must be provided.

[5] On 30 October 2013 Lend Lease lodged an application pursuant to s.418, through which it sought orders binding on the CFMEU and various of its own, and subcontractor employees engaged on four nominated sites. That application was the subject of a hearing on 31 October 2013. Lend Lease provided four sworn affidavits in support of its application. I have set out a summary of the evidence before me in that matter shortly. Suffice to say that, soon after the commencement of this hearing, I invited the CFMEU to consider whether it wished to propose undertakings which might resolve the application. I also provided the following advice: 3

“THE SENIOR DEPUTY PRESIDENT: Irrespective of the conclusion that I may or may not reach in relation to this application if the behaviour which is asserted in the various affidavits is made out it could conceivably give rise to concern about misuse of right of entry provisions. In that regard can I direct your attention to section 508 which gives the Commission the capacity to review that issue, and potentially to make orders that would affect either the union and / or its officials. If the information which - and I stress if, because I've got no concluded view in this regard.

But if the information in the affidavits that I've been provided with is in fact substantiated, and absent any other contradictory evidence from the union, I need to put you on notice that I will give active consideration to commencing an inquiry of my own motion pursuant to section 508. I thought it only fair that I alert you to that possibility at this stage so that you could take that into account, in that it may not simply be the case that this matter could be considered in the context of section 418 as it may have broader ramifications. All right?

[6] In response to a request from the CFMEU, the matter was then adjourned to enable discussions to occur. Later that day Lend Lease advised that no agreement had been possible. The matter was relisted for 1 November 2013.

[7] The evidence given to me in support of the Lend Lease application, with respect to Mr Hay, the Site Supervisor for Lend Lease for the Adelaide Convention Centre Project, was not challenged. Mr Hay’s evidence 4 was that three CFMEU officials entered the Adelaide Convention Centre site on 30 October 2013 without right of entry notices and despite being told they were not allowed to enter the site. Whilst they did not initially disclose the purpose of the visit, one of the officials later said that they wanted to talk to Lend Lease/Baulderstone members and that the visit was part of a national drive focused on Lend Lease employees.5

[8] The evidence of Mr Gooding, the Project Manager for Lend Lease for the TAFE Building, part of the Tonsley Park redevelopment, was that, on 30 October 2013 Mr Gava of the CFMEU telephoned him to request a favour for interstate CFMEU officials to come to that job. Mr Gooding refused that request. Mr Gava responded by advising that the CFMEU would come anyway. Mr Gooding advised that would represent an illegal entry. Five CFMEU officials later entered that site and met with various employees. Mr Gava told Mr Gooding "We are just here to talk to the boys and show the guys the project." 6 Mr Gooding advised the officials that they were not allowed to enter the site as no right of entry notice or suitable reason had been given. Mr Gooding’s evidence was that the matter of right of entry notices was then discussed but Mr Gava then advised "that's the way it's going to be from now on".7

[9] Mr Gooding’s evidence was that he expressed specific concern that one of the officials was not dressed according to site safety standards but that his instruction to this effect was ignored. Mr Gooding’s evidence was that the officials entered the site and met with various employees, and walked around the site. They raised some minor safety issues with him before leaving the site.

[10] Mr Gooding’s evidence was that the officials later re-entered the site. They confirmed a desire that Lend Lease employ a full-time CFMEU delegate at the site and that, on the direction of the CFMEU Secretary, they intended not to provide right of entry notices in the future.

[11] Mr Gooding’s evidence was not disputed.

[12] The evidence of Mr Ising, the Lend Lease Site Manager for the Adelaide Oval Redevelopment, was that on 30 October 2013 six CFMEU officials, two of whom he understood were from interstate, entered that site. One official, Mr McDermott advised that they were "taking a look around your site". 8 Mr Ising advised that the officials did not have right of entry permits. Notwithstanding this, the officials proceeded to split up and walk around the site. One official, Mr Roberts responded to a question about the purpose of the visit by saying "This is the way of the world until your managers talk with our managers".9

[13] Mr Ising’s evidence was that the officials met with various employees in two separate meetings and subsequently made a claim that Lend Lease should employ a "working steward". 10

[14] The evidence of Mr Crabb was provided through an affidavit and confirmed through oral evidence. Mr Crabb is the Site Manager for Lend Lease on the Flinders University building, part of the Tonsley Park redevelopment. His evidence went to the attendance, on 30 October 2013, at the site, of four CFMEU officials. Mr Crabb’s evidence was that:

[15] I approached the group of officials. Because I knew Mark Gava, I approached him and had a conversation to the following effect. While this occurred the other officials continued to walk around the site.

“I said There is no entry permit in place, you cannot enter the site. Please leave.

Mark Gava replied We are not leaving. This is the way it’s done now. We are going for a walk on site.

We had a brief discussion about his refusal to provide an entry notice, during which time Mr Gava indicated that the three other people were officials from interstate. I subsequently found out that they were from Melbourne and Canberra.

The officials proceeded onto site without authorisation.” 11

[16] Mr Crabb's evidence was that the officials then held discussions with various employees before advising him that Lend Lease should conform with a number of Melbourne practices. The officials then met with various employees during a work break before again meeting with Mr Crabb over issues, including a claim that Lend Lease should engage a permanent CFMEU delegate. Two interstate officials then asked why the CFMEU flag was not on a crane hook and demanded that it be located there.

[17] Mr Crabb's evidence was that the officials then left the site but subsequently re-entered the site and renewed their concerns over the location of the CFMEU flag. Mr Gava advised that if the flag was not in place on the hook of the crane, the officials would stop the job. Another official said "If you don't put it up there we‘ll bring back 10 brothers tomorrow and stop the job". 12 Mr Crabb's evidence was that the officials then approached an employee directly and that the flag was subsequently put on the crane hook.

[18] The CFMEU advised that it was not going to provide any evidence in this matter. 13

“THE SENIOR DEPUTY PRESIDENT: Ms Dooley, is the CFMEU going to provide any evidence in this matter?

MS DOOLEY: We’re not, your Honour.

[19] The Lend Lease position, in support of its s.418 application, was that the official’s conduct represented breaches of right of entry provisions across a number of sites as part of what it considered to be a much larger campaign which included the threat of industrial action. Lend Lease did not assert that its employees, or other employees actually took industrial action but that the threat of industrial action made by the CFMEU was sufficient for the purposes of s.418(1).

[20] The CFMEU position 14 was that there was no industrial action that was threatened for the purposes of s.418(1). The CFMEU position was that:15

“THE SENIOR DEPUTY PRESIDENT: Can I take it you don’t dispute the evidence that there was a coordinated campaign of visits to the four sites involving Lend Lease?

MS DOOLEY: I’m not sure exactly what a coordinated campaign is and how that’s defined.

THE SENIOR DEPUTY PRESIDENT: Well, they all occurred around the same time. Do you agree they all occurred around

MS DOOLEY: We accept that the officials attended those sites at those particular times.

THE SENIOR DEPUTY PRESIDENT: Do you accept the proposition that those officials entered the sites without providing the requisite notice pursuant to Part 3 4 of the Act with respect of rights of entry arrangements?

MS DOOLEY: We would accept what’s in the evidence at the moment.”

[21] And further, 16

“MS DOOLEY: Your Honour, I suppose in our final submission we would say that there’s no evidence to support an order against any employees or members of the union whatsoever, that there’s no evidence to support an order against the CFMEU or officials of the CFMEU and that the applicant seems to be concerned with the union officials’ presence at those sites. They’re entitled to be concerned about officials being present at the site, but that does not mean that industrial action is threatened in any way whatsoever.

THE SENIOR DEPUTY PRESIDENT: When he visited the Adelaide Oval site Mr Garber - no, sorry, when he visited the Tonsley Park TAFE site, Mr Garber is alleged to have said he was there to talk to the boys and show the guys the project. Should I understand that “talk to the boys” you say meant to talk to the employees who were members of the CFMEU?

MS DOOLEY: I would imagine that’s what that meant.”

[22] I was required to determine a position with respect to the s.418 application. That section relevantly states:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.”

[23] In doing so, I reached various conclusions on the evidence before me. 17 Two final conclusions were pivotal to my decision:18

“There is no evidence that the threat made at the Tonsley Park Flinders University site extended beyond actions contemplated by the CFMEU officials. Had evidence of employee involvement in the threats made against Lend Lease been provided to me a different conclusion may have been available. It is clear from the evidence that the CFMEU has organised industrial action in the past at other Lend Lease sites. Further, I have concluded, from my knowledge of the building and construction industry, that, if the CFMEU wishes to commence industrial action it has the capacity to organise that action notwithstanding that its members have the ultimate ability to elect whether or not to participate.

For these reasons I am satisfied that the CFMEU has threatened and may organise industrial action by one or more employees that would not be protected industrial action.

[24] Given that position, I referred to the Full Bench decision in MUA v Patrick Stevedores Holdings Pty Ltd 19 and concluded that, on that authority, the s.418 application must be dismissed as the necessary jurisdiction had not been established.

The complaint of apprehended bias

[25] The CFMEU position here is that the matter heard on 31 October 2013 and 1 November 2013 was based on s.418. The CFMEU foreshadowed that it may argue that the evidence did not go to entry rights being exercised under Part 3-4 of the FW Act. The CFMEU concern was particularly directed at indications that I had concluded that the CFMEU had breached Part 3-4 entry rights in the context of the s.508 action now initiated.

[26] The CFMEU referred me to the concept of apprehended bias in Heap v AIRC. In that matter, there was no dispute that the test for the appearance of bias is:

““Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.” 20

[27] In that matter the Court was reviewing a decision of a Full Bench of the AIRC. The Court stated: 21

“In its decision of 2 August 2002, the Full Bench recited what it saw as the "particular circumstances" of the case. It did not specify precisely which of these circumstances led to its conclusion that the Senior Deputy President was disqualified on the ground of apprehended bias. Nor did it say how it was that it came to that conclusion. It is clear from its citation of the authorities referred to above that the Full Bench appreciated that a decision-maker can quite properly draw attention to the problems in a party's case, even in strong words, without causing a reasonable bystander to apprehend that he or she may not bring an impartial and unprejudiced mind to the resolution of the question. The vice found by the Full Bench must have arisen from either or both of the circumstance that the words were spoken in private conference, albeit with the consent of the parties, and the circumstance of the late stage of the proceeding at which the conference occurred. That is apparent from the identification by the Full Bench of the "particular circumstances" with which it was concerned. The former is more likely to have weighed heavily in the Full Bench's view than the latter, because of the likelihood that the privacy of the conference lent to the words a connotation and an air of menace that they might not have had otherwise.

Once it is recognised that it was open to the Full Bench to hold that the element of privacy caused the Senior Deputy President's words to give rise to an apprehension of bias, it is necessary to acknowledge the expertise of the Full Bench in the area in which it was dealing. Not only did each of the members of the Full Bench have the skills and experience in the field of industrial relations that s 10(1)(b) of the WR Act makes a prerequisite to appointment to the Commission, but each is in fact experienced as a member of the Commission. Each is no doubt very familiar with the manner in which the Commission operates, including the manner in which it deals with applications relating to termination of employment, and with the exercise of the functions of arbitration and conciliation. Each was prepared to say that the combination of circumstances in the present case was such that a reasonable bystander might have apprehended bias on the part of the Senior Deputy President. This Court should give great weight to the view of the Full Bench, especially when it is informed by such experience. If those steeped in the methods of the Commission regarded what the Senior Deputy President did as outside the appropriate manner of exercising the functions of arbitration and conciliation in a termination of employment proceeding, it is a large step for this Court to say they were wrong.”

[28] And further, 22

“.... Nor is it appropriate to decide whether the Full Bench ought to have refused leave to appeal under s 45(1), choosing to await the outcome of the arbitration before the Senior Deputy President. It is sufficient to point out that that course would have permitted the Bank, if it had lost the arbitration, to use as one of its grounds of appeal the allegation of apprehended bias on the part of the Senior Deputy President. It would have enabled the Full Bench to have the whole case before it and, if it thought fit to do so, to have decided the substantive issues itself or, if issues of credit were of importance, to have directed that another member of the Commission arbitrate it again.”

[29] The Lend Lease position was that the statements made in the hearings and the conclusions in the decision of 1 November 2013 were all predicated on the evidence before me in that matter and were not representative of any form of bias in this particular matter.

[30] Lend Lease referred me to Bissett C’s decision in Metro Trains Melbourne Pty Ltd v ARTBIU and others 23 where the Commissioner recited the following principles:24

“[25] In Oram v Derby Gem Pty Ltd a Full Bench of the Australian Industrial Relations Commission considered the principles relevant to an application such as this:

[107] The test to be applied in Australia in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. In Laws v Australian Broadcasting Tribunal Gaudron and McHugh JJ noted:

When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion irrespective of the evidence or arguments presented to him or her.

[108] The relevant ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially and without prejudice, rather than that he or she will decide the case adversely to one party. Mere predisposition or inclination for or against a particular argument or conclusion is not sufficient. In The Minister for Immigration and Multicultural Affairs v Jia Gleeson CJ and Gummow J, with whom Hayne J agreed, said:

Decision makers, including judicial decision makers, sometimes approach their task with a tendency of mind or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

[109] Moreover, judicial officers have a duty not to accede too readily to a disqualification application In Re J.R.L ex parte C.J.L 10, Mason J, in an oft-quoted passage, stated:

[...]

In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

(footnotes omitted)

[110] Far from being inappropriate, the expression of a provisional view on a particular issue or warning parties of the consequences of a provisional view will typically be entirely consistent with the requirements of procedural fairness. In Johnson v Johnson 11 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ noted:

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

(footnotes omitted)

[111] In Kaycliff Pty Limited v Australia Broadcasting Tribunal, the Full Court of the Federal Court observed:

For our part we respectfully concur in the view that expression by a court or tribunal of its current view of an issue may be advantageous, on occasions, rather than otherwise. The rules as to apparent bias must be balanced against the desirability of a thoroughly fair contest and the latter may positively favour a disclosure, without any equivocation, of an opinion held by the court or tribunal at a particular stage of the proceedings. In the absence of such disclosure, there may be a justified resentment on the losing side, based on their not having been made aware of the direction of the thinking of the court or tribunal on a particular issue and not having been given a fair opportunity to turn it into another path.

[112] In Richmond River Broadcasters Pty Limited v The Australian Broadcasting Tribunal, Wilcox J referred to this passage and continued:

I respectfully agree with this comment. It is an every day event for judges to indicate to counsel, during the course of hearing, their impressions of a case, including their impressions of witnesses and of the facts. They do so to assist counsel. It is always an advantage for counsel to know the way in which the judge’s mind is working; submissions may be targeted to the aspect of the case which is troubling the judge. Where a judge takes this course nobody would suggest that the judge ought then to be disqualified from concluding the case. The reason is that the judge is merely expressing a tentative view and inviting a response which he or she may take into account in determining whether to adhere to, or abandon, that view in the final decision. The readiness to listen and be persuaded is the critical matter.”

(references removed)

[31] Mr Dowd, for Fair Work Building and Construction advised that his instructions did not extend to expressing a view on this matter but he suggested guidance may be found in the High Court decision in British American Tobacco Australian Services Limited v Laurie. 25 In that matter French CJ stated:26

“The fact that a judge has expressed a strongly worded view at the outset of a hearing does not prevent characterisation of that view as provisional. In such a case the reasonable apprehension of bias must be "firmly established" before prohibition will issue. Sometimes the line of judgment is "ill-defined". On the other hand, a gratuitous statement in a judgment given in one case adverse to a person not involved in that case against whom a prosecution was pending, was sufficient to disqualify the judge who made the statement from sitting on an appeal arising out of the prosecution.

The scrutiny required of claims of bias based on prior findings by a decision-maker was emphasised, in relation to administrative decisions, by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal. Their Honours, after referring to R v Australian Stevedoring Industry Board, Angliss and Shaw, said:

"When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her." (emphasis added)

The requirement that an apprehension of bias, based on judicial conduct, be "firmly established" is consistent with the most recent decisions of this Court and gives content to the requirement that an apprehension of bias, in that class of case, be reasonable.

Much debate in this appeal turned on the extent of the knowledge attributable to the fair-minded lay observer for the purpose of determining whether that observer would reasonably apprehend bias. That knowledge does not extend to a knowledge of the law that ordinary experience shows not to be the case. The question was discussed in Johnson v Johnson, where the plurality said:

"Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx." (footnote omitted)

Kirby J also discussed the attributes of the fictitious bystander:

"Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances." (footnotes omitted)

And further:

"a reasonable member of the public is neither complacent nor unduly sensitive or suspicious." (footnote omitted)

I agree with the observation of Kirby J that a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment.

The interposition of the fair-minded lay person could never disguise the reality that it is the assessment of the court dealing with a claim of apparent bias that determines that claim. As Professor Olowofoyeku says:

"In the end, despite the pitch on objectivity and the view that the apprehensions of bias must have an objective basis, it is the opinion of the reviewing court on this issue that matters."

Professor Olowofoyeku has expressed the view that the judicial construct of the informed observer no longer provides a reliable guide to decision-making on the issue of apparent bias[89]. However, the utility of the construct is that it reminds the judges making such decisions of the need to view the circumstances of claimed apparent bias, as best they can, through the eyes of non-judicial observers. In so doing they will not have recourse to all the information that a judge or practising lawyer would have. It requires the judges to identify the information on which they are to make their determinations. While it is necessary to be realistic about the limitations of the test, in my opinion it retains its utility as a guide to decision-making in this difficult area.”

(references removed)

[32] I have reviewed the concerns of the CFMEU in the context of these decisions.

[33] Two other factors are relevant to my considerations. The first is that I was required to determine the s.418 application which then necessitated consideration of the evidence before me, and findings which formed the basis for my ultimate decision to refuse that application. It was the unchallenged evidence given to me in that matter which gave rise to the s.508 concern.

[34] Secondly, s.508 states:

“508 FWC may restrict rights if organisation or official has misused rights

(1) The FWC may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if the FWC is satisfied that the organisation, or an official of the organisation, has misused those rights.

Note: Only a Vice President, Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).

(2) The action that the FWC may take under subsection (1) includes the following:

(a) imposing conditions on entry permits;

(b) suspending entry permits;

(c) revoking entry permits;

(d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions;

(e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;

(f) making any order it considers appropriate.

(3) The FWC may take action under subsection (1):

(a) on its own initiative; or

(b) on application by an inspector.

(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:

(a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or

(b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:

(i) because the exercise of the right is excessive in the circumstances; or

(ii) for some other reason.”

[35] The decision to take action under this section was of my own initiative. My concern about possible misuse of entry rights was raised with the parties from the very outset, on the basis of the information provided in support of the application.

[36] The Fair Work Commission very rarely invokes the capacity to act of its own motion under s.508. I have adopted the position that an action of this nature should only be taken in circumstances where the material before a particular member is such that it gives rise to a substantial concern about the possible misuse of entry rights. The enquiry that must then ensue must go to establishing whether, on the evidence then presented to the Commission, that substantial concern is made out such that a misuse of entry rights is established. Hence, I consider that it is incumbent on the Commission to articulate the concerns that gave rise to that action so that the parties are aware of the issues to be addressed in that matter.

The specific concerns

[37] The CFMEU refers to my comments in the 1 November 2013 hearing in the following terms: 27

“THE SENIOR DEPUTY PRESIDENT: You’re probably both aware that my normal practice is not to order transcript. In this case can I put you on notice that I will order the transcript, primarily because of my concern about the potential for a need to consider section 508. Mr Earls, am I correct in understanding you propose to call Mr Crabb?

....

THE SENIOR DEPUTY PRESIDENT: Can I take it you don’t dispute the evidence that there was a coordinated campaign of visits to the four sites involving Lend Lease?

....

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Earls and Ms Dooley, I will reserve a decision in this matter. I am conscious in doing so of the obligations established by section 419 and section 420, so that you shouldn’t expect there to be a long delay between the conclusion of this matter and my decision. Ms Dooley, there is one other matter which goes back to the observations I made yesterday. The evidence before me today has not been challenged. The evidence indicates that there were numerous breaches of the right to entry provisions of Part 3 4 of the Act. Section 508 allows the commission to inquire into circumstances such as that either on an application or of its own motion.

I’m going to review the evidence before me in that respect. If I decide that further action is warranted then I will advise both the CFMEU and, for that matter, the employer in this instance, but I wanted to extend to the CFMEU through you the opportunity to provide some advice to me which would fundamentally represent some form of undertaking in terms of future behaviour which might be taken into account in any consideration of a preliminary nature that I would give to whether or not such an inquiry should be commenced.

That is, in blunt and simple terms, I’ve got evidence before me which indicates multiple breaches of the right of entry provisions. That may or may not be confirmed through further inquiry and it may or may not represent circumstances that require the commission to act pursuant to section 508, but in considering what action, if any, should be taken I would have regard to advice that might be provided by the CFMEU as a guide to future behaviour. How extensive any advice needs to be is a matter for you to consider, not me. My chance will come later if and when I am provided with any such advice, but I thought it only fair to advise you first of all that I will be considering whether or not section 508 requires further consideration and to indicate that in doing so I would have regard to any advice provided to me by the CFMEU over the next week or so. I’ll adjourn the matter on that basis.”

[38] Further, the CFMEU has drawn the following paragraphs of my decision to my attention in support of its concerns about apprehended bias: 28

“Evidence was given by the Lend Lease Site Managers on each of these projects. This evidence was to the effect that, on 30 October 2013 around 13 CFMEU officials, from within and outside of South Australia visited various of these sites and proceeded to exercise right of entry rights without notice so as to engage in discussions with management and various employees.

....

At the commencement of the proceedings on 31 October 2013 I advised the CFMEU that I was concerned that the material before me indicated various breaches of Part 3-4 of the FW Act and that I would consider whether I should inquire into this pursuant to s.508. I reiterated this concern at the close of the proceedings on 1 November 2013 and invited the CFMEU to provide to me, separate to this application, advice of its position relative to future right of entry behaviour which might be relevant to my consideration of s.508.

The Lend Lease position is that the CFMEU actions on 30 October 2013 represented breaches of right of entry requirements. More particularly relative to this application, that these actions were a coordinated approach directed at requiring Lend Lease to engage full-time CFMEU non-working shop stewards on each site. Lend Lease asserted that the CFMEU actions represented a threat clearly directed at the Tonsley Park Flinders University site, but with implicit effect at the other sites, to institute industrial action relative to work covered by the Baulderstone Pty Ltd and CFMEU South Australian Enterprise Agreement 2013-2017. Lend Lease asserted that it could reasonably be inferred that the CFMEU's actions would embroil its employees and those of subcontractors such that employees should be included in the Order which must follow in the event that the requirements of s.418(1) were met.

....

On the evidence before me, it appears that the visits to the Lend Lease sites on 30 October 2013 constituted a planned and resource intensive series of visits involving intimidatory tactics in breach of right of entry requirements. Whilst I think it likely that the CFMEU objective was to achieve Lend Lease agreement to its request for full time non-working CFMEU shop stewards, this is not certain such that I can discern a clear common purpose for the visits.

....

In this context, the evidence is that five CFMEU officials entered the Tonsley Park Flinders University site without approval and then improperly exercised entry rights. They made various demands and clearly indicated they would stop the project unless their flag display requirements were met. The union’s actions cannot be regarded as trivial and were inconsistent with Ms Dooley's assertion that the CFMEU's general approach was to obtain instructions from its members before initiating action.”

[39] In reviewing these statements I have taken the provisions of Part 3-4 into account.

[40] Section 478 states:

“478 Guide to this Part

This Part is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws.

Division 2 allows permit holders to enter premises to investigate suspected contraventions of this Act and fair work instruments. The Division makes special provision in relation to TCF award workers. Division 2 also allows permit holders to enter premises to hold discussions with certain employees and TCF award workers. In exercising rights under Division 2, permit holders must comply with the requirements set out in the Division.

Division 3 sets out requirements for exercising rights under State or Territory OHS laws.

Division 4 prohibits certain action in relation to the operation of this Part.

Division 5 sets out powers of the FWC in relation to the operation of this Part.

Division 6 deals with entry permits, entry notices and certificates.”

(the underlining is mine)

[41] Part 3-4 then details the circumstances under which permit holders can enter an employer’s premises, the reasons for those entries, the behaviours then required of permit holders and the notice required before an entry.

[42] The evidence before me indicated that CFMEU officials, some of them I know to be permit holders, had entered the Lend Lease sites without the requisite notice, had behaved in a manner not permitted by Part 3-4 and had done so in a deliberate and coordinated manner. Further, that the officials indicated their behaviour would continue.

[43] Accordingly, I am satisfied that my observations in the hearings, and in the 1 November 2013 decision, were adequately based on the evidence before me at that time.

[44] Further, my position relative to the s.508 enquiry was made clear in correspondence to the parties of 11 November 2013 in the following terms:

“On 30 October 2013 Lend Lease lodged an application pursuant to s.418 of the Fair Work Act 2009. Various affidavits in support of that application were subsequently filed.

The s.418 application was the subject of consideration on 31 October 2013 and 1 November 2013. A decision ([2013] FWC 8659, PR544114) was published on 1 November 2013.

Consistent with the advice I provided to the Construction, Forestry, Mining and Energy Union (CFMEU) on 31 October 2013, the information provided to me indicates that the CFMEU may have misused its entry rights such that a consideration of s.508 of the Act is warranted.

A hearing for this purpose has been listed for 21 November 2013. A Notice of Listing to this effect is attached. In the event that a party or person seeks to participate in this hearing by video-link, my office should be advised as a matter of urgency.

I also attach to this advice the following material:

• Directions relative to the hearing on 21 November 2013.

• A copy of my decision of 1 November 2013.

• A copy of the transcript of proceedings in matter No C2013/6599.”

[45] The particular circumstances of the proceedings before me have to date related specifically to the s.418 matter. No findings about misuse relative to s.508 have been made.

[46] I have taken it that the reasonable or fair minded observer should have a passing knowledge of Part 3-4 of the FW Act. I do not consider that my advice, observations or conclusions made in the s.418 proceedings or decision could indicate to a reasonable fair minded observer that I have already reached a conclusion about s.508, or that any conclusions I have expressed will not be altered irrespective of the evidence or arguments to be presented.

[47] In initiating a s.508 motion I consider that the Commission should, in all fairness, articulate concerns which give rise to that action. Those concerns may, or may not be confirmed through further inquiry and may or may not represent circumstances that require action pursuant to that section. If I concluded that action under that section was necessary, I would also have regard to advice which may be provided by the CFMEU as a guide to future behaviour.

[48] It is open to the parties appearing in the s.508 proceedings to support their submissions with evidence. That evidence will be considered on its merits. The statements I have made to date support that position.

[49] For the reasons I have set out, I am not prepared to disqualify myself from further consideration of the s.508 proceedings. Those proceedings will be relisted.

[50] In this respect it is appropriate that I draw to the attention of the parties, that the additional material provided before the hearing on 21 November 2013 by Lend Lease and Fair Work Building and Construction, indicates that the s.508 matter should be expanded so as to encompass behaviours which may have occurred since 31 October 2013, or behaviours that may be continuing and behaviours which may have affected employers other than Lend Lease. I propose to hear submissions on this issue. Directions detailing my expectations of the future conduct of this matter will be issued shortly.

Appearances:

R Reitano counsel for the Construction, Forestry, Mining and Energy Union.

T Earls for Lend Lease Building Contractors Pty Ltd.

S Dowd counsel for Fair Work Building and Construction.

Hearing details:

2013.

Adelaide:

November 21

 1   [2013] FWC 8659

 2 [2003] FCAFC 36

 3   Transcript, 31 October 2013, paras 49 and 50

 4   Exhibit L1

 5   Exhibit L1, para 10

 6   Exhibit L2, para 5

 7   Exhibit L2, para 6

 8   Exhibit L3, para 8

 9   Exhibit L3, para 10

 10   Exhibit L3, para 15

 11   Exhibit L4, para 7

 12   Exhibit L4, para 15

 13   Transcript, 1 November 2013, paras 137 and 138

 14   Transcript, 1 November 2013, para 269

 15   Transcript, 1 November 2013, paras 303 - 308

 16   Transcript, 1 November 2013, paras 312 - 314

 17   [2013] FWC 8659, paras 20 - 27

 18   [2013] FWC 8659, paras 28 and 29

 19   [2013] FWCFB 7736

 20 [2003] FCAFC 36, para 17 (The quotation is from the judgement of Gleeson, CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [2000] HCA 48 (2000) 201 CLR 488 at [11])

 21 [2003] FCAFC 36, paras 29 and 30

 22 [2003] FCAFC 36, para 34

 23   [2013] FWC 4034

 24   [2013] FWC 4034, para 25

 25 [2011] HCA 2

 26 [2011] HCA 2, paras 44 - 48

 27   Transcript, 1 November 2013, paras 84, 303 and 332 - 334

 28   [2013] FWC 8659, paras 5, 16, 17, 22, 26

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