Finance Sector Union of Australia

[2016] FWC 1288

[2016] FWC 1288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Finance Sector Union of Australia
(RE2015/1864)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 7 MARCH 2016

Right of Entry Permit – Benedict Gallen; whether to exercise powers under s.508.

[1] An application was filed by the Finance Sector Union of Australia (FSU) on 17 December 2015 under s.512 of the Fair Work Act 2009 (the Act) seeking that a right of entry permit be issued for Mr Benedict Gallen, an employee of the FSU. Mr Gallen’s most recent right of entry permit was issued on 9 May 2011 and expired on 8 May 2014.

[2] The application was accompanied by a letter from Mr G. Derrick, the National Assistant Secretary of the FSU, indicating that Mr Gallen had only just realised that his permit had expired in May 2014, and that he had been working on the basis that he had a current permit since that time. He identified the circumstances attached to the late return of Mr Gallen’s permit and provided details of remedial action taken by the FSU.

[3] Mr Gallen also provided correspondence to the FWC, dated 14 December 2015, with details about the issues of his operating with an expired his entry permit, including that he was a Lead Organiser of the FSU and that he became aware on 8 December 2015 that his entry permit RE2011/2961 had expired on 9 May 2014. In it he indicated:

‘In the period since May 2014, I have made use of the rights associated with the permit by issuing right of entry notices and requiring permission to attend on premises in respect of suspected contraventions of relevant instruments….. I have also made demands for the production of documents and records and required employers to produce those documents to me.’

[4] Mr Gallen also stated that he believed he validly held a current entry permit during the 19 months he continued to make use of the rights associated with it after the permit had expired.

[5] Further correspondence from Mr Derrick advised that the union had taken steps to destroy all the documents that had been provided in response to permit requests made by Mr Gallen. Attached to the application for a new permit was correspondence to both of the banks whose branches Mr Gallen had either attended or had caused to provide documents to the FSU whilst operating with an expired permit.

[6] At a directions hearing on 29 January 2016 I indicated that not only would I consider whether Mr Gallen was a fit and proper person under the Act to hold an entry permit, but I would also consider whether to impose conditions on any right of entry permit issued and whether, more broadly, the Commission should take any action under s.508 of the Act against the FSU.

[7] At the conclusion of a hearing on 29 February I indicated that I would be issuing Mr Gallen with a new permit, subject to certain conditions. The order was made on that day 1. I also indicated that I would not be taking any action against the FSU under s.508. I indicated that I would provide written reasons for those decisions at a later date. These are those reasons for decision.

The application for Gallen’s permit

[8] The Commission may issue a right of entry permit under s.512 of the Act to an official if it is satisfied that the official is a fit and proper person to hold a permit. When considering whether to issue an entry permit the Commission must take into consideration matters set out in s.513 of the Act:

‘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.

(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.’

[9] The Act also sets out circumstances in which the Commission may impose conditions on an entry permit under s.515:

‘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).’

[10] Both Mr Gallen and Ms Jordan provided statutory declarations addressing the permit qualification issues contained in s.513. Mr Gallen made an additional statement dated 23 February 2016. In that statement he said that:

● He had previously been employed by the Community and Public Sector Union from 1999 to 2005 and by the Australian Municipal, Administrative, Clerical and Services Union from 2005 until in 2008 he joined the FSU;

● He held right of entry permits while working for all unions;

● His most recent permit was issued on 9 May 2011. This permit expired on 8 May 2014;

● His primary role was as an organiser with the FSU and his duties included meeting with members and potential members at their work site, working with more junior organisers and accompanying them to work sites, holding discussions in workplaces and requests for the production of documents related to suspected contraventions or for the purpose of holding discussions;

● He carried his permit with him at all times, however he was rarely asked to produce it;

● He is aware of his obligations under the Act in respect to right of entry permits, including his obligation to return the permit when it expires and his obligation not to use an expired permit;

● He was aware that the FSU maintained a list of all permit holders to maintain compliance and that organisers were notified when their permits were about to expire;

● He did not recall receiving any notification that his permit was about to expire and therefore thought that his permit was valid;

● On 8 December 2015 he realised that his permit had expired in May 2014, he recognised the seriousness of the situation and approached Mr Derrick the next day to inform him of the issue. He was told to cease using his permit immediately and advise the Commission what had occurred;

● He reviewed his work over the previous 19 months and provided to the Commission a list of the number of entries he had effected to sites and a breakdown of any documentation that had been obtained.

[11] In his statement Mr Gallen apologised for his actions and acknowledged the seriousness of his failings. He also stated that he was an ethical and honest person and that he was deeply embarrassed that he had failed to meet the standards of his employer and himself.

[12] I am satisfied that Mr Gallen has met the requirements of the Act under s.513(1) (a) to (f). In considering whether he has met the requirements of s.513(1)(g) I have to take into account his failure to return the expired entry permit within the required timeframe and his exercise of right of entry powers pursuant to the expired permit.

[13] Section 517 of the Act relevantly provides:

‘517 Return of entry permits to the FWC

When permit holder must return entry permit to the FWC

(1) A permit holder must return an entry permit to the FWC within 7 days of any of the following things happening:

(a) the permit is revoked or suspended;

(b) conditions are imposed on the permit after it is issued;

(c) the permit expires.

Note: This subsection is a civil remedy provision (see Part 4-1).’

[14] It is a matter of concern that Mr Gallen continued to issue entry notices while his permit was expired and that documents and records appear to have been unlawfully demanded and received from banks by Mr Gallen relying on what is now known to have been an expired entry permit. I note that correspondence was sent to the banks by the FSU outlining what had occurred and the dates on which Mr Gallen had effected entry. The FSU also notified the banks that it had destroyed any documentation that was acquired by Mr Gallen during that period. I note that no objections or complaints have been received by the FWC from either of the banks.

[15] I am satisfied, based on the evidence presented to the Commission, that Mr Gallen’s actions with respect to his use of an expired permit was not intentional.

[16] I have to consider, if I do issue a new entry permit to Mr Gallen, whether I should impose any conditions consistent with s.515 of the Act.

[17] In considering Mr Gallen’s actions I note the approach taken by Hatcher VP in The Australian Workers’ Union (RE2105/1652) in a similar matter:

‘[11] I am satisfied on the evidence that Mr Kerley’s conduct in this respect was not intentional. However it demonstrates a significant failure of diligence on his part to ensure that he conducted himself in accordance with the relevant requirements of the FW Act. That is a matter which is significantly adverse to the proposition that he is a fit and proper person to hold an entry permit. Whilst it is clear that Mr Kerley is a person of honesty and integrity, the test of fitness and propriety under s.512 is not confined to these criteria. It also involves an assessment as to whether the relevant official has the capacity to ensure compliance with right of entry obligations under Part 3-4 of the FW Act.

[12] Taking all the permit qualification matters into account, I am not satisfied that Mr Kerley is at the current time a fit and proper person to hold an unconditional entry permit. Notwithstanding the evident efforts made by the AWU to ensure that systems are in place to remind officials about the pending expiry of permits, ultimately it remains the responsibility of each official to ensure that expired permits are returned and are not purported to be used. Mr Kerley’s conduct during the course of 2015, which has been described above, causes me significant concern.

[13] However I consider that my concern about his fitness and propriety would be addressed by the following conditions imposed under s.515:

(1) Mr Kerley must take steps to verify that he holds a current entry permit under the FW Act before he issues any entry notice under the FW Act.

(2) Mr Kerley must have his entry permit under the FW Act on his person at any time he exercises entry rights under the FW Act, and must produce that entry permit in accordance with the requirements of ss.489 and 497 (as applicable).

[14] I consider that these conditions are necessary in order to ensure that there is no repetition of the conduct disclosed in this matter.’

[18] I have decided to take a similar approach to Mr Gallen. Therefore I determine that Mr Gallen is a fit and proper person to hold an entry permit, but only subject to the following conditions:

‘1. Mr Gallen must take steps to verify that he holds a current entry permit under the Act before he issues any entry notice under the Act.

2 Mr Gallen must have his entry permit under the Act on his person at any time he exercises entry rights under the Act, and must produce that entry permit in accordance with the requirements of ss.489 and 497 (as applicable).’

Whether the Commission should take action against the FSU under s.508

[19] Under s.508 of the Act the Commission may take action against a registered organisation if it or its officials have misused rights under the right of entry provisions of the Act. Section 508 is as follows:

‘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.’

[20] It is important to note that since 2013 the Commission has embarked on a comprehensive and on-going educational campaign to raise awareness about the requirement to return expired permits in accordance with the requirements of s.517, to avoid the unlawful exercise of entry powers by union officials.

[21] That campaign has included requiring the amendment of every right of entry training package to specifically include training about the requirements of s.517. Staff of the Commission conducted a right of entry webinar on 12 September 2013, to which every union was invited, in which the requirements of s.517 were included. Since 2013, every proposed permit holder who failed to comply with s.517 has been required to undertake refresher training.

[22] In 2015 the FSU made application for a new permit for proposed permit holder Mr Ross Stewart who provided a statutory declaration which included that he had failed to comply with s.517 by returning his permit because he had overlooked the expiry date.

[23] In correspondence to the National Secretary of the FSU, Ms Fiona Jordan, on 29 April 2015 about the contravention of s.517 by Mr Stewart, the Delegate, Mr Chris Enright reminded Ms Jordan that the statutory obligation rested on the permit holder to return the permit and he urged Ms Jordan to convey clearly to Mr Stewart that he had breached s. 517 of the Act and was liable to a civil penalty.

[24] Mr Enright wrote on 6 October 2015 to all national union secretaries, including the National Secretary of the FSU, which explicitly raised concerns about the frequency of noncompliance with s.517 and more serious concerns in relation to officials exercising entry powers after the expiry of their entry permits. He reminded them of the Commission’s educational campaign since 2013 on this issue.

[25] Mr Enright urged a review of right of entry systems to ensure compliance and provided a link to a facility on the Commission’s website which provides a complete list of every current permit holder and the expiry date of each permit.

[26] At the directions hearing on 29 January 2016 I indicated the seriousness with which I regarded the failure to return Mr Gallen’s right of entry permit and his continued reliance on his expired permit to exercise purported right of entry powers. I put the FSU on notice that I was seriously considering whether I should exercise powers available to the Commission under s.508.

[27] In response the FSU filed a detailed statement from Mr Derrick describing a review the FSU had conducted into its system for ensuring that staff returned old permits and applied for new ones. It indicated that the union was undertaking a range of actions to ensure that its employees who hold permits are aware of their responsibility to comply with their obligations and to provide a better back up system so as to ensure that those individuals do in fact comply with their obligations.

[28] I have taken into account all of the evidence before me and I have considered the actions taken by the FSU since the discovery that Mr Gallen had been operating with an expired permit. I am satisfied that the actions of the FSU were in no way deliberate or intentional. As soon as the union discovered that Mr Gallen’s permit had expired it took action to inform the Commission and the banks concerned and undertook a review of its own systems to prevent this sort of occurrence recurring.

[29] I am satisfied with the actions taken by the union and its officials to remedy the situation. I have decided not to take any action against the FSU. Of course this would need to be reconsidered if there were further instances of non-compliance.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D Taylor solicitor acting for the Finance Sector Union of Australia

Mr G Derrick from the Finance Sector Union of Australia

Hearing details:

2016

Sydney

29 January

29 February

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