Health Services Union-Victoria No. 1 Branch
[2018] FWC 4286
| [2018] FWC 4286 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.512—Right of entry
Health Services Union-Victoria No. 1 Branch
(RE2018/664)
| Deputy President Gostencnik | MELBOURNE, 30 JULY 2018 |
Lee Michael Atkinson; right of entry permit; fit and proper person; permit to issue.
Introduction
The Health Services Union of Australia (HSU) is an organisation registered under the Fair Work (Registered Organisations) Act 2009. It has applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to an official of the HSU Victoria No. 1 Branch, Lee Michael Atkinson.
Mr Atkinson is employed as an Organiser with the HSU Victoria No. 1 Branch and has held that position since January 2013. Mr Atkinson also holds elected office in the HSU Victoria No. 1 Branch as Senior Vice President. In 2013, Mr Atkinson voluntarily relinquished and returned a right of entry permit that he then held. In addition to the permit qualification matters enumerated in s.513(1)(a) to (f) of the Act, the circumstances of the return of that permit are relevant to the assessment of the application for a permit to be issued to Mr Atkinson. These circumstances are discussed later in this decision.
Relevant statutory provisions and application
Subdivision A, Division 6 of Part 3–4 of the Act contains provisions dealing relevantly with issuing entry permits to officials of registered organisations. Section 512 of the Act provides that the Commission may, on application, issue a right of entry permit to an official of an organisation if it is satisfied that the official is a fit and proper person to hold the entry permit. Section 513 of the Act contains a number of matters described as permit qualification matters that the Commission must take into account in deciding whether an official is a fit and proper person to hold an entry permit. The matters are:
· Whether the official has received appropriate training about the rights and responsibilities of a permit holder;
· Whether the official has ever been convicted of an offence against an industrial law;
· Whether the official has ever been convicted of an offence against a Federal, State/Territory or foreign law involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property;
· Whether the official or any other person has even been ordered to pay a penalty under the Act or other industrial law in relation to the action taken by the official;
· Whether a permit issued to the official under the Act or similar law of the Commonwealth has been revoked, suspended or made subject to conditions;
· Whether a court or other person or body under State/Territory law or OHS law has cancelled, suspended or imposed conditions on a permit for industrial or OHS purposes or disqualified the official from exercising or applying for a right of entry for industrial or OHS and purposes; and
· Any other matters that the Commission considers relevant.
Section 514 of the Act restricts the Commission’s power to issue a right of entry permit at a time when a suspension or disqualification imposed by a court or other person or body applies to the official’s exercise of or prevents the official from exercising or applying for a right of entry for industrial or OHS purposes under a State/Territory industrial or OHS law.
Section 515 of the Act gives the Commission power to impose a condition on a right of entry permit when it is issued, and in deciding whether to do so, the Commission must take into account the permit qualification matters to which earlier reference has been made.
The operation of these provisions and their application is now well settled. In previous decisions I summarised the relevant principles and without repetition, I adopt what is therein said.[1] In short compass however, the assessment of whether an official of an organisation is a fit and proper person to hold an entry permit requires taking into account the permit qualification matters set out in s.513 of the Act considered in the context of the rights the holder of an entry permit may exercise under the Act, the limitations on and conditions attaching to the exercise of those rights and the responsibilities that must be exercised in respect of those rights.
A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend).[2] That is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision making process.[3] As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:[4]
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.”[5]
The weight given to a particular matter is ultimately a matter for the Commission, subject to some qualification. As Mason J explained in Peko-Wallsend:[6]
“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".[7]
Having regard to the structure and content of s.513, in deciding whether an official of a registered organisation is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.
I turn to consider the application.
Consideration
In support of the application to issue Mr Atkinson a right of entry permit, the HSU has filed a declaration by Mr David Eden, the Assistant Secretary of the HSU Victoria No. 1 Branch.[8] Mr Eden is a member of the Committee of Management. There was also filed a declaration made by Mr Atkinson, the proposed permit holder.[9] At the hearing of the application, the HSU also sought to rely on correspondence to the General Manager of the Commission from the HSU’s solicitors, Holding Redlich dated 1 June 2018[10], an affidavit of Mr David Shaw, a Partner of Holding Redlich[11], an affidavit of Ms Hiba Salem, the Lead Metro organiser of the HSU Victoria No. 1 Branch[12] and a statutory declaration of Mr Atkinson.[13] I will deal with this material as is relevant to the permit qualification matters below.
Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)
Turning first to whether Mr Atkinson has received appropriate training about the rights and responsibilities of a permit holder. The declarations accompanying the application set out that Mr Atkinson has received appropriate training about federal rights of entry conducted by the ACTU organising centre. A certificate of completion verifying Mr Atkinson’s successful completion of the training on 24 May 2018 accompanies the declarations. I accept on the material that Mr Atkinson has received appropriate training about the rights and responsibilities of a permit holder. This is a matter that weighs in favour of a conclusion that he is a fit and proper person to be issued an entry permit.
Next is the consideration whether Mr Atkinson has ever been convicted of an offence against an industrial law. The declarations accompanying the application set forth that Mr Atkinson has never been convicted of an offence against an industrial law. I accept that which is contained in the declarations. The absence of such a conviction is a matter that weighs in favour of a conclusion that Mr Atkinson is a fit and proper person to be issued an entry permit.
The third matter is whether Mr Atkinson has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, or fraud or dishonesty, or intentional use of violence against another person or intentional damage or destruction of property. The declarations accompanying the application set forth that Mr Atkinson has never been convicted of an offence of the kind to which reference is made in s.513(1)(c). I accept that which is contained in the declarations. The absence of such a conviction weighs in favour of a conclusion that he is a fit and proper person to be issued an entry permit.
Fourthly is the consideration whether Mr Atkinson, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Mr Atkinson. The declarations accompanying the application set forth that neither Mr Atkinson nor any other person had been ordered to pay a penalty of the kind to which reference is made in s.513(1)(d). I accept that which is contained in the declarations. The absence of the imposition of a relevant penalty on Mr Atkinson or on another person by reason of Mr Atkinson’s conduct weighs in favour of a conclusion that he is a fit and proper person to be issued an entry permit.
Fifthly is the consideration whether a permit issued to Mr Atkinson under Part 3-4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions. The declarations accompanying the application state that no permit, of the kind referred to in s.513(1)(e), has been revoked or suspended or made subject to any condition. Mr Atkinson has disclosed that he previously has held a permit and had surrendered that permit. As earlier noted, the circumstances of the return of that permit are discussed later in this decision. For present purposes, I accept that which is contained in the declarations. The absence of the imposition of a relevant permit revocation, suspension or condition imposition under Part 3-4 of the Act, or under a similar law of the Commonwealth is a matter that weighs in favour of a conclusion that he is a fit and proper person to be issued an entry permit.
The penultimate matter concerns whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that Mr Atkinson had under that law; or disqualified Mr Atkinson from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law. The declarations accompanying the application set forth that Mr Atkinson had never been the subject of cancellation, suspension, imposition of conditions or disqualification, in relation to a right of entry of a kind referred to in s.513(1)(f). I accept that which is contained in the declarations. The absence of any relevant court imposed right of entry cancellation, suspension or condition, or disqualification is a matter that weighs in favour of a conclusion that he is a fit and proper person to be issued an entry permit.
Permit qualification matters – s.513(1)(g)
Section 513(l)(g) requires the Commission may take into account as a permit qualification matter such further or other matters that it considers relevant. As earlier noted, a matter that I consider to be relevant concerns the circumstances under which Mr Atkinson relinquished and returned to the Commission a right of entry permit previously held by him.
A right of entry permit was issued to Mr Atkinson on 8 April 2013. As it is now, it was then a permit qualification matter whether a proposed permit holder for the issue of such a permit had received appropriate training about the rights and responsibilities of a permit holder. As is currently the practice, in 2013 an application for the issue of an entry permit required inter alia the proposed permit holder to make and sign a declaration that the proposed permit holder had received appropriate training about the rights and responsibilities of a permit holder.
Mr Atkinson made and signed a declaration on 20 February 2013 stating that he had received appropriate training about the rights and responsibilities of a permit holder. Contrary to that declaration, he had neither received nor undertaken such training. Mr Atkinson has explained that he made the declaration through inadvertence and inattention. He maintains that making of the declaration involved no deliberate act of dishonesty.
In an apparent reliance on, inter alia, Mr Atkinson's declaration as to the relevant permit qualification matters, the Commission issued an entry permit to him on 8 April 2013.
In or about September 2013, inquiries into the circumstances of the issuing of entry permits to various officials of the Victoria No. 1 Branch, including Mr Atkinson, were means by Mr Chris Enright, the then Director of the Regulatory Compliance Branch of the Commission. Those inquiries initially consisted of requests to the Victoria No. 1 Branch to provide information and documents.
As a result, Mr Atkinson became aware that there was a question as to whether his right of entry permit had been properly issued. Mr Atkinson reviewed relevant documents and concluded that the declaration he had made verifying that he had received relevant training, was wrong. Mr Atkinson acknowledged that the declaration he had earlier made was wrong, and he relinquished and returned the entry permit. This he did on 25 October 2013.
Nevertheless, Mr Atkinson's conduct later came under further scrutiny. It was examined by Mr Enright, tangentially by the Vice President Watson in Health Services Union – Victoria No. 1 Branch[14] and later by the Royal Commission into Trade Union Governance and Corruption. Mr Enright communicated with Mr Atkinson and by written correspondence dated 24 March 2014[15]. In that correspondence, Mr Enright advised Mr Atkinson that he proposed to make a finding, contrary to Mr Atkinson's account, that he had intentionally made a false declaration.
The correspondence sets out Mr Enright’s reasoning in support of the proposed the finding. First, apart from background material, Mr Enright sets out in summary form Mr Atkinson’s version of events as follows:
“114. Documents referring to Mr Atkinson's account include:
· Two Branch ROE applications made on his behalf which contained two declarations signed by Mr Atkinson dated 20 February 2013 and 12 March 2013 respectively;
· A statutory declaration signed by Mr Atkinson and dated 8 November 2013 declaring that he was not the person who had received the training and completed the ACTU ROE test (Annexure 7 (iii)); and
· Reference to Mr Atkinson contained with (sic) the Branch response dated 26 November 2013 which acknowledged that Mr Atkinson did not completed (sic) the ACTU training and ROE test and that the Branch has been unable to ascertain how the Certificate of Achievement came to be issued by the ACTU.
115. In Mr Atkinson's statutory declaration he relevantly stated that he accepts that paragraph (a) of his declaration (Mr Atkinson appears to be referring to the second application) is incorrect in that he had not undertaken the ACTU Federal ROE Online Training Course and has not since completed that course. He stated that he does not know who took the test on his behalf.
116. Mr Atkinson provided further details in relation to the circumstances in which he made an application for the issue of a Right of Entry permit as follows:
· Mr Atkinson was approached shortly after he commenced employment on 31 January 2013 by Ms Peggy Lee who advised him he needed to sign a form in order to get an entry permit. Ms Lee did not tell him that he needed to undertake any training. Mr Atkinson had previously held a ROE permit and assumed that he was not required to do training or take a test;
· Mr Atkinson has examined a document headed "Course Application Form Online Federal Right of Entry" and agrees the form contains his handwriting although does not remember filling in the form.
· Mr Atkinson has more recently checked his emails and discovered:
o an email dated 4 February 2013 from the ACTU which attached a letter providing him with a username and password in order to complete the Right of Entry course;
o a copy of an email from Ms Asmar sending him a copy of the document sent to him by the ACTU (referred to above); and
o an email dated 8 February 2013 from himself addressed to Ms Kitching attaching the email from the ACTU. Mr Atkinson stated that he does not know why he sent the abovementioned email to Ms Kitching.
· Mr Atkinson stated that he accepts that he signed the declaration contained in the Application for an Entry permit and accepts that paragraph (a) of the declaration was incorrect because he has not undertaken the ACTU Federal ROE Online Training. He further stated that he believed the typed details on the application were inserted by Ms Lee and that it appeared that someone else inserted the date.
· Mr Atkinson set out that he cannot find any record on his computer showing that he received the Certificate of Completion.
· Mr Atkinson stated that he did not complete the course on 15 February 2013 as shown on the Certificate of Completion nor has he since completed that course. He further included that it would appear that someone else has used the username and password provided by the ACTU to undertake the test. Mr Atkinson further included that he did not ask anyone to do the test nor does he know who did the test. He recalls Ms Lee telling him in passing that he got "100%" although at the time he did not know what she was talking about.
· Mr Atkinson stated that he acknowledges that he has signed a number of forms without fully reading and understanding their contents and that had he been aware of the need to undertake training and do the test, he would have done so without hesitation.
117. Mr Atkinson further stated that he has been shown the statements made by Ms Govan and Mr McCubbin and believes that the assertion within those statements that Ms Asmar told staff at an industrial day that they would not be required to complete their own right of entry tests and that Ms Kitching would complete the tests on their behalf is incorrect. Mr Atkinson stated that he has never heard Ms Asmar making a statement of such effect and further, there was no industrial day in April 2013 contrary to that alleged by Mr McCubbin.”[16]
Next Mr Enright sets out that which is described as an analysis of the available material and evidence as follows:
“118. Detailed analysis has been conducted of all of the available materials including throughout this document.
119. Mr Atkinson in his statutory declaration stated that he did not complete the ACTU Federal Right of Entry Online Training on 15 February 2013. He further stated that he accepts that paragraph (a) of the declaration (which relates to having received the appropriate training about the rights and responsibilities of a permit holder) is incorrect. While it appears that Mr Atkinson is referring to the second application, as essentially the same declaration was made in the first application it follows that paragraph (a) of the first application is also incorrect.
120. The above assertion from Mr Atkinson is supported by his mobile telephone records which demonstrate that at the relevant time and according to the HSU response 'show that he was in Geelong.'
121. The materials have also been analysed to determine who actually received the ACTU online training and completed the ROE test associated with that training on 15 February 2013 on behalf of Mr Atkinson.
122. The evidence is that Ms Asmar was elected to the position of Branch Secretary on 21 December 2012 and immediately commenced exercising control over every aspect of the Branch including by appointing Ms Kimberley Kitching as the General Manager and commencing to appoint organisers and other temporary staff. At the same time, Ms Asmar was facilitating the departure of staff who had been appointed under the previous leadership.
123. Almost immediately, Ms Asmar identified an urgent need to address ROE permit issues and appointed Ms Kitching to oversee Ms Peggy Lee to put in train a process for obtaining ROE Permits.
124. The evidence is that Ms Asmar advised a number of witnesses that organisers would not be required to complete their own ROE testing and Ms Kitching would be completing the ACTU testing on their behalf. That evidence is disputed by the Branch including and in particular, by Ms Asmar and Ms Kitching.
125. Ms Lee provides evidence that Ms Kitching advised her that she (Ms Kitching) had been the person who actually completed the ROE tests for the organisers on 15 February 2013 which included Mr Atkinson.
126. The available evidence is that the three Branch people who had access to Mr Atkinson's ACTU account were Mr Atkinson, Ms Asmar and Ms Kitching. Further, the materials demonstrate that Ms Asmar was away from the Branch at the relevant times and could not have been the person accessing Mr Atkinson's ACTU account on 15 February 2013. At the same time, the records demonstrate that Ms Kitching had been provided with Mr Atkinson's ACTU account username and password on 8 February 2013.
127. The available materials demonstrate that even through (sic) Ms Lee does not appear to have had access to Mr Atkinson's ACTU account, on 15 February 2013 she was in Hong Kong on annual leave.
128. Analysis of the ACTU data relevant to 15 February 2013 is particularly informative in the context of there being no dispute that the first three Branch courses accessed and tests completed on that day were accessed by a person or persons other than the account holders Mr Atkinson, Ms Govan and Mr McCubbin.
129. General informative aspects of the ACTU date relevant to 15 February 2013 includes:
· The sequential nature of access to the individual Branch courses;
· The extremely short gaps in some cases between the completion of access to one course and the commencement of access to another course;
· The truncation in the time taken to complete the ROE tests between the first two and the remaining tests;
· The consistency of time taken to complete the remainder of the tests;
· The consistency of test scores; and
· The fact that while account holders were variously engaged in attending meetings, sending and receiving emails, engaging in telephone conversations, taking lunch breaks and being both in and away from the Branch office, 7 different Branch ACTU courses were being accessed at various times while performing 104 actions within those accesses on the same day and that no two users were accessing the ACTU system at any one time.”[17]
Thereafter, Mr Enright sets out that which he describes as general proposed findings, which relevantly are as follows:
“130. The inquiry has carefully considered all of the available materials, including Mr Atkinson's account and supporting materials, the witness accounts, all of the ACTU data and each of the circumstances surrounding the applications by the Branch and the subsequent issuing of a ROE permit to Mr Atkinson on 8 April 2013. The inquiry has identified sufficient evidence on balance to substantiate the following:
a) Branch President Mr David Eden made a declaration as a COM member which was signed and dated 20 February 2013 claiming to have made proper inquiries (including inquiries of the proposed permit holder) and claiming to having reviewed the records of the organisation;
b) Mr Eden's declaration included that the proposed permit holder had received appropriate training about the rights and responsibilities of a permit holder and although the declaration did not include the type or date of that training, was accompanied by a copy of a Certificate of Achievement issued by the ACTU dated15 (sic) February 2013 relevant to such training;
c) Mr Atkinson made a declaration which was signed and dated 20 February 2013 claiming to have received appropriate training about the rights and responsibilities of a permit holder;
d) Because of a deficiency in the application, it was returned to the Branch on 25 February 2013 for amendment;
e) Ms Diana Asmar made a declaration which was signed and dated 12 March 2013 claiming to have made proper inquiries (including inquiries of the proposed permit holder) and claiming to having reviewed the records of the organisation;
f) Ms Asmar's declaration included that the proposed permit holder had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry on line training course completed on 15 February 2013;
g) Mr Atkinson made a subsequent declaration which was signed and dated 12 March 2013 claiming to have received appropriate training on 15 February 2013 about the rights and responsibilities of a permit holder;
h) The inquiry has determined that Mr Atkinson did not receive such training on 15 February 2013 about the rights and responsibilities of a permit holder;
i) The inquiry has determined that the General Manager of the Branch, Ms Kimberley Kitching, was the person who actually received the ACTU online training and completed the Right of Entry test associated with that training on 15 February 2013 on behalf of Mr Atkinson;
j) The inquiry has determined that the declarations by Mr Atkinson therefore each contained intentionally false and misleading statements;
k) The inquiry has determined that the intentionally false and misleading statement in the first declaration by Mr Atkinson dated 20 February 2013 was that he had received appropriate training about the rights and responsibilities of a permit holder;
l) The inquiry has determined that the intentionally false and misleading statement in the second declaration by Mr Atkinson dated 12 March 2013 was that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry on line training course completed on 15 February 2013;”[18]
The inquiry undertaken by Mr Enright did not ultimately lead to the making of concluded findings, as the matters which were the subject of the inquiry were referred to VP Watson and became the subject of proceedings to which earlier reference has been made. Although no final findings were made, it is necessary nevertheless for me to express a view as to the veracity of the proposed findings foreshadowed in the correspondence. It is necessary for me to do so in order to attribute appropriate weight to the circumstances surrounding the return by Mr Atkinson of his entry permit in 2013. Respectfully, on the material as set out in the correspondence, I can find no cogent basis upon which it can be concluded, even on a preliminary basis, that Mr Atkinson intentionally made false misleading statements in either of the declarations to which reference is made in the correspondence.
Mr Atkinson gave an explanation, that is, one of inadvertence and inattention. He returned his permit as soon as practicable after the issue was brought attention. He explained the circumstances in which the declaration was completed. True it is that declarations were false. However, there is little probative material set out in the letter which suggests that Mr Atkinson’s false statements in the declaration were intentionally made. No witness to whom reference is made in the correspondence alleges that Mr Atkinson deliberately made a false statement or statements. Mr Atkinson denies that he did so and gives a plausible explanation for his conduct. Unlike some other officials of the HSU No. 1 Branch, Mr Atkinson returned his permit to the Commission once the training issue had been put to his attention. There is some material which suggests that Mr Atkinson received an email from the ACTU with his login details to enable participation in the online right of entry course on 4 February 2013. The email was forwarded to Ms Kitching by Mr Atkinson on 8 February 2013 and Mr Atkinson stated that he did not know why he sent the email to Ms Kitching. Mr Atkinson’s recollection was that a few days after he had signed the declaration, a Ms Peggy Lee had said to him as an aside that “I completed your test and you got sent”. Mr Atkinson said that he did not know nor check what Ms Lee had meant by the statement.
These matters, without more, in my opinion provides an insufficient basis to conclude that a false statement or statements in the declarations was deliberately made by Mr Atkinson. Such conclusions are serious and require probative evidence upon which the conclusions are based. There is simply insufficient probative evidence set out in the abovementioned correspondence to suggest that Mr Atkinson acted dishonestly by deliberately making the false statements contained in the declarations. I therefore do not propose to assign any weight to the conclusions as to the proposed findings to be made as a consequence of the inquiry.
The Royal Commission report concerning the HSU and right of entry permit tests recommended that its report be referred to the Commonwealth Director of Public Prosecutions in order that consideration may be given as to whether, inter alia, Mt Atkinson be should be charged with and prosecuted for making a false statement in an application or recklessly making a false statement contrary to ss. 136 and 137 of the Criminal Code (Cth).[19] It is apparent from the transcript of the examination of Mr Atkinson by Counsel assisting the Commission that no such allegation was put to Mr Atkinson.[20] As at the date of this decision, no action has been taken by the Commonwealth Director to bring any such charge. Moreover, to the extent that any charge might concern Mr Atkinson having recklessly made a false statement, such a prosecution must be commenced within one year of the commission of the offence.[21] Significantly, the Royal Commission did not make any adverse finding against Mr Atkinson concerning the declarations.
The proceedings before Vice President Watson resulted in no order concerning Mr. Atkinson nor is it apparent that any adverse finding was made against Mr Atkinson on the face of the decision.
It appears to me that neither the proposed conclusion of Mr Enright’s inquiry nor the recommendation of the Royal Commission were relevantly conclusive. Nor are they independently operative. Moreover, these matters must be understood in the whole context which I have endeavoured to explain above. The Royal Commission's recommendation has not been taken up and part of it now appears statute barred. Mr Atkinson has not been charged with or prosecuted for making a false statement contrary to ss. 136 and 137 of the Criminal Code (Cth).
I accept on the basis of the material before me that Mr Atkinson’s conduct some five years ago was inadvertent and inattentive. Nonetheless, declarations made for the benefit of the Commission and assisting the Commission to arrive at a state of satisfaction as to particular matters are important. Declarants should read declarations that are prepared for them by others. This Mr Atkinson did not do. A declarant should not simply sign a declaration verifying the truth of statements contained therein without reading the statements and satisfying oneself as to the truth and accuracy of those statements before signing the declaration. This is precisely what Mr Atkinson did. Mr Atkinson accepts this and is relevantly contrite. I am therefore satisfied that Mr Atkinson took appropriate steps in the immediate aftermath of making a false statement by acknowledging the false declaration and by returning the permit. This conduct is a matter that weighs in his favour, even though his inattention to the content of the declarations which he declared were true and correct, does not show him in a good light.
In the circumstances, and taking into account the permit qualification matters discussed above, I am satisfied that Mr Atkinson is a fit and proper person to hold a permit.
Conclusion
For the reasons stated, I am satisfied that Mr Atkinson is a fit and proper person to hold a right of entry permit under the Act. A right of entry permit will separately be issued to Mr Atkinson.
DEPUTY PRESIDENT
Appearances:
T Borgeest of Counsel for the Health Services Union.
Hearing details:
2018.
Melbourne:
July 10.
Final written submissions:
Applicant, 9 July 2018
<PR609165>
[1] See for example Construction, Forestry, Mining and Energy Union-Construction and General Division, Victoria-Tasmania Divisional Branch [2017] FWC 666 at [4] – [8]
[2] (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
[3] See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118
[4] (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]
[5] (1987) 16 FCR 167 at 184
[6] [1986] HCA 40; (1986) 162 CLR 24
[7] Ibid at [15], pp 39-41
[8] Exhibit 1
[9] Ibid
[10] Exhibit 2
[11] Exhibit 3
[12] Exhibit 4
[13] Exhibit 5
[14] [2015] FWC 3359
[15] Exhibit 3, Attachment F
[16] Ibid at [114] – [117]
[17] Ibid at [118] – [129]
[18] Ibid at [130]
[19] Commonwealth, Royal Commission into Trade Union Governance and Corruption, Final Report (2015) Part 9, p 1612 at [128]
[20] Transcript of proceedings in the Royal Commission into Trade Union Governance and Corruption dated 19 September 2014 at pp 1037 -1039
[21] Criminal Code (Cth) s 15B(1)(b)
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