Maritime Union of Australia, the

[2013] FWCD 8459

[2013] FWCD 8459

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit
The Maritime Union of Australia
(RE2013/1617)
MR ENRIGHT	MELBOURNE, 29 NOVEMBER 2013
Background

[1] On 15 October 2013, an application under s. 512 of the Fair Work Act 2009 (the Act) dated 14 October 2013 was lodged in the Fair Work Commission (the Commission) by The Maritime Union of Australia (the MUA) for a permit to enter and inspect premises for the following official:

William Warren Tracey: RE2013/1617

[2] The application in this matter was supported by declarations from Mr Michael Doleman, the relevant Committee of Management member, and Mr William Tracey, the proposed permit holder, both dated 14 October 2013 (the declarations). Mr Doleman is the Deputy National Secretary of the MUA. Mr Tracey is the Assistant Branch Secretary of the Western Australian Branch of the MUA (the Branch).

[3]        The declarations disclose that previous permits issued to Mr Tracey under the

Workplace Relations Act 1996 (the WR Act) were revoked in BHP Iron Ore Pty Ltd v

Tracey1 (BHP v Tracey) and BHP Billiton Iron Ore Pty Ltd v Tracey2 (BHP Billiton v

Tracey).

[4] The declarations further disclose that more recently, penalties were imposed upon both Mr Tracey and the MUA in two separate and unrelated matters, namely, Fair Work

Ombudsman v Maritime Union of Australia [2012] FCA 1232 and Fair Work Ombudsman v
Maritime Union of Australia [2012] FCA 1521.

[5] On 7 November 2013, the Commission wrote to the MUA expressing concerns regarding Mr Tracey’s status as a “fit and proper person” given the penalties that had been imposed upon him and the MUA and the revocations of his previous permits that occurred as a result of the conduct of Mr Tracey in the above matters and inviting the MUA to make any submissions they may wish to make in the current matter.

[6]        On 22 November 2013, the MUA filed written submissions in the Commission.

Legislative framework
[2013] FWCD 8459

[7] Under s.512 of the Act, the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold an entry permit. In deciding this, the Commission must take into account the “permit qualification matters” set out in s.513(1).

[8]        Section 513(1) of the Act is set out below:

“513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into

account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and

responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an

industrial law;

(c) whether the official has ever been convicted of an offence against a law of

the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional
damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory
industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.”

[2013] FWCD 8459

[9] Sections 512–513 are within Part 3–4 of the Act, entitled ‘Right of Entry’. The objects of Part 3–4 are set out at s.480:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and Fair Work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work,

information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business
without undue inconvenience.”

[10] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia3, Delegate Nassios made the following observations

regarding the objects of Part 3–4 of the Act with respect to an application for an entry permit:

“[21] The objects of Part 3-4 are set out in section 480 of the Act. The object of right of entry provisions is to establish a framework for officials of organisations to enter premises while balancing competing rights of organisations, employees and occupiers/employers. Organisations have the right to represent their members in the workplace, to hold discussions and to investigate suspected contraventions of relevant laws. Balanced against these rights are the rights of occupiers and employers ‘to go about their business without undue inconvenience’. The objects set out in section 480 of the Act emphasise the mutual rights and responsibilities of participants in the system in much the same way as the objects under the Workplace Relations Act 1996. Earlier decisions regarding the granting of right of entry permits under the Workplace Relations Act 1996 have made reference to the ‘important contextual issue’ of the nature of the power that is exercised by permit holders. In Vivienne Daniels v Joe Patti

& Anor, Munro J observed that:

Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.

The observations of Munro J apply equally to the granting of right of entry permits

under the legislative regime set out in the Fair Work Act 2009.”4 (endnotes omitted)

[2013] FWCD 8459

[11] Although I am not bound by the above views I find they are a useful context for considering an application for an entry permit.

Submissions

[12] The submissions of the MUA, filed in the Commission on 22 November 2013, assert that “on balance, [Mr Tracey] satisfies the ‘fit and proper person’ test” and address each of the “permit qualification matters” set out in s. 513(1) of the Act. The effect of those submissions are set out below as they relate to each of those matters. The submissions conclude that:

“(i)n all the circumstances [Mr Tracey’s] willingness to accept responsibility for his mistakes and endeavour to improve his behaviour should mitigate the worse aspects of his previous conduct. With no other negative elements to this application, the [MUA] submits that the permit should be granted.”

Permit Qualification Matters

[13]      I will consider each of the permit qualification matters separately.

Training about rights and responsibilities

[14] Section 513(1)(a) of the Act requires me to take into account whether Mr Tracey has received appropriate training about the rights and responsibilities of a permit holder. Mr Tracey undertook such training on 16 December 2010. The content of the training material was approved by, then, Fair Work Australia on 6 October 2009.

[15] In its submissions, the MUA concedes that, given the length of time that has elapsed between the last occasion such training was undertaken by Mr Tracey and the lodgement of the application in this matter “it may be appropriate to make further training a condition of the permit being issued”.

Conviction/s against an industrial law

[16] Section 513(1)(b) of the Act requires me to take into account whether Mr Tracey has ever been convicted of an offence against an industrial law. The declarations state that Mr Tracey has been convicted of such an offence and refer to the matters of Fair Work

Ombudsman v Maritime Union of Australia [2012] FCA 1232 and Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521. The submissions of the MUA also refer to

those two matters and indicate that they represent relevant convictions for the purposes of this
permit qualification matter.

[17] However, as discussed below, those matters involved a contravention by Mr Tracey of a civil remedy provision pursuant to both the Act and the WR Act rather than the conviction for an offence committed by Mr Tracey for the purposes of section 513(1)(b) of the Act.5 There is no evidence before me to suggest that Mr Tracey has ever been convicted of such an offence.

Conviction/s involving fraud, dishonesty or intentional use of violence

[2013] FWCD 8459

[18] Section 513(1)(c) of the Act requires me to take into account whether Mr Tracey 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, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations and submissions of the MUA do not disclose any such convictions against Mr Tracey. There is no other evidence before me that suggests otherwise.

Order/s to pay a penalty under an industrial law in relation to action taken by the official

[19] Section 513(1)(d) of the Act requires me to have regard to whether Mr Tracey, 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 Tracey. As noted at paragraph [4] of this decision, Mr Tracey and the MUA were ordered to pay penalties under the Act in Fair Work Ombudsman v

Maritime Union of Australia [2012] FCA 1232 and the WR Act in Fair Work Ombudsman v
Maritime Union of Australia [2012] FCA 1521.

[20] Although it conceded that the above two matters are “problematic”, in its submissions the MUA highlighted the mitigating circumstances that Mr Tracey admitted liability during the proceedings and has expressed remorse for his conduct involved in both matters. Further, the MUA pointed to the extensive length of time that Mr Tracey has been employed as an official of several registered organisations and submitted that, in this context, the matters were “relatively minor events and do not justify denying him a permit”.

[21] These permit qualification matters, and the associated submissions of the MUA, will be considered in detail later in this decision.

Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[22] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Tracey under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. As noted at paragraph [3] of this decision, two such permits issued to Mr Tracey under the WR Act were revoked in BHP v Tracey and BHP Billiton v Tracey.

[23] In its submissions, the MUA emphasised that the revocations that occurred in the above two matters occurred more than a decade ago and that since the last revocation occurred, no further entry permits issued to Mr Tracey have been subject to suspension or revocation. The MUA further submitted that Mr Tracey’s “good conduct in this regard is such that these previous suspensions ought to not weigh against the granting of a new permit”.

[24] These permit qualification matters, and the associated submissions of the MUA, will be considered in detail later in this decision.

Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law

[25] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Tracey had under that law or disqualified Mr [2013] FWCD 8459

Tracey from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations and the submissions of the MUA do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Tracey has held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations and the submissions of the MUA do not disclose that Mr Tracey has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no other evidence before me that suggests otherwise.

Any other matter the Commission considers relevant

[26] Section 513(1)(g) of the Act permits the Fair Work Commission to have regard to

“any other matters that the FWC considers relevant” in determining whether the proposed
permit holder is a “fit and proper person”.

[27]      In this regard, I have taken into consideration the objects of Part 3–4 of the Act

[28]      I have also taken into account that in Fair Work Ombudsman v Maritime Union of

Australia [2012] FCA 1232, which is referred to later in this decision, Mr Tracey occupied a

leadership position in the MUA as the Assistant Branch Secretary of the Branch.

Revocation of Permits

[29]      As noted above, Mr Tracey has held two previous permits issued under the now

repealed Part IX of the WR Act which were subject to revocation. The first permit was issued in his former capacity as an official of The Australian Workers’ Union (RE2001/694).

to Mr Tracey on 9 March 2001 in his former role as an official of The Australian Workers’
BHP v Tracey

[30] In BHP v Tracey, Polites SDP revoked the first permit on 7 June 2001 and directed the

then Industrial Registrar not to issue any further permits to him for a period of six months. for purposes other than those set out in the WR Act, behaved in a manner that was inappropriate to the exercise of statutory right of entry powers while on the premises, entered the premises on multiple occasions on the same day after providing only one notice of entry and, on multiple occasions, between 11 March and 3 May 2001 entered or remained on the premises without showing the permit as required by the WR Act.

BHP Billiton v Tracey

[31]      In BHP Billiton v Tracey, Polities SDP revoked the second permit on 13 November

2002 and directed the then Industrial Registrar not to issue any further permits to him for a
period of six weeks. Polites SDP found that, whilst exercising his statutory right of entry
powers on 12 June 2002, Mr Tracey acted in an inappropriate manner by raising an issue not
within the scope of his powers whilst exercising the permit despite being informed by a
representative of the affected employer that he did not wish to discuss it.

[2013] FWCD 8459

[32]      Polites SDP found that Mr Tracey’s conduct was unacceptable and noted that he was

well aware of the limits upon his permit and had acknowledged that he must behave
appropriately whilst exercising statutory right of entry powers.6

[33]      Polites SDP held that Mr Tracey’s Right of Entry Permit was revoked “in order to re

emphasis [sic] the point that permits are there for the purposes identified in the Act and for
those purposes only”.7

[34] Since the permit issued in matter RE2001/694 was revoked in BHP Billiton v Tracey, the following permits have been issued to Mr Tracey:

 RE2006/1253 - issued on 9 February 2006 in his capacity as an official of the

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”

known as the Australian Manufacturing Workers’ Union (AMWU);

 RE2007/3114 - issued on 9 January 2008 in his capacity as an official of the MUA;

and

 RE2010/3949 - issued on 21 December 2010 in his capacity as an official of the

MUA.

Penalties imposed under the WR Act

[35] I am satisfied that the WR Act is an “industrial law” for the purposes of section

513(1)(d) of the Act.

Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521

[36] In Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521, a penalty of $3,630 was imposed on Mr Tracey for contravening section 494(1) of the WR Act. A penalty of $13,200 was also imposed on the MUA as a result of the conduct of Mr Tracey and another official of the MUA. The judgment in the matter was delivered, and the final orders issued, on 31 October 2012.

[37] The now repealed subsections 494(1) and (2) of the WR Act provided that:

“(1) From the day when:

(a) a collective agreement...

...

comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not organise or engage in industrial action (whether or not that action relates to a matter dealt with in the agreement or determination).

(2) For the purposes of subsection (1), the following are covered by this subsection:

...

[2013] FWCD 8459

(b) an organisation of employees that is bound by the agreement or

determination;

(c) an officer or employee of such an organisation acting in that capacity.”

[38]      The relevant conduct of Mr Tracey occurred while he was an organiser for the Branch.

On 19 May 2009, while in company with the Branch Secretary of the Branch, Mr Tracey convened a meeting of employees who were parties to and bound by the terms of a collective agreement as defined in the WR Act at the relevant time.

[39]      During the meeting, one of the employees in attendance proposed a motion to the

effect that the employees should strike for a period of twenty four hours. A ballot of the period of approximately twenty four hours. The industrial action was motivated by concerns regarding possible involuntary redundancies of employees of the affected employer.

relevant employees was subsequently held and the motion was approved. Mr Tracey and the
other official of the MUA involved in the matter did not try to stop the motion being put to a
vote or make any attempt to dissuade the relevant employees from taking industrial action.

[40] In considering the appropriate penalty to be imposed upon Mr Tracey, Barker J noted that the strike had been organised in contravention of the WR Act, that his conduct was

deliberate, that the industrial action caused general delays and disruption at the work site

occurred at a time when it was operating at full capacity.8 He further found that Mr Tracey

made no attempt to follow the dispute resolution procedures contained within the relevant
collective agreement. However, Barker J also found that the industrial action was not
motivated for “arbitrary or base motives”.9

[41] Barker J determined that the appropriate penalties to which the parties had previously

agreed was a penalty of $3,630 imposed on Mr Tracey, which represented 55% of the
maximum penalty then available, and a penalty of $13,200 imposed on the MUA, which
represented 40% of the maximum penalty then available.

[42]      Contrary to the submissions of the MUA in the current matter, Barker J found that

there was no evidence of any expression of contrition by Mr Tracey and the MUA and he did
not discount the penalties to be imposed upon them due to their cooperation with the Fair

Work Ombudsman as they only admitted liability just over one month prior to hearing.10

Penalties imposed under the Act

Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232

[43] In Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232, a penalty

of $3,630 was imposed upon Mr Tracey for contravening section 417(1) of the Act. A penalty
of $13,200 was also imposed on the MUA as result of the conduct of Mr Tracey. The
judgment in the matter was delivered, and the final orders issued, on 31 October 2012.

[44]      Subsections 417(1) and (2) of the Act provide that:

[2013] FWCD 8459

“(1) A person referred to in subsection (2) must not organise or engage in industrial

action from the day on which:

(a) an enterprise agreement is approved by the FWC until its nominal expiry

date has passed...

...

whether or not the industrial action relates to a matter dealt with in the agreement...

(2) These persons are:

(a) an employer, employee or employee organisation, who is covered by the

agreement...or

(b) an officer of an employee organisation that is covered by the agreement...
acting in that capacity.”

[45]      Mr Tracey’s conduct included conducting a meeting at the Port of Broome with

approximately twenty employees of the Broome Port Authority (BPA) on 30 March 2010. Of
significance is that Mr Tracey was by this time occupying a senior leadership position in the
Branch as Assistant Branch Secretary.

[46]      During the meeting conducted by Mr Tracey on 30 March 2010, he proposed, and

spoke in support for, a motion that the employees withdraw their labour for a period of twenty
four hours. After a ballot was held in which the relevant employees voted in favour of the
motion, fifteen employees of BPA either failed to complete their shift or refused to work as
rostered for a period of approximately twenty four hours. The action arose because of a
dispute regarding the adequacy of BPA’s consultation with its workforce.

[47] In considering the appropriate penalty to be imposed on Mr Tracey, Barker J observed that, as a result of the industrial action, there was no further work performed on vessels at the

port for the duration of the strike which cost BPA approximately $12,000 and that the conduct

of Mr Tracey was deliberate.11 Barker J did not consider it appropriate to fix the amount of

the penalty to be imposed on the basis that Mr Tracey had engaged in the unlawful industrial action after having been found to have earlier contravened the WR Act because of the timing of the relevant orders of the Court. He did not however, consider it appropriate to significantly

discount the penalty otherwise appropriate on the basis that the contravening course of
conduct was an isolated instance of conduct entirely uncharacteristic of Mr Tracey.12

[48] Of relevance however is that Barker J also noted that the industrial action arose out of

concerns regarding the treatment of employees of BPA rather than being carried out for
“arbitrary or base motives”. 13

[49]      Contrary to the submissions of the MUA in the current matter, Barker J found that

there was no evidence of any expression of contrition by Mr Tracey and the MUA and he did

not discount the penalties to be imposed upon them due to their cooperation with the Fair

Work Ombudsman as they only admitted liability just over one month prior to hearing.14

[2013] FWCD 8459

Any other matters that the FWC considers relevant

[50] As noted at paragraph [28] of this decision, I consider the leadership role of Mr Tracey

to be a relevant matter for the purposes of section 513(1)(g) of the Act. This matter arises
squarely from a consideration of the conduct of, and penalties imposed upon, Mr Tracey in

Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 and as such, in my

view, is a relevant matter for me to take into account in determining whether or not Mr Tracey
is a “fit and proper person” to hold an entry permit.

[51]      Voluminous research narrative and commentary is available on the concept of

leadership and the criticality of its importance in influencing followers. The circumstances
contained within the materials set out that while Mr Tracey had been a branch organiser on 19
May 2009 when the contravention of the WR Act occurred, at the time of his conduct leading
to a breach of the Act on 30 March 2010 he held the senior leadership position of Assistant

Branch Secretary. The information lodged by the MUA pursuant to section 233 of the Fair

Work (Registered Organisations) Act 2009 indicates that Mr Tracey held that office since at

least 31 December 2009.

[52]      It is not in my view, unreasonable to expect that leaders set standards and that Mr

Tracey’s senior leadership role at the time of the contravention on 30 March 2010 is a matter to be taken into account in accordance with section 513(1)(g) of the Act.

Consideration

[53]      In Australian Broadcasting Tribunal v Bond (1990)15 (Tribunal v Bond) the High

Court considered the phrase “fit and proper person” in the context of licensing under the now repealed Broadcasting Act 1942. In that decision, Toohey and Gaudron JJ made the following statement:

“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of public perception as to

likely future conduct) may be sufficient to ground a finding that a person is not fit and

proper to undertake the activities in question.”16

[54] I accept that the expression ‘fit and proper person’ is coloured somewhat by the context in which it appears and that it should be construed by having regard to the rights and responsibilities associated with the grant of an entry permit. Parliament has expressed an intention that the Commission “must” take into account the permit qualification matters set out in s.513(1) of the Act to “ensure that only appropriate persons are conferred with the significant rights to access premises”.17 Although previous judicial authorities regarding the meaning of particular terms applied in legislation, such as the exposition of the term “fit and

proper person” in Tribunal v Bond are binding in similar factual circumstances,18 care must be

exercised lest such judicial expositions replace the actual statutory text.19

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[55] I am satisfied from all the circumstances that Mr Tracey is and has been well aware of the obligations and limits upon entry permits at least since 2002.

[56] I have taken into account the revocations of previous permits issued to Mr Tracey

under the WR Act and the associated findings that he acted in an inappropriate manner while
exercising statutory right of entry powers pursuant to those permits.

[57]       I have taken into account the penalties imposed on Mr Tracey and the MUA in both

Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 and Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521 and the conduct of Mr Tracey

that was found to have occurred in those matters which led to the imposition of those

penalties. Such conduct is clearly inconsistent with the object of “the right of occupiers of

premises and employers to go about their business without undue inconvenience”.20

[58] The conduct to which I have referred raises significant concerns regarding Mr Tracey’s willingness to adhere to provisions of industrial legislation and whether he is a “fit and proper person” for the purposes of s. 512 of the Act.

[59] The total quantum of penalties imposed upon Mr Tracey under both the Act and the WR Act amounts to $7,260. The total quantum of penalties imposed upon the MUA in both matters amounts to $26,400. However, as noted above, the penalty imposed upon the MUA in

Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521 did not arise as a

consequence of actions taken solely by Mr Tracey.

[60] Although I note that the relevant conduct in both Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 and Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521 resulted in industrial action being taken for a relatively short

period of time, I do not accept the MUA’s characterisation of these matters, and the penalties imposed in them, as “relatively minor events”. Rather, as noted above, they demonstrate two instances of a lack of regard for the provisions of industrial legislation concerning engaging in unlawful industrial action.

[61] An important consideration is that the revocations of Mr Tracey’s previous permits

occurred more than a decade ago and no further entry permits issued to him have since been
subject to such revocation.

[62] Other relevant considerations include the senior leadership role Mr Tracey performs as an official of the MUA which entails providing advice, assistance and support to other officials and members of the MUA and that the absence of an entry permit will restrict his capacity to gain access to members and potential members in order to provide such services.

[63] In this regard, I have also considered the objects set out in s.480(a)–(b) of the Act in relation to the rights of registered organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions and the rights of employees to receive information and representation from officials of such organisations.

[64] I have also taken into account that Mr Tracey has been a permit holder under the Act

and its predecessor legislation since 2000 in his capacity as an official of various registered
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organisations.

Conclusion

[65] The submissions of the MUA, filed in the Commission on 22 November 2013, assert that “on balance, [Mr Tracey] satisfies the ‘fit and proper person’ test.”

[66] While I accept the significance of more than a decade elapsing since Mr Tracey’s previous permit revocations and have taken into account the material contained within the submissions, Mr Tracey’s demonstrable lack of regard for the provisions of industrial legislation by engaging in unlawful industrial action in 2009 and while in a leadership position again in 2010 are in my view, serious matters.

[67] Having carefully considered all of the available circumstances of this matter and having particular regard to the permit qualification matters for the purposes of s. 512 of the Act, I have concluded that I am not satisfied that Mr Tracey is a “fit and proper person” and accordingly, I must refuse the application to issue a permit.

DELEGATE OF THE FAIR WORK COMMISSION

FAIR WORK COMMISSION

Endnotes

1 BHP Iron Ore Pty Ltd v Tracey, AIRC Print PR905041 (7 June 2001).

2 BHP Billiton Iron Ore Pty Ltd v Tracey, AIRC Print PR924632 (13 November 2002).

3 [2011] FWAD 3518.

4 Ibid at [21].

5 Section 549 of the Fair Work Act 2009 provides that a contravention of a civil remedy provision is not an offence.

6 BHP Billiton Iron Ore Pty Ltd v Tracey, AIRC Print PR924632 (13 November 2002) at [20].

7 Ibid at [25].

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8 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521 at [23] to [29].

9 Ibid at [25].

10 Ibid at [31] - [34].

11 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 at [25] to [29].

12 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 at [27].

13 Ibid at [25].

14 Ibid at [31] - [34].

15 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

16 Ibid at 380 (per Toohey and Guadron JJ).

17 Explanatory Memorandum, Fair Work Bill 2008, 2041.

18 Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32.

19 Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390, 407-409 (per Windeyer J).

20 Fair Work Act 2009 s 480(c).

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