Maritime Union of Australia, The-Western Australian Branch

[2017] FWC 182

[2017] FWC 182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Maritime Union of Australia, The-Western Australian Branch
(RE2016/1011)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 11 JANUARY 2017

Application for a right of entry permit - Christopher Cain – s.513 considerations and additional undertakings provided – permit granted.

[1] The Western Australian Branch of the Maritime Union of Australia (the MUA) has applied for a right of entry permit for its Secretary, Mr Cain. On 21 November 2016 I issued an Interim Decision 1 in which I considered the factors in s.513 of the Fair Work Act 2009 (the FW Act), before concluding:

“[67] Having considered all of the relevant facts and circumstances, I am not yet satisfied that the evidence before me demonstrates that Mr Cain should be regarded as a fit and proper person to hold an entry permit. Whilst I have given significant weight to Mr Cain’s behaviour over the past four years, the behaviour that led to the four Court decisions and Mr Cain’s attitude toward those events does not permit a conclusion that his behaviour since 2012 reflects a different attitude and a commitment to the principles underpinning the FW Act. I am currently left to surmise that this could be the case but it could also be the case that the changed economic conditions impacting on work available to MUA members could explain the absence of issues over the past few years.

[68] Consequently, on the material before me I am not satisfied that Mr Cain should be regarded as a fit and proper person to hold an entry permit.

[69] It is open to me, on that basis, to refuse the application. However, I regard the time that has elapsed since 2012 to represent an exceptional circumstance. Consequently, I have decided that, as a matter of fairness, the MUA should be given a further opportunity to provide evidence that addresses these concerns. Without being at all prescriptive about that evidence, I anticipate that this would address Mr Cain’s position with regard to:

• What action he will take to actively discourage future unprotected industrial action;



• The action he has and will continue to take to ensure that “closed shop” arrangements have been abandoned in their entirety; and



• Recognition that employees may elect to work during periods of protected industrial action without fear of retribution.”

[2] The MUA subsequently advised that it wished to provide additional evidence from Mr Cain. This evidence was confirmed in a hearing on 20 December 2016 and further advice was provided to me on 6 January 2017. I have taken that evidence material into account in reaching a conclusion in this matter.

[3] I have summarised Mr Cain’s additional evidence in the following terms.

[4] Mr Cain advised that, after the Federal Court judgements in FWO v MUA 2 and Chevron Australia Pty Ltd v MUA (No2),3 he “spoke to all the WA Branch Officials directly, individually and together at the monthly WA Branch meeting”.4 He advised the officials that the MUA had made mistakes and not to make them again. He advised the officials that they had to follow the appropriate process to resolve disputes and should not be breaching the FW Act. In the hearing, Mr Cain advised that this extended to an instruction that the MUA should not take unlawful protected industrial action and that he commenced delivering this message before 2012 and soon after the Court commenced making adverse findings against him and the MUA5. In this regard Mr Cain advised that he had also noted adverse decisions against other unions which contributed to his call for compliance with the FW Act.6 In response to a request which I made to the MUA, I was advised that, prior to June 2015, minutes were not taken for the monthly meetings held by the Western Australia Branch.7 The MUA provided redacted copies of the minutes of two branch meetings. The minutes of the meeting of 28 July 2016 records Mr Cain as saying “When the call comes, we cannot just walk off the job.”8 The minutes of the meeting of 27 September 2016 record Mr Cain as saying that “things have changed. We can no longer just take strike action as we don’t always get to where you want to be with the laws of this land. We can’t walk off the job or have a picket any more as the unions are being sued millions and Officials and Organisers can be individually sued. If there is more than three people in the street, we can be charged with disruption.”9

[5] Mr Cain advised that, in his role as President of the MUA, he chaired an annual National Council meeting and that: “At those meetings I said that we have to change our ways and that we can’t keep taking unlawful industrial action.” 10 In the hearing, Mr Cain advised that he was unsure about whether minutes of those meetings were kept. In its correspondence to me of 6 January 2017, the MUA advised that there were no minutes which recorded Mr Cain mentioning “closed shops”, unprotected industrial action or action against persons working during in industrial action”11 (sic).

[6] Mr Cain advised that he addressed a Quadrennial National Conference of the MUA in January 2016 and advised that the MUA could not keep doing what it had done in the past and could not take illegal industrial action any more. 12 In response to a request which I made to the MUA for some form of record of his address in this respect, the MUA advised that the only minutes recorded conference motions and resolutions.

[7] Mr Cain’s evidence was that:

“8. I will continue to take steps either directly with MUA Officials, or at meetings with MUA Officials and delegates, and tell them that we can’t take illegal industrial action. If there are problems on the job they have to follow the process. During workplace dispute I will advise MUA Officials, delegates, and members against taking illegal industrial action.” 13

[8] In the hearing, Mr Cain advised that he had taken these steps after 6 May 2014 and that he was confident that the MUA would not now have a dispute over whether an employee was not participating in protected industrial action. 14

[9] Mr Cain advised that he had told employees at various worksites, including Patrick, Qube and DP World, of the requirement to comply with the FW Act rather than taking unlawful industrial action. 15

[10] Mr Cain’s evidence was that after the Federal Court decision in FWO v Offshore Marine Services Pty Ltd (No2), 16 he held a monthly branch meeting with the MUA Branch Officials and advise them that if someone wanted to join the MUA they could do so without restriction if they were covered by the MUA Rules.17 Following the Federal Court decision in FWO v Skilled Offshore (Australia) Pty Ltd18 Mr Cain confirmed that he had further discussions with WA Branch Officials directly, and at a WA Branch meeting where he confirmed that, the MUA would not discriminate against any person eligible to be a union member.19 Mr Cain’s evidence was that:

“13. There are non-members who work in the Industry, however the union has a union density of about 98% of the workforce. We do our best to encourage non-members to join the MUA but we don’t force anyone to join. We know that it is against the Act to discriminate against, take adverse action against or encourage employers to do those things against anyone who is not in the Union, including stopping them working in the Industry, and I have explained this to the WA Branch Officials.” 20

[11] In the hearing, Mr Cain confirmed that the MUA had no closed shop agreements or arrangements with any employers to this effect. 21

[12] Mr Cain’s evidence was that, after the Federal Court decision in FWO v MUA (No2) 22 he spoke with the WA Branch Officials “directly and at the monthly WA Branch meeting” and said that the MUA could not behave in an intimidating way and that it could not force people to take industrial action.23

[13] Mr Cain advised that he would continue to talk with MUA officials to discourage them from proposing future unprotected industrial action and that he would sanction officials who did not follow his instructions in this respect. This may involve referring instances of unprotected industrial action to the MUA Executive. 24

[14] The concern I expressed in my Interim Decision 25 to the effect that I was unable to determine if the absence of issues since 2012 reflected a change in Mr Cain’s approach or was due to other issues.

[15] The MUA position in response to this matter was that “the test in s.512 deals with whether Mr Cain is a fit and proper person to hold an entry permit. The Commission should not refuse Mr Cain an entry permit because it cannot conclude that he has “attitude and commitment to the principles underpinning the FW Act”” 26. The MUA relied upon a number of decisions in this respect.27

[16] Additionally, in the hearing on 20 December 2016, I invited submissions from the MUA as to how I should reconcile Mr Cain’s evidence about the information he was providing to officials of the MUA with the findings of the Federal Court in relation to the Chevron matter, 28 given Mr Cain’s disinclination to answer questions about that matter on the basis that it was the subject of continuing Court consideration. The MUA advised:

“22. ... The Federal Court is yet to hold a hearing concerning any penalty in that matter. Mr Cain was a Respondent in that matter but the case against him was dismissed. Given that the proceedings are still before the Court Mr Cain declined to answer those questions. No adverse finding should be made against Mr Cain for declining to answer questions relating to the matter because:

a. Mr Cain was told by the Commission that he did not have to answer questions (Transcript of Proceedings 20 December 2016 at [PN238] and [PN265]);

b. The matter is uncertain; and

c. His refusal was consistent with the exercise of a common law right of civil penalty privilege which entitles a person facing possible civil penalties to conceal their case until the close of the applicant’s case at hearing. The circumstances of such questioning is unusual and it is unclear whether civil penalty privilege strictly applies to Commission5 proceedings or whether it would apply in a matter in which Mr Cain was not a respondent6. It may not apply. However, answers under oath to questions about the case would tend to interfere in the Court proceedings in a manner in which the union’s case in the Court may be adversely impacted.” 29

Findings

[17] In my Interim Decision 30, I concluded that each of the considerations in s.513(1)(a) (b) (c) (e) and (f) did not mitigate against a finding that Mr Cain was a fit and proper person to hold an entry permit. The matters of particular concern to me related to s.513(1)(d) and (g). I have reviewed these considerations in light of the additional evidence now before me.

[18] Mr Cain has been a party to, or has been specifically identified, in various Federal Court decisions which involve findings of actions which he took up to 2012, which were fundamentally inconsistent with a number of the provisions of the FW Act. Contrary to the MUA submissions, various of those Court decisions are relevant to s.513(1)(d) or (g). In terms of s.513(1)(g) particularly, Mr Cain holds, and has held for some time, a position of substantial seniority within the MUA. As I noted in my Interim Decision 31 those Court decisions do not favour him being regarded as a fit and proper person to hold an entry permit. However, Mr Cain’s record since 2012 and his evidence about his current commitment to comply with the legislation and strongly support compliance within the MUA, is a significant consideration.

[19] Mr Cain has indicated that he will actively discourage future unprotected industrial action from being taken. This extends to the discussions which he has had with MUA officials and the extent to which he has given clear instructions to those officials such that they are required to comply with the provisions of the FW Act and face sanctions in the event of non-compliance. Mr Cain has confirmed that there are no existing closed shop arrangements or restrictions on MUA membership for persons who are eligible to be members and that no such arrangements or restrictions will be countenanced in the future. Mr Cain has also recognised that employees may elect to work during periods of protected industrial action without fear of retribution. Mr Cain has advised that he has taken these actions following various Court decisions and that he has been an active and senior advocate for compliance with industrial legislation, within the MUA. The limited meeting documents made available to me do not provide substantial assistance but are not inconsistent with Mr Cain’s evidence.

[20] I am satisfied that the additional evidence provided to me in this matter and the absence of any matters relevant to s.513 since the June 2012 Chevron matter, is such that Mr Cain should be regarded as a fit and proper person to hold an entry permit.

[21] I have considered whether, pursuant to s.515 of the FW Act, conditions on an entry permit for Mr Cain should be imposed. I do not consider this appropriate in these circumstances. It seems to me that Mr Cain has demonstrated significant and comprehensive knowledge of the obligations established by the FW Act and a requirement for additional training in this respect would be unnecessary. Any breach of his obligations as a permit holder would arise from a deliberate act rather than the absence of knowledge about his obligations. Mr Cain has provided some very clear undertakings. He holds a position of substantial authority within the MUA. I am not satisfied that additional training is necessary so that he could be better placed to resist possible future proposals to breach workplace relations legislative obligations. Simply put, a breach of the undertakings he has provided to me would go directly to his credibility and would make it extraordinarily difficult for him to be regarded as a fit and proper person to hold an entry permit in the future.

[22] An Order (PR589251), providing for the issuing of an entry permit for Mr Cain will be issued, consistent with this decision.

Appearances:

A Slevin counsel for The Maritime Union of Australia.

Hearing details:

2016.

Adelaide:

November 1

December 20

 1   [2016] FWC 8230

 2 [2012] FCA 1521

 3 [2016] FCA 768

 4   Exhibit M4, para 5

 5   Audio – Transcript, 20 December 2016, 9.37 am - 10.00 am

 6   Audio – Transcript, 20 December 2016, 10.16 am

 7   MUA correspondence of 6 January 2017

 8   MUA Correspondence of 6 January 2017

 9   MUA Correspondence of 6 January 2017

 10   Exhibit M4, para 6

 11   MUA correspondence of 6 January 2017

 12   Exhibit M4, para 7

 13   Exhibit M4, para 8

 14   Audio – Transcript, 20 December 2016, 10.01 am - 10.08 am

 15   Exhibit M4, para 9

 16 [2013] FCA 943

 17   Exhibit M4, para 11

 18 [2015] FCA 275

 19   Exhibit M4, para 12

 20   Exhibit M4, para 13

 21   Audio – Transcript, 20 December 2016, 10.09 am

 22 [2015] FCA 814

 23   Exhibit M4, paras 16 and 17

 24   Audio – Transcript, 20 December 2016, 10.11 am

 25   [2016] FWC 8230, para [67]

 26   MUA submissions of 6 January 2017

 27   see MUA submissions of 6 January 2017, paras 10 - 20

 28   Chevron Australia Pty Ltd v The Maritime Union of Australia (No2), [2016 ] FCA 768

 29   MUA submissions of 6 January 2017, para 22

 30   [2016] FWC 8230, paras [17] – [22]

 31   [2016] FWC 8230, para [61]

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