Maritime Union of Australia, The-Western Australian Branch

Case •

[2016] FWC 8230

•

21 NOVEMBER 2016

No judgment structure available for this case.
[2016] FWC 8230
FAIR WORK COMMISSION

INTERIM DECISION


Fair Work Act 2009
s.512—Right of entry

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

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 21 NOVEMBER 2016

Application for a right of entry permit - Christopher Cain.

[1] On 22 July 2016 the Western Australian Branch of the Maritime Union of Australia (the MUA) lodged an application, pursuant to s.512 of the Fair Work Act 2009 (the FW Act), in which it sought that a right of entry permit be issued to its Secretary, Mr Christopher Cain. Mr Cain was the holder of an entry permit which expired on 9 September 2016. On 25 August 2016 I extended that permit until the date upon which this application was determined, pursuant to s.516(2) of the FW Act. 1

[2] In accordance with directions issued on 12 August 2016, the MUA provided an outline of its submissions in support of the application, 2 a witness statement made out by Mr Cain3 and a further witness statement made out by Mr W Tracey, the Deputy National Secretary of the MUA.4

[3] The matter was the subject of a hearing in Adelaide on 1 November 2016. At this hearing, the MUA was represented by Mr Slevin, of counsel, pursuant to a grant of permission made under s.596(2)(a) of the FW Act.

The Legislative provisions

[4] Section 512 of the FW Act states:

    “512 FWC may issue entry permits

    The FWC may, on application by an organisation, issue a permit (an entry permit ) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.”

[5] Section 513(1) of the FW Act states:

    “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.”

[6] In The Maritime Union of Australia [2014] FWCFB 1973 a Full Bench referred to the concept of a “fit and proper person” in the following terms:

    “[23]As is apparent from the above, the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. Taking into account context, the structure of s. 512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

    [24] The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the entry permit”. The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se. Rather the permit qualification matters must be taken into account to decide whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.

    [25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act.” (references omitted)

[7] Those observations were adopted by the Full Bench in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[2014] FWCFB 5947 (Kong). The Full Bench made the following additional observations:

    “[22]Thus the “fit and proper person test” is necessarily concerned with the personal characteristics of the person for whom the issue of an entry permit is sought. The large number of cases concerned with the use of the “fit and proper person” criterion in a variety of statutory contexts have consistently taken that approach. In the South Australian Supreme Court Full Court decision in Teachers Registration Board of South Australia v Edwards, Anderson J said:

      “[103] The cases show in my view that although the expression “fit and proper person” takes its meaning from the content of the legislation, there are nevertheless certain consistent notions which emerge in the relevant decisions.

      [104] These are that a consideration of whether a person is fit and proper looks to the suitability and eligibility to hold a position. The suitability in turn is viewed against a consideration of the person’s previous conduct and their general reputation.”

    [23] Various formulations have been used in the cases concerning the matters relevant to an assessment of whether a person meets the “fit and proper” standard to engage in particular activities; for example in the High Court decision in Australian Broadcasting Tribunal v Bond, Toohey and Gaudron JJ referred to a person’s conduct, character and reputation as being part of a non-exhaustive list of considerations, while in the earlier High Court decision in Hughes & Vale Pty Ltd v The State of New South Wales (No 2) Dixon CJ and McTiernan and Webb JJ characterised the fitness aspect of the criterion as involving honesty, knowledge and ability. Whatever the formulation, it is clear that the assessment process required by the standard, although one which “give[s] the widest scope for judgment and indeed for rejection”, necessarily involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required. That position is in no way altered by the fact that, under the Act, it is the organisation which may apply for a particular official to be issued with an entry permit rather than the official personally.

    [24] Section 513(1) of the Act requires the Commission, in considering whether an official is a fit and proper person to hold an entry permit, to take into account a number of matters (described as “permit qualification matters”) specified in paragraphs (a)-(g) of the subsection. It is apparent, as the CFMEU/ CFMEIUEQ submitted, that the permit qualification matters in paragraphs (a)-(f) are all concerned with matters personal to the official for whom the issue of an entry permit is sought. Paragraph (g) requires the Commission to take into account any other matters which it considers to be relevant. It is not necessary to apply the eiusdem generis presumption to conclude that the relevance referred to in paragraph (g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.

    [25] A matter is only required to be taken into account under s.513(1)(g) if the Commission “considers” it to be relevant - that is, the requirement operates upon the opinion as to relevance formed by the Commission. Because the formation of an opinion as to the relevance of a matter to the broad judgment required by the “fit and proper person” criterion will necessarily involve a degree of subjectivity, it is in the nature of a discretionary decision. Therefore in an appeal which challenges an opinion formed for the purposes of s.513(1)(g) it will be necessary for the appellant to demonstrate error in the decision-making process.

    [26] We do not consider that the Director has demonstrated any error in the process by which the Delegate determined that the CMFEU’s history of contraventions was not relevant to his determination as to whether Mr Kong was a fit and proper person to hold an entry permit. It was reasonably open to the Delegate to conclude, as he did, that there was nothing in the annexure to the Director’s General Submissions which bore upon Mr Kong’s “status and attributes”. There was no suggestion that any of the identified contraventions involved any act or omission on the part of Mr Kong. While it may be accepted that the susceptibility of an official to comply with a direction from his or her employing organisation to engage in unlawful conduct might well be considered to be a relevant matter under s.513(1)(g), there was nothing put to the Delegate at first instance or to us on appeal that suggested that the industrial history set out in the annexure demonstrated anything with respect to any personal susceptibility on Mr Kong’s part in that respect.

    [27] That is not to say that past contraventions of industrial or other relevant laws by an organisation can never be relevant to the consideration of an official’s fitness or propriety to hold an entry permit where those contraventions did not involve any direct contravening conduct on the part of that official. If, for example, the facts of a particular contravention or contraventions supported an inference that an official with management responsibility in an organisation omitted to take reasonable steps to ensure that others under his or her control failed to comply with the law, or encouraged or tolerated a general culture of non-compliance with the law, then conceivably that might be considered to be a relevant matter under s.513(1)(g). However in this case it was simply not made apparent that the CFMEU’s history of contraventions said anything about Mr Kong’s personal conduct, character or reputation either as relevant to the exercise of rights of entry under the Act or at all.”

[8] In the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWC 1522 Hatcher VP articulated the following relevant principles:

    “[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of the s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia, CEPU v Director of the Fair Work Building Industry Inspectorate, Director of the Fair Work Building Industry Inspectorate v CFMEU, Construction, Forestry, Mining and Energy Union, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate. The relevant principles may be summarised as follows:

  • A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.


  • The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.


  • The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.


  • The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.


  • The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.


  • The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.


  • While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).


  • Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.”


[9] I note that these principles were endorsed by an appeal bench for the same matter. 5

[10] I have adopted an approach to s.513 of the FW Act consistent with each of these decisions.

The MUA submissions

[11] The MUA submissions assert that, with one exception, when each of the considerations in s.513(1) are applied to Mr Cain, these support the granting of an entry permit. In terms of the exception, the MUA submission is that:

    “10. The only adverse permit qualification matter relates to s 513(1)(d). At paragraphs [18] to [30] of his statement Mr Cain states that he or the MUA were required to pay pecuniary penalties in relation to contraventions of civil penalty provisions of the Workplace Relations Act 1996 (Cth) (WR Act) and the Fair Work Act 2009 (Cth) (FW Act):

      a. In October 2012 he was ordered to pay a pecuniary penalty of $2,640 for his involvement in a contravention of s494 of the Workplace Relations Act 1996 (Cth) for his part in organising unlawful industrial action and the MUA was ordered to pay a penalty of $13,200 in relation to the same matter. This was a civil remedy provision. The penalties arose from conduct in May 2009 that resulted in a 24 hour stoppage at DP World’s operations in Fremantle. Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521.

      b. In March 2015 the MUA was ordered to pay a pecuniary penalty of $79,500 for contraventions of the Freedom of Association provisions of the Workplace Relations Act 1996 (Cth) (WR Act) and the General Protections provisions of the Fair Work Act 2009 (Cth) (FW Act). Mr Cain’s conduct involved refusals to accept membership applications from 2 individuals. Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd and MUA [2015] FCA 275.

      c. In May 2014 the MUA was order to pay a pecuniary penalty of $80,000 for contraventions of the General Protections provisions of the Fair Work Act 2009. Mr Cain’s conduct was his involvement in a decision to publish and distribute a poster which named persons who had worked during a strike.” 6

[12] The MUA further assert:

    “12. The fact that one or more qualification matters exists does not dictate or suggest a particular outcome. As the Full Bench in Director, Fair Work Building Industry Inspectorate v CFMEU6 observed (at [31]) “The focus must always be upon endeavouring to ensure that the entry rights conferred by Part 3-4 are exercised lawfully”.

    13. Mr Cain meets all of the permit qualification matters specified in s513 except the 513(1(d) matter. The MUA submits that matter, which involves the imposition of civil penalties, should not lead to a conclusion that Mr Cain is not a fit and proper person because:

      a. It should be considered in light of the fact that Mr Cain has held right of entry permits since 2003.

      b. It should be balanced against the other matters in s513, all of which are in favour of finding that Mr Cain is a fit and proper person to hold an entry permit.

      c. Mr Cain has been a long standing official of the MUA having been elected to office in 2003.

      d. The proceedings that gave rise to the penalties involved three isolated incidents or events which were unrelated to the exercise of rights of entry.

      e. The events dealt with by the Court took place in 2009, 2011 and 2012.

      f. All of these events occurred prior to the issue of the current permit, albeit the penalties were imposed during the term of the current permit.

      g. There have been no proceedings or complaints commenced against Mr Cain relating to events since the issue of his current permit.” 7

[13] Mr Cain’s evidence went to confirm his background and experience with particular reference to his position of Branch Secretary of the Western Australian Branch of the MUA since July 2003. Mr Cain also confirmed that he held the position of National President of the MUA since July 2015. Mr Cain confirmed that he had held right of entry permits since around July 2003.

[14] Mr Cain confirmed the extent to which he used his right of entry permit when required and that this was necessary to properly fulfil his duties and functions under the MUA Rules. Mr Cain referred to agreements reached with various major stevedoring operations such that he was not required to produce his entry permit.

[15] Mr Cain’s evidence confirmed the submissions made by the MUA with respect to various Federal Court of Australia proceedings. Whilst I have taken Mr Cain’s evidence fully into account, I have separately addressed these matters later in this decision.

[16] Mr Tracey’s evidence confirmed the accuracy of the declaration included with the application. In terms of orders to pay particular penalties, Mr Tracey stated:

    “6. I also declared that Christopher Cain has been ordered to pay pecuniary penalties under the Fair Work Act 2009 (Cth) once, and the MUA has been ordered to pay pecuniary penalties under the Fair Work Act 2009 (Cth) and Workplace Relations Act 1996 (Cth) in relation to action that Christopher Cain was involved in on three occasions. The relevant decisions of the Court are:

      a. In Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521;

      b. In Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275; and

      c. In Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814.

    7. The MUA appealed the judgement in Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814, and on 11 August 2016 the Full Federal Court handed down its decision dismissing the appeal. On Friday 12 August 2016 Aaron Neal, Senior National Legal Officer sent an email to the General Manager of the Fair Work Commission advising the Commission of the appeal Decision. Attached and marked WT1 is a copy of the email.

    …

    9. I also caused a legal search to be conducted which confirmed the responses of Christopher Cain. The search included enquiries about the matter Chevron Australia Pty Ltd v The Maritime Union Australia (No 2) [2016] FCA 768 in which the Court has made declarations that the conduct of the MUA on 28 and 29 June 2012 amounted to organising employees to engage in unprotected industrial action in contravention of s417 of the Fair Work Act 2009 (Cth). The Court noted that Mr Cain’s action contributed to those findings. No penalties or final orders have been made in that matter, and the Court has ordered that a hearing in relation to final orders be heard not before 3 April 2017.” 8

Findings

[17] Consideration of ss.512 and 513(1) of the FW Act in the context of the authorities to which I have referred is assisted by a clear position with respect to the various factors in s.513(1). In terms of s.513(1)(a), I am satisfied that Mr Cain has received appropriate training about the rights and responsibilities of a permit holder. His own evidence confirmed that he has undergone that training on a number of occasions in 2009, 2013, and, most recently in June 2016.

[18] In terms of s.513(1)(b), I am satisfied that Mr Cain has not been convicted of an offence against an industrial law.

[19] In terms of s.513(1)(c), Mr Cain has not been convicted of an offence against a law of the Commonwealth, a State or a Territory, or a foreign country involving entry onto premises, fraud or dishonesty, or the intentional use of violence or intentional damage or destruction of property.

[20] Considerations relative to s.513(1)(d) assume significance in this matter and I have dealt with this permit qualification matter later in this decision.

[21] I am satisfied that, in terms of s.513(1)(e), none of the right of entry permits issued to Mr Cain have been revoked, suspended or made subject to conditions.

[22] I am also satisfied that, in terms of s.513(1)(f) Mr Cain has not been disqualified under any State or Territory industrial or occupational health and safety law from exercising, or applying for an entry permit.

[23] Section 513(1)(g) requires the Commission to take into account any other matter it considers relevant. I have also returned to this issue later in this decision.

[24] For the purposes of consideration of ss.513(1)(d) and (g) it is appropriate that I set out, in summary form, a broad chronology of the events which involve Mr Cain and which I have taken into account in considering whether he is a fit and proper person to hold an entry permit.

  • In 2009 various behaviours involving Mr and Mrs Love and Offshore Marine Services Pty Ltd occurred. I have referred to this as the Offshore Marine Services matter. 9


  • On 19 May 2009 a 24-hour strike occurred at the DP World, Fremantle facility. I have referred to this as the DP World matter. 10


  • In November 2011 certain employees of the Fremantle Ports Authority elected to work during a protected action strike and a poster campaign was initiated. I have referred to this as the “scab” poster matter. 11


  • In March 2012 employees of Teekay Shipping (Australia) Pty Ltd (Teekay), who were contracted to provide services to BHP Billiton Minerals Pty Ltd (BHP) engaged in unlawful industrial action. I have referred to this as the BHP Billiton matter. 12


  • In June 2012 unprotected industrial action occurred relative to loading operations being undertaken by Patrick Projects Pty Ltd, who were contracted to undertake work for Chevron Australia Pty Ltd (Chevron). I have referred to this as the Chevron matter. 13


  • 31 October 2012 the Federal Court of Australia decision dealing with the DP World matter was issued.


  • 7 June 2013 Mr Cain undertook right of entry training which was relied on in the decision to issue a right of entry permit in September 2013.


  • 9 September 2013 the Fair Work Commission issued an entry permit to Mr Cain. 14


  • 18 September 2013 the Federal Court of Australia decision dealing with liabilities associated with the Offshore Marine Services matter was issued.


  • On 6 May 2014 the Federal Court of Australia decision dealing with liabilities associated with the “scab” poster matter was issued.


  • On 12 December 2014 the Federal Court of Australia decision dealing with damages and penalties relative to the BHP Billiton matter was issued.


  • On 11 August 2015 the Federal Court of Australia decision dealing with penalties relative to the “scabs” poster matter was issued.


  • On 20 June 2016 Mr Cain undertook further online right of entry training relied upon in relation to this application.


  • On 30 June 2016 the Federal Court of Australia decision dealing with the Chevron matter was issued.


  • On 22 July 2016 this application for a right of entry permit was lodged.


  • On 11 August 2016 the Full Federal Court decision on an appeal relative to the “scabs” poster matter was issued. 15


[25] The last matter or incident addressed in the various Court decisions occurred in June 2012. The initial issue which then arises goes to the extent to which s.513 of the FW Act requires consideration of matters which occurred sometime previous to the permit application. In The Maritime Union of Australia [2014] FWCFB 1973 the Full Bench referred to the relevance of matters which previously occurred but were not subject to conclusions on the part of the Court until a later date in the context of a permit application for Mr Tracey. The Full Bench stated:

    “[50] As to the conduct of Mr Tracey occurring before 21 December 2010 and its relevance, s.513 required the Delegate to turn his mind to whether the Mr Tracey “has ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken” by him. As we noted earlier, the orders imposing penalties were not made until 31 October 2012. It is only at that point that they become permit qualification matters. That the conduct, which was the subject of the penalty, occurred prior to 21 December 2010 does not render the subsequent imposition of penalties irrelevant. As the fact that a penalty was imposed is relevant, so too, is the contravening conduct, and the circumstances in which the conduct arose. The Delegate adequately explains how this is relevant for the purposes of his determination under s. 512 at [57] – [60] of the Decision.” (references omitted)

[26] For the sake of completeness I have set out the Delegate’s findings in this respect:

    “[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 the (sic) object of “the right of occupiers of premises and employers to go about their business without undue inconvenience”.

    [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.” (references omitted)

[27] I have adopted this approach in that I have taken account of the various decisions of the Court notwithstanding that these decisions address behaviours and incidents which occurred some time ago. I have specifically considered the relevance of the elapsed time later in this decision.

[28] In considering the decisions I have addressed below, I have noted that, whilst these refer to Mr Cain, they do not all relate to matters where Mr Cain gave evidence or had findings made against him. Additionally, I have noted that, while I asked Mr Cain various questions about certain of these matters, and have taken his answers into account, I made it clear to him that I respected his capacity to decline to answer a question notwithstanding that his position in that respect might be taken into account in my ultimate conclusions.

[29] I have summarised these Court decisions, together with the advice which Mr Cain gave to me about them, before setting out my conclusions about these matters.

[30] The DP World matter involved an application made by the Fair Work Ombudsman against the MUA, Mr Cain and Mr Tracey. The background to this Federal Court of Australia decision relates to unprotected strike action at DP World. Mr Cain and Mr Tracey spoke with the employees who then took this action and did not attempt to dissuade them from taking that action. The action was taken against MUA, Mr Cain and Mr Tracey. In his decision, Barker J recorded that the parties to the matter agreed to a resolution of the proceedings on the basis that the respondents admitted liability and agreed to penalties which were then submitted for the Court’s consideration. His Honour considered the extent to which the agreed penalties were appropriate in this instance and endorsed a penalty of $13,200 on the MUA, $2,640 on Mr Cain and $3,630 on Mr Tracey.

[31] The DP World matter was taken into account in the September 2013 decision The Maritime Union of Australia [2013] FWCD 6237 to grant Mr Cain an entry permit. In that decision the Delegate, Mr Enright, stated:

    “[33] FWO v MUA concerned a dispute between the MUA and DP World. The dispute was about industrial action taken before the nominal expiry date of a collective agreement. Mr Cain spoke at a meeting about pending redundancies at DP World. Following this address, a DP World employee proposed a motion to the effect that the DP World employees should strike for 24 hours. Shortly after the meeting, Mr Cain informed a representative or representatives of DP World that the DP World employees were on strike. The action taken by Mr Cain was taken to have been engaging in industrial action within the meaning of s.494(1) of the WR Act. A monetary penalty was imposed on Mr Cain for organising a 24 hour strike at the DP World site in Fremantle, Western Australia on 19 May 2009.

    [34] In considering the appropriate penalty Barker J relied on various principles which have been applied numerous times in an industrial context, including cases involving contraventions of the WR Act.

    [35] The penalty which the parties agreed ought to be paid by the first respondent for contravening s494(1) of the WR Act was $13,200, which represents 40% of the maximum penalty available. The penalty which the parties agreed ought to be paid by Mr Cain for contravening section 494(1) was $2,640, which represents 40% of the maximum penalty available. At paragraph [37] of FWO v MUA:

      “The applicant and the respondents submit that the proposed penalties are appropriate and that they are within the permissible range of penalties for contraventions of s494(1) of the Workplace Relations Act. On the basis of a consideration of the factors outlined in Australian Ophthalmic Supplies, I accept this joint submission an so make orders imposing the proposed penalties on the first, second and third respondents. The level of the agreed penalties sends an appropriate message to the respondents and others affected by the operation of the WR Act that contraventions of the Act will result in significant monetary penalties”.” (references omitted)

[32] Delegate Enright considered the $2,640 penalty both in the context of an initial failure to disclose that penalty and the penalty itself, in concluding that Mr Cain was a fit and proper person to hold an entry permit. 16

[33] In his evidence before me, Mr Cain advised that the fine imposed upon him was paid by the MUA. 17 Mr Cain confirmed that he was not aware of any particular process required to gain approval for payment of his fine by the MUA. Mr Cain did not express any specific remorse relative to this matter.

[34] There are two Federal Court of Australia decisions dealing with the Offshore Marine Services matter. The first of these, Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943, dealt with issues of liability. Mr Cain was not a respondent in this matter but was, at the relevant time, the Western Australia State Secretary of the MUA which was a respondent. In this decision Gilmour J summarised the background to the matter in the following terms:

    “3. The case against the MUA concerns the attempts by Mr Bruce Love and Mrs Lynne Love (together, the Loves) to obtain employment with OMS as cleaners and/or stewards on offshore vessels. They had relocated to Perth from Melbourne in December 2008. Their contact person within OMS was Ms Tamianne McSherry (formerly Wright) who was a Crewing Officer employed by OMS. She went out of her way in her many attempts to have OMS employ them. They were never employed by OMS. This was so because they were not members of the MUA. They had each applied in writing to join the MUA as at 25 February 2009 and probably also earlier in January of that year. Their unsuccessful efforts to gain membership of the MUA and in turn employment with OMS persisted throughout 2009.

    4. I find, for reasons I set out below, that at the time the Loves first applied for employment with OMS in January 2009 and for the balance of that year there existed within OMS an employment practice by which membership of the MUA was a prerequisite for employment with OMS in areas covered by the MUA (the OMS employment practice).

    5. I find that during the same period the MUA had a related practice of granting memberships to persons offered employment with OMS only when there were no existing MUA members available to take up that offer of employment (the MUA membership practice). The objective of the MUA was to ensure that its current members received preference in employment within OMS.

    6. Each of OMS and the MUA knew of the others practices and each knew that the achievement of MUA’s objective depended on maintenance by OMS of its practice. Indeed, I find that the MUA effectively procured the instigation and maintenance by OMS of the OMS employment practice. The two practices were knowingly and deliberately inter-related and interdependent.

    7. These practices constituted a form of “closed shop” and I will refer to them together as “the closed shop”. The Loves were victims of these unlawful industrial practices.”

[35] His Honour’s decision concludes that Mr Cain was actively involved in the operation and enforcement of the “closed shop” practice and was personally involved in actions which stopped Mr and Mrs Love from gaining employment. 18 His Honour found:

    “141. I find that Cain’s conduct in his dealings with OMS and the Loves was within the scope of his actual authority. He represented the MUA in its dealings with OMS as an employer and the Loves as applicants for membership of the MUA. It does not matter that the final decision as to whether they would be accepted as members was within the sole province of the National Secretary of the MUA under the Rules. The underlying vice was that the Loves had to be members of the MUA before obtaining employment with OMS. This “closed shop” was unlawful. The refusal or failure to grant membership, whilst significant, was incidental to this.

      142. Under r 6(c) of the Rules, applications for membership were to be made to the Branch Secretary. In Western Australia this was Cain. The position of Branch Secretary is an identified “office” of the MUA under r 31 of the Rules.

    143. Under r 38 of the Rules, Cain, as Branch Secretary, was designated as the Senior Executive Officer of the (WA) Branch and his duties included a requirement that he receive and conduct all correspondence of the (WA) Branch as well as, amongst other things, to visit or cause other Branch Officers to visit the shipping office, vessels in port and to look after the business and affairs of the (WA) Branch generally. This express authority is in the widest of terms and constituted actual authority to represent and bind the MUA in its industrial relations dealings with OMS and the Loves in the circumstances which pertained in this case.”

[36] His Honour further addressed Mr Cain’s conduct in the following terms:

    “149. The MUA makes an additional submission in relation to [43A](a)(i) and [43A](c)(i) of the ASOC. It submits that in so far as the allegation is that the alleged conduct in not granting and/or refusing membership of the MUA to the Loves is alleged to be conduct of Cain initiated by him on 25 February 2009 and continued by him thereafter, that even were the Court satisfied that Cain engaged in the alleged conduct the evidence excludes authority for him to do so. In connection with [43A], senior counsel for the FWO stated that “the essential decision-maker is Mr Cain”. It contends this to be so because only the National Secretary of the MUA was authorised to accept or to not accept applications to join the MUA, and to thereby grant, not grant or refuse membership of the MUA: see rr 6(d) and 7(d) of the Rules.

    150. Accordingly, it submits that this part of the FWO’s case must fail.

    151. I do not accept this submission. My reasons for this require to be read with the findings of fact I have set out above. I infer that the National Secretary of the MUA knew of the closed shop operating in Western Australia. It is almost inconceivable that he would not have known. These were not insignificant matters with which Cain and others were dealing. They were at the heart of the activities of the MUA in Western Australia in protecting the interests of its members. I find that part of the closed shop was that no new membership applications were even considered whilst there were members of the MUA, sometimes described as “beached members” who were available for work on offshore vessels but were unemployed. The documentary evidence supports a finding that there were beached members of the MUA at the time the Loves were seeking membership. The conduct of Cain, in particular, at the time of the 25 February 2009 meeting he had with the Loves, in telephoning Ms Wright and the content of that call demonstrates that as far as he, and therefore the MUA, were concerned he, and it, were not open to receiving applications for membership. This is consistent with what Del Rosso had been told by MUA officials, that OMS should not send down prospective employees to the MUA offices to sign up as members as the MUA already had enough members. Moreover, the Loves were never granted membership. Cain knew that they would not get employment with OMS unless they were members. He made it perfectly plain that they were not to get employment while there were beached members. The corollary of this is that they would not be given membership. Cain did not speak to the National Secretary before calling Ms Wright. He clearly had authority, in a practical sense, to reject their application for membership. It is no answer to say that only the National Secretary had authority to do this. In any event, it is highly improbable that the closed shop was Cain’s idea. I infer that at least it was known of and approved of by the MUA’s governing body, the National Council. I also infer that it was also known that no new membership applications from WA would be processed while there were beached members. That the Loves were never granted membership from as early as mid-January 2009, when they first applied, and then from 25 February 2009 when they re-applied, for the entire balance of that year, is consistent with this.”

[37] His Honour continued, to state:

    “157. It is correct that the MUA has no mind of its own. There is no suggestion that there is any person whose mind is that of the MUA, in the sense described in Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121 at 127. Accordingly, it must be an individual’s knowledge which is attributed to the MUA. In the way the case was run it is apparent that the particular individuals whose knowledge might be attributed to the MUA are Cain and Bray. The only available basis of attribution is s 826(1) of the WR Act and s 793(2) of the FW Act which are substantially to the same effect. The MUA points out that these provisions were not pleaded. Accordingly, the MUA submits that as there is no pleaded basis of attribution, the FWO’s case must therefore fail at that point. This is an arid submission. The case in this respect was run by reference to the knowledge, particularly of Cain and Bray, as disclosed by the documentary evidence including documents emanating from each of them. The MUA contends that even if the FWO were to be allowed to rely on s 826(1) of the WR Act or s 793(2) of the FW Act, it would fail on the evidence, because, for the reasons given above, neither Cain nor Bray have the requisite authority. This submission also fails. I have already found that each was an officer and employee and each had the requisite authority.”

[38] His Honour concluded that he was satisfied that the MUA was involved in contraventions by Offshore Marine Services Pty Ltd of s.346(a) of the FW Act and s.792(1)(d) of the Workplace Relations Act 1996 (Cth). His Honour’s findings relevant to the MUA were:

    “167. The MUA had actual knowledge of the OMS employment practice, including as it was applied by OMS to the Loves and was therefore involved in OMS’s contraventions of s 346(a) of the WR Act and s 792(1)(d) of the WR Act, pursuant to s 550 of the FW Act and s 728 of the WR Act, based on the following findings:

      1. on 25 February 2009, the Loves attended to the MUA offices, and completed and submitted MUA membership application forms and advised of their prospective employment with OMS: [72]-[74] and [85];
      2. the MUA official, Cain, prevented the Loves becoming members of the MUA and admonished OMS for sending the Loves to the MUA, therefore, refusing to grant the Loves MUA membership: [74]-[79], [84]-[89] and [116];

      3. on and from 25 February 2009, and continuing to at least December 2009, the Loves did not and/or could not obtain membership with the MUA: [88]-[89], [104], [116] and [151];

      4. the MUA advised, encouraged or incited OMS to establish and maintain the OMS employment practice, which included threating to take industrial action against OMS with the intent to coerce OMS to maintain the OMS employment practice: [26]-[28], [29]-[36], [39]-[49], [52], [64]-[65], [84], [86]-[88], [108], [113]-[115], [151] and [162];

      5. the MUA advised, encouraged or incited OMS, in accordance with the OMS employment practice, not to employ the Loves: [74]-[88], [90]-[91], [94]-[95] and [114]-[115].

      …

170. I find that prior to 1 July 2009, in contravention of s 797(3)(a) of the WR Act, the MUA took action that had the effect of directly prejudicing the Loves in their “prospective employment” by:

    1. refusing the Loves MUA membership: [74]-[79], [84]-[89], [94], [104], [116] and [151]; and

    2. advising, encouraging or inciting OMS to not employ the Loves (s 797(3)(e) of the WR Act): [74]-[78], [86]-[88], [90]-[91], [94]-[95] and [114]-[115].

171. I find that prior to 1 July 2009, in contravention of s 797(3)(b) of the WR Act, the MUA advised, encouraged or incited OMS to take action which had the effect of directly prejudicing the Loves in terms of their prospective employment, namely, to not employ the Loves because they were not members of the MUA (s 797(3)(e) of the WR Act): [74]-[78], [86]-[88], [94]-[95] and [114]-[115].”

[39] In his witness statement in this matter, Mr Cain stated:

    “26. In the 27 March 2015 judgement the Court identified action taken by me, Ian Bray, then Western Australia Assistant State Secretary; Mr Will Tracey, then Western Australia State Organiser; and Mr Michael Canning, Western Australia State Organiser as relevant to the MUA’s contraventions. My conduct was described by the Court as follows:

      “[42] As the Court has held, the Loves were the victims of these unlawful industrial practices (MUA Liability Judgment at [7]). They were also the victims thereafter of a direct rejection of their applications for MUA membership at the instance of Mr Cain (MUA Liability Judgment at [72] to [89]). That conduct of refusing or not granting the Loves membership of the MUA was separate and distinct from the broader conduct of the MUA in relation to the unlawful industrial practices.”” 19

[40] Mr Cain’s evidence to me about this decision was that he considered that the MUA had been “set up”. 20 Mr Cain disputed the various allegations against him and asserted that he had not stopped Mr and Mrs Love from joining the union.21 Mr Cain’s position was that, persons employed in the maritime industry must have the relevant training and, by implication, that this, rather than union membership was a determining factor in this matter. Notwithstanding this, Mr Cain advised that, following this decision he met with the MUA organisers to make sure that any person was able to join the MUA.22 Mr Cain’s evidence did not disclose that he considered his behaviour in this matter to be wrong.

[41] The second decision relative to the Offshore Marine Services matter followed a change in the name of Offshore Marine Services Pty Ltd. This decision, Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275, dealt specifically with the issue of penalties. His Honour referred to Mr Cain in the following terms:

    “42. As the Court has held, the Loves were the victims of these unlawful industrial practices (MUA Liability Judgment at [7]). They were also the victims thereafter of a direct rejection of their applications for MUA membership at the instance of Mr Cain (MUA Liability Judgment at [72] to [89]). That conduct of refusing or not granting the Loves membership of the MUA was separate and distinct from the broader conduct of the MUA in relation to the unlawful industrial practices.

    …

    51. All of Contraventions 1 to 12 involved some of the most senior members of the MUA: Mr Cain, the Western Australia State Secretary; Mr Ian Bray, the Western Australia Assistant State Secretary; Mr Will Tracey, Western Australia State Organiser; and Mr Michael Canning, Western Australia State Organiser (see MUA Liability Judgment at [20] and following).”

[42] A penalty of $79,200 was imposed upon the MUA which, together with Skilled Offshore (Australia) Pty Ltd, was also required to pay compensation to Mr and Mrs Love totalling $723,300.

[43] The “scab” poster matter was the subject of three Federal Court of Australia decisions. The first of these, Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440, dealt with the issue of liability. Mr Cain was not a respondent to this action which was taken against the MUA and Mr Tracey. However, at the relevant time Mr Cain was the Secretary of the Western Australian Branch of the MUA and was the most senior member of the Executive of the MUA in Western Australia. He was also the National Vice President of the MUA. 23 In the course of negotiations directed toward achieving an agreement, industrial action was taken. Five employees did not participate in that strike action. Posters, identifying those persons and describing them as “scabs” were then displayed at a number of locations.

[44] In the liability decision Siopis J stated:

    “341. As to the second limb of the applicant’s contention, I find that Mr Cain was the state secretary for the Western Australia branch of the MUA, and thereby the most senior official in the Western Australia branch of the MUA. I find on that basis that Mr Cain was the directing mind of the MUA in Western Australia for the purposes of applying the direct liability doctrine. For the following reasons, I find that Mr Cain authorised Mr Tracey to engage in the scab poster action.
    342. First, I find that Mr Cain was fully aware of the progress of the negotiations that Mr Tracey was conducting on behalf of the VTSOs and small craft masters and the importance of strike action as a component of the industrial strategy being pursued by Mr Tracey. This finding is based on the following evidence.

    343. Mr Tracey gave evidence that he reported to Mr Cain and kept Mr Cain apprised generally of the work that he engaged in as a MUA official. Mr Tracey also gave evidence that he had breakfast with Mr Cain on 6 December 2011 to discuss the direction of the industrial strategy to be pursued following the failure of the two day strike. Further, thereafter, Mr Cain participated directly in the negotiations on behalf of the VTSOs and small craft masters, with Mr Leatt-Hayter acting on behalf of the FPA. During the course of those negotiations on 8 December 2011, Mr Cain said to Mr Leatt-Hayter that he was not happy that the FPA was “running the port using scabs”.

    344. It follows that I find by 6 December 2011, at the latest, Mr Cain was fully aware that the strike had failed and that the reason why the strike had failed was that a number of employees had worked during the strike.

    345. Secondly, I infer and find that by the time of their breakfast meeting on 6 December, Mr Tracey and Mr Cain were each very angry and determined to take vengeance against the non-strikers; and that during the breakfast meeting Mr Cain and Mr Tracey decided that a scab poster which named the persons who had worked during the strike should be published and distributed and that Mr Tracey should give effect to that decision. The inference is supported by the following matters.

    346. It is inconceivable that at their breakfast meeting on 6 December 2011, Mr Tracey and Mr Cain would not have discussed the response the MUA should make to the fact that the strike failed because a small number of employees worked during the strike. This is particularly the case because they were faced with the situation where, according to Mr Tracey, there had not been “scabbing” on the wharf for 30 years. Mr Cain and Mr Tracey would have seen this as a threat to the authority of the MUA and would have felt compelled in that situation to assert the power and wrath of the MUA.

    347. Further, Mr Tracey told Mr Pearce during their telephone conversation on 8 December 2011, that there had not been scabs on the wharf for 30 years, that the scab posters were MUA posters, and that “we named them”. Mr Tracey’s reference to the fact that there had not been scabs on the wharf for 30 years and his statement that “we named them” suggests a collective decision was made as a vengeful response to the fact that the authority and discipline of the MUA had been challenged.

    348. Further, it was only on 6 December 2011, that Mr Tracey first came into possession of the posters. Mr Tracey’s evidence that it was purely by coincidence that he obtained possession of the posters on 6 December 2011 when he happened to pass Mr Elliot on the stairs at the MUA office, is not plausible.

    349. In addition, Mr Tracey gave evidence that Mr Cain and the executive of the MUA knew that he had the posters during the two days when he put them up. I infer from the fact that, although Mr Cain knew that Mr Tracey had the posters, he did not stop Mr Tracey from putting up the posters, that, in putting up the posters, Mr Tracey was acting with Mr Cain’s consent.

    350. As I have mentioned, I find that the reason Mr Cain authorised Mr Tracey to organise the publication and distribution of the posters was that he, like Mr Tracey, was angry at the failure of the strike and the emergence of “scabs” on the waterfront after an absence of 30 years and needed to, and wanted to, respond firmly to that circumstance.

    351. In making this finding, I observe that Mr Cain did not give evidence. No explanation was given by the MUA for the failure to call Mr Cain to give evidence. Accordingly, I infer that such evidence that Mr Cain would have been able to give on this issue, would not have assisted the MUA. This assists in drawing the inference which I have drawn. I am also aware that this finding is a serious finding against Mr Cain and that, accordingly, s 140(2) of the Evidence Act applies. However, I am comfortably satisfied on the evidence that Mr Cain authorised Mr Tracey to carry out the scab poster action.

    352. For the reasons set out above, I find that Mr Cain authorised Mr Tracey to organise the publication and dissemination of the scab posters.”

[45] In his witness statement, Mr Cain confirmed that he did not give evidence in this matter. In his evidence to me he advised that he considered that the conclusions reached were “not fair”. 24 He advised that he did not authorise Mr Tracey to engage in the “scab” poster action and was aware of it only after the event. Mr Cain declined to say whether he agreed with the actions taken by Mr Tracey.

[46] In the subsequent penalty decision 25 relating to the “scab” poster campaign, Siopis J. stated:

    “31. In this case, each of Mr Tracey and Mr Cain knew that the distribution of the scab posters would cause emotional distress and harm to the named employees, and intended that that should happen. In my view, the fact that two powerful men who held senior positions in the MUA, as an act of vengeance, chose to marginalise and cause distress and fear to a very small minority of persons who acted lawfully, is a highly aggravating factor.

    32. Accordingly, I regard the nature, extent and circumstances of the impugned conduct of the MUA and Mr Tracey as giving rise to a serious contravention of s 346 of the Fair Work Act.

    …

    49. As to the involvement of senior management of the MUA in the contravening conduct, I found that the contravening conduct was the product of a discussion between Mr Cain and Mr Tracey at a breakfast meeting on 6 December 2011. As previously mentioned, Mr Cain and Mr Tracey were two of the most senior officials in the MUA branch in Western Australia. Accordingly, in my view, senior management was not only involved, but was in fact the source of the scab poster action which was taken by the respondents. I regard this as a matter to which very considerable weight is to be given in assessing the seriousness of the contravening conduct, and the penalty which should be imposed.”

[47] And further:

    “56. I have no reason to believe that either of Mr Tracey or Mr Cain have changed their views. There is, in my view, therefore, a need for the penalty which is imposed to contain a very substantial element of specific deterrent.”

[48] Mr Cain advised that, following this decision, he had changed the MUA practices so that he was made aware of any disputes.

[49] I note that, on appeal, 26 the Full Court of the Federal Court of Australia found no error in the earlier decisions.

[50] The BHP Billiton matter involved unprotected industrial action on 9 March 2012. This action was taken against the MUA and Mr Tracey. The MUA admitted liability for Mr Tracey’s actions. Liability was admitted but the Court was required to consider damages and penalties. In the decision Buchanan J endorsed the agreed penalty of $25,000 for the MUA, damages of $1,000,000 and a six year injunction of any industrial action, taking into account the nature of the industrial action and the extent to which the MUA had previously breached industrial legislation.

[51] In his evidence to me, Mr Cain advised that notwithstanding the admission of liability on the part of the MUA, the actions taken in that matter reflected concerns over the behaviour of a manager. Mr Cain advised that he was not involved in that matter.

[52] The Chevron matter involved industrial action in June 2012 taken as part of a campaign directed at disrupting work on the Chevron Gorgon Project in order to address the MUA’s concerns over the use of foreign labour on the Gorgon Project. The MUA was a respondent to this matter, along with various other persons, including Mr Cain. The industrial action involved delays affecting loading operations for a specialised ship. Gilmour J found that Mr Cain had taken a key role in arranging and co-ordinating this action. His Honour found various actions to be “industrial action” within the meaning of s.19(1)(a) of the FW Act and that it was neither authorised nor based on a reasonable health and safety concern. 27 Further, that various of these actions constituted breaches of s.417 of the FW Act. The findings were summarised in the following terms:

    “The MUA’s contraventions of s 417 of the FW Act

      108. By reason of the above, in breach of s 417 of the FW Act, as part of its industrial campaign against Chevron's use of foreign labour, particularly in relation to the foreign-crewed RDS, the MUA organised for the stevedoring employees of Patrick assigned to LOLO operations on the RDS, including the individual respondents, to engage in unlawful industrial action during the nominal term of the Enterprise Agreement on 28 June 2012 and 29 June 2012.

      109. The organisation of the industrial action was primarily carried out by Chris Cain, Doug Heath and Wade Eaton. It was done with the knowledge and consent of the most senior officials of the MUA, including Paddy Crumlin and Mick Doleman.

      110. Accordingly, the MUA has committed contraventions of s 417 of the FW Act by organising the following industrial action during the nominal term of the Enterprise Agreement:

      (a) on day shift 28 June 2012, the initial delays to work and subsequent refusal or failure to work by the individual respondents;

      (b) on day shift 29 June 2012, the refusal or failure to work by the individual respondents.

    Conclusion

      111. The agreed facts amply support a conclusion that the asserted contraventions, agreed upon by the parties, took place.

      112. However, it is of critical importance that the particular conduct of the MUA which constituted the contraventions be characterised. As I will explain shortly in greater detail, I find that the conduct of the MUA was deliberate and that the safety issues, said at the material time by the MUA to justify the industrial action on each day, were just a pretext. The real reason for the unprotected industrial action was to promote the MUA’s otherwise lawful campaign against Chevron’s use of foreign crew on vessels.

      113. I have inferred from the evidence generally, but in particular the evidence constituted by the chain of emails passing between the MUA and employees of Patricks, that the MUA, as part of its campaign against Chevron in relation to foreign crewed vessels, organised thesecond to sixteenth respondents to engage in unprotected industrial action on 28 and 29 June 2012 on the basis of asserted safety issues which were, in fact, a pretext. The asserted safety concerns did not meet the statutory test to render the industrial action lawful.

      114. This conduct by the MUA constituted two contraventions of s 417 of the FW Act.

      115. Senior Counsel for the MUA expressly acknowledged that this characterisation of the MUA’s conduct and its effect at law was fair and that I should proceed on this basis.

      116. This concession was made by the MUA on the basis that it would flow through to the issue of any civil penalties which might be ordered against it and, if relevant, the further issue of compensation.”

[53] I note that the issue of penalties and compensation has not yet been determined. As a consequence, I elected not to ask Mr Cain about this matter. However, his witness statement advised that:

    “31. In Chevron Australia Pty Ltd v The Maritime Union Australia (No 2) [2016] FCA 768 the Court made declarations that the conduct of the MUA on 28 and 29 June 2012 amounted to organising employees to engage in unprotected industrial action in two contraventions of s417 of the Fair Work Act 2009 (Cth). I did not give evidence at the trial however the Court inferred at para [109] about my conduct on 28 and 29 June 2012 that:

      “The organisation of the industrial action was primarily carried out by Chris Cain, Doug Heath and Wade Eaton. It was done with the knowledge and consent of the most senior officials of the MUA, including Paddy Crumlin and Mick Doleman”

    32. The Court has not held a hearing on penalty in this matter yet.” 28

[54] In overall terms relative to these Court decisions, I have noted that none of these matters dealt with the use, or misuse of entry rights. I have also noted that the last incident which has led to Court action occurred in June 2012, and that, for the entirety of the duration of the entry permit issued to Mr Cain in September 2013, no issues relative to alleged breaches of industrial legislation have been identified. It is also convenient that I note that, whilst most of the Court actions had been commenced at the time Mr Cain’s last permit application was being considered by Mr Enright, none of those matters were addressed in his decision and information about whether those matters were brought to the attention of Mr Enright is not before me.

[55] Notwithstanding that Mr Cain has disputed certain of the conclusions reached in these Court decisions, I have concluded that the Court decisions correctly ascribe various behaviours to him and that these behaviours represent breaches of, or are inconsistent with, significant requirements of the FW Act such that they cast doubt on whether Mr Cain is a fit and proper person to hold an entry permit. In summary form, the conclusions to be drawn from the Court decisions are:

    • Mr Cain has been found to show disregard for industrial laws limiting the organisation of industrial action; 29

    • Mr Cain was an active participant in and directed the operation of a “closed shop” arrangement and has provided limited recognition that this practice has ceased;

    • Mr Cain was actively involved in the publication and direction of a campaign to discredit and belittle employees who exercised their right to work during protected industrial action and has provided no recognition that this was wrong.

[56] I have set out the basis for my conclusions in this regard.

[57] Mr Cain’s involvement in the DP World matter showed little or no regard to the legislation which determines when protected industrial action can be taken. I have concluded that those actions exposed his members, as well as the MUA, to potential litigation. Mr Cain appeared to take payment of his fine by the MUA to be a matter of course. Nearly three years later, his involvement in the BHP matter, again showed no recognition of the limited capacity to take protected industrial action. I have concluded that, had Mr Cain sought to stop that unprotected action from occurring, he could have done so and could have potentially saved his union from very substantial penalties. More significantly, his actions demonstrated little or no regard to the significant cost impositions on a major resource project. Mr Cain’s involvement in the Chevron matter a few months later, demonstrated, what I consider to be contempt for workplace relations legislation as he was a key participant in a campaign to apply industrial pressure on Chevron in order to achieve an objective which it was clear that he, and the MUA thought was justified. Mr Cain has not demonstrated any degree of remorse for his behaviour or the extent to which he has contributed to behaviours on the part of the MUA which involve significant fines and penalties. These matters go to considerations relevant to ss.513(1)(d) and (g) of the FW Act.

[58] I have concluded that Mr Cain was actively involved in the operation of a “closed shop” applicable to Offshore Marine Services Pty Ltd for some time up to, and including 2009. In this respect, I have adopted the findings of the Court. Mr Cain’s participation in this arrangement offended the principles of freedom of association referenced in the objects of the FW Act 30 and, must be considered relevant pursuant to s.513(1)(g). Further, in the matter before me, Mr Cain showed neither contrition nor acquiescence that a “closed shop” was, of its nature, wrong. These matters are relevant to s.513(1)(g) of the FW Act insofar as they go directly to Mr Cain’s character.

[59] Similarly, Mr Cain’s active involvement in the “scabs poster” matter represents behaviours relevant to s.513(1)(g) in that his behaviour was contrary to the principles of protecting employees from unfair treatment and discrimination which are part of the objects of the FW Act. This means that I accept that Mr Cain was aware of the action being taken and that he could have acted to have stopped it. In his evidence before me Mr Cain declined to condemn that action. I have concluded that Mr Cain does not consider the “scab” poster campaign to be inherently wrong. The Court decision, however, clearly articulated that it was in breach of the general protections provisions of the FW Act. Mr Cain’s effective refusal to condemn behaviour of that nature in his evidence to me does not engender confidence that he has altered his position in this respect.

[60] Mr Cain has not resiled from the actions taken by the MUA. To the extent that his evidence was that he took action, following the Offshore Marine Services matter, I am not satisfied that this action included the complete abandonment of any “closed shop” arrangements. To the extent that Mr Cain’s evidence went to his requirement, following the “scab” poster matter, that he was informed about all disputes, does not reflect an increased level of confidence about his approach to workplace relations legislation, or the MUA’s compliance with that legislation, given Mr Cain’s role in the Chevron matter.

[61] Consequently, and with particular reference to s.513(1)(d) and (g), the Court findings relating to Mr Cain do not favour him being regarded as a fit and proper person to hold an entry permit.

[62] In terms of other matters which I consider relevant, 31 Mr Cain has confirmed that the MUA has reached agreement with the major stevedoring operations in Western Australia about right of entry practices and has not identified any issues associated with the implementation of that agreement. Additionally, Mr Cain’s evidence went to the extent to which he complies with additional right of entry requirements applicable on resource development projects in Western Australia. That information appears to support Mr Cain’s position that he has established that he can properly comply with right of entry requirements.

[63] The Full Bench Commission decision in The Maritime Union of Australia [2014] FWCFB 1973 did not change Delegate Enright’s conclusion that Mr Tracey was not a fit and proper person to hold an entry permit. Mr Tracey was the Official responsible for the lodgement of this application and his evidence confirmed that, since 1 July 2015 he has held the position of Deputy National Secretary of the MUA. Mr Cain is the National President of the MUA. Mr Cain’s evidence confirmed that he was not subject to any direction by Mr Tracey other than to comply with the law. 32

[64] I have considered all of the information before me in the context of the permit qualification matters and the principles set out by Hatcher VP, to which I have already referred. 33 The determination of whether Mr Cain achieves a “fit and proper” standard in terms of his personal characteristics requires assessment of the five Court decisions which concluded that he ignored clear legislative obligations and deliberately acted contrary to the provisions of the FW Act in order to pursue particular industrial outcomes. Mr Cain does not appear to have incurred a personal financial penalty as a result of his actions. In contrast, there is nothing before me which indicates that the behaviours considered by the Courts have been repeated in any way since June 2012.

[65] Mr Cain’s suitability to hold an entry permit consistent with s.512 of the FW Act similarly dictates that I must balance the assessment of his established behaviours prior to June 2012 and his reluctance to concede that his behaviour was inappropriate with his conduct since that time. Notwithstanding that none of these matters directly related to the exercise of entry rights, Mr Cain’s failure to clearly express any contrition about them, and the extent to which he has not incurred any personal losses associated with penalties exacerbate these concerns. His evidence that he has respected the right of entry agreements reached with the major stevedoring operators in Western Australia and that he complies with what he regards as additional entry notice requirements required for at least one major resource development are factors which favour him being found as a fit and proper person to hold an entry permit. Additionally, in considering the entirety of the permit qualification matters in s.513(1) of the FW Act, the matters which give rise to significant concern relate to behaviours which occurred from 2009 to 2012.

[66] Finally, I have considered the extent to which Mr Cain operates as a Senior Official of the MUA. The evidence before me does not substantiate that he is subject to direction from within the MUA relative to his behaviour. There is nothing to indicate that the actions he took, that were subsequently considered by the Courts, were the result of any form of instruction. In this sense his position differs markedly from that of other union officials, who might be able to assert that they took action consistent with some form of instruction or direction. Consequently, I am satisfied that Mr Cain’s exercise of entry rights is not profoundly influenced by the environment in which he works but instead, is fundamentally a matter for his own discretion.

[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.

[70] In the event that the MUA advises, by 2 December 2016, that it seeks to provide further material to me, the matter will be relisted for this purpose. In the absence of any such request, a final decision in this matter will be published soon after that date.

Appearances:

T Slevin counsel for the Maritime Union of Australia, The-Western Australia Branch

Hearing details:

2016.

Adelaide:

November 1.

 1   The-Western Australian Branch Maritime Union of Australia PR584625

 2   Exhibit M1

 3   Exhibit M2

 4   Exhibit M3

 5   Director of the Fair Work Building Industry Inspectorate v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWCFB 3358, [13]

 6   Exhibit M1, [10]

 7   Exhibit M1, [12]-[13]

 8   Exhibit M3, [6], [7], [9]

 9   Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943

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

 11   Fair Work Ombudsman v Maritime Union of Australia [2014 FCA 440

 12   BHP Billiton Minerals Pty Ltd v Maritime Union of Australia [2014] FCA 1357

 13   Chevron Australia Pty Ltd v The Maritime Union Australia (No 2) [2016] FCA 768

 14   The Maritime Union of Australia [2013] FWCD 6237

 15   Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102

 16   The Maritime Union of Australia [2013] FWCD 6237, [48]-[49]

 17   Transcript 1 November 2016 10.09am

 18   Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943, see [65], [73]-[76], [78], [83]-[85]

 19   Exhibit M2, [26]

 20   Transcript 1 November 2016 10.21am

 21   Transcript 1 November 2016 10.23am

 22   Transcript 1 November 2016 10.24am

 23   Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440, [7]

 24   Transcript 1 November 2016 10.29am

 25   Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814

 26   Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102

 27   Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2) [2016] FCA 768 [88]

 28   Exhibit M2 [31]-[32]

 29   DP World, BHP Billiton and Chevron matters

 30   Fair Work Act 2009 (Cth) s.3

 31   Fair Work Act 2009 (Cth) s.513(1)(g)

 32   Transcript 1 November 2016 10.51am

 33   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWC 1522 [32]

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Cases Citing This Decision

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Maritime Union of Australia, The-Western Australian Branch [2017] FWC 182