Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2015] FWC 1522

[2015] FWC 1522 [Note: An appeal pursuant to s.604 (C2015/2437) was lodged against this decision - refer to Full Bench decision dated 13 July 2015 [[2015] FWCFB 3358] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(RE2014/1278)

VICE PRESIDENT HATCHER SYDNEY, 19 MARCH 2015

Application for a right of entry permit - Peter Mooney.

Introduction

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit (entry permit) to one of its officials, Mr Peter Mooney. The Director of the Fair Work Building Inspectorate (Director) opposes the issue of an entry permit to Mr Mooney.

[2] The provisions of the Act relevant to the issue of entry permits to officials of registered organisations are as follows:

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.

513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

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

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

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

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

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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

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

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

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

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

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
...

515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).

(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.

(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).

Background

[3] It is necessary to describe the factual background to this application in some detail.

[4] Mr Mooney has been an official of the Victorian Divisional Branch of the Electrical, Energy and Services Division of the CEPU for about 16 years, and continuously held entry permits under the Act and predecessor legislation until 2013. Under s.516 of the Act, entry permits expire three years after the date of issue (unless extended by order of the Commission). On 25 July 2013, the CEPU applied for Mr Mooney to be issued with a further entry permit given that his existing entry permit had expired. The Director opposed the issue of a further permit.

[5] In a decision issued on 1 April 2014 1 (First Decision), Mr Enright, acting as a delegate of the Commission (Delegate), refused the application on the basis that he was not satisfied that Mr Mooney was a “fit and proper person” as required by s.512. In the First Decision, the Delegate noted that the CEPU’s application, and Mr Mooney’s accompanying declaration, disclosed a number of court and commission decisions as being relevant to the application. In connection with those decisions, the Delegate then dealt with a submission advanced by the CEPU to the effect that none of these decisions was required to be taken into account under s.513(1) as permit qualification matters because none of them concerned the exercise of entry permit powers.2 The Delegate rejected that submission, concluding that it was not consistent with the plain language of s.513(1) which required the identified matters to be taken into account, and also contrary to the Full Bench decision in The Maritime Union of Australia.3

[6] The Delegate then considered the permit qualification matters he was required to take into account under s.513(1). In relation to paragraph (a), the Delegate found that Mr Mooney had received appropriate training about the rights and responsibilities of an entry permit holder. 4 In relation to paragraphs (b), (c), (e) and (f), the Delegate found that there was no relevant matter disclosed or otherwise evidenced which he was required to take into account.5

[7] In relation to paragraph (d) of s.513(1) - under which the Delegate was required to take into account whether Mr Mooney had ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by the official - the Delegate took into account four matters in a way which may be summarised as follows: 6

• Martino v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 7(Martino): A penalty of $2,400 (36% of the maximum) was imposed on Mr Mooney for contravention of s.170NC of the Workplace Relations Act 1996 (WR Act) for engaging in coercion of persons to enter into a certified agreement with the CEPU on 8 November 2004. 



• Stuart v The Australian Workers’ Union & Ors 8(Stuart): A penalty of $1,500 (7% of the maximum) was imposed on Mr Mooney for contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) in connection with unlawful industrial action on 25 October 2007. In the absence of reasons for decision, it was not possible to specify the conduct of Mr Mooney which led to the imposition of penalties. 



• Cozadinos v The Australian Workers’ Union & Ors 9(Cozadinos): A penalty of $1,500 (7% of the maximum) was imposed on Mr Mooney for contravention of s.38 of the BCII Act on 23 November 2007. In the absence of reasons for decision, it was not possible to specify the conduct of Mr Mooney which led to the imposition of penalties.



• Hardwick v Australian Manufacturing Workers’ Union  10(Hardwick): A penalty of $4,000 (18% of the maximum) was imposed on Mr Mooney for contravention of s.44(1) of the BCII Act. His admitted conduct was involvement in the organisation of protests at the site of a project to coerce subcontractors into entering into building agreements in the period 2 December 2008 to 27 March 2009. 

[8] The Delegate also took into account a number of matters as relevant under paragraph (g) of s.513(1). Firstly he took into account the decision in Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) 11(ACCC v IPM)in which the CEPU was ordered to pay a pecuniary penalty of $125,000 for a contravention of s.45E(3) of the Trade Practices Act 1974 in August 2001. The Delegate regarded this matter as relevant because “Mr Mooney was acting in his role as an official of the CEPU at all material times and the context of the contravention was part of an industrial campaign by the CEPU regarding its demand that contractors had an enterprise agreement with it”, but noted that Mooney was not himself required to pay any penalty and it was not possible to “precisely identify the conduct of Mr Mooney which contributed to the finding regarding the liability of the CEPU beyond his knowledge of certain matters which was attributed to the CEPU”.12

[9] The Delegate then referred to a number of matters which involved the making of orders under the repealed s.127 of the WR Act. He concluded that he was entitled to treat these matters as relevant under s.513(1)(g), but would only regard them as “relevant background rather than as a discrete item to takeinto account”. 13 The Delegate decided not to take into account two other matters in which injunctive relief was ordered by the Federal Court against the CEPU.14 He then considered the CEPU’s and Mr Mooney’s failure to disclose in earlier applications for entry permits in 2010 and 2013 the matters disclosed in the current application, and concluded that the earlier non-disclosure of Martino, Stuart, Cozadinos and Hardwick was relevant under s.513(1)(g) and therefore had to be taken into account because it “bears upon both the character and the level of due diligence demonstrated by and can expected of Mr Mooney” [sic].15

[10] The Delegate then embarked upon an overall assessment as to whether Mr Mooney was a fit and proper person to hold an entry permit under s.512 taking into account the permit qualification matters which he had earlier identified for the purposes of s.513(1). In relation to Martino, Stuart, Cozadinos, Hardwick and ACCC v IPM he concluded:

“[124] In my view, the penalties imposed, and the relevant conduct found to have occurred, in Martino, Stuart, Cozadinos and Hardwick raise significant concerns regarding Mr Mooney’s adherence to provisions of industrial legislation. This concern is heightened by taking into account that the conduct in Hardwick occurred more than four years after Mr Mooney’s conduct in Martino and essentially involved the same underlying motivation and by the penalties imposed in Stuart and Cozadinos which relate to conduct which occurred in the intervening period.

[125] Further, the CEPU had incurred a pecuniary penalty under the TP Act in ACCC v IPM approximately two years before the relevant conduct of Mr Mooney in Hardwick. The contravention of the TP Act in ACCC v IPM involved entering into a “contract, arrangement or understanding” that required each contractor engaged by a company to have an enterprise agreement with the CEPU. Although I will not make any adverse findings against Mr Mooney in relation to his specific conduct in that matter given the difficulty of indentifying that conduct in the published reasons for decision, the fact that Mr Mooney subsequently engaged in unlawful conduct in furtherance of the object of having contractors enter into enterprise agreements with the CEPU in Hardwick is highly relevant.

[126] In short, at the time that the relevant conduct of Mr Mooney found to have been committed in Hardwick occurred both he and the CEPU had previously had penalties imposed upon them in Martino pursuant to the WR Act and the CEPU had a penalty imposed upon it in ACCC v IPM pursuant to the TP Act for conduct motivated by essentially the same objective, namely, to ensure that contractors had an enterprise agreement with the CEPU. Despite this, Mr Mooney further engaged in the unlawful conduct found to have occurred in Hardwick in furtherance of that object. Bearing in mind the rights, conditions, limitations and responsibilities attaching to the exercise of entry permits set out in Part 3-4 of the Act, I have serious reservations regarding Mr Mooney’s status as a “fit and proper person” to hold an entry permit given such conduct.

[127] Contrary to the submissions of the CEPU, in my view, this lack of willingness to adhere to provisions of industrial legislation as demonstrated in the conduct found to have occurred in Martino, Stuart, Cozadinos and Hardwick is relevant to my consideration of whether he is a “fit and proper person” to hold an entry permit. It was noted that his conduct in Martino was “deliberate”, caused the affected employer to suffer losses of approximately $19,000 and occurred during his attendance at the site of the relevant project. In Hardwick, Gordon J observed that the relevant conduct of Mr Mooney and officials of other employee organisations was “serious in nature and at certain times involved interference or damage to property with the employees’ ability to enter and exit the Site”. The penalties in Stuart and Cozadinos involved unlawful industrial action as defined in the BCII Act. In my view, Mr Mooney’s demonstrable lack of regard for the provisions of industrial legislation is a proper matter to be taken into account when assessing whether he is a “fit and proper person” to hold an entry permit given the rights, conditions, limitations and responsibilities attaching to the exercise of such permits set out in Part 3-4 of the Act.”

[11] In relation to the earlier non-disclosure of these matters, the Delegate said:

“[131] Given the above, I have significant reservations regarding whether Mr Mooney has demonstrated a sufficient level of due diligence to be vested with statutory right of entry powers pursuant to Part 3-4 of the Act. This also affects my confidence regarding his adherence to the duties, obligations, limitations and conditions imposed upon permit holders set out in Part 3-4 of the Act and, therefore, whether he is a “fit and proper person” to hold an entry permit.”

[12] The Delegate further took into account that there were no permit qualification matters to be considered under paragraphs (b), (c), (e) and (f) of s.513(1), Mr Mooney’s length of service as an official, the significant period of time in which he had held an entry permit and had never been subject to any proceedings regarding any alleged improper use of an entry permit, and the potential effect the lack of an entry permit would have on Mr Mooney’s capacity to discharge his duties as a CEPU official. 16 Notwithstanding these matters, the Delegate concluded as follows:

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

[137] On balance, I am not satisfied that the lack of any adverse findings made against Mr Mooney regarding the permit qualification matters set out in paragraphs (b), (c), (e) and (f) of subsection 513(1) of the Act particularly regarding his exercise of statutory right of entry powers, his length of service as an official and permit holder, his role as an official of the CEPU and the level of disclosure provided in the current application before me outweighs my significant concerns regarding his demonstrable lack of regard for provisions of industrial legislation.

[138] I cannot be satisfied that Mr Mooney will exercise the powers derived from the issue of an entry permit in a manner expected of permit holders exercising a public right in conformity with the duties, conditions and limitations imposed by Part 3-4 of the Act.

[139] Mr Mooney’s disregard for the provisions of industrial legislation is sufficient for me to conclude that I am not satisfied that he is a “fit and proper person” to hold the entry permit the subject of the current application. His lack of due diligence in making and lodging previous right of entry applications further contributes to this conclusion.

[140] Given my conclusions above, although I have taken the matters of Simon Engineering, ABB Australia, Basin and Transfield, Transfield, ABB Australia v CEPU (2004), Worley and Esso into account, it has not been necessary to attach a degree of weight to them which is sufficient to affect my consideration of whether Mr Mooney is a “fit and proper person” or make any adverse findings against Mr Mooney in relation to them.
...

[142] As I have determined not to issue a permit to Mr Mooney, it is not necessary for me to consider imposing any conditions pursuant to section 515 of the Act.”

[13] An important observation that may be made at this point about the proceedings before the Delegate is that the CEPU did not adduce any evidence, or make any submission, to the effect that the period of time which had elapsed since Mr Mooney had last engaged in conduct in breach of an industrial law for which he was required to pay a penalty meant that he had reformed his conduct as a union official or that Mr Mooney had acquired a proper understanding of the necessity for him not to engage in any conduct in breach of any industrial law.

[14] The CEPU applied for permission to appeal, and appealed, the First Decision. Its primary ground of appeal was that the Delegate failed to properly exercise his jurisdiction by taking into account as permit qualification matters under s.513(1) matters that were not relevant to the exercise of entry permit rights, namely the penalty cases of Martino, Stuart, Cozadinos, and Hardwick, as well as ACCC v IPM. In its decision 17 (Appeal Decision) the Full Bench rejected this submission, concluding (consistent with the earlier Full Bench decision in The Maritime Union of Australia18) that s.513(1) was not to be read down so that only those permit qualification matters which were relevant to the exercise of entry permit rights were to be taken into account. The Full Bench went on to say:

“[23] A statutory requirement upon a decision-maker to take identified matters into account requires the decision-maker to treat the consideration of those matters as a central element in the deliberative process, to give proper, genuine and realistic consideration to each of those matters, and to give them appropriate weight in making the required decision. In considering what weight is to be assigned to the permit qualification matters required to be taken into account under s.513 in a particular case, it will be necessary for the Commission member or delegate to consider (as was stated in The Maritime Union of Australia at [27]) the effect of those matters on the suitability of the relevant official to hold an entry permit.”

[15] On this basis the Full Bench determined that the Delegate was correct to take the decisions in Martino, Stuart, Cozadinos, and Hardwick into account as permit qualification matters. In relation to ACCC v IPM however, the Full Bench said:

“[26] The matter of ACCC v IPM is in a somewhat different category. The Delegate took it into account as a relevant matter under s.513(2). It is difficult to discern any proper basis for it being considered relevant given that no penalty was imposed on Mr Mooney (or sought to be imposed) and no finding was made that he had engaged in any unlawful activity. The CEPU was found to have committed an accessorial contravention of the Trade Practices Act, but as the Delegate stated in the Decision it is not possible to identify what, if any, conduct on the part of Mr Mooney caused or contributed to the CEPU’s liability. However, the Delegate did not in the Decision give weight to ACCC v IPM as demonstrating any conduct on the part of Mr Mooney that went to his suitability to hold an entry permit. Rather, he took into account ACCC v IPM for the very limited purpose of characterising the seriousness of the subsequent conduct for which Mr Mooney was penalised in Hardwick. To the extent that there was any error involved in taking ACCC v IPM into account, we do not consider that this had any significant effect upon the outcome of the matter such as to justify appellate intervention.”

[16] The CEPU also submitted in its appeal that the Delegate had erred by failing to take into account the dates of the conduct which caused penalties under industrial laws to be imposed on Mr Mooney and the time which had passed since the last instance of offending conduct by Mr Mooney in March 2009. This submission was dealt with by the Full Bench as follows:

“[28] The CEPU’s submission that the Delegate erred by not taking into account the period of time that had passed since the occurrence of the last conduct for which Mr Mooney was penalised has some force. As at the date of the Decision, that period was in excess of five years. If an official has for a significant period of time not engaged in any conduct required to be taken into account under s.513(1)(b)-(f), that will usually be an important if not critical consideration in an assessment of the official’s fitness to hold an entry permit, since it provides a sound basis upon which to have confidence that the official understands the need to comply with industrial and other relevant laws and will therefore diminish the weight to be given to any earlier permit qualification matters. Beyond identifying the dates of the occurrence of the conduct involved in each permit qualification matter, the Delegate did not disclose in the Decision that he gave any consideration or weight to the fact that there had been no offending conduct on the part of Mr Mooney for over five years. This would appear to involve House v The King error.

[29] However, as the FWBC’s submissions pointed out, this issue was simply not raised in the CEPU’s submissions to the Delegate. Those submissions were entirely concerned with the proposition that there were no matters required to be taken into account under s.513(1) based upon what the CEPU contended was the proper construction of that provision, and the subsidiary proposition that Mr Mooney had never been the subject of any adverse finding in respect of his compliance with right of entry laws. The CEPU made no submission concerning the conduct of Mr Mooney in Martino, Stuart, Cozadinos,or Hardwick, including the time which had passed since the occurrence of that conduct.

[30] A party will not usually be permitted to raise merit arguments on appeal which were not advanced at first instance. No submission was advanced by the CEPU as to why this principle should be departed from here. We therefore decline to interfere with the Decision on the basis of the CEPU’s submission that the Delegate failed to take into account the five years which had passed since Mr Mooney last engaged in conduct giving rise to a permit qualification matter.”

[17] The Full Bench also rejected a final submission made by the CEPU that the Delegate erred in failing to consider whether conditions could be imposed under s.515 in order to address any issues concerning Mr Mooney’s fitness to hold an entry permit, concluding as follows:

“[33] ... Section 515(1) authorises the imposition of conditions on an entry permit only “when it is issued”. The prerequisite for the issue of a permit under s.512 is satisfaction that the official is a fit and proper person. Therefore the question of conditions being imposed on the entry permit cannot arise until a “fit and proper person” finding has been made....

[34] We therefore agree with the approach of the Full Bench in The Maritime Union of Australia concerning s.515. The Delegate did not err in failing to consider whether Mr Mooney could be issued an entry permit with conditions. Once the Delegate had found that Mr Mooney was not a fit and proper person under s.512, it was not open to him to issue a permit on any basis.”

[18] The CEPU was granted permission to appeal, but the appeal was dismissed. In reaching this conclusion, the Full Bench made the following observation:

“[36] We emphasise that this conclusion does not mean that Mr Mooney is permanently or indefinitely prevented from obtaining an entry permit. Indeed it does not appear that there is any impediment to the CEPU making a further application under s.512 for Mr Mooney to be issued with an entry permit forthwith. If such an application is made, the CEPU will have the opportunity to make appropriate submissions concerning the permit qualification matters applying in Mr Mooney’s case - particularly the matters of Martino, Stuart, Cozadinos and Hardwick - and Mr Mooney will have the opportunity if he wishes to give evidence in support of the application. With the assistance of any such submissions and evidence, the Commission will be able to give appropriate consideration to the permit qualification matters and other relevant matters, including whether the passage of time since Mr Mooney last engaged in conduct for which he was required to pay a penalty under industrial laws demonstrates that he has acquired an understanding of the need to comply with such laws and is fit and proper to hold an entry permit.”

Evidence of Mr Mooney

[19] In support of the CEPU’s application for him to be granted an entry permit, Mr Mooney gave evidence by way of a witness statement made on 6 November 2014. In that statement, Mr Mooney said that:

• he was a branch organiser with the CEPU, and had been in that role for 16 years;



• during that period, his duties had routinely involved entering workplaces using his entry permit (when he had one), entering workplaces with the consent of the employer, participating in industrial disputes and dispute resolution procedures, negotiating enterprise agreements and organising protected industrial action;



• he had a general understanding of applicable workplace laws;



• he was also generally aware of right of entry laws, assisted by the ACTU training courses he had completed;



• his most recent such training course was completed on 19 September 2014;



• in the last five years he had not been involved in conduct that had caused a penalty under an industrial law to be imposed on him and had not been convicted of an offence under an industrial law, and he had never in his 16 years as a branch organiser been found to have improperly used his right of entry permit;



• he understood the need to comply with workplace law, including right of entry laws;



• he did not agree that many industrial laws were fair or warranted, but notwithstanding this understood the general need to comply with them;



• his non-disclosure of past contraventions in earlier applications in 2010 and 2013 was due to unintentional inadvertence in signing a document without reading it carefully enough;



• he had learnt from this mistake, and now took greater care to read documents that he signed and seek legal advice; and



• he believed he was a fit and proper person to hold an entry permit.

[20] Counsel for the Director cross-examined Mr Mooney in relation to his witness statement. The Director raised with Mr Mooney an article published in the LaTrobe Valley Express on 17 July 2014 concerning the Appeal Decision, in which Mr Mooney was quoted as saying: “I don’t know technically why they rejected me in the first place, other than I’ve been pretty successful in what I do as a representative for the ETU and the workers ... I think I was being made an example of; for whatever reason this Federal Government is trying to weaken the strong union organisers out there”. Mr Mooney said in relation to this article 19:

“I was disappointed, your Honour, at the time. I was very disappointed I wasn’t getting my right of entry permit back, you know I felt that I had been doing all the right things for some time, I had a pretty good understanding now of the - the laws and some of the things that I’d been involved in, probably matured a little bit more, so I was a little bit disappointed you know that my name seemed to be getting dragged. I think I am a decent person, I think that I do the right thing the majority of the time, so it was being very disheartening, the whole process for me.

But the question I was asking you was, was it your opinion at this time that your first application for a permit had been rejected because you were - simply because you were successful as an ETU organiser?---That was my view, you know, I felt that you know I’d been pretty successful in my area. I’d made a lot of gains for our members in our area and I just felt – that’s what I felt at the time.

Is that your opinion now?---Probably in some ways probably not now, it was more probably you know trying to be off the cuff sort of comment at the time, maybe I’m just - I can’t remember, but you know if I had my time again I probably wouldn’t have made any comments.”

[21] Mr Mooney was questioned about the view expressed in his statement that many industrial laws were not fair or warranted, and in this connection the following exchange occurred between counsel for the Director and Mr Mooney 20:

“One of the particular concerns you have around Australia’s current legal regime in this field is its regulation of the right to strike, do you agree with that?---Yes, I understand that you know I believe people should have the right, I believe, but in this country we have ways and means to take strike action which is at the end of an agreement and we can take protected action. We can’t take strike action anymore.

That’s right but that prohibition on taking strike action other than in those limited circumstances that you’ve identified, you don’t agree with that prohibition, do you?---As I said that’s my opinion.

I’m only asking for your opinion?---It’s my opinion but I understand that the laws in our country don’t allow that to happen, I understand that.

You would see it that if you are seeking to achieve particular ends or particular goals, namely improving terms and conditions for your members that you should be entitled to organise and your members should be entitled to take industrial action in support of those claims, that’s your personal opinion, correct?---My opinion is that people should have the right to strike in this country, okay. As I said but it doesn’t mean you can do it.

I understand. In that context do you agree with me that it’s sometimes difficult for a union and in particular a union organiser to stand up for workers’ rights in circumstances where the laws don’t properly permit you to do what you think is necessary to achieve that?---No, no, I think I’ve learned over the years there’s other ways and means now to achieve the same outcome without having to put people in strike or put them in positions where they don’t want to be, you know, there’s other means, you know, we can come to this – this Commission, for argument’s sake you can go to other legal avenues to get the similar outcomes that we’ve been achieving.

Do you agree with me that one of the roles of a good organiser is to stand up for the rights and interests of its members?---Of course I do.

Sometimes, particularly in the current environment for example with conservative government that that job and a legal regime that you would regard as not consistent with ILO conventions that sometimes that job can be quite difficult for a union organiser?---Yes, quite difficult but we can, you know, work our way around things and get there eventually through using other means, you know, as I said before you know, I think we’ve spent more time in this Commission of recent times than I ever have.”

[22] Mr Mooney was also challenged about his evidence that he understood the need to comply with industrial laws, and responded as follows 21:

“You say in your witness statement that you understand – you have a general understanding of industrial laws, you don’t propose to be an expert?---That’s correct.

You also understand the need to comply with those laws?---That’s correct.

Can I submit to you or suggest to you, Mr Mooney, that the difficulty is that whilst you understand the laws you nevertheless choose not to comply with the laws when the ends justify the means, do you agree with that?---No, I don’t agree with that. I haven’t done anything for five years, I think I’ve matured a lot.
...

MR FOLLETT: Perhaps I’ll rephrase it your Honour. Being a strong organiser includes contravening the law from time to time to ensure the greatest outcome for your members?---Well, I don’t agree with that and my history will show you from the last five years that I haven’t contravened any (indistinct) - - -

The – your position is that the ends adopted to achieve an outcome justify the means, correct?---It depends how – what you’re talking about, where you’re going, you know like - -

Your position is that if you need to take strike action illegally to support a particular claim that there will be circumstances where the taking of that strike action justified the end that you’re ultimately trying to achieve, do you agree with that?---No, I don’t.”

[23] At the end of the cross-examination, I asked Mr Mooney some questions to which he responded as follows 22:

“THE VICE PRESIDENT: Right. Just before there’s any re-examination. Mr Mooney, what is your position if a more senior official in your organisation gives you an instruction which if it’s carried out might involve the contravention of the law?---That would be a discussion that me and that official would have.

A discussion about what?---What we do, is there a better way, do we really need to go down that road, so if anything try and talk them out of going down that road, contravening the Act.

If you are directed by a superior official to do something which you consider to be unlawful what do you do then?---I would – I’m not sure exactly what I would do, but that’s a very difficult one, it’s one place I’d rather not be in.

I understand that but sometimes you understand that unions organise campaigns and instructions are given and you know that has happened in the past, what happens if that instruction puts you in a position to do something unlawful?---I don’t know how to answer that, your Honour, sorry but that’s a position that I don’t really want to be in.

Have you ever found yourself in that position?---No. No.”

Submissions

[24] The CEPU submitted that there has been an extensive period of time since the last time Mr Mooney engaged in conduct found to be in contravention of an industrial law (March 2009), which demonstrated that he had acquired an understanding of the need to comply with industrial laws. It was also submitted that the Commission should place significant weight on Mr Mooney’s entirely clean record with respect to compliance with right of entry laws, particularly given the length of time he had worked as a union official and the number of workplaces he may be presumed to have visited over that period.

[25] The Director’s primary submission was that the CEPU’s application should be dismissed without an adjudication on the merits on the basis that it constituted an abuse of process, in that it simply sought to re-litigate the same issue which had been litigated in the CEPU’s application and had been rejected in the First Decision and the Appeal Decision. The CEPU was mounting the same arguments and submission as it had in the earlier application. While the CEPU was not barred for all time from making another application for an entry permit to be issued to Mr Mooney, something substantive had to have changed to warrant a new application, such as reformation of character over a significant passage of time or new or different facts. The Commission, it was submitted, had the power under s.587 and/or s.577 of the Act to dismiss the application on this basis.

[26] As to the merits of the CEPU’s application, the Director submitted that:

• the Commission should exercise significant caution in considering whether to grant Mr Mooney an entry permit having regard to his record of contravening industrial laws;



• the contravening conduct in Martino, Stuart, Cozadinos, and Hardwick, and the proximity to each other of those instances of conduct, raised serious issues about his prospects of re-offending and the quality and rigour of training provided by the CEPU to its officials;



• Mr Mooney had failed to express any genuine remorse or contrition for his unlawful behaviour, which gave rise to a real question as to whether the Commission could be satisfied that Mr Mooney could demonstrate a continuing ability to adhere to provisions of industrial legislation;



• Mr Mooney had failed to disclose that the Commission had only recently refused to issue him with an entry permit;



• entry permit holders enjoyed a special privilege, and there had to be confidence in the community that they would properly perform their role under the Act; and



• having regard to the permit qualification matters, Mr Mooney had failed to demonstrate the requisite fitness and propriety to hold an entry permit.

[27] In the alternative, the Director submitted that if Mr Mooney was found to be a fit and proper person and an entry permit was issued to him, the following three conditions should be imposed on that permit under s.515(1) of the Act:

(1) The permit holder must undertake training approved by the Fair Work Commission on an annual basis in relation to Parts 3-1, 3-3 and 3-4 of the Fair Work Act 2009 (Cth) for the duration of the permit. Evidence of attendance at such training shall be provided to the Fair Work Commission within 2 weeks of the training being undertaken by the permit holder.

(2) If any findings are made or penalties imposed that are relevant to the permit qualification matters at s 513(a)-(f) of the Fair Work Act 2009, or proceedings commenced that may lead to findings made or penalties imposed that are relevant to the permit qualification matters at s 513(a)-(f) of the Fair Work Act 2009, then the permit holder is to notify the Fair Work Commission within 2 weeks of the finding being made, the penalty imposed or the proceeding commenced.

(3) The permit holder must only use his entry permit:

(a)   in the company of another permit holder who has no condition imposed upon their entry permit; and

(b)   after providing 24 hours notice to the Director of the Fair Work Building Industry Inspectorate of his intention to enter premises where building work is being performed.

Consideration

Abuse of process

[28] There is significant doubt as to whether the principles of abuse of process applied by courts to inter-party litigation have relevance to the current proceeding. The consideration of whether an entry permit should be issued to a person is an administrative process which does not necessarily (and has not traditionally) required any formal hearing process. The Director is not a “party” to the present matter against whom any substantive order under the Act may be made; rather he is a voluntary participant who has chosen to exercise his right under s.72 of the Fair Work (Building Industry) Act 2012 to make submissions about a matter under the Act which involves a “building industry participant” (being Mr Mooney as an official of a union covering building industry employees).

[29] In Rogers v The Queen 23Mason CJ identified two aspects of abuse of process as relevant to a situation where a party seeks to litigate a second time a case which has already been disposed of by earlier proceedings:

“...first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.” 

[30] Certainly, the first aspect has no application here. The Director cannot be said to be subject to any “vexation, oppression and unfairness” because, as already stated, he has appeared in the matter voluntarily and cannot be said to be a “party” in the sense that he can be subject to any order made in the proceedings that is binding upon him or has any direct effect upon him.

[31] More fundamentally, the Director’s characterisation of the CEPU’s application as an attempt to re-litigate a case that has already been rejected is misconceived, and accordingly no issue of the administration of justice being brought into disrepute arises. There is nothing in the Act which prevents a further application for the issue of an entry permit to a particular person being made (either at all or in any particular time period) in circumstances where an earlier application in respect of that person has been rejected. 24 In its current application, the CEPU submits that the passage of time since Mr Mooney last contravened an industrial law and his recognition of the need to comply with applicable industrial laws justify the grant of an entry permit to him on this occasion. As earlier noted, there was no case of that nature advanced at first instance in relation to the previous application for Mr Mooney to be issued an entry permit. In those circumstances, the Director’s abuse of process submission has no substance and is rejected.

Whether Mr Mooney is a fit and proper person

[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 25, CEPU v Director of the Fair Work Building Industry Inspectorate26, Director of the Fair Work Building Industry Inspectorate v CFMEU27, Construction, Forestry, Mining and Energy Union28, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland29and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate30. 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.

[33] I will now turn to the permit qualification matters required to be taken into account under s.513(1). In relation to paragraph (a), I am satisfied that Mr Mooney has received appropriate training about the rights and responsibilities of a permit holder. I accept Mr Mooney’s evidence that he had completed the ACTU training course concerning right of entry under the Act on 19 September 2014 (as well as on previous occasions). The ACTU training course is one approved by the Commission for the purpose of s.513(1)(a).

[34] In relation to paragraph (b) of s.513(1), Mr Mooney has never been convicted of an offence against an industrial law. Similarly, in relation to paragraph (c), Mr Mooney has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty, intentional use of violence against another person or intentional destruction of property.

[35] In relation to paragraph (d), Mr Mooney has been ordered to pay a pecuniary penalty under an industrial law in relation to action taken by him on four occasions, in the matters of Martino, Stuart, Cozadinos, and Hardwick. I have earlier summarised the quantum of those penalties, the industrial laws which were found to have been contravened, the dates of the contravening conduct, and the nature of that conduct so far as it can be identified from the decisions in those matters. I agree with the conclusions reached by the Delegate in the First Decision concerning these matters which have been quoted at paragraph [10] above, in particular that during the period in which the contraventions occurred (from November 2004 to March 2009) Mr Mooney showed a “demonstrable lack of regard for the provisions of industrial legislation” in a way which raises serious questions about whether there can be a proper basis for confidence that he would properly and lawfully exercise the rights attaching to an entry permit with the attendant conditions, limitations and responsibilities.

[36] In relation to paragraph (e) of s.513(1), Mr Mooney has never had a permit issued to him under the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions. In relation to paragraph (f), no court, person or other body under a State or Territory industrial law or OHS law has ever cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes which Mr Mooney had under that law or disqualified Mr Mooney from exercising or applying for a right of entry for industrial or occupational health and safety purposes under that law.

[37] In relation to paragraph (g), I consider a number of matters to be relevant. The first is that Mr Mooney has not engaged in any conduct that has been found to be in contravention of an industrial law for the last six years, which I regard to be a significant period. It is a longer period than the period during which the contraventions dealt with in Martino, Stuart, Cozadinos, and Hardwick occurred.

[38] Secondly, Mr Mooney has given evidence that he understands the need to comply with industrial laws, even those he disagrees with, and has a general understanding of those laws. His evidence in this respect contained in his witness statement of 6 November 2014 was fortified by the evidence he gave in the course of the Director’s cross-examination of him, the salient aspects of which I have earlier set out. In his evidence Mr Mooney demonstrated that he understood that non-protected industrial action was unlawful and could not be undertaken and that there were lawful means, including engaging in dispute resolution procedures, to achieve appropriate outcomes for the CEPU’s members. He firmly rejected propositions put to him by the Director to the effect that being a strong union organiser required non-compliance with the law from time to time and that the end of achieving a successful outcome for the CEPU’s members justified the means of engaging in unlawful industrial action. Mr Mooney also gave further confirmation that while he disagreed with some aspects of current industrial laws, including limitations on the right to take industrial action, this did not affect his intent to comply with those laws.

[39] The Director properly raised with Mr Mooney his quoted remarks in the LaTrobe Valley Express article of 17 July 2014. It may be accepted that those remarks, on their face, evince a lack of recognition on the part of Mr Mooney that he had failed to have a new entry permit issued because, primarily, of the unlawful conduct for which he had been penalised in the cases of Martino, Stuart, Cozadinos, and Hardwick and therefore a lack of understanding about the significance of that conduct. However, as Mr Mooney explained in the course of his oral evidence (which I have quoted above), those remarks were “off the cuff” and were made in the context of his disappointment after the unsuccessful CEPU appeal in 2014 in circumstances where he felt (and the evidence demonstrated) that he “had been doing all the right things for some time”. Mr Mooney also said that “if I had my time again I probably wouldn’t have made any comments”, which I take to be an indication of regret about those remarks.

[40] Mr Mooney’s response to my question concerning whether he would obey a direction from a superior CEPU official to engage in unlawful industrial conduct was somewhat too equivocal, although on one view the question itself was unfairly hypothetical in nature. However, it is at least the case that Mr Mooney did not say that he would obey such a direction, and he said would try to talk the superior official out engaging in conduct of that nature.

[41] Having regard to the matters I have referred to, I accept Mr Mooney’s evidence that he (now) understands the need to comply with applicable industrial laws, including right of entry laws.

[42] Thirdly, I take into account that Mr Mooney failed to disclose the penalties imposed upon him in Martino, Stuart, Cozadinos, and Hardwick in applications in 2010 and 2013 for entry permits (noting that the former application resulted in Mr Mooney being issued with an entry permit). That is a serious matter. I accept Mr Mooney’s evidence that this was not an intentional deception, but a result of inadvertence on his part in not properly reading a document he was asked to sign. Nonetheless that involved the making on two occasions of an incorrect declaration to this Commission, and must be regarded as a lack of diligence on his part of a very serious degree. However I also take into account Mr Mooney’s evidence, to which I have earlier referred, that he had learnt from this mistake and now took greater care to read documents that he signed and seek legal advice about them.

[43] The fourth matter I consider to be relevant is the fact that Mr Mooney was refused an entry permit as a result of the decision of the Delegate in 2014, affirmed on appeal, that he was not a fit and proper person to hold such a permit. However, that refusal was largely on the basis of the contravening conduct penalised in Martino, Stuart, Cozadinos, and Hardwick and Mr Mooney’s non-disclosure of those matters in two entry permit applications - matters which I have already taken into account. Therefore this matter is one which, in substance, largely overlaps with other matters already discussed.

[44] There are two matters which I do not regard as relevant. The first is the decision in ACCC v IPM. For the reasons stated in paragraph [26] of the Appeal Decision, which I have earlier quoted, that is not a matter relevant to whether Mr Mooney is a fit and proper person to hold an entry permit. The second, which was raised by the Director, was that Mr Mooney did not disclose in the declaration accompanying the current application that he had been refused an entry permit by the Delegate last year on the basis that he was not a fit and proper person. I do not consider that there was any need to disclose to the Commission one of the Commission’s own decisions, affirmed on appeal, that was issued so recently. It does not bear in any way upon Mr Mooney’s fitness to hold an entry permit.

[45] Having identified the matters required to be taken into account under s.513(1), it is necessary to weigh those matters and arrive at an overall conclusion as to whether Mr Mooney is, for the purpose of s.512, a fit and proper person to hold an entry permit. The penalties imposed on Mr Mooney in Martino, Stuart, Cozadinos, and Hardwick are matters which must be given significant weight because of the questions they raise as to whether there is a basis for confidence that Mr Mooney would make proper and lawful use of an entry permit if issued with one. However, I place greater weight on the facts that Mr Mooney has never in 16 years as a union official (during most of which he has held an entry permit) been found to have contravened right of entry laws, that he has not engaged in any conduct in the last six years found to be in contravention of any industrial law, and has given evidence which I have accepted that he understands the need to comply with industrial laws and has a general knowledge of the applicable requirements of those laws. Mr Mooney’s failures to disclose his past contraventions in the 2010 and 2013 applications are a significant matter, but in terms of his suitability to hold an entry permit from this point in time forward are, in my view, largely neutralised by the fact that he has made a proper disclosure in this application and has given evidence, which I have accepted, that he has learned to take greater care and obtain legal advice in relation to documents that he is required to sign. The fact that Mr Mooney has recently received Commission-approved training about the rights and responsibilities of an entry permit holder is also a further matter which weighs in his favour. The other matters I have referred to I regard as being neutral in my assessment of the CEPU’s application.

Conclusion

[46] I consider therefore that there is a sound basis for confidence that, if issued with an entry permit, Mr Mooney will properly and lawfully exercise the rights attaching to such a permit. I am satisfied that Mr Mooney is a fit and proper person to hold an entry permit. I am further satisfied that I should exercise the discretion conferred by s.512 in favour of issuing Mr Mooney with an entry permit.

[47] Taking into account the permit qualification matters to which I have earlier referred, I consider that there should be conditions imposed on the entry permit to be issued to Mr Mooney under s.515(1) of the Act. The Director proposed three conditions which I have earlier set out. I relation to the first proposed condition, I consider it to be appropriate only insofar as it would require annual training in relation to the right of entry provisions in Part 3-4 of the Act. I consider the second proposed condition concerning notification to be appropriate. I am not satisfied that the third proposed condition, which would require that Mr Mooney only exercise rights of entry in company with another official with a unconditional entry permit and upon prior notice being given to the Director, is appropriate or necessary. The practicability of such a condition was not raised with Mr Mooney when he gave evidence, and it is therefore unclear whether Mr Mooney would be able effectively to exercise rights of entry under the Act if such a condition was imposed.

[48] A separate order [PR562018] will be issued to give effect to this decision.

VICE PRESIDENT

Appearances:

G. Borenstein for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

M. Follett of counsel with B. Vallence for the Director of the Fair Work Building and Industry Inspectorate.

Hearing details:

2014.

Melbourne:

22 December.

 1   [2014] FWCD 2102

 2   First Decision at [27]-[43]

 3   [2014] FWCFB 1973 at [26]

 4   First Decision [59]-[60]

 5   First Decision [48]-[49] and [51]-[52]

 6   The summary repeats that in CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397 at [8]

 7   No. U02229162

 8   MLG1179/2008

 9   MLG390/2009

 10 [2010] FCA 818

 11 [2007] FCA 11

 12   First Decision at [88]-[89]

 13   First Decision at [92]

 14   First Decision at [93]

 15   First Decision at [109]

 16   First Decision at [137]

 17   CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397

 18   [2014] FWCFB 1973

 19   Transcript PNs 80-82

 20   Transcript PNs 99-105

 21   Transcript PNs 149-151 and 129-131

 22   Transcript PNs 184-188

 23 (1994) 181 CLR 251

 24   See Appeal Decision at [36]

 25   [2014] FWCFB 1973

 26   [2014] FWCFB 4397

 27   [2014] FWCFB 5947

 28   [2014] FWCFB 6497

 29   [2014] FWCFB 7154

 30   [2014] FWFCB 7194

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