The Australian Workers’ Union - Queensland Branch

[2018] FWC 2628

[2018] FWC 2628

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.512—Right of entry

The Australian Workers’ Union - Queensland Branch
(RE2018/239)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 7 JUNE 2018

Application by The Australian Workers’ Union – Queensland Branch for an entry permit for Paul John Cradden – whether Mr Cradden is a fit and proper person – application granted.

[1] On 12 March 2018, the Australian Workers’ Union – Queensland Branch (AWU) applied for an entry permit for Paul John Cradden.

[2] Before granting such a permit, the Fair Work Commission (the Commission) needs to be satisfied that the proposed permit holder is a fit and proper person to hold the permit.

[3] The matters that the Commission must take into account in deciding whether the proposed permit holder is a fit and proper person to hold the entry permit are set out in s.513 of the Fair Work Act 2009 (Cth) (the FW Act). Section 513 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issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;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…’

[4] The only one of these matters about which I had any concern in relation to Mr Cradden was that described in s.513(d). In particular, Mr Cradden had been ordered by the Federal Court of Australia in Director, Fair Work Building Industry Inspectorate v Cradden 1 to pay a penalty of $30,000 for breaches of s.44 of the Building and Construction Industry Improvement Act 2005 (BCII Act).

[5] In his judgment of 22 June 2015 Logan J found that Mr Cradden:

•  on 13 March 2012, had taken action being the parking of vehicles along the front of the Common Ground Project Site to obstruct access and besetting, intimidating, abusing and threatening employees of Grocon Constructors Qld Pty Ltd (Grocon), with the intent to coerce Grocon to agree to make a building enterprise agreement;

•  on 14 March 2012, had taken action being the parking of vehicles along the front of the Common Ground Project Site to obstruct access, gathering under the awning of a CFMEU van to impede access and besetting, intimidating, abusing and threatening employees of Grocon, with the intent to coerce Grocon to agree to make a building enterprise agreement;

•  on 15 March 2012, had taken action being the parking of vehicles along the front of the Common Ground Project Site to obstruct access and besetting, intimidating, abusing and threatening employees of Grocon to agree to make a building enterprise agreement;

•  on 16 March 2012, had taken action being the parking of vehicles along the front of the Common Ground Project Site to obstruct access and besetting, intimidating, abusing and threatening employees of Grocon, with the intent to coerce Grocon to make a building industry agreement;

•  on 17 March 2012, had taken action being the parking of vehicles along the front of the Common Ground Project Site to obstruct access and gathering under the awning of a CFMEU van to impede access, with the intent to apply undue pressure to Grocon to agree to make a building enterprise agreement; and

•  on 19 March 2012, had taken action being the parking of vehicles along the front of the Common Ground Project Site to obstruct access, gathering under the awning of a CFMEU van to impede access, with the intent to apply undue pressure to Grocon to agree to make a building enterprise agreement.

[6] Logan J imposed $5,000 penalties on Mr Cradden for each of these actions, which he found to be breaches of the BCII Act. He also imposed penalties amounting to $400,000 on the Construction, Forestry, Mining and Energy Union (CFMEU) for the breaches of the BCII Act committed by Mr Cradden and four other CFMEU officials at the Common Ground Project Site (a Queensland Government project to provide housing for people who had experienced long-term homelessness).

[7] The conduct of Mr Cradden as revealed by Logan J in this judgment raised serious concerns in my mind as to whether Mr Cradden was a fit and proper person to hold an entry permit. In particular I was concerned about Mr Cradden’s commitment to performing his role as a union official in a lawful and proper manner.

[8] I held a hearing on 9 May 2018 to consider this application. Mr Sivaraman appeared for the AWU. Written statements were filed by Troy Spence (District Secretary, Metals and Construction District, AWU) and Mr Cradden. Importantly, Mr Cradden also gave evidence in person and answered questions from the Commission.

[9] At the conclusion of the hearing, I indicated that I was satisfied that Mr Cradden was a fit and proper person to hold an entry permit and that the application would be granted. I indicated that I would give my reasons for this decision at a later date.

[10] These are the reasons I decided that Mr Cradden was a fit and proper person to hold an entry permit, despite the concerns I had flowing from his conduct at Common Ground Project Site, as described in the Federal Court decision.

[11] Mr Cradden is, of course, no longer employed by the CFMEU. Mr Spence said that he has been Mr Cradden’s supervisor since the latter commenced working for the AWU as an organiser in the Metals and Construction District on 27 January 2015. His evidence is that during this period:

‘…Mr Cradden has demonstrated that he both understands, and fully appreciates, the importance of compliance regarding his obligations as a permit holder. This is supported by the fact that Mr Cradden has not been the subject of any action or proceeding relating to alleged contraventions as a consequence of his conduct during his time as a permit holder for AWU.’ 2

[12] In his written statement, Mr Cradden said:

‘I regret very much what happened in the Hope Street project in 2012 and the conduct for which I was penalised in the decision. I look back and think that was not the way to operate…

I resigned from the CFMEU in about 2014. I felt that I did not fit into the culture there.’ 3

[13] When the Commission asked about him to expand on this evidence, Mr Cradden said:

‘Well, in my opinion since my days with the CFMEU I’ve landed at the way to solve issues on job sites is not to disrupt a job site. Since then I’ve landed at, yes, there is other ways of doing it, by sitting down and discussing issues without closing down the job site…

[14] He said in relation to what he described as the culture of the CFMEU:

‘… you kind of do what you’re told… I just didn’t want to do it anymore. It just didn’t sit right with me and that’s why I resigned. I couldn’t accept doing that. It’s not the type of person I am.’ 4

[15] Mr Cradden said that in his current role, in contrast to his conduct at the Grocon site:

‘… we don’t carry on in that manner. You sit down and you discuss issues which is what I do on a regular basis…’

[16] I was satisfied, on the basis of the evidence, that Mr Cradden was highly unlikely to repeat the type of conduct for which he and the CFMEU were penalised by the Federal Court. As Mr Sivaraman said, ‘he’s a different person to the one that conducted himself in 2012.’

[17] On that basis I was satisfied that Mr Cradden was a fit and proper person to hold an entry permit.

SENIOR DEPUTY PRESIDENT

Appearances:

G Sivaraman, solicitor, for The Australian Workers’ Union – Queensland Branch.

Hearing details:

Sydney.

2018.

May 9.

 1 [2015] FCA 614.

 2 Exhibit 1 [8].

 3   Exhibit 2 [7]-[8].

 4   PN52-PN53.

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