The Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland

[2014] FWCD 694

[2014] FWCD 694

DECISION

Fair Work Act 2009

s.512 - Application for a right of entry permit

The Construction, Forestry, Mining and Energy Industrial Union of

Employees, Queensland

(RE2014/467)

MR ENRIGHT	MELBOURNE, 30 JUNE 2014
Background

[1] On 23 January 2014, an application under s. 512 of the Fair Work Act 2009 (the Act) dated 21 January 2014 was lodged in the Fair Work Commission (the Commission) by the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEIUQ), which is a transitionally recognised association pursuant to Item 627 of Schedule 22 of the Fair Work (Transitional Provisions and Consequential Amendments) Act

2009, for a permit to enter and inspect premises for the following official of the CFMEIUQ:

Andrew Temoho RE2014/467

[2] The application in this matter was supported by declarations from Mr Michael Ravbar, the relevant Committee of Management member, and Mr Andrew Temoho, the proposed permit holder, both dated 21 January 2014 (the declarations). Mr Ravbar is the State Secretary of the CFMEIUQ. Mr Temoho is an Organiser within the CFMEIUQ and is also an organiser within the Construction, Forestry, Mining and Energy Union (CFMEU).

[3] I acknowledge receipt on 23 January 2014 of a permit returned to the Commission by Mr Temoho in matter RE2011/2641.

[4] The declarations did not disclose potentially relevant matters in that it appeared that Mr Temoho was found to have contravened the Building and Construction Industry

Improvement Act 2005 (the BCII Act) and accordingly, the Commission wrote to the CFMEU

on 11 February 2014 requesting amended declarations and requested the reasons for omitting
the disclosure above.

[5] On 5 March 2014 an amended application and supporting declarations (the amended declarations) dated 3 March 2014 was lodged with the Commission. The amended

declarations disclosed that Mr Temoho was ordered to pay a penalty of $3,300 for contravening section 38 of the BCII Act in Hogan v Jarvis & Ors (2012) FMCA 1891 (Hogan v Jarvis). The amended declarations also stated that in Hogan v Jarvis the CFMEU was [2014] FWCD 694

penalised $36,300 in relation to the action taken by Mr Temoho and another CFMEU
organiser.

[6] The amended declarations further disclosed that the CFMEU was ordered to pay a penalty of $99,000 in Director, Fair Work Building Industry Inspectorate v Construction,

Forestry, Mining and Energy Union [2013] FCA 8462 (FWBC v CFMEU) in relation to the

actions taken by several individuals, including Mr Temoho. The penalty concerned
contravention of sections 43(1)(b) and 44 of the BCII Act.

[7] On 7 February 2014 the Fair Work Building & Construction (the FWBC) wrote to the Commission advising that the FWBC intended to lodge written submissions in relation to the above application by 28 February 2014.

[8] On 28 February 2014 the FWBC lodged with the Commission general and specific submissions (the FWBC submissions) in relation to the above application.

[9] On 4 March 2014 the Commission wrote to the CFMEU advising them that the FWBC had lodged submissions and invited the CFMEU to lodge submissions in reply to the FWBC.

[10] On 18 March 2014 the CFMEU lodged its submissions (the CFMEU submissions) with the Commission in reply to the FWBC submissions.

Legislative framework

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

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

“513 Considering application

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

account the following permit qualification matters:

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

responsibilities of a permit holder;

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

industrial law;

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

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

(i) entry onto premises; or

(ii) fraud or dishonesty; or

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(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.”

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

“480 Object of this Part

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

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

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

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

information and representation from officials of organisations; and

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

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

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

& Anor, Munro J observed that:

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

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

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

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

Submissions

[19]      As noted above, both the FWBC and the CFMEU filed written submissions in this

matter.

FWBC Submissions

[20] The written submissions of the FWBC filed with the Commission on 28 February 2014 comprise both general submissions and specific submissions regarding Mr Temoho.

[21]      The general submissions address the following issues, namely:

 The statutory framework of the Commission’s powers under s. 512 of the Act

including the discretionary nature of this power, the proper construction to be given to the term “fit and proper person” as it appears in that provision and the particular relevance of the “permit qualification matters” set out in paragraphs (a), (d) and (g) of subsection 513(1) of the Act for the current matter before me;

 The history of the CFMEU in contravening various pieces of industrial legislation;

and

 The duty for thorough disclosure in the application before me. Specifically, that is

that the application had failed to disclose penalties ordered against Mr Temoho in

Hogan v Jarvis and penalties ordered against the CFMEU in FWBC v CFMEU.

[2014] FWCD 694

[22] The specific submissions of the FWBC raise the following matters beyond those addressed by the general submissions:

 In Hogan v Jarvis, the Court penalised Mr Temoho $3,300 for contravening s. 38 of the BCII Act, and the CFMEU $36,300 as a result of Mr Temoho and another official contravening s. 38 of the BCII Act;

 In FWBC v CFMEU the Court penalised the CFMEU $99,000 as a result of actions taken in part by Mr Temoho and other officials contravening s. 43(1)(b) of the BCII Act;

 The application had failed to disclose the penalties ordered against Mr Temoho in

Hogan v Jarvis and against the CFMEU in FWBC v CFMEU	as	mentioned	in
the general submissions above; and

 Mr Temoho has not undertaken any recent and adequate training.

[23] The FWBC concluded that significant caution should be exercised in considering whether Mr Temoho should be issued with an entry permit. Further, that having regard to the permit qualification matters which will be referred to throughout this decision, Mr Temoho failed to demonstrate that he possesses the requisite fitness and propriety to hold an entry permit and that accordingly, the Commission should exercise its discretion to refuse to issue an entry permit to Mr Temoho.

[24] Alternatively, if the Commission were to determine that Mr Temoho is an appropriate

person to hold an entry permit, the FWBC submits that certain conditions should be imposed
on the entry permit when it is issued.

CFMEU Submissions

[25]      The CFMEU filed submissions in this matter on 18 March 2014.

[26] In respect to the alleged failure to disclose in Hogan v Jarvis, the CFMEU stated that Mr Temoho’s initial declaration had been made in error and an amended application and declaration rectified the error and explained that the omission had been caused by inadvertence.

[27] In respect to the alleged failure to disclose in FWBC v CFMEU, the CFMEU also stated that Mr Temoho’s initial declaration had been made in error and an amended application and declaration rectified the error and explained that the omission had been caused by inadvertence.

[28]      The CFMEU also stated that Mr Temoho was not bound to make the disclosure in

FWBC v CFMEU because Mr Temoho had denied the allegations and that whilst the CFMEU

made some admissions, none had been made by or on the authority of Mr Temoho.

[29] Regarding Hogan v Jarvis, the CFMEU submitted that the proceedings did not allege

contraventions by Mr Temoho of right of entry laws and that Mr Temoho’s conduct which
arose in that matter occurred in November 2009.
[2014] FWCD 694

[30] Regarding FWBC v CFMEU, the CFMEU submitted that the proceedings did not

allege contraventions by Mr Temoho of right of entry laws and that Mr Temoho’s conduct
which arose in that matter occurred in November 2010.

[31] The CFMEU also submitted that Mr Temoho had undertaken relevant training and that Mr Temoho had not engaged in any contravening conduct for over three years.

[32] The CFMEU also submitted that any entry permit granted to Mr Temoho should not have any conditions imposed upon it.

[33] The CFMEU concluded that Mr Temoho meets the requirements under section 513 of

the Act for holding a permit and that Mr Temoho should be issued with an entry permit
without further delay as it could affect his employment.

Permit Qualification Matters

[34] Section 512 of the Act provides that, upon application by an organisation, the Commission may issue an entry permit to an official of that organisation if it is satisfied that the official is a “fit and proper person to hold the entry permit”. Thus, the task of the Commission in the present matter is to consider and determine whether Mr Temoho is a “fit and proper person” not in a universal sense entirely divorced from any context but specifically whether he is a “fit and proper person” to hold an entry permit. As observed by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380:

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

[35] Therefore, the determination of whether a particular official is a “fit and proper person” to hold an entry permit for the purposes of section 512 of the Act is required to be made by having regard to the nature of the statutory right of entry powers potentially provided to the official pursuant to Part 3-4 of the Act, the activities that the official will be engaged in when exercising such powers and the ends to be served by such activities. As the Full Bench of the Commission in The Maritime Union of Australia [2014] FWCFB 1973 (The Maritime

Union of Australia [2014]) observed:

“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”.5

[2014] FWCD 694

[36] Section 513(1) of the Act provides that, in order to make the primary determination required to be made pursuant to s. 512 of the Act, the Commission must take into account the “permit qualification matters” listed at paragraphs (a) to (g) therein. Although several of those matters do not directly relate to statutory right of entry powers, the Commission is bound to take them into account and apply them in a manner that assists the Commission in determining whether a particular official is a “fit and proper person” to hold an entry permit.

[37] I will consider each of the “permit qualification matters” separately below as they pertain to the current matter before me.

Training about rights and responsibilities

[38] Section 513(1)(a) of the Act requires me to take into account whether Mr Temoho has received appropriate training about the rights and responsibilities of a permit holder. Mr Temoho undertook training on 12 March 2008. The content of the training material was previously approved by, then, the Australian Industrial Relations Commission. Mr Temoho lodged a further statutory declaration on 21 May 2014 declaring that he had undertaken further right of entry training conducted by the ACTU on 19 May 2014. Mr Temoho attached a copy of the Training Certificate to the statutory declaration lodged on 21 May 2014. I am satisfied Mr Temoho has undertaken adequate training.

[39]      I will further refer to the issue of training later in this decision.

Conviction/s against an industrial law

[40] Section 513(1)(b) of the Act requires me to take into account whether Mr Temoho has ever been convicted of an offence against an industrial law. The declarations do not disclose any such convictions against Mr Temoho. There is no other evidence before me that suggests otherwise.

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

[41] Section 513(1)(c) of the Act requires me to take into account whether Mr Temoho has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Temoho. There is no other evidence before me that suggests otherwise.

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

[42] Section 513(1)(d) of the Act requires me to have regard to whether Mr Temoho, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law, in relation to action taken by Mr Temoho. As noted in paragraph [4] of this decision, Mr Temoho and the CFMEU were ordered to pay penalties under the BCII Act in Hogan v

Jarvis, in relation to action taken by Mr Temoho and others. Further, as noted in paragraph [5]

of this decision, the CFMEU was ordered to pay a penalty under the BCII Act in FWBC v

CFMEU, in relation to action taken by Mr Temoho and others. This permit qualification

matter will be considered in detail later in this decision.
[2014] FWCD 694
Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[43] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Temoho under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. The declarations do not disclose that any such permits issued to Mr Temoho having ever been revoked, suspended or made subject to conditions. There is no other evidence before me that suggests otherwise.

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

[44] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Temoho had under that law or disqualified Mr Temoho from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Temoho has held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations do not disclose that Mr Temoho has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no other evidence before me that suggests otherwise.

Any other matter the Commission considers relevant

[45] Section 513(1)(g) of the Act provides the Fair Work Commission with a broad discretion to take into account any other matters it considers relevant. This discretion is limited to a consideration of matters that pertain to a proposed permit holder’s status as a “fit and proper person” to hold an entry permit. The proper construction should be determined by examining the provision in the context of the Act as a whole and the specific considerations set out in subsections 513(1)(a)-(f) of the Act in particular in the sense that such matters must fall within the purview of relevance delineated by the subject, scope and purpose of the Act, particularly Part 3-4 of the Act.6 Relevant considerations in this regard include whether a

particular matter has an industrial or OHS “flavour” or context, the extent to which it raises issues analogous to the considerations set out in subsections 513(1)(a)-(f) of the Act and its pertinence to the exercise of the public right associated with the exercise of statutory right of entry powers pursuant to Part 3-4 of the Act.

[46] As noted above, the submissions of the FWBC address the issue of the history of the CFMEU in contravening various pieces of industrial legislation, and an alleged failure to adequately disclose relevant matters in the application currently before me.

[47]      These matters will be considered in further detail below.

[48]      In this regard, I have also taken into consideration the objects of Part 3-4 of the Act.

Penalties ordered to be paid under the BCII Act

[2014] FWCD 694

[49] As outlined at paragraphs [4] and [5] of this decision, Mr Temoho has been ordered to pay penalties under the BCII Act, and the CFMEU has been ordered to pay penalties under the BCII Act, in part, as a result of the conduct of Mr Temoho. To be satisfied that these penalties are relevant to s.513(1)(d) of the Act, the relevant provisions of the BCII Act must be industrial laws for the purpose of those provisions.

[50]       ‘Industrial law’ is defined at s.12 of the Act:

“12 The Dictionary...

industrial law means:

(a) this Act; or

(b) the Fair Work (Registered Organisations) Act 2009; or

(c) a law of the Commonwealth, however designated, that regulates the

relationships between employers and employees; or

(d) a State or Territory industrial law.”

[51] I note that the BCII Act was renamed the Fair Work (Building Industry) Act 2012 and amended by the Building and Construction Industry Improvement Amendment (Transition to

Fair Work) Act 2012 on 1 June 2012. In particular, the amending Act repealed Chapters 5 and

6 of the BCII Act which contained various building industry specific provisions, including the provisions that Mr Temoho and the CFMEU were found to have contravened. However, the repeal of these building industry specific provisions does not affect any previous liability acquired, or penalty incurred, under them.7 In addition, the amendments also abolished the Office of the Australian Building and Construction Commissioner (ABCC) and established a new agency, the Office of the Fair Work Building Inspectorate. For clarity, where I refer to the BCII Act I am referring to that legislation at the time the contraventions took place.

[52] I am not aware of any authorities that have determined whether the BCII Act was or

was not, or the FW(BI) Act is or is not, a law of the Commonwealth that “regulates the
relationships between employers and employees”.

[53]      In Dowling v Fairfax Media Publications Pty Ltd8 (Dowling v Fairfax), Justice Jagot

considered whether the Occupational Health and Safety Act 2000 (NSW) and the Workplace

Injury Management and Workers Compensation Act 1998 (NSW) were ‘industrial laws’ for

the purposes of the repealed s.779 of the Workplace Relations Act 1996 (the WR Act). Her
Honour observed that:

“[79] WorkCover has a range of enforcement powers under legislation vesting it with functions including the taking of criminal proceedings, the issuing of penalty notices, the preparation of industry codes of practice, powers to issue investigation notices, improvement notices and prohibition notices, powers to take proceedings for offences against such notices, and powers to include directions in such notices…

[2014] FWCD 694

[80] The legislation in respect of which WorkCover has functions includes issues relating to the relationships between employers and employees and not merely, as the respondent submitted, regulating the environment within which such relationships operated. For example, s 46 of the Workplace Injury Management and Workers Compensation Act requires employers to participate and co-operate in the establishment of an injury management plan required to be established for an injured worker and to comply with the plan. Section 47 imposes reciprocal obligations on employees. Section 48 imposes an obligation on an injured employee to return to work and s 49 imposes a reciprocal obligation on the employer to provide suitable work for an injured employee. There are many other examples of such mutual or related obligations as between employers and employees in the legislation vesting functions in WorkCover.

[81] Having regard to these matters I am satisfied that the legislation vesting functions in WorkCover, in a number of respects, regulates the relationship between employers and employees. The legislation is thus within the definition of ‘industrial law’ in s. 779.”9

[54] The BCII Act vested the ABCC with enforcement powers including the investigation and prosecution of breaches of its provisions10 and specifically proscribed certain conduct,11

and created criminal offences.12 Although the former BCII Act adopted the concept of

“building industry participants”13 and generally imposed obligations on “persons” rather than

“employers” and “employees”, it did appear to regulate the relationship between employers and employees engaged in “building work” 14 in a number of significant ways.

[55] The relevant provisions of the BCII Act that were contravened by Mr Temoho and/or the CFMEU are ss.38, 43(1)(b) and 44. Extracts of those provisions are set out below:

“38 Unlawful industrial action prohibited

A person must not engage in unlawful industrial action

[56] For the purposes of s.38 unlawful industrial action must be industrially-motivated, which is defined at s.36 of the BCII Act:

“36 Definitions...

(1) In this Chapter, unless the contrary intention appears:

industrially-motivated means motivated by one or more of the following	purposes,
or by purposes that include one or more of the following purposes:

(a) supporting or advancing claims against an employer in respect of the

employment of employees of that employer;

(b) supporting or advancing claims by an employer in respect of the

employment of employees of that employer;

(c) advancing industrial objectives of an industrial association;

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(d) disrupting the performance of work.”

“43 Coercion in relation to engagement etc. of building employees and building

contractors

(1) A person (the first person) must not organise or take action, or threaten to

organise or take action, with intent to coerce another person (the second person):

(b) to engage, or not engage, a person as a building contractor;”

“44 Coercion of persons to make, vary, terminate etc. enterprise agreements etc.

(1) A person must not:

(a) take or threaten to take any action; or

(b) refrain or threaten to refrain from taking any action;

with intent to coerce another person, or with intent to apply undue pressure to another

person, to agree, or not to agree:

(c) to make, vary or terminate, or extend the nominal expiry date of, a building

enterprise agreement; or

(d) to approve any of the things mentioned in paragraph (c).

Note: Grade A civil penalty.

(2) Subsection (1) does not apply to action that is protected industrial action (as

affected by Part 3 of Chapter 5 of this Act).

(3) An employer must not coerce, or attempt to coerce, an employee of the employer

in relation to who is to be, or is not to be, the employee’s bargaining representative.

Note: Grade A civil penalty.

(4) An employer must not apply, or attempt to apply, undue pressure to an employee of the employer in relation to who is to be, or is not to be, the employee’s bargaining representative.

Note: Grade A civil penalty.

(5) To the extent that section 343 of the FW Act relates to:

(a) the making, varying or terminating of an enterprise agreement; or

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(b) the appointment, or termination of appointment, of a bargaining

representative for an enterprise agreement;

that section does not apply if the agreement is a building enterprise agreement”.

[57] Whilst regulation in the above provisions is not limited to employees and employers, it does appear to regulate the industrial context of the building and construction industry, including enterprise bargaining and industrial action, an important relationship between employers and employees. Although the mere use of the term industrial should not lead to an immediate finding that a provision is an industrial law for the purposes of the Act, it is clear from the above provisions that the industrial context being regulated affects relations between employers, employees and industrial organisations, even where the person to whom the provision may apply is not an employer or employee themselves. The term industrial law, in my view, applies to at least the provisions of the BCII Act pursuant to which penalties were imposed on Mr Temoho and the CFMEU.

[58]       I shall proceed on the basis that the BCII Act is an industrial law for the purposes of

s.513(1)(d) of the Act.

[59] Even if it is ultimately determined the relevant provisions of the BCII Act were not industrial laws as contemplated by s.513(1)(d) of the Act, the imposition of a penalty under the BCII Act is, in any event, a matter to which I could relevantly turn my mind under s.513(1)(g) of the Act since the conduct occurred in an industrial context and arose while Mr Temoho was acting in his role as an official of the CFMEU.

[60] It is clear that both the fact that relevant penalties have been imposed and the conduct

associated with those penalties are each important considerations. In that context, I now turn
to the particulars of the penalties imposed.

Hogan v Jarvis

[61] Mr Temoho had been issued with an entry permit on 20 March 2008 having received relevant training on 12 March 2008.

[62] It is not without some significance that in Hogan v Jarvis, the essential facts which were agreed by the parties included that Mr Temoho and another CFMEU organiser had entered a hospital construction site on 26 November 2009, without giving entry notice in accordance with section 487 of the Act. It is reasonable to suppose that Mr Temoho was aware of the rights and responsibilities of permit holders when he entered the hospital construction site without giving the requisite notice in accordance with s 487.

[63] In what was described as planned, deliberately unlawful industrial action, Mr Temoho and the other official thereafter entered into discussions with some workers on the site whilst they were working. Following those discussions, some workers voted to strike until 30 November 2009, culminating in approximately 200 workers withdrawing their labour. The construction site was one in which Bovis Lend Lease was the principal contractor and the construction site involved the development of a new Gold Coast University Hospital. At the time, Bovis Lend Lease had a union collective agreement with the CFMEU in place. The industrial conflict was associated with a dispute between the CFMEU and Wideform, which was a subcontractor engaged by Bovis on other projects in Queensland and New South Wales,

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however Wideform’s presence was not material to the works being undertaken on the hospital
project.

[64] The CFMEU admitted, in a statement of agreed facts, to contravening s.38 of the BCII Act and the parties agreed to the amount of penalties to be imposed. The Court found that the other CFMEU official, and not Mr Temoho, was ‘perhaps the most significant of the two personal respondents’ and accepted the parties’ submissions that Mr Temoho be ordered to pay a penalty of $3,300 for contravening section 38 of the BCII Act. (The other CFMEU official was ordered to pay a penalty of $7,260. which was more than double that of Mr Temoho). As a result of Mr Temoho’s and another CFMEU organiser’s actions, the CFMEU was also found to have contravened section 38 of the BCII Act and was ordered to pay a penalty of $36,300.

[65] Consideration was given to the general importance of the project, which was the largest hospital development project ever undertaken in Queensland, and had a value of $1.76 billion. The Court found that the industrial action caused by the 200 workers would have led to loss and damage that was not trivial or insubstantial.

[66] Federal Magistrate Burnett identified at least 38 previous occasions where the CFMEU had been ‘adversely noted as a party to proceedings seeking imposition of penalties’. Federal Magistrate Burnett noted that the CFMEU had “a history of engaging in conduct that brings it adversely to the attention of the courts and, notwithstanding the imposition of significant or at least not insignificant penalties, it does not appear that the penalties imposed have, to date at least, been sufficient to deter it from re-engaging in that conduct”. Federal Magistrate Burnett stated that whilst he would have considered a higher penalty if the matter had been left for him to resolve, he considered the amount agreed to by the parties was within the appropriate range of penalties. Federal Magistrate Burnett also stated that the involvement by the CFMEU employees allowed the court “to infer that such actions were not isolated wildcat actions but were planned and deliberate”.

FWBC v CFMEU

[67] As indicated above, Mr Temoho had been issued with an entry permit on 20 March

2008 having received relevant training on 12 March 2008. The permit was current as at the
time of the FWBC v CFMEU contraventions in November 2010.

[68] FWBC v CFMEU dealt with allegations involving industrial conflict which took place in November 2010 on three major construction project sites in which Watpac Construction (Queensland) Pty Ltd (Watpac) was the managing contractor. The projects involved development of a new Translation Research Institute Project (the TRI project); the Queensland Institute of Medical Research Centre Project (the QIMR project) and the Carrara Stadium Refurbishment and Extension Project (the Carrara project).

[69] The industrial conflict was associated with a campaign conducted by the CFMEU to coerce Watpac to agree to a new enterprise agreement with the CFMEU, which would effectively restrict the use of subcontractors to those listed in the agreement. The overall conduct involved employees of Watpac taking industrial action at each of the abovementioned project sites on 9 and 10 November 2010. The CEPU was also a respondent in the matter. Both the CFMEU and the CEPU admitted, in a joint statement of agreed facts to contravening section 43(1)(b) of the BCII Act on four separate occasions on 9 and 10 November 2010.

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[70] In relation to the involvement of Mr Temoho specifically, the parties agreed that in company with another CFMEU official, Mr Temoho entered the Carrara Stadium Project site on 9 November 2010 at which time he and the other official had ‘induced, counselled, procured and organised’ the departure of the workers at that project site.15 The parties also agreed that the actions taken by Mr Temoho and another CFMEU official were taken with

‘intent to coerce Watpac or with intent to apply undue pressure to Watpac to agree to engage a

person or persons, or not engage a person or persons, as a building contractor’16.

[71] The parties agreed that the effect on Watpac of the industrial action that took place at

the three project sites was not trivial. Each of the projects was a major building project valued
in excess of $100 million.

[72] The parties also agreed on the quantum of penalties to be imposed on each respondent. In accordance with that agreement the CFMEU was ordered to pay a penalty of $99,000 whilst the CEPU was ordered to pay a penalty of $20,000. The penalty imposed on the CFMEU was partly as a result of the conduct of Mr Temoho.

[73] The CFMEU was found to have contravened section 43(1)(b) of the BCII Act with respect to the coercion at the Carrara project site. In assessing the quantum of the agreed penalty, Justice Collier reviewed the history and extent of similar unlawful conduct of the CFMEU and concluded that although the penalty imposed on the CFMEU was ‘at the upper end of the range for a contravention of the BCII Act’17, the penalty was appropriate. Justice Collier stated that there was a ‘need to impose penalties which would meet the objective of specific deterrence, particularly in relation to the CFMEU whose organisers appear to have shown a somewhat cavalier disregard both of the need to comply with the law and of penalties which have been previously imposed on the union for similar conduct’18. The penalties were issued in an Order by Justice Collier in the Federal Court of Australia on 20 August 2013.

Other relevant matters

History of contraventions by the CFMEU

[74] The FWBC submits that the history of contraventions of industrial law committed by various officials of the CFMEU, particularly officials attached to the Construction and General Division (the Division), is a relevant matter for me to take into account pursuant to subsection 513(1)(g) of the Act. Annexed to its general submissions, the FWBC provided a list of matters in which it was found that that the CFMEU had contravened various pieces of industrial legislation. The FWBC argues that, given this history of contravening conduct, the Commission should exercise caution in determining whether or not to issue an entry permit on the basis of an application made by the CFMEU.

[75] I share the concerns of the FWBC regarding the CFMEU’s history, particularly that of the Division, in contravening various pieces of industrial legislation. As set out in the submissions of the FWBC, the courts have made several observations in relation to this history. For instance, in Williams v Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 548, noted that:

[2014] FWCD 694

“...the history tends to suggest that the Union has, with respect to anti-coercion and similar provisions of industrial laws, what the High Court in Veen described as ‘a continuing attitude of disobedience of the law’...”.19

[76] Further in Cozadinos v Construction, Forestry, Mining and Energy Union [2013] FCA 1243, Tracey J remarked that the CFMEU has “...a deplorable record of contraventions of the BCII Act and similar legislation”20 and in Cozadinos v Construction, Forestry, Mining and

Energy Union & Ors [2011] FMCA 284 Reithmuller FM noted its “...unenviable history of

breaches as set out in the various cases”.21

[77] However, in my view, given the structure of sections 512 and 513(1) of the Act, this history of contraventions of industrial legislation by the CFMEU is not a proper matter to take into account for the purposes of subsection 513(1)(g) of the Act. As noted above, section 512 of the Act provides that the determination required to be made is whether the Commission is satisfied that a particular official is a “fit and proper person to hold the entry permit”. Similarly, the “permit qualification matters” set out in paragraphs (a) to (f) of subsection 513(1) of the Act pertain to matters specifically in relation to such an official. Thus, the inquiry required to be made in determining whether or not to issue an entry permit to a particular official is directed to the status and attributes of that official. Given this, it would not be appropriate to take into account matters not directly involving a particular proposed permit holder for the purposes of subsection 513(1)(g) of the Act. In my view, it would not be a proper exercise of the Commission’s discretion pursuant to section 512 of the Act to determine all applications from the CFMEU or the Division with a pre-determined adverse disposition.

[78] The appropriate vehicle for pursuing such matters may in some instances be provided by s. 508 of the Act. That provision provides that the Commission may restrict the right of entry powers otherwise exercisable under Part 3-4 of the Act if it is satisfied that a particular organisation or an official of such an organisation has misused those powers. Such restrictions may include suspending, revoking or imposing conditions on entry permits, requiring some or all of the entry permits issued in relation to a particular registered organisation to be issued subject to specific conditions, banning the issue of entry permits in relation to a particular registered organisation for a specified period and any other order the Commission considers appropriate.

Role of Mr Temoho

[79] The submissions include that Mr Temoho’s role is as an Organiser and is neither a senior or elected official of the CFMEU.

Disclosure of relevant matters in application

[80] In its submissions, the FWBC correctly argued that the [initial] declarations did not disclose the matters in Hogan v Jarvis and in FWBC v CFMEU. I also note the FWBC stated in its submissions that it was not suggested that the CFMEU and Mr Temoho had made false declarations.

[81] The CFMEU submitted that Mr Temoho’s failure to disclose these matters was due to ‘inadvertence’ which was later corrected in a further declaration. The CFMEU also submitted that it was required to disclose this matter but that Mr Temoho was not required to disclose [2014] FWCD 694

this matter as he had denied the allegations and that the proceedings against Mr Temoho were
discontinued.

[82] In “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”

known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch22,
Delegate Nassios expressed the following view:

“[14] Thoroughness by an applicant in disclosing adverse issues is paramount in assisting a Delegate to make an informed judgment as to whether an application for an entry permit is a fit and proper person. Thoroughness however can only be gauged in relation to each individual applicant’s circumstances.”23

[83] The above quote has been cited as a statement of general principle in several decisions regarding applications under s.512 of the Act.24 This obligation to disclose facts relevant to the permit qualification matters has been defined as a “duty of full and frank disclosure”25 and reflects the practice that entry permits are issued to officials of organisations largely on the basis of the contents of the declarations made by proposed permit holders and members of the Committee of Management of the relevant registered organisation.

[84] As the level of disclosure provided in an application bears upon both the character and the level of due diligence demonstrated by and can be expected of a proposed permit holder, I accept the submission of the FWBC that this is a relevant matter to take into account for the purposes of subsection 513(1)(g) of the Act.

[85] It its submission, the FWBC suggested that the Commission may properly ask Mr Temoho and the CFMEU for an explanation regarding the failure to disclose Hogan v Jarvis and FWBC v CFMEU in the initial application. It is clear from the material before me that the Commission wrote to the CFMEU on 11 February 2014 requesting such an explanation and that an amended application was lodged on 5 March 2014. The amended application contained, among other things, a statutory declaration from Mr Temoho in which he provided his explanation and an apology for the non disclosure. In summary and according to Mr Temoho, the failure to disclose was related to what he described as an ‘administrative oversight resulting from the extensive time elapsed since the contraventions and was not intentional’

[86] In my view, it is clear that Mr Temoho and the CFMEU failed to adequately disclose the matters in Hogan v Jarvis and in FWBC v CFMEU in the initial declarations and I am concerned about that failure. As the CFMEU had agreed to the penalties in FWBC v CFMEU the CFMEU ought to have disclosed that fact. I do not accept the submission of the CFMEU that Mr Temoho was not required to disclose the matter of FWBC v CFMEU.

[87] In my view, Mr Temoho and the CFMEU should have disclosed the matters in Hogan v Jarvis and in FWBC v CFMEU and the reasons given by the CFMEU and Mr Temoho

reflect poorly both upon Mr Temoho’s willingness to adhere to his duty of full and frank

disclosure and the efficiency of the management in the respective Branch.

Training

[88] The FWBC submitted that the training Mr Temoho has undertaken does not appear to be sufficient in the context of the unlawful conduct he has engaged in since 2009.

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[89] As I have referred to throughout this decision, Mr Temoho undertook initial right of entry training on 12 March 2008 in preparation for his first entry permit. The content of the training material was previously approved by, then, the Australian Industrial Relations Commission. Mr Temoho lodged a further statutory declaration on 21 May 2014 declaring that he had undertaken further right of entry training conducted by the ACTU on 19 May 2014. Mr Temoho attached a copy of the Training Certificate to the statutory declaration lodged on 21 May 2014.

[90] The FWBC submission includes that Mr Temoho should have also undertaken training regarding compliance with law generally beyond right of entry. Subsection 513(1)(a) of the Act refers to “appropriate training” specifically regarding the “rights and responsibilities of a permit holder”. I am not persuaded that the reference to “appropriate training” should be extended to embrace training beyond such “rights and responsibilities” as contained within Part 3 – 4 of the Act.

[91] I am satisfied that Mr Temoho has received the appropriate training required by section 513(1)(a) of the Act.

Consideration

[92] My task in the present matter is to determine whether Mr Temoho is a “fit and proper person” to hold the entry permit for which application is made taking into account the nature of the powers that are bestowed pursuant to the grant of such a permit within the statutory regime set out in Part 3-4 of the Act, the activities that he will potentially be engaged in when exercising such powers and the ends to be served by such activities. In order to make this determination, I must take into account the “permit qualification” matters set out in paragraphs (a) to (g) of section 513(1) of the Act. Those matters are to be taken into account and applied in a way that assists me in determining whether Mr Temoho is a “fit and proper person to hold the entry permit”.

[93] I have carefully considered all of the available circumstances of this matter and have had particular regard to the permit qualification matters for the purposes of s.512 of the Act.

[94] I have taken into account the penalties imposed upon both Mr Temoho and the CFMEU in Hogan v Jarvis. I have also taken into account the penalty imposed upon the CFMEU in FWBC v CFMEU. I have also taken into account the conduct of Mr Temoho that was found to have occurred in those matters and which led to the imposition of those penalties.

[95] The FWBC has submitted that a permit holder who has engaged in unlawful industrial action should give the Commission significant cause for concern as to whether such a person is ‘fit and proper’ to enjoy the privileges and powers that are entrusted to such a position. The FWBC further submitted that the fact that Mr Temoho has engaged in unlawful industrial action himself and engaged in conduct that was designed to negate the choice of employers, resulting in the CFMEU being found to have engaged in coercion are “serious matters’ that must be taken into account.

[96] I accept these submissions and concede that the facts and circumstances to which I

have referred in this decision, and the substantial nature of the penalties imposed as a
[2014] FWCD 694

consequence, have raised serious concerns regarding Mr Temoho’s demonstrable lack of
regard for provisions of industrial legislation.

[97]      I have considered the comments of Federal Magistrate Burnett in Hogan v Jarvis

regarding Mr Temoho’s failure to provide an entry notice in accordance with the Act. I have also considered Federal Magistrate Burnett’s comments and the comments of Justice Collier in FWBC v CFMEU regarding concern that previous penalties imposed upon the CFMEU have not appeared to have been sufficient to deter the CFMEU from continuing to undertake similar conduct.

[98] The penalty imposed upon Mr Temoho under the BCII Act in Hogan v Jarvis totals $3,300. The total quantum of penalties imposed upon the CFMEU in Hogan v Jarvis and in

FWBC v CFMEU totals $135,300. Whilst I acknowledge, as noted above, that the penalties

imposed upon the CFMEU did not arise as a consequence of actions taken solely by Mr Temoho, nevertheless it is evident that the conduct of Mr Temoho in the matters mentioned above has contributed to the imposition of that penalty.

[99] I have taken into account the failure by the CFMEU and Mr Temoho to make relevant

disclosures in the initial application balanced against the subsequent disclosures made, the
apology by Mr Temoho and the explanations provided by way of statutory declarations.

[100]    I have also taken into account the fact that the conduct engaged in by Mr Temoho in

Hogan v Jarvis and FWBC v CFMEU occurred in November 2009 (determined in 2012), and

November 2010 (determined in 2013), respectively. Periods of four and a half years and three and a half years respectively have elapsed since such conduct.

[101] Another relevant consideration includes the role Mr Temoho performs as an Organiser of the CFMEU including the provision of advice, support and assistance to its members. This is relevant to the objects set out in s.480(a)–(b) of the Act in relation to the rights of registered organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions and the rights of employees to receive information and representation from officials of such organisations.

[102] The CFMEU have consistently put to the Commission that it is essential for Mr

Temoho to possess a current permit in his role as an organiser and that the absence of an entry permit would effectively curtail his ability to perform his duties. I note that Mr Temoho has been without an entry permit since January 2014 awaiting the outcome of this application. Prior to the expiration of Mr Temoho’s permit in January 2014, the CFMEU had not taken the opportunity to seek an extension under s. 516(2) of the Act although I acknowledge that since that time, the CFMEU have continued to correspond with the Commission in relation to the urgency of the matter.

[103] I have also taken into account the fact that Mr Temoho has been a permit holder under

the Act and its predecessor legislation, and an organiser of the CFMEU and the CFMEUIQ
since 20 March 2008.

Conclusion

[104] Having regard to Mr Temoho’s training and experience as an organiser, the facts,

conduct and issues in Hogan v Jarvis and in FWBC v CFMEU lead me to the conclusion that
[2014] FWCD 694

Mr Temoho has made conscious and calculated decisions to engage in unlawful industrial action while disregarding lawful alternatives and in so doing has failed to give proper regard to the rights and responsibilities of a permit holder.

[105] The FWBC includes in its submission regarding FWBC v CFMEU that the Court

specifically noted that it was “satisfied” that:

“…the conduct of both respondents was deliberate, and that both respondents were

aware of the potential legal consequences of their conduct’ (emphasis added).

[106] In my view, Mr Temoho must accept that in making conscious and calculated

decisions to engage in unlawful industrial action, he consequentially puts at grave risk the right to enjoy the privileges and powers that are entrusted by the Parliament to permit holders.

[107] However, the fact that the relevant contraventions occurred approximately three and a half and four and a half years ago respectively and that there is no evidence before me of subsequent relevant findings or penalties such as those set out in the permit qualification matters in paragraphs (a) to (g) of section 513(1) of the Act in a period during which Mr Temoho (save since January 2014) continually held an entry permit, tip the balance in favour of finding Mr Temoho to be currently a fit and proper person to hold an entry permit.

[108] In summary, 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 satisfied that Mr Temoho is currently a “fit and proper person” to hold an entry permit.

Conditions

[109] Each of the submissions refer to the issue of conditions. As I have earlier indicated, the FWBC urged that the Commission should exercise its discretion to refuse to issue an entry permit to Mr Temoho and alternatively, that if the Commission determined that Mr Temoho is a “fit and proper person” to hold an entry permit, then specified conditions should be imposed on any permit issued to him pursuant to s. 515 of the Act.

[110] The CFMEU submitted that a permit should be issued to Mr Temoho without any

conditions.

[111] While I am satisfied on balance that Mr Temoho is currently a fit and proper person to hold an entry permit, his conduct in the cases referred to throughout the decision gives rise to an ongoing concern about the potential repetition of such conduct and I propose to impose a condition upon the permit.

[112]    The authority for the Commission to impose conditions on an entry permit appears at

s.515 of the Act:

“515 Conditions on entry permit

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

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(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).”

[113] The Explanatory Memorandum to the Act states that the decision to impose conditions on a permit is “entirely at the discretion of [the FWC]”. Having carefully considered and taken into account the permit qualification matters and since my concern relates to whether similar conduct may occur in the future I have decided to apply a condition in the following terms:

“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.”

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<Price code C, PR547241>

Endnotes

1 Hogan v Jarvis & Ors (2012) FMCA 189 (7 February 2012)

2 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 846

(20 August 2013)

3 [2011] FWAD 3518.

4 Ibid at [21].

5 The Maritime Union of Australia [2014] FWCFB 1973 at [25].

6 Santos Ltd v Saunders (1988) 49 SASR 556.

7 Building and Construction Industry Improvement Amendment(Transition to Fair Work) Act 2012 sch 2, item 1; Building

and Construction Industry Improvement Amendment(Transition to Fair Work) Regulation 2012, reg 2.4; Acts

Interpretation Act 1901 s7(2).

8 Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470.

9 Ibid at [79]-[81].

10 Building and Construction Industry Improvement Act 2005 ch 7.

11 Building and Construction Industry Improvement Act 2005 ch 5.

12 Building and Construction Industry Improvement Act 2005 ss 52(6) & 65(2).

13 Building and Construction Industry Improvement Act 2005 s 3.

14 Building and Construction Industry Improvement Act 2005 s 5.

15 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 846

(20 August 2013) at 29.

16 Ibid at 29.

17 Ibid at 39.

18 Ibid at 35.

19 At [29].

20 At [43].

21 At [18].

22 [2010] FWAD 10039.

23 Ibid at [14].

24 For example, see The Australian Workers’ Union [2011] FWAD 5025;“Automotive, Food, Metals, Engineering, Printing

and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch

[2011] FWAD 443; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services

Union of Australia [2011] FWAD 3518; Construction, Forestry, Mining and Energy Union [2011] FWAD 5188;

Construction, Forestry, Mining and Energy Union [2012] FWAD 962; Construction, Forestry, Mining and Energy Union

[2012] FWAD 8712.

25 For example see “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the

Australian Manufacturing Workers’ Union (AMWU) - Victorian Branch [2010] FWAD 10039; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2011] FWAD 3518.

DELEGATE OF THE FAIR WORK COMMISSION

FAIR WORK COMMISSION