The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
[2014] FWCD 1170
•15 May 2014
[2014] FWCD 1170
| DECISION |
| Fair Work Act 2009 |
| s.512—Application for a right of entry permit |
The Construction, Forestry, Mining & Energy, Industrial Union of
Employees
(RE2013/1811)
| CHRIS ENRIGHT | MELBOURNE, 15 MAY 2014 |
| Background |
[1] On 17 December 2013, an application under s. 512 of the Fair Work Act 2009 (the Act) dated 12 December 2013 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:
Anthony Robert Kong: RE2013/1811
[2] I acknowledge receipt on 17 December 2013 of the return of the entry permit issued to Mr Kong in matter RE2011/2618. The CFMEIUQ made an application pursuant to s. 516(2) of the Act to extend the date on which that permit would have otherwise expired in matter RE2011/2618. In three decisions dated 10 February, 7 March and 9 April 2014,1 I granted an
extension to the expiry date of the permit until 17 May 2014. As a consequence, Mr Kong’s
permit was returned to him on 10 February 2014.
[3] The application was supported by declarations from Mr Michael Ravbar, the relevant Committee of Management member, and Mr Kong, the proposed permit holder, both dated 12 December 2013 (the declarations). Mr Ravbar is the State Secretary of the CFMEIUQ. Mr Kong is an Organiser in the CFMEIUQ.
[4] On 17 January 2014 the Fair Work Building & Construction (the FWBC) advised the Commission that it proposed to lodge written submissions in relation to the above application.
[5] On 22 January 2014 the Commission wrote to the CFMEIUQ through the Construction, Forestry, Mining and Energy Union (CFMEU) advising them that the FWBC intended to lodge submissions in relation to Mr Kong’s application and that once those submissions had been received the CFMEU would be given an opportunity to lodge submissions in reply.
[6] On 7 February 2014 FWBC lodged with the Commission general and specific
submissions (the FWBC submissions) in relation to the above application.
[2014] FWCD 1170
[7] On 10 February 2014 the Commission wrote to the CFMEU inviting them to reply to the FWBC submissions.
[8] On 20 February 2014 the CFMEU lodged its submissions (the CFMEU submissions) with the Commission in reply to the FWBC submissions.
[9] On 6 March 2014 I wrote to the CFMEU advising that the matter of Director, Fair Work Building Inspectorate v CFMEU & Anor (QUD257/2013) (FWBII v CFMEU & Anor) was listed for a penalty hearing on 31 March 2014 and advising that, in the circumstances, I proposed to wait for the penalty hearing and final orders before issuing a Decision.
[10] On 17 March 2014 the Commission received from the CFMEU a written reply to my letter of 6 March 2014 stating that Mr Kong was not and had never been a party in FWBII v
CFMEU & Anor and that I was not entitled to wait for the outcome of that matter. The
CFMEU also referred to another case (cited as NSD180/2014) in which Mr Kong was a party.
[11] On 20 March 2014 I replied to the CFMEU’s correspondence received on 17 March 2014 and referred the CFMEU to section 513(1)(g) of the Act which provides that the Commission may take into account ‘any other matters that the Commission considers relevant’.
Legislative framework
[12] 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 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).
[13] 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.”
[14] 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.”
[15] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia2, 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.”3 (endnotes omitted)
[16] 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
[17] As noted above, both the FWBC and the CFMEU filed written submissions in this
| matter. |
FWBC Submissions
[18] The written submissions of the FWBC filed with the Commission on 7 February 2014 comprise both general submissions and specific submissions regarding Mr Kong.
[19] The general submissions address five primary 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;
The duty for thorough disclosure in the application before me. Specifically, that is
that the CFMEU had signed a Statement of Agreed Facts on 29 November 2013 in which the CFMEU accepted that conduct engaged in by Mr Kong, and other union officials, had constituted unlawful industrial action in contravention of s. 38 of the
[2014] FWCD 1170
Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act), and that, the CFMEU had consented to orders being made by the Federal Court of Australia that the CFMEU pay a penalty of $105,000 for the unlawful conduct engaged in by Mr Kong and other union officials.;
Further orders that have been made against the CFMEU since the application was
lodged on 17 December 2013; and
The need for the issues that arise in the present matter before me to be dealt with in
a transparent manner and in accordance with proper principles.
[20] The specific submissions of the FWBC also raise the following matters beyond those addressed by the general submissions:
In proceedings (QUD257/2013) currently before the Federal Court, that as the
CFMEU admitted contravening section 38 of the BCII Act as a result, in part, of conduct engaged in by Mr Kong and have consented to penalties in the sum of $105,000 being ordered against it, it should have disclosed the Statement of Agreed Facts signed on 29 November 2013 mentioned above;
That on 7 November 2013 the Federal Court granted injunctive relief against the
CFMEU and Mr Kong restraining them from contravening the Act;
That on 8 November 2013 in John Holland Pty Ltd v CFMEU [2013] FCA 13094
(John Holland) (the injunction proceedings mentioned above) the Federal Court accepted there was a prima facie case of breaches of sections of the Act by the CFMEU and Mr Kong and that this should have been disclosed; and
The prospects of Mr Kong “re-offending”, a disregard for the privilege of holding
an entry permit, and the adequacy of the training Mr Kong has had and the period of time that has expired since his last training was undertaken as an entry permit holder.
[21] The FWBC concludes that, having regard to the “permit qualification matters” in subsection 513(1) of the Act, Mr Kong “has failed to demonstrate that he possesses the requisite fitness and propriety to hold an entry permit” and, therefore, the Commission should refuse to issue an entry permit to him.
[22] The FWBC submits that, alternatively, if the Commission determines that Mr Kong is
a “fit and proper person” to hold an entry permit, then conditions should be imposed on any
permit issued to him issued to him pursuant to s. 515 of the Act.
CFMEU Submissions
[23] The CFMEU filed submissions in this matter on 20 February 2014.
[24] In respect to the alleged failure to disclose, the CFMEU stated that there had been no
failure to disclose with respect to FWBII v CFMEU & Anor or in John Holland.
[2014] FWCD 1170
[25] The CFMEU stated that Mr Kong had never been a party in FWBII v CFMEU & Anor
and that no party in that matter had been ordered to pay a penalty for the contravention of an industrial law. The CFMEU contended that section 513 of the Act ‘does not require the Commission to consider proceedings that have been started, settled, dismissed or abandoned when considering a permit application’ and that as a consequence, neither Mr Kong or the CFMEU were required to disclose the matters in FWBII v CFMEU & Anor.
[26] Regarding John Holland, the CFMEU stated that Mr Kong had denied the allegations in an affidavit filed on 6 November 2013. It claimed that on 7 November 2013 the Federal Court found that there was a triable issue but that no findings of fact had been made against Mr Kong. The CFMEU also claimed that on 8 November 2013 the Federal Court found that there was a triable issue but that no findings of fact had been made against either Mr Kong or the CFMEU contravening the Act.
[27] The CFMEU argues that the submissions made by the FWBC that the CFMEU or Mr Kong had failed to disclose a relevant matter are without merit and should not be accepted by the Commission. The CFMEU also argues that Mr Kong has conducted relevant training which it considers is adequate and recent. The CFMEU claims that Mr Kong is a fit and proper person to hold an entry permit. The CFMEU also states that Mr Kong is not a senior official or an elected official.
[28] The CFMEU also submits that any entry permit granted to Mr Kong should not have any conditions imposed upon it but that if such conditions are imposed, they should not be in the form proposed by the FWBC in its submissions. The CFMEU also states that Mr Kong has not engaged in any contravening conduct for more than two years.
[29] The CFMEU concludes that Mr Kong meets the requirements under section 513 of the Act for holding a permit and that Mr Kong should be issued with an entry permit without further delay.
Permit Qualification Matters
[30] 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 Kong 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
[2014] FWCD 1170
likely future conduct) may be sufficient to ground a finding that a person is not fit and
proper to undertake the activities in question.”
[31] 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
[32] 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.
[33] 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
[34] Section 513(1)(a) of the Act requires me to take into account whether Mr Kong has received appropriate training about the rights and responsibilities of a permit holder. Mr Kong undertook such training on 9 February 2011. The content of the training material was approved by, then, Fair Work Australia, on 6 October 2009.
[35] In its submissions, the FWBC suggests that the training undertaken by Mr Kong may not be adequate or appropriate given the ‘continuing disobedience of the law’ displayed by the CFMEU. The FWBC submissions also state that given that Mr Kong’s most recent training occurred in 2011, Mr Kong should have received more comprehensive training and also that he should have also undertaken training directed at compliance with industrial laws generally.
[36] This matter will be considered later in this decision.
Conviction/s against an industrial law
[37] Section 513(1)(b) of the Act requires me to take into account whether Mr Kong has ever been convicted of an offence against an industrial law. The declarations do not disclose any such convictions against Mr Kong. There is no evidence before me that suggests otherwise.
[2014] FWCD 1170
Conviction/s involving fraud, dishonesty or intentional use of violence
[38] Section 513(1)(c) of the Act requires me to take into account whether Mr Kong 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 Kong. There is no evidence before me that suggests otherwise.
Order/s to pay a penalty under an industrial law in relation to action taken by the official
[39] Section 513(1)(d) of the Act requires me to take into account whether Mr Kong, 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 Kong. As noted at paragraph [19] of this decision, the FWBC states that the CFMEU has consented to orders being made that the CFMEU pay a penalty of $105,000, in part for conduct in which Mr Kong had engaged in and which was unlawful industrial action. This permit qualification matter will be considered in detail later in this decision.
Permit/s revoked, suspended or made subject to conditions under Commonwealth law
[40] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Kong 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 Kong having ever been revoked, suspended or made subject to conditions. There is no 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
[41] 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 Kong had under that law or disqualified Mr Kong 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 Kong 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 Kong 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 evidence before me that suggests otherwise.
Any other matter the Commission considers relevant
[42] 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
[2014] FWCD 1170
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.
[43] As noted above, the submissions of the FWBC address the issues of the history of the CFMEU in contravening various pieces of industrial legislation, an alleged failure to adequately disclose relevant matters in the application currently before me, further orders that have been made against the CFMEU and/or Mr Kong since the application was lodged including those made in the matter of John Holland, whether adequate training has been undertaken and the prospects of Mr Kong re-offending.
[44] These matters will be considered in further detail below.
[45] In this regard, I have also taken into consideration the objects of Part 3-4 of the Act.
Training about rights and responsibilities
[46] As noted above, the most recent training undertaken by Mr Kong regarding the rights and responsibilities of permit holder occurred on 9 February 2011. That training was delivered by the Australian Council of Trade Unions (ACTU) and has previously been approved by the then, Fair Work Australia, for the purposes of satisfying the permit qualification matter set out in subsection 513(1)(a) of the Act.
[47] The FWBC submits that it does not appear that the training undertaken by Mr Kong has been adequate given the conduct that Mr Kong has engaged in the matters of FWBII v
CFMEU & Anor and in John Holland. The FWBC further argues that Mr Kong should also
undertake training regarding compliance with industrial law generally beyond right of entry
under Part 3-4 of the Act.
[48] I accept that Mr Kong has undertaken training for the purposes of subsection 513(1)(a)
of the Act. The training delivered in February 2011 by the ACTU was undertaken by Mr
Kong more than three years ago.
[49] Subsection 513(1)(a) of the Act refers to “appropriate training” specifically regarding the “rights and responsibilities of a permit holder”. I am of the view that should I decide to issue Mr Kong with a right of entry permit, that he undertake new appropriate training prior to the issue of a new permit. However I am not persuaded by the FWBC’s reference that “appropriate training” should be extended to embrace training beyond such “rights and responsibilities” as contained within Part 3-4 of the Act.
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Penalties imposed under the BCII Act
[50] The CFMEU has agreed to an order being made by the Federal Court of Australia for the imposition of a penalty under section 38 of the BCII Act. To be satisfied that this is a penalty relevant to s. 513(1)(d), s. 38 of the BCII Act must be an “industrial law” for the purposes of that provision.
[51] ‘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.”
[52] I note that the BCII Act was renamed the FW(BI) Act 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 provision that the CFMEU was 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 FWBC. For clarity, where I refer to the BCII Act I am referring to that legislation at the time the contraventions took place.
[53] 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”.
[54] 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 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,
[2014] FWCD 1170improvement notices and prohibition notices, powers to take proceedings for offences
against such notices, and powers to include directions in such notices…[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
[55] 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.
[56] The relevant provision of the BCII Act that was contravened by Mr Kong and the CFMEU is s. 38. An extract of that provision is set out below:
“38 Unlawful industrial action prohibited
A person must not engage in unlawful industrial action
[57] 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;
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(c) advancing industrial objectives of an industrial association;
(d) disrupting the performance of work.”
[58] Whilst regulation in the above provision 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 provision of the BCII Act pursuant to which a penalty was imposed on the CFMEU.
[59] 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.
[60] Even if it is ultimately determined the relevant provision of the BCII Act was not an industrial law 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 Kong was acting in his role as an official of the CFMEU at all material times.
[61] I now turn to the particulars of the penalties imposed.
FWBII v CFMEU & Anor
[62] The Statement of Agreed Facts in FWBII v CFMEU & Anor dealt with an industrial dispute which involved industrial conflict which occurred on several major construction project sites in which numerous companies were the principal contractors. One of the projects involved development of the Queensland Institute of Medical Research Project at the Royal Brisbane Hospital in Brisbane (the QIMR project) in which Watpac Construction (Watpac) was the principal contractor. The industrial conflict was associated with a campaign conducted by both the CFMEU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) to purportedly prevent the practice of ‘sham contracting’. The overall conduct involved employees and sub-contractors of Watpac taking industrial action at the site of the QIMR project from 24 - 26 May 2011. Eight officials of the CFMEU, including Mr Kong, and three CEPU officials were also respondents in the matter. The respondents admitted, in a statement of agreed facts and contentions, to contravening s.38 of the BCII Act on twelve separate occasions from 18–27 May 2011.
[63] Regarding Mr Kong specifically, the Statement of Agreed Facts states that Mr Kong engaged in unlawful industrial action in contravention of section 38 of the BCII Act. On 24 May 2011, Mr Kong, along with other officials, attended the QIMR project site and distributed to QIMR employees a ‘pro forma letter to the Queensland Workplace Rights Ombudsman about alleged sham contracting’. Following that meeting approximately 180 employees left the QIMR project site and did not return to work that day. On 25 May 2011
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Mr Kong attended the QIMR project site and as ‘a result of indications’ given by Mr Kong to QIMR employees, scheduled work at the QIMR project site was restricted to only 6 QIMR employees.
[64] The Statement of Agreed Facts states that the failure of the QIMR employees to perform scheduled work on 25 and 26 May 2011 was not ‘protected action’ within the meaning of the BCII Act, and that the action was ‘industrially motivated’ within the meaning of section 36(1) of the BCII Act. The Statement of Agreed Facts states that as a result of Mr Kong’s actions, he had contravened section 38 of the BCII Act in that he was a person involved in the said contraventions.
[65] The parties agreed on the quantum of penalties to be imposed on each respondent. In accordance with that agreement a penalty of $105,000 was imposed on the CFMEU whilst a penalty of $45,000 was imposed on the CEPU. The Statement of Agreed Facts was signed by both parties on 29 November 2013.
Other relevant matters
History of contraventions by the CFMEU
[66] 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.
[67] 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:
“...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’...”.15
[68] 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”16 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”.17
[69] 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”. [2014] FWCD 1170
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. 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.
[70] 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.
Disclosure of relevant matters in application
[71] In its submissions, the FWBC argues that the declarations in support of the application currently before me did not disclose that two weeks before this application was made the CFMEU had signed a Statement of Agreed Facts in FWBII v CFMEU & Anor in which the CFMEU consented to a penalty of $105,000 against it as a consequence of action taken in part by Mr Kong. The FWBC notes that although the declarations attached to the applications which disclose that Mr Kong has never been ordered to pay a penalty under the Act are true and accurate, the Commission is entitled to take into account the fact that the CFMEU did not disclose that they had admitted liability for contravening section 38 of the BCII Act, partly as a result of Mr Kong’s actions. The FWBC further submits that the proceedings in the matter of John Holland should have been disclosed in the declarations as it was highly relevant for the purposes of subsection 513(1)(g) of the Act.
[72] The CFMEU submits that Mr Kong and the CFMEU were not required to disclose the matters in FWBII v CFMEU & Anor and in John Holland. Regarding the matter of FWBII v
CFMEU & Anor, the CFMEU submits that Mr Kong was not required to disclose this matter
as he had not authorised the CFMEU to make any admissions concerning Mr Kong. Regarding disclosure, the CFMEU also submits that ‘section 513 of the Act merely requires the Commission to consider whether an applicant, or any person on their behalf, has been ordered to pay a penalty for the contravention of an industrial law’, and the CFMEU submitted that it was not required to disclose the penalty in FWBII v CFMEU & Anor as the contravention was not an industrial law.
[73] As noted at paragraph [59] of this decision (for the reasons outlined in paragraphs [50] to [60] of this decision, I consider that the BCII Act is an industrial law for the purposes of s.513(1)(d) of the Act, and consequently a penalty for contravention of the BCII Act is something I consider the CFMEU ought to have disclosed.
[74] Regarding the matter of John Holland, the CFMEU submits that Mr Kong was not
required to disclose this matter as ‘Mr Kong had denied the allegations, including by affidavit
[2014] FWCD 1170
filed 6 November 2013’. The CFMEU also argue that the orders were made on an
interlocutory basis and that no findings of fact were made against Mr Kong.
[75] In John Holland, Rangiah J on 6 November 2013 had at first discharged the interim injunctions finding that there was no prima facie case against the respondents, which had included the CFMEU and four of its officials, one of whom was Mr Kong. Mr Kong, along with the other three CFMEU officials, had each sworn affidavits that on 30 October 2013 they had read out Orders made by the Commission on 29 October 2013, and that employees of John Holland had then become angry and left the worksite. The four officials had stated that they had not directed, advised, encouraged or authorised the workers to withdraw their labour. Those four affidavits ‘were uncontradicted by any evidence’ from the FWBC18.
[76] On 7 November 2013, the four CFMEU officials had met a large group of John Holland employees outside the work site and went to a group of shops several hundred metres
away, following which many workers left the work site later that day without performing any
work19.
[77] The FWBC then produced to the Court a transcript of a tape-recorded discussion
between a manager of the FWBC and two employees who attended the meeting at the group
of shops on 7 November 2013.
[78] The transcript ‘showed that the two employees said that the union officials were careful with what they were saying at the meeting and did not mention a strike. However, according to the transcript, one of the workers at the meeting suggested a strike. It is clear that the suggestion did not emanate from a union official’20.
[79] The transcript also showed that the majority of the workers present voted in favour of
returning to work. It was then that a ‘CFMEU delegate’ purportedly took over the meeting
and following a further vote the majority of workers present voted to strike21 .
[80] Rangiah J accepted there was prima facie evidence that one of the four CFMEU officials had persuaded or encouraged employees at the meeting not to return to work.22 Rangiah J also found there was prima facie evidence of ‘passive or tacit support’ from the other three CFMEU officials who did not disassociate themselves from the comments of the CFMEU official who had made the above suggestion.
[81] In doing so Rangiah J accepted that there was a prima facie case of a breach of ss 417, 421 and 343 of the Act by each of the four CFMEU officials23.
[82] In “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”
known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch24,
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.”25
[83] The above quote has been cited as a statement of general principle in several decisions
regarding applications under s.512 of the Act.26 This obligation to disclose facts relevant to
[2014] FWCD 1170
the permit qualification matters has been defined as a “duty of full and frank disclosure”27 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] In my view, Mr Kong and the CFMEU did not adequately disclose the matter in
FWBII v CFMEU & Anor. As the CFMEU had signed a Statement of Agreed Facts and
consented to a penalty of $105,000 against it as a consequence of action taken in part by Mr Kong, I believe that the CFMEU ought to have disclosed that fact. I do not accept the submission of the CFMEU that Mr Kong was not required to disclose the matter of FWBII v
CFMEU & Anor.
[86] In addition, I reject the CFMEU’s submission that ‘‘section 513 of the Act merely requires the Commission to consider whether an applicant, or any person on their behalf, has been ordered to pay a penalty for the contravention of an industrial law. In my view, given the effect of subsection 513(1)(g) of the Act and for the reasons given in previous decisions regarding applications under s. 512 of the Act,28 any matter that can be considered reasonably
relevant to the status of a particular official as a “fit and proper person” to hold an entry
permit ought to be disclosed.
[87] Whether or not such matters are properly to be taken into account pursuant to
subsection 513(1)(g) of the Act is a matter for the Commission to subsequently consider and
determine.
[88] I note that the template declarations to be completed by the relevant Committee of Management member and the proposed permit holder in the prescribed form for making applications under s. 512 of the Act only make reference to the “permit qualification matters” set out in paragraphs (a) to (f) of subsection 513(1) of the Act. However, this does not prevent an applicant organisation or a proposed permit holder from disclosing other potentially relevant issues beyond such matters within the declaration or elsewhere in the application.
Further orders made against the CFMEU
[89] The FWBC submits that the further orders that have been made against the CFMEU
since the application in the present matter was lodged are proper matters for the Commission
to take into account for the purposes of subsection 513(1)(g) of the Act.
[90] For the reasons given at paragraphs [66] to [70] of this decision, I do not accept that the further matters identified in the FWBC’s submissions which do not directly involve Mr Kong are proper matters for me to take into account pursuant to subsection 513(1)(g) of the Act.
[91] Regarding John Holland, the alleged conduct complained of against the CFMEU and Mr Kong and the interlocutory orders that have issued in that matter are relevant matters for the Commission to take into account in the current matter. In its submissions, the CFMEU
[2014] FWCD 1170
notes that no findings of fact have been made against Mr Kong and that no final relief has
been imposed in that matter.
[92] While there may be circumstances in which interlocutory proceedings could be relevant in addressing the “fit and proper person’ requirement in s. 512, I do not propose to make any adverse findings against Mr Kong in determining whether he is a “fit and proper person” to hold an entry permit in this regard.
Conclusion
[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] As outlined at paragraphs [71] to [73] of this decision, I believe the CFMEU should have disclosed the fact that the CFMEU had signed a Statement of Agreed Facts in FWBII v
CFMEU & Anor, in which the CFMEU had admitted liability for contravening section 38 of
the BCII Act, partly as a result of Mr Kong’s actions. I have also taken into account the fact that the actions admitted to by the CFMEU in FWBII v CFMEU & Anor had been taken by eleven union officials, one of which was Mr Kong.
[95] I have also taken into account the fact that Mr Kong’s gravamen in FWBII v CFMEU & Anor was that Mr Kong had distributed to QIMR employees a ‘pro forma letter to the
Queensland Workplace Rights Ombudsman about alleged sham contracting’ which led to numerous QIMR employees failing to return to work, and in doing so Mr Kong had engaged in unlawful industrial action.
[96] I have also taken into taken into account the fact that the FWBC stated in their specific
submissions that neither the CFMEU nor Mr Kong had made false declarations in their
applications.
[97] I am satisfied, on balance, that Mr Kong is a fit and proper person, taking into account the permit qualification matters. Accordingly, I will issue a permit.
[98] However, for the reason given above at paragraph [49] of this decision, I require Mr Kong to first undertake new appropriate training prior to the issue of a new permit.
[99] Furthermore, due to the action and involvement taken in FWBII v CFMEU & Anor, I
am concerned that such conduct may be repeated. For those reasons, I will impose a condition
on the permit.
[100] 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.
(2) In deciding whether to impose conditions under subsection (1), the FWC must take
into account the permit qualification matters.[2014] FWCD 1170
(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 the FWC [sic] 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).”
[101] The Explanatory Memorandum to the Act states that the decision to impose conditions
on a permit is “entirely at the discretion of [the FWC]”29. Since my concern is that 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.”
[102] Once the requirement in paragraph [98] concerning new appropriate training has been
met, and presuming no other matters that are relevant to my consideration of the permit
qualification matters arise in the meantime, I will grant a right of entry permit to Mr Kong
with the condition referred to in paragraph [101].
[2014] FWCD 1170
DELEGATE OF THE FAIR WORK COMMISSION
FAIR WORK COMMISSION
1 Construction, Forestry, Mining and Energy Union [2014] FWCD 931; Construction, Forestry, Mining and Energy Union
[2014] FWCD 1623; Construction, Forestry, Mining and Energy Union [2014] FWCD 2337.
2 [2011] FWAD 3518.
3 Ibid at [21].
4 John Holland Pty Ltd v CFMEU [2013] FCA 1309
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 At [29].
16 At [43].
17 At [18].
18 Ibid at [11].
19 Ibid at [12].
20 Ibid at [13] & [14].
21 Ibid at [15 - [16].
22 Ibid at [20].
23 Ibid at [22].
24 [2010] FWAD 10039.
25 Ibid at [14].
26 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.
27 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.
28 For example see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia [2011] FWAD 3518.
29 Explanatory Memorandum, Fair Work Bill 2008, para 2047.
[2014] FWCD 1170
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