[2015] FWC 2526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (Andrew TeMoho)
(RE2014/467)

Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch (Andrew TeMoho)
(RE2014/468)

Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Builders’ Labourers’ Divisional Branch (Timothy Jarvis)
(RE2014/531)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 JULY 2015

Applications by CFMEU and CFMEIUQ for right of entry permit for Andrew TeMoho; Application by CFMEU for right of entry permit for Timothy Jarvis; history of contravening conduct; imposition of conditions considered; not satisfied the proposed permit holders are fit and proper persons to hold an entry permit

Introduction

[1] Mr Andrew TeMoho (TeMoho) is an official of the Construction, Forestry, Mining and Energy Union (CFMEU) and of the Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland (CFMEIUQ). He is employed as an Organiser with both organisations. Mr Timothy Jarvis (Jarvis) is an official of the CFMEU employed as an Organiser in its Queensland/Northern Territory Divisional Branch of the Construction and General Division. I will refer to the organisations collectively as the Applicants.

[2] On 30 June 2014 Mr Chris Enright (Delegate), acting on delegation under s.625(2)(g) of the Fair Work Act 2009 (Cth) (Act), issued three decisions 1 in which the Delegate decided to issue right of entry permits, in the case of Jarvis, with conditions, and in the case of TeMoho, with a condition. Subsequently, the Director of the Fair Work Building Industry Inspectorate (Director) sought permission to appeal the Delegate’s decisions. In each case a Full Bench of the Fair Work Commission (Commission) hearing the appeals granted permission to appeal, upheld the appeals, quashed the Delegate’s decisions and revoked the entry permits that had been issued to TeMoho and Jarvis pursuant to the decisions.2

[3] The applications for entry permits to be issued to TeMoho and Jarvis were referred to me for rehearing and determination. 3

[4] Pursuant to s.74(a) of the Fair Work (Building Industry) Act 2012 (FWBI Act)the Director was earlier notified of the lodgement of the applications. The Director exercised his right under s.72 of the FWBI Act to make submissions in relation to the applications and was represented by Counsel in the proceedings before me.

Relevant legislative provisions and their application

[5] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as is relevant for present purposes these provide as follows:

512 FWC may issue entry permits

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

513 Considering application

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

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

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

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

(i) entry onto premises; or

(ii) fraud or dishonesty; or

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

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

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

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

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

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

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

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

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

514 When the FWC must not issue permit

The FWC must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official’s exercise of; or

(b) prevents the official from exercising or applying for;

a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.

515 Conditions on entry permit

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

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

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

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

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

[6] The proper construction of these provisions so far as they concern an assessment of whether an official of an organisation is a fit and proper person to hold a right of entry permit has been the subject of consideration in a number of recent Full Bench decisions. 4 More recently, in Maritime Union of Australia v Fair Work Commission5(MUA) a Full Court of the Federal Court of Australia considered the question of whether a person is a fit and proper person in the context of the right of entry regime established by Part 3 – 4 of the Act. The Court observed the following:

Although the questions for resolution may be stated simply, it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.

A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:

The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.

Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.

It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.

The phrase a “fit and proper person” is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase “fit and proper person” by expressly including a reference to whether an individual is of “good fame, integrity and character...”: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

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 that 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 indication of likely future conduct) or reputation (because it provides 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. 6

[7] The Court ultimately concluded that when the Commission is deciding whether to issue an entry permit pursuant to s.512 of the Act, those considerations relevant to the exercise of the power are not confined, for example, to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the Commission – at least initially. However, the prospect remains for judicial review founded upon, for example, alleged unreasonableness. 7

[8] The Court also concluded that conditions may be imposed pursuant to s.515 of the Act to remedy or address deficiencies or reservations in respect to a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person is not fit and proper. 8

[9] The relevant principles that are to be derived from Full Bench decisions were usefully summarised by Vice President Hatcher in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Victorian Divisional Branch 9 as follows:

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

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

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

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

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

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

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

Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit. 10

[10] There is nothing in the Vice President’s summary which is inconsistent with the views expressed by the Full Court in MUA save that the summary needs to be modified to take into account the permit qualification matters in light of the power to impose conditions when a permit is issued and the Court’s observations about weight attaching to the permit qualification matters. 11 With that modification I respectfully agree with and adopt the Vice President’s summary of the principles.

[11] Before considering the substantive applications, it is necessary to first deal with two construction arguments, one raised by the Applicants and the other by the Director.

[12] Turning to the first argument, the Applicants submitted that:

“To read the permit qualification matters at large could lead to capricious or unjust results. For example, the conviction for an offence against an industrial law could include a range of matters with no obvious connection to the exercise of entry permit rights. A broad reading of the criteria in s. 513 could therefore potentially lead or (sic) irrational or unjust results. Certainly it could lead to a result inconsistent with the limited purpose for the test of fitness and proprietary i.e. the holding of an entry permit.

Of the criteria in s. 513 are to be read down consistent with the leading provision s. 512.

To the extent that Maritime Union of Australia [2014] FWCBC 1973 at [26] can be taken to stand for a different proposition the applicants contended it is in error.” 12

[13] The submission was given elaboration in an exchange during oral argument as follows:

MR WHITE: In paragraph 26 of that decision the Full Bench says:

We reject so much of the Appellant’s submission as suggested that section 513 must be read down in the sense that the various permit qualification matters must be taken into account only to the extent that they are relevant to the exercise of entry permit rights.

Your Honour, I note that you were the presiding member in that decision but I am constrained to make this submission, that to the extent that paragraph 26 suggests that the criteria in section 513 are to be considered other than as directly relevant to the exercise of entry permit rights, then the Full Bench, we say, is in error. The Full Bench continued:

In our view there is no basis for reading down s.513.

We say, for the reasons I’ve enunciated already and won’t repeat, once again, with that, it is a comment with which we don’t agree.

THE DEPUTY PRESIDENT: Well, the Federal Court might agree with you (indistinct).

MR WHITE: Yes. I don’t know whence that’s listed, but it is listed - March I’m told.

THE DEPUTY PRESIDENT: Sometime later this year, yes.

MR WHITE: Yes. Now, to the extent that the criteria in section 513 go beyond those particular relevant matters, or matters relevant to the holding of a right of entry permit - I’ll withdraw that, only because I got lost where I started. Your Honour understands the point that we make, and I don’t repeat it.

Can I just say this. The dominant provision, I use also in the sense of that used in the High Court in Project Blue Sky where the court said, to give meaning, if you look at what sections or parts of the Act might give way to others. But one of the consequences is that the criteria in section 513, we say, must be specific in their effect to the right of entry permit, that is, unrelated breaches of industrial law without more are not matters to be taken into account.

Section 513(1)(g) of the Act is expressed in general terms, it empowers the Commission or obliges the Commission to take into account any other matters that the Fair Work Commission considers relevant. For like reasons the - - -

THE DEPUTY PRESIDENT: Mr White, just so that I understand the submission that you’re putting. Are you suggesting that if, for example, a person in relation to whom an application - - -

MR WHITE: Sorry, Deputy President.

THE DEPUTY PRESIDENT: Sorry, Mr White. Just to understand the submission you’re making. Are you suggesting that if a person is convicted of social security fraud, as an example, and that person is an officer or an employee of an organisation and an application is made on behalf of that person for a permit, do you say that that conviction is not relevant if it does not have any - if the conviction did not have any bearing on the exercise of an entry right, is that the way you put it?

MR WHITE: In general terms, yes. The Commission is not engaged in an assessment of the moral quality of the person in respect of whom the permit is sought.

THE DEPUTY PRESIDENT: So, for example, in 513(c) where one of the matters to take into account is whether a person has been convicted against an offence relevantly involving fraud or dishonesty, you say that fraud or dishonesty must relate to - - -

MR WHITE: The purpose of the permit. It doesn’t - well, primarily, we say - - -

THE DEPUTY PRESIDENT: The offence doesn’t have to involve trespass for example, or something like that.

MR WHITE: No. But it has to be to be relevant, directly relevant for the purpose for which the permit is sought. So it may well be, you could imagine a whole range of circumstances where a person - - -

THE DEPUTY PRESIDENT: So is a person’s honesty relevant to the exercise of entry rights?

MR WHITE: That’s a question which can’t be, with all due respect, answered in the general way. It has to be considered, that is if it is put against the person that a conviction for dishonesty offence is a disentitling matter or a matter which the Commission should take into account, the Commission should take into account that conviction not as a general disapplication of the moral qualities of the person but only in respect of the purpose of the permit.

THE DEPUTY PRESIDENT: But isn’t that a question of what weight is attributed to it rather than taking it into account. As a matter of fact a person has a conviction, for example, for social security fraud, that’s a matter which falls within 513(c), one takes it into account and then one looks at the circumstances of the offence and so forth to give it appropriate weight, isn’t that the appropriate course, and asks, well, how does that affect the person’s capacity to be a fit and proper person to hold an entry permit?

MR WHITE: We put it somewhat differently, although it is of course to the extent that maybe the consequence is of no consequence, that is the consequence of a distinction. The way we put it differently is that unless it is relevant to the purpose for which the permit is sought, then Australian Broadcasting v Bond, that’s the permit - sorry, for it to be taken into account we say it must be found to have been relevant in some way for the purpose of the permit. The fitness and propriety is assessed against the purpose in section 512, that is, to hold the entry permit. And we say the criteria in section 513 should be read down to reflect what is, we say, a standard legal approach to the question of fitness and propriety for any particular office or license.

But whether or not it’s read down at that stage or taken into account in terms of weight, and ultimately perhaps the outcome might not be too different, but as a matter of construction we favour the former.

THE DEPUTY PRESIDENT: So just to be clear. You say, first, the mere existence of a conviction doesn’t make it a matter that’s to be taken into account, one must first assess whether a conviction is relevant for the purposes of determining whether or not the officer who, on his behalf, an application is made, is a fit and proper person to hold an entry person?

MR WHITE: Yes.

THE DEPUTY PRESIDENT: And if the answer to that question is yes then you take it into account and you attribute weight?

MR WHITE: Yes.

THE DEPUTY PRESIDENT: Rather than the mere existence of the conviction per se making it relevant?

MR WHITE: Yes. 13

[14] This submission must be rejected in light of the decision in MUA. Specifically, the Full Court said:

Senior Counsel for the Maritime Union was correct in his submission that the phrase “fit and proper person” employed in s 512 is confined to an inquiry as to fitness and propriety for the purposes of holding an entry permit. So much would necessarily follow from both an exercise of the power to issue a permit in a manner consistent with furthering the objects set forth in ss 3 and 480 and from the concluding phrase in s 512 itself (“to hold the entry permit”).

Nevertheless, with respect, Senior Counsel fell into error in identifying the ambit of those considerations relevant to fitness and propriety. The principal submission advanced on behalf of the Maritime Union is rejected, namely that the only considerations relevant to that assessment were (for example) contraventions, offences, or penalties imposed, in respect to the manner in which rights conferred by an entry permit had been exercised. Contraventions or penalties imposed in respect to other offences created by an “industrial law”, according to this submission, assumed no relevance.

This argument is rejected for a number of reasons.

First, in the absence of a clearly-expressed legislative intention to the contrary, there is no self-evident reason why the general integrity of an applicant seeking an entry permit should not be taken into account. Separate from the manner in which an applicant may have exceeded the authority conferred by an entry permit or flouted conditions previously imposed upon an entry permit, the general integrity of an applicant may be exposed by his or her general willingness to comply with other common law or statutory requirements. In the absence of clear words to the contrary, there is no self-evident reason why an applicant’s willingness to comply with any “industrial law” may not be relevant to an exercise of power under s 512.

Second, the language of s 513(1) supports – rather than denies – the ability of the Commission to take such matters into account. Section 513(1) does not employ language of exclusion. Section 513(1) simply identifies those matters which “must” be taken into account; the sub-section does not provide that other matters may not be taken into account. Indeed, s 513(1)(g) expressly provides that “any other matters that the FWC considers relevant” themselves “must” be taken into account.

Third, the width of language employed in provisions such as s 513(1)(b) and (d) run counter to the Maritime Union’s submission. Those provisions state that matters that “must” be taken into account are whether an applicant has “ever been convicted of an offence against a law of the Commonwealth” of the kinds there identified, and whether an applicant has “ever been ordered to pay a penalty under this Act or any other industrial law...”. The phrases “an offence” and “a penalty” are not confined to offences or penalties in respect to the manner in which rights of entry are exercised. The phrase employed in s 513(1)(b) could readily, for example, have otherwise been expressed as “an offence under this Part”, namely that Part of the Fair Work Act dealing with “Right of Entry”, or as “an offence in connection with the exercise of a right of entry against an industrial law”, or similar. And the terms of s 513(1)(d) further emphasise the width of those matters that “must” be taken into account, including the phrases “a penalty under this Act” and “a penalty under ... any other industrial law...”.

To construe s 513(1)(b) and (d) in the manner of the Maritime Union would run contrary to the long line of authority which cautions against reading words into a statute. “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”: Thompson v Goold & Company [1910] AC 409 at 420 per Lord Mersey. See also: JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [51], [2012] FCAFC 53; (2012) 201 FCR 297 at 310. The submission of the Maritime Union requires reading into those provisions words that qualify the convictions or penalties referred to there as being only those that “pertain to the exercise of rights conferred by an entry permit...”.

Contrary to the more generally-expressed submission advanced on behalf of the Maritime Union, the conclusion reached does not result in fitness and propriety being inquired into “at large”. The conclusion simply rejects the limitations advanced on behalf of the Maritime Union; the considerations relevant to that assessment remain those considerations otherwise consistent with the objects and purposes of the Fair Work Act, including ss 3 and 480. Thus, the conclusion that the ambit of those matters that may be taken into account is not constrained in the manner advocated on behalf of the Maritime Union says nothing as to whether jurisdictional error may be exposed by giving unwarranted weight to (for example) a contravention of comparatively minor significance. Contraventions of s 500 of the Fair Work Act may, for example, assume greater importance and assume greater weight in a decision to grant or refuse an entry permit than a contravention of s 193 of the Fair Work Act. But each contravention remains a matter that “must” be taken into account; within limits, the weight to be given to each contravention remains a matter for the Commission. 14

[15] The clear language of s.513(1) of the Act directs the Commission that it “must take into account” the permit qualification matters listed thereunder. The requirement in s.513(1) of the Act to take into account the permit qualification matters is a requirement to evaluate those matters and to give them due weight, having regard to all other relevant factors, in assessing whether an official of an organisation is a fit and proper person to hold an entry permit. 15 It may be in a given circumstance that a particular contravention of an industrial law by an officer resulting in the imposition of a penalty is assessed as having no or marginal impact on that person’s characteristic as fit and proper to hold an entry permit. But s.513(1) of the Act nevertheless makes that particular matter relevant, because it “must be taken into account”. By assessing the particular matter as having no or marginal impact on the question whether the officer is a fit and proper person to hold an entry permit, the decision-maker is assessing the matter having regard to the characteristic and is assigning it weight. The matter is nonetheless taken into account because it is relevant by reason of s.513(1) of the Act.

[16] As to the Director’s construction argument, the Director submitted that s.513(1)(g) of the Act was a catchall provision pursuant to which the history of contravening by the CFMEU and the issues that follow from that history may be properly taken into account in determining whether TeMoho and Jarvis respectively, is a fit and proper person for the purpose of s.512 of the Act.

[17] In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union, 16 the Director raised a similar argument in opposing the issue of an entry permit to another official of one of the Applicants in this matter. A Full Bench of this Commission dealt with the argument as follows:

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

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

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

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

That is not to say that past contraventions of industrial or other relevant laws by an organisation can never be relevant to the consideration of an official’s fitness or propriety to hold an entry permit where those contraventions did not involve any direct contravening conduct on the part of that official. If, for example, the facts of a particular contravention or contraventions supported an inference that an official with management responsibility in an organisation omitted to take reasonable steps to ensure that others under his or her control complied with the law, or encouraged or tolerated a general culture of non-compliance with the law, then conceivably that might be considered to be a relevant matter under s.513(1)(g). However in this case it was simply not made apparent that the CFMEU’s history of contraventions said anything about Mr Kong’s personal conduct, character or reputation either as relevant to the exercise of rights of entry under the Act or at all. 17 [Endnotes omitted]

[18] It seems to me that this approach is manifestly correct. The structure and substance of the provisions in ss.512 and 513 of the Act necessarily involve making an assessment of the relevant personal characteristics of, in this case TeMoho and Jarvis, in relation to the activities for which satisfaction of the standard is required. The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought. Those matters are to be assessed by reference to the ultimate question: whether the official is a fit and proper person to hold an entry permit having regard to the rights the holder of an entry permit may exercise, the limitations on and conditions attaching (or that may be attached) to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.

[19] That position is not altered because an organisation, in this case the CFMEU and the CFMEIUQ, must apply for an entry permit to be issued to a particular official. As the Full Bench observed in Director FWBII v CFMEU above, past contraventions of industrial or other relevant laws by an organisation may be relevant to the consideration of an official’s fitness or propriety to hold an entry permit where those contraventions did not involve any direct contravening conduct on the part of that official. However, it must be shown that there is some connection between the organisation’s contravening conduct and the personal conduct, character or reputation of the official the subject of an entry permit application and that this connection is relevant to the assessment that needs to be made. A bare connection of employment by the organisation of the official will usually not be enough.

[20] For the reasons that will become apparent I have found it unnecessary to deal with or take into account the specific matters concerning the CFMEU’s prior contravening in determining these applications.

Permit qualification matters s. 513(1)(a) - (g); Conditions s 515 - Jarvis

[21] Jarvis has been employed as an organiser with the CFMEU since August 2007 and continues in that employment. 18 Jarvis has received training about the rights and responsibilities of a permit holder. On 12 February 2013 Jarvis completed training on right of entry under Part 3 – 4 of the Act and the Work Health and Safety Act 2011, which was provided by Slater and Gordon Lawyers through one of its solicitors.19 On 16 January 2014 Jarvis also completed a course of right of entry training provided through the Australian Council of Trade Unions (ACTU).20 I am satisfied that Jarvis has received appropriate training about the rights and responsibilities of a permit holder and I note that in his declaration he asserts that having undertaken further training he fully understands his obligations as a permit holder,21 however as he did not attend to give any evidence before me I am unable for myself to assess how well he does understand those rights and responsibilities.

[22] I consider the question of how well Jarvis understands those rights and responsibilities to be a relevant matter that I should take into account under s.513(g) of the Act because of the circumstances of the impositions of a number of penalties on him and, by his actions, on the CFMEU. The particulars of each matter are discussed further below, however in each case the contravening conduct occurred after Jarvis entered a workplace. Entry to a workplace by Jarvis could only have occurred by agreement with (or acquiescence by) the occupier (or person authorised by the occupier), by the exercise of an entry right conferred by Commonwealth, State or Territory Industrial or Occupational Health and Safety (OHS) laws or as unauthorised entry (possibly trespass). Further, on one of the occasions the action engaged in resulted in Jarvis giving an undertaking as to the manner in which he would exercise entry rights at particular sites.

[23] Jarvis puts in issue his understanding of the rights and obligations through his declaration. His assertion needs to be viewed in context. In an application for a permit for Jarvis made by the CFMEU on 8 November 2010, which resulted in the issuing of a permit on 31 January 2011, the supporting declaration asserts that in addition to earlier provided training, Jarvis has also had his attention drawn to the changes of right of entry provisions made by the Act and understands the effect of those changes. 22 Six months later Jarvis engaged in conduct resulting in the imposition of penalties on him and the CFMEU and an undertaking by him in relation to the exercise of entry rights. Given this history and his absence from proceedings in which a permit for his benefit is sought, I am not prepared to accept his assertion at face value.

[24] I accept that Jarvis has not been convicted of any offence against an industrial law, 23 nor has he been convicted of any offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving conduct described in s. 513(c)(i) – (iii) of the Act.24

Jarvis has previously been issued with right of entry permits as follows:

By letter dated 24 August 2007, the Australian Building Construction Employees and Builders Labourers’ Federation (Queensland Branch) Union of Employees (‘ABCE&BLF(Q)’) applied for a Transitional Right of Entry Permit for Jarvis. That letter notes that Jarvis is a ‘new employee of the ABCE&BLF(Q)’ (RE2007/2839).

A concurrent permit application was lodged on 30 August 2007 by the CFMEU, Construction and General Division, Queensland Builders Labourers’ Divisional Branch (CFMEU-BQLD) (RE2007/2843). Both RE2007/2839 and RE2007/2843 were returned late.

A further application was made on behalf of Jarvis on 8 November 2010. Following advice from the Tribunal, Jarvis’ outstanding permits were returned and a declaration obtained stating that the permits were returned late due to Jarvis’ inadvertence.

Permit Number	Applicant	Application Date	Issued Date	Date Returned	Notes
RE2007/2839	ABCE&BLF(Q)	24 August 2007	3 September 2007	11 November 2010	Returned late
RE2007/2843	CFMEU-BQLD	30 August 2007	4 September 2007	11 November 2010	Returned late
RE2010/3821	CFMEU-BQLD	8 November 2010	31 January 2011	4 February 2014	Returned on time
RE2014/531	CFMEU-BQLD	17 January 2014	30 June 2014	23 October 2014	Present matter

[25] I accept that none of these permits have been revoked, suspended or made subject to conditions 25, except as a consequence of the Full Bench decision earlier mentioned, but that revocation was consequent upon the successful appeal brought by the Director, not because of any act or omission on the part of Jarvis. Similarly, I accept that no right of entry for industrial or OHS purposes that Jarvis might have had under a State or Territory industrial law or OHS law has been cancelled, suspended or had conditions imposed,26 nor has Jarvis been disqualified from exercising, or applying for, a right of entry for industrial or OHS purposes under a State or Territory industrial law or OHS law.27

[26] Both Jarvis, and his employer, the CFMEU, have been ordered to pay penalties under the Building and Construction Industry Improvement Act 2005 (BCII Act) in relation to action taken by Jarvis.

[27] Section 12 of the Act relevantly defines “industrial law” as meaning the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009 (Cth), a law of the Commonwealth, however designated, that regulates the relationship between employers and employees, or a State or Territory industrial law. The Directorsubmitted that the BCII Act should be regarded as coming withinthe definition of an “industrial law”. The Applicants did not make any submission to the contrary. Whilst the BCII Act does not solely deal with regulating the relationship between employers and employees, a number of its provisions are directed to that end. Clearly the prohibition of unlawful industrial action in s.38 and coercion in s.43 respectively of the BCII Act are, at least in part directed to that end. I am therefore satisfied that both Jarvis and the CFMEU have been ordered to pay penalties under an industrial law in relation to action taken by Jarvis.

[28] There are four cases in which action taken by Jarvis resulted in the imposition of penalties on Jarvis and the CFMEU, or on the CFMEU by reason in part of action taken by Jarvis. These cases are as follows:

Hogan v Jarvis 28 (Hogan)

Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 5) 29 (Lend Lease)

Fair Work Building Industry Inspectorate v Sutherland 30 (Sutherland); and

Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 31 (Director FWBII)

[29] The details and circumstances in which penalties were imposed in each case are set out below.

Hogan

[30] In Hogan the Court imposed the following penalties:

Jarvis - $7,260 for contravening s.38 of the BCII Act; and

the CFMEU - $36,300 contravening s.38 of the BCII Act by reason of the actions of Jarvis and TeMoho.

[31] Section 38 of the BCII Act then provided as follows:

38 Unlawful industrial action prohibited

A person must not engage in unlawful industrial action.

Note: Grade A civil penalty.

[32] The action of Jarvis, which led to the imposition of a penalty in Hogan, occurred on 26 November 2009. The circumstances in which the action taken by Jarvis resulted in the imposition of a penalty are set out in the reasons for judgment in Hogan:

So far as the relevant events leading up to the dispute are concerned it is agreed that on 26 November 2009 Jarvis and Temoho each entered the project site. The entry by Jarvis and Temoho was made without either of them giving any entry notice in accordance with s.487 of the FW Act to Bovis as the occupier of the site. Following entry, Jarvis and Temoho each spoke with workers on the project site while they were working. Some of the workers stopped working and some of the workers walked to an area outside the lunch rooms where they were gathered together. Those workers included employees of both Bovis and Heinrich. This occurred at a time when the workers were scheduled to perform building work on the project site.

Jarvis subsequently spoke with Mark Plummer who was a senior construction manager for Bovis on the project and Peter Kyte who was the senior site manager for Bovis on the project. Plummer asked Jarvis about what was going on. In response, Jarvis said words to the effect that he was at the site to hold a meeting of employees. It seems from the submissions made by the first respondent that the purpose of the meeting organised by the respondents was to inform workers about the Wideform dispute. Wideform was another contractor whose presence was not material to the works being undertaken on the site at that time.

Subsequently a meeting was held between persons that included Jarvis, Temoho and the workers earlier referred to. This was at the instigation of and organised by Jarvis and Temoho and, as I have said, was convened for the purposes of talking to the workers then present. As a result no work was performed during the meeting. Jarvis and Temoho told the workers present at the meeting words to the effect that Bovis had gone back on a deal to pay the entitlements to Wideform’s employees. The workers subsequently voted at that meeting to strike until 30 November 2009 when there would be a report back to them.

Later in the morning of 26 November 2009, some of the members of the CFMEU who were employees of Bovis and Heinrich or other employees of Bovis or Heinrich left the project site without the permission of their respective employers and did not return to work that day. Some employees of Bovis and Heinrich and other workers employed to perform work on the project failed to attend or perform work on the following day, 27 November 2009, without obtaining the leave or permission of their respective employers. The workers were scheduled to perform work on this site on 26 and 27 November. Wideform was a subcontractor engaged by Bovis on other projects in Queensland and New South Wales, but that was immaterial to the project then being undertaken.

It was in the course of that industrial action on 26 and 27 November that approximately 200 workers withdrew their labour from the site. The conduct was unauthorised and constituted a breach of the BCII Act in that the action amounted to a failure by members of the CFMEU who were employees of Bovis and Heinrich, and other employees of Bovis or Heinrich, to attend for and perform building work within the meaning of the BCII Act. It also represented a failure or refusal to perform any work at all by the persons who had attended the building work within the meaning of the BCII Act. The action of the employees was motivated for varying purposes. One of these was the advancement of the industrial objectives of the CFMEU, more specifically to claim against Bovis for the payment of certain alleged entitlements owed by Wideform to employees of Wideform. Wideform was a former contractor of Bovis, and pressure was applied through the disruption of work to induce Bovis to pay these entitlements.

The action adversely affected Bovis and Heinrich as constitutional corporations in their capacities as building industry participants in that scheduled work could not be performed on the project on the dates referred to. The employees of Bovis and Heinrich who were engaged in that action contravened s.38 of the BCII Act by engaging in unlawful industrial action. Jarvis and Temoho each aided or abetted, counselled or procured, members of the CFMEU and other employees employed on that project to fail to attend for or perform work at the project until Monday, 30 November 2009. They induced members of the CFMEU and other employees employed on the project to engage in unlawful industrial action. They were directly or indirectly knowingly concerned in or party to members of the CFMEU and other employees employed on the project engaging in unlawful industrial action.

Both Jarvis and Temoho were persons involved in the contraventions for the purposes of s.48(2) of the BCII Act and, accordingly, both have contravened s.38 of the BCII Act. Pursuant to s.69(1)(b) of the Act, the CFMEU, by the actions of Jarvis and/or Temoho is taken to have engaged in unlawful industrial action, and it follows that both Jarvis and Temoho and the CFMEU have contravened s.38 of the BCII Act. A penalty may therefore be imposed upon each of them. 32

[33] In approving agreed penalties, the Court accepted that the contraventions involved deliberate acts by Jarvis and TeMoho. 33 The Court noted that Jarvis and TeMoho arrived at the workplace unannounced and commenced to instigate meetings of employees during working time.34 The Court accepted that the involvement of Jarvis and TeMoho as paid officials of the CFMEU was an aggravating factor to take into account and that their actions were not wildcat in nature, but were planned and deliberate.35 The Court noted a level of cooperation on the part of Jarvis and TeMoho evidenced by the agreement on facts and on penalty, but said there was no direct evidence of any contrition or remorse on their part.36

Lend Lease

[34] In Lend Lease the Court imposed the following penalties:

Jarvis - $6,450 for contravening s.38 of the BCII Act; and

CFMEU - $550,000 for contravening s.38 of the BCII Act by reason of actions taken in part by Jarvis and other officials.

[35] The actions of Jarvis, which led to the imposition of the penalties in Lend Lease, occurred on 18, 19, 21 and 26 May 2011. The circumstances in which the action taken by Jarvis resulted in the imposition of penalties are set out in the reasons for judgment in Lend Lease:

Lend Lease engaged, at all material times, up to 86 subcontractors to perform building work on the GCUH Project and up to 28 subcontractors to perform building work on the Law Courts Project. Lend Lease also employed workers on both projects who were members of the CFMEU and the CEPU.

In 2011, the CFMEU conducted a campaign called “Stop the Sham” which was intended to prevent a practice known as “sham contracting” in the construction industry. An allegation of “sham contracting” contemplates a sub-contractor purporting to engage workers as independent contractors when in reality they are employees of the sub-contractor, with those workers receiving lower wages and fewer entitlements than employees.

On 18, 19, 20, 21, 23, 24, 25 and 26 May 2011 employees of Lend Lease at the GCUH site took industrial action.

. . .

The parties have agreed that this industrial action was variously engaged in and organised by the CFMEU, the CFMEU (Qld) and/or the CEPU, and Messrs Vink, Hanna, Jarvis and Olsen, and was unlawful industrial action in breach of ss 36(1), 37 and 38 of the BCII Act. In particular:

On 18 May 2011 at the GCUH site – unlawful industrial action engaged in and organised by the CFMEU and/or CFMEU (Qld) and Messrs Vink, Hanna, Jarvis and Olsen involved (inter alia) the following elements:

protests, a meeting of workers (including members of the CFMEU, CFMEU (Qld) and CEPU), departure of those workers from the site and failure of workers to perform work on that day;

a meeting convened and addressed by Messrs Hanna, Olsen, Jarvis and Vink, as well as Mr Michael Ravbar, the State Secretary of the Queensland Construction and General Divisional Branch of the CFMEU; and

a meeting between Messrs Hanna and Ravbar and Lend Lease senior management.

On 19 May 2011 at the GCUH site – unlawful industrial action engaged in and organised by the CFMEU and/or CFMEU (Qld) and Messrs Hanna and Jarvis involved (inter alia):

a meeting of workers (including members of the CFMEU, CFMEU (Qld) and CEPU), departure of those workers from the site and failure of workers to perform work on that day; and

meetings between employees and senior CFMEU officials including Messrs Hanna and Jarvis.

. . .

On 21 May 2011 at the GCUH site – unlawful industrial action engaged in and organised by the CFMEU and/or CFMEU (Qld) and Messrs Jarvis and Olsen involved (inter alia):

a meeting of workers (including members of the CFMEU, CFMEU (Qld) and CEPU), departure of those workers from the site and failure of workers to perform work on that day; and
attendance at the GCUH site by delegates and officials from the CFMEU and/or CFMEU (Qld), including Messrs Jarvis and Olsen, and indication by those delegates to the workers that they should leave the site.

. . .

On 26 May 2011 at the GCUH site, unlawful industrial action engaged in and organised by the CFMEU and/or CFMEU (Qld) and Messrs Malone and Jarvis involved (inter alia):

a meeting of workers (including members of the CFMEU, CFMEU (Qld) and CEPU), departure of those workers from the site and failure of workers to perform work on that day;
a meeting convened and addressed by organisers and senior officials from the CFMEU and the CEPU including Messrs Malone, Jarvis and McQueen; and
Mr Malone making comments concerning “crossing the picket line”, and Mr Jarvis making comments concerning “the commitment as the union to man this gate...”.

. . .

As a result of this combined activity, the CFMEU, CFMEU (Qld), CEPU and Messrs Pearson, Vink, O’Doherty, Hanna, Jarvis, Olsen and Malone each admit:

1. To engaging in unlawful industrial action within the meaning of s 36 and s 37 of the BCII Act on each of the dates I have listed, thereby separately contravening s 38 of the BCII Act on each of those dates.

2. That they were “involved in” a contravention of a civil penalty provision within the meaning of s 48(2) of the BCII Act, and are thereby to be treated to have contravened s 38 of the BCII Act by aiding, abetting, counselling and procuring the unlawful industrial action on each of those dates.

3. That by s 69 of the BCII Act:

the CFMEU and the CFMEU (Qld) are liable for the conduct and contraventions of Messrs Pearson, Vink, O’Doherty, Hanna, Jarvis and Olsen; and

. . .

It is not in dispute that the unlawful industrial action had a significant effect on both the GCUH Project and the Law Courts Project because no work was undertaken on any of the days in question on either project. The respondents admit that this unlawful industrial action caused a delay to the critical path of each project of:

8 days in respect of the GCUH Project; and

. . .

Lend Lease has estimated that the daily cost of operating the respective projects on the delayed days was:

on the GCUH Project – $115,722 per day; and

. . .

It is not in dispute that the unlawful industrial action on these days caused Lend Lease to suffer significant loss and damage. 37

[36] In approving agreed penalties the Court made a number of observations. First, the unlawful industrial action (in which Jarvis was involved) was protracted, conspicuously public, and coordinated across to project sites. 38 Secondly, the unlawful industrial action was not taken by the respondents (including Jarvis) in relation to any specific concern relevant to the particular sites. Rather, it was taken as part of an industry-wide campaign relating to claims of sham contracting.39 Thirdly, the unlawful industrial action was taken despite orders of Fair Work Australia that it should not occur.40 Fourthly, the industrial action of the respondents (including Jarvis) caused serious disruption, loss and damage to Lend Lease.41 Fifthly, the conduct of the respondents (including Jarvis) was not inadvertent; rather the conduct was deliberate, in pursuit of general and unsubstantiated claims of sham contracting.42 Sixthly, it was questionable whether the respondents (including Jarvis) had demonstrated contrition in respect of the contraventions, although they had conceded the contraventions occurred and had reached agreement on the facts and penalties.43 Seventhly, by so doing, the respondents (including Jarvis) had demonstrated cooperation with the regulatory authority.44

[37] The Director made submissions about the adequacy of Jarvis’ disclosure of all of the circumstances arising in Lend Lease and related proceedings. The Director submitted that whilst the penalties imposed on the CFMEU and Jarvis were disclosed in the permit application, neither the CFMEU nor Jarvis disclosed that Jarvis had admitted to four separate contraventions of s.38 of the BCII Act. 45 The Director did not suggest that either of the CFMEU or Jarvis made a false declaration, however he submitted that an explanation as to the omission should be sought and the adequacy of any explanation might be taken into account under s.513(1)(g) of the Act.46

[38] On the face of the declarations of the CFMEU and Jarvis, each discloses the Lend Lease matter, the fact that penalties were imposed on each of them and the quantum of those penalties. The declarations each give a citation for the decision imposing penalties. In the circumstances it seems to me unnecessary for either of the CFMEU or Jarvis to separately set out the number of contraventions of s.38 of the BCII Act arising from Jarvis’ conduct. That fact is evident from the decision itself, and in taking into account the penalties imposed in Lend Lease a decision-maker would necessarily need to read the decision as I have done.

[39] The Director also submitted that neither the CFMEU nor Jarvis disclosed that in Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No. 6) (Lend Lease No 6) 47 Jarvis provided an undertaking to the Court that he would not seek to intentionally “hinder or obstruct any other person when exercising or seeking to exercise his right of entry” under the Act in relation to the construction projects which were the subject of the proceedings. The Director submitted that this information is directly relevant to whether Jarvis is a fit and proper person to hold an entry permit.

[40] Dealing first with the question of disclosure, Lend Lease No 6 is not a decision in which a penalty is imposed for a contravention of an industrial law nor is it a matter that falls within the other express permit qualification matters set out in s.513(1)(a) - (f) of the Act. It is clear from the decision in Lend Lease, that Jarvis was prepared to give an undertaking of that kind in the context of the injunctive relief that was sought. 48 It is also clear that questions of injunctive relief and undertakings were deferred and would be subject to further consideration after the parties made submissions in relation to a number of issues.49 Whilst it might have been helpful for Jarvis to have disclosed the undertaking, it seems to me that his disclosure of the Lend Lease matter was sufficient to enable a reasonably diligent decision-maker to have located the subsequent decision in Lend Lease No 6 and to have ascertained the fact and nature of the undertaking given.

[41] As to the question of relevance of the undertakings, the CFMEU submitted that there was no requirement to disclose the undertaking because it did not relate to any of the criteria in s.513 of the Act. 50 As I have indicated above, the undertaking given in Lend Lease No 6 is not a matter that falls within the express permit qualification matters set out in s.513 (1) (a) - (f) of the Act. But it seems to me clear, having regard to the nature of the undertaking it is a matter that I am entitled to take into account under s.513(1)(g) of the Act. The undertaking given by Jarvis was that he would not seek to intentionally “hinder or obstruct any other person when exercising or seeking to exercise his right of entry” under the Act in relation to the construction projects which were the subject of the proceedings. The undertaking itself relates directly to the exercise of the right of entry powers by a permit holder. That the undertaking was given in circumstances where injunctive relief was sought raises a question whether during the four occasions on which Jarvis entered the site the subject of the Lend Lease proceedings, he misused his rights of entry, entered for a purpose other than the purposes for which entry rights are given or otherwise engaged in hindering or obstructing conduct whilst exercising entry rights. Neither Jarvis nor the CFMEU provided any explanation of the circumstances in which the undertaking was given. This is despite the Director’s clear submission that the necessity to give an undertaking was directly relevant to the question of whether he was a fit and proper person to hold an entry permit.

[42] Instead, in addition to the relevance argument, the CFMEU submitted that the undertaking provided by Jarvis demonstrates that he understood and took responsibility for the conduct the subject of his admissions of contravention. 51 The submission might be persuasive if Jarvis had given evidence of that fact or had filed a statement pursuant to directions made by me on 11 November 2014, but he did not. There is no probative evidence upon which this submission can stand. Without any evidence about the circumstances of the giving of the undertaking from Jarvis or of his motivation for doing so it cannot be assumed that he understood and took responsibility for the conduct.

Sutherland

[43] In Sutherland the Court imposed the following penalty:

● CFMEU - $50,000 for contravening s 38 of the BCII Act by reason of actions taken in part by Jarvis and other officials.

[44] The actions of Jarvis which led to the imposition of a penalty in Sutherland occurred on 28 February 2011 with the result that 37 workers engaged to perform building work on the Gold Coast Hilton building site withdrew their labour on that day. The workers did not attend for work on the following day, being 1 March 2011 and returned to work on 2 March 2011. There is no written judgment in Sutherland but the statement of agreed facts filed in the proceedings discloses the following circumstances in which the action taken by Jarvis resulted in the imposition of a penalty on the CFMEU:

Action at the Gold Coast Hilton site

3. On Monday 28 February 2011, between the hours of 9:30 am and 11:00 am, Andrew SUTHERLAND and Timothy JARVIS:

(a) entered the Gold Coast Hilton site;

(b) held a meeting on the site with workers engaged in building work on the Gold Coast Hilton site;

(c) made representations (“Hilton Site Representations”) by way of spoken words, to those building workers assembled at that meeting to the effect that:

(i) Brookfield Multiplex had been engaged in the practice of “sham contracting” (being an alleged practice where persons weremisrepresented to be engaged by way of contracts for services andnot employment);

(ii) the Ninth Respondent (CFMEU) was engaged in a national campaign against the practice of sham contracting (“Sham Contracting Campaign”); and

(d) facilitated a vote on whether the workers wished to support the campaign by withdrawing their labour.

4. The meeting described in paragraph 3 above concluded and a total of approximately 37 workers that were engaged to perform building work on the Gold Coast Hilton site that day, which included workers from Brookfield Multiplex, and at least four subcontractor companies, withdrew their labour and left the site.

5. Immediately upon conclusion of the meeting described in paragraph 3 above, Andrew SUTHERLAND and Timothy JARVIS instigated a meeting with senior site managers for Brookfield Multiplex on the Gold Coast Hilton site.

6. During the meeting with senior site managers for Brookfield Multiplex described in paragraph 5 above, Andrew SUTHERLAND and Timothy JARVIS jointly and equally said words to the effect that:

(a) The Ninth Respondent (CFMEU) was conducting the Sham Contracting Campaign;

(b) in support of the Sham Contracting Campaign, the workers engaged in building work on the Gold Coast Hilton site had determined during the meeting described in paragraph 3 above, to withdraw their labour for 48 hours.

7. The Gold Coast Hilton site building workers did not return to work that day (28 February 2011) or the following day (I Match 2011) and returned to work on 2 March 2011.

8. In the premises, the workers withdrawing their labour from the Gold Coast Hilton site on 28 February 2011 and 1 March 2011 was unlawful industrial action as defined by section 37 of the BCII Act because:

(a) it was a failure or refusal to attend and/or perform building work by persons who were to attend for and/or perform building work and, therefore, it was building industrial action as defined at section 36(1) of the BCII Act at sub-paragraph (d) of the definition;

(b) by virtue of the facts described above in paragraphs 3 and 4, it was constitutionally connected action as defined at section 36(1) of the BCII Act because it:

(i) was taken by an organisation;

(ii) adversely affected a constitutional corporation in its capacity as a building industry participant; and

(iii) related to work that was regulated by a Commonwealth industrial instrument;

(c) it was industrially-motivated within the meaning of that term as defined in section 36(1) of the BCII Act because it was motivated for purposes of (or that included) advancing industrial objectives of an industrial association, being the Sham Contracting Campaign;

(d) further, it was industrially motivated within the meaning of that term as defined in section 36(1) of the BCII Act because it was taken for the purpose of disrupting the performance of work by workers on the Gold Coast Hilton site, and/or the Gold Coast Hilton project;

(e) it was not excluded action because it was not protected industrial action as defined in section 408 of the FW Act.

9. In the premises, the withdrawal of labour occurring at the Gold Coast Hilton site on 28 February 2011 and 1 March 2011, being unlawful industrial action as defined by sections 36 and 37 of the BCII Act, was in contravention of section38 of the BCII Act.

10. By virtue of the facts set out in paragraphs 1(b) and 1(c) herein and paragraphs 3 to 9 inclusive herein, and pursuant to s 69(l)(b) of the BCII Act:

(a) the contravening conduct of Andrew SUTHERLAND and Timothy JARVIS is taken to be contravening conduct of the Ninth Respondent (CFMEU) whom they were employed by and on whose behalf they were acting; and

(b) accordingly, the Ninth Respondent (CFMEU) was involved in, organised and engaged in the industrial action at the Gold Coast Hilton site in contravention of section 38 of the BCII Act and a penalty may be imposed on it. 52

[45] It seems to me clear from the above that the action taken by Jarvis was deliberate and part of a coordinated campaign against the practice of sham contracting. It also seems clear, having regard to the totality of the agreed statement of facts, that the action taken by Jarvis was coordinated with action taken by other officials at another site operated by the same principal contractor Brookfield Multiplex Constructions Pty Ltd. To that extent it may be said that the action of Jarvis was planned and calculated. It is also clear that Jarvis entered the Gold Coast Hilton Building site. The entry occurred one month after a new entry permit had been issued to Jarvis on 31 January 2011. It is not clear whether entry rights were purported to be exercised. It is not clear how else Jarvis came to be on site. Jarvis did not attend to give evidence before me and so could not be asked. As things stand the nature of the entry remains unexplained and is not disclosed in the agreed statement of facts. The nature of the entry seems to me to be a material consideration in assessing the significance of the contravening conduct on the ultimate question under s.512 of the Act.

Director FWBII

[46] In Director FWBII the Court imposed the following penalty:

CFMEU - $99,000 for contravening s. 43(l)(b) of the BCII Act by reason of actions taken in part by Jarvis and other union officials

[47] Section 43 of the BCII Act then provided:

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):

(a) to employ, or not employ, a person as a building employee; or

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

(d) to designate a building employee or building contractor as having, or not having, particular duties or responsibilities.

Note: Grade A civil penalty.

(2) Subsection (1) does not apply unless:

(a) the first person is an organisation or a constitutional corporation; or

(b) the second person is a constitutional corporation; or

[48] The actions of Jarvis, which led to the imposition of a penalty in Director FWBII, occurred on 9 November 2010. The circumstances in which the action taken by Jarvis resulted in the imposition of a penalty are set out in the reasons for judgment in Director FWBII:

Events on 9 November 2010 at the Carrara Stadium Project site

At approximately 6 am on 9 November 2010 Mr Andrew Temoho and Mr Timothy Jarvis entered the Carrara Stadium Project site. Both Mr Temoho and Mr Jarvis were organisers of the CFMEU.

At approximately 6.20 am Mr Temoho and Mr Jarvis attended a meeting of employees at the site, including employees of the Carrara Stadium Project sub-contractors. During the meeting the following occurred:

○ Mr Temoho and Mr Jarvis addressed the meeting and said words to the following effect:

n Watpac would no longer utilise the present subcontractors on the Carrara Stadium Project as they were contractors that had union EBAs; and

▪ Watpac wanted to use “grubby subbies”.

○ Mr Temoho and Mr Jarvis then put a motion to the employees present to the effect that the workers leave the site.

Work was scheduled to commence at the site at 6.30 am that day.

At approximately 7.15 am employees of the sub-contractors at the Carrara Stadium Project site began to leave the site and did not return to work as scheduled on that day.

The parties agree that:

○ The departure of the workers was induced, counselled, procured and organised by Mr Temoho and Mr Jarvis.

○ The actions taken by Mr Temoho and Mr Jarvis 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.

○ By the actions of Mr Temoho and Mr Jarvis, pursuant to s 69(1)(b) of the BCII Act the CFMEU is taken to have acted in breach of s 43(1)(b) of the BCII Act.

○ The CFMEU contravened s 43(1)(b) of the BCII Act. 53

[49] In making orders for penalties proposed by the parties, the Court observed that the conduct (including that of Jarvis and TeMoho) caused a cessation of work on the sites and that it appeared to be a calculated and co-ordinated campaign against Watpac over those two days. 54 The Court observed further that the conduct of both respondents (and it is clear from the extract passages above, engaged in by Jarvis and TeMoho) was deliberate, and that both respondents were aware of the potential legal consequences of the conduct.55 The Court also observed that neither of the respondents (and by necessary implication, Jarvis and TeMoho) demonstrated any contrition for the conduct but they did cooperate with the Director in reaching an agreement on relevant facts and penalties.56

[50] Finally, the Court also considered that “the facts demonstrate the need to impose penalties which meet the objectives of specific deterrence, particularly in relation to the CFMEU whose organisers have shown a somewhat cavalier disregard both to the need to comply with the law and of penalties which have previously been imposed on the union for similar conduct”. 57

[51] It seems clear from the judgment in Director FWBII that the contravening conduct occurred after entry to the site by Jarvis and TeMoho was gained. The circumstances of the entry are not set out in the judgment and remain unexplained before me as neither Jarvis nor TeMoho attended to give evidence.

Jarvis’ actions, disclosure and explanation

[52] In his declaration of 17 January 2014, filed in support of the grant of a permit (Jarvis declaration), Jarvis discloses the penalties imposed arising from the decisions in Hogan, Sutherland, Lend Lease and Director FWBII. Save to indicate the quantum of the penalty imposed on him and/or on the CFMEU, the fact that he was involved, that since May 2011 he says he has been of good behaviour and that he has since received further training and fully understands his obligations as a permit holder, there is no further explanation of the circumstances of his involvement in the contraventions. There is also an absence of any indication of contrition or remorse or any indication that he will not engage in action of the kind that led to the imposition of the penalties in Hogan, Sutherland, Lend Lease and Director FWBII which in each case were deliberate and in most cases planned and coordinated.

This absence may in part be explained by the way in which the Applicants put their cases. It was submitted that all of the matters to which the Director drew attention arising from the imposition of penalties cases “are referable to matters in which the officers for whom permits are sought have been found to have contravened non-right of entry industrial law. The matters are not properly referable to the way right of entry powers are to be exercised by them”. 58 Consequently, as they are not relevant to right of entry, they are not relevant to the question whether Jarvis is a fit and proper person to hold an entry permit.59 Having put the case in this way, and given the weight of the decided cases in this Commission, which would appear against that submission, the Applicants run the risk of the submission not being accepted. Following the Full Court’s decision in MUA and as I had reserved but not delivered my decision, I gave the parties a further opportunity to make submissions on concerns that I had in relation to the fitness and propriety of Jarvis to hold an entry permit with particular focus on conditions that might be imposed to overcome my concerns.

[53] In this regard it was submitted by the Applicants that there are no findings in Hogan, Sutherland, Lend Lease or Director FWBII that right of entry permits were used to obtain entry or formed some part of the conduct that each of Jarvis and TeMoho were found to have engaged in. Consequently, the conduct should be viewed with a focus on the grant of significant rights as described by the Full Court in MUA, and in circumstances where the matters relied on by the Director do not assert breaches of the rights provided by a permit. The Applicants submitted that, consistently with the Full Court in MUA in [19], [20], the Commission is able to take into account breaches other than right of entry breaches, but it should give little weight to the matters alleged against Jarvis and TeMoho. 60

[54] It is accepted that there is no finding in Hogan, Sutherland, Lend Lease or Director FWBII that right of entry permits were used to obtain entry or formed some part of the conduct of Jarvis. These circumstances remain unexplained before me. In my view, the suggestion that the contravening conduct was not referable to right of entry powers and should be given little weight is hollow in the face of the available material that entry to sites was gained and thereafter contravening conduct occurred causing disruption to or cessation of work at the site. In one case it is clear from the judgment that entry to the site and the subsequent conduct were not engaged in to deal with any issue on site, but rather to pursue an industry-wide campaign 61 and unsubstantiated sham contracting claims.62 The Applicants have not advanced or adduced any material which would counter the matters raised by the Director, nor have they brought Jarvis to the Commission to give any explanation about his past conduct, the circumstances of his (and relevantly TeMoho’s) entry to premises at which the contravening conduct occurred, or an indication that he understands his conduct to have been unlawful, or any undertaking or assurance as to his future conduct. Whether entry to site was gained as a permit holder, by consent or acquiescence, or by invitation, once on site Jarvis (and relevantly TeMoho) engaged in conduct that was in breach of prevailing law for which he or his employer have been held responsible. Even if unconnected with the exercise of a right of entry, the repeated contravening conduct speaks to the character of Jarvis (and relevantly TeMoho) as a person who has shown a persistent unwillingness to comply with industrial law.

[55] In respect of both the Sutherland and Director FWBII matters, I note that in the Jarvis declaration, Jarvis says that he “was initially a respondent, which [he] denied liability; the proceeding was later discontinued against [him]. The Union later agreed certain facts, including in relation to conduct by [him]”. 63 Mr David Hanna, the divisional Branch Secretary of the CFMEU, in a declaration dated 17 January 2014 also filed in support of the application makes statements to the same effect.64 To the extent that these statements suggest some diminished responsibility in relation to the action taken by Jarvis in each of these matters, or that the conduct admitted by the CFMEU to have been engaged in by Jarvis, does not accurately reflect his conduct, or that the admitted conduct was agreed by the CFMEU without reference to Jarvis, then those suggestions are rejected. But for the conduct of Jarvis and his colleagues in each of the Sutherland and Director FWBII matters earlier outlined (and putting aside the separate conduct of other officials for which separate contraventions were admitted), there would have been no basis to conclude contraventions of ss.38 and 43 respectively of the BCII Act on the part of the CFMEU. Moreover, if Jarvis wishes to say that he did not agree with the admitted conduct or that it did not accurately reflect his conduct, then he should come to the Commission and say so. He has not taken such action.

[56] Apart from recently undertaking right of entry training, no other evidence is offered that the CFMEU as the employer of Jarvis, has taken any step to counsel, advise, discipline or train Jarvis about his conduct which led to the imposition of penalties on him and upon the CFMEU.

[57] In my view the actions of Jarvis on seven separate occasions between the period 26 November 2009 and 26 May 2011 which led to orders for the payment of penalties by him and/or by the CFMEU in the Hogan, Sutherland, Lend Lease and Director FWBII, demonstrate a lack of regard, at least at that time, by Jarvis for the provisions of an industrial law which prohibited unlawful industrial action and coercion. The actions also demonstrate a lack of regard for the rights of the employers on whose premises he entered, not to have their works interrupted and to go about their businesses without undue inconvenience. Moreover, Jarvis’ actions were deliberate, involved entry onto site (and it may be inferred, given the deliberate nature of the actions, for the purpose of causing disruption), caused disruption to work, caused financial losses to building contractors, variously was part of a coordinated campaign, variously was in pursuit of industry-wide campaigns and, in the case of the Lend Lease matter, despite orders of Fair Work Australia that industrial action should not occur.

[58] There is no evidence from Jarvis that he will not engage in similar action in pursuit of, for example industry-wide campaigns advocated by his employer, the CFMEU.

[59] There is no evidence that Jarvis understands that there were then, and that there are now, lawful alternatives available to him to pursue grievances of a kind that seem to have motivated his actions in the Hogan, Sutherland, Lend Lease and Director FWBII matters. Much less is there any evidence that that will be his preferred modus operandi.

[60] I accept that nearly four years have passed since Jarvis engaged in the conduct resulting to the imposition of the penalties. I also accept that the effluxion of time since the conduct of Jarvis is a factor that should be taken into account, and I do so. However, the frequency with which Jarvis engaged in conduct between 26 November 2009 and 26 May 2011 and the calculated nature of that conduct diminishes what might otherwise be a weighty consideration. In the circumstances, absent a clear statement from Jarvis that he will not enter workplaces for the purposes of causing disruption to work and that he will pursue industrial grievances through lawful means, given his history, the mere effluxion of time is not a sufficient basis for me to be satisfied that the risk of repeated conduct of the kind engaged in between 26 November 2009 and 26 May 2011 is minimal or remote.

[61] I have given consideration to whether a condition or conditions might be imposed on an entry permit issued to Jarvis that would address my concerns as to his fitness and propriety to hold a permit. The Applicants’ characterised my concerns as relating to Jarvis’ understanding, and past conduct as indicative future behavior. They contend the passage of time is directly relevant in terms of a predictive exercise as to future conduct. It is directly relevant in that material before the Commission establishes that there have been no relevant events for approximately four and a half years, quite apart from an absence of evidence of breach of the rights granted by the issue of a permit. 65

[62] The Applicants contend that these concerns can be addressed properly by the imposition of conditions. As to the concerns regarding understanding, such concerns can be dealt with by requiring training. The concerns regarding future conduct can be addressed properly by the imposition of conditions requiring training as well as a reporting condition which, in the event of future conduct, could found the basis for further action by the Commission. 66

[63] The Applicants submit that undertaking training as approved by the Commission in relation to the right of entry provisions of Part 3-4 of the Act for the duration of the permit and a requirement to advise the Commission within two weeks of any findings, penalties or proceedings relating to the qualification for a permit under the Act adequately address the concerns. 67

[64] In my view training will only be effective if first there is an acceptance of wrongdoing and a willingness to pursue grievances through lawful means. I agree with the Director’s submission that the passage of time has not dimmed the seriousness of Jarvis’ contravening conduct, particularly as there is no attempt to explain the effect that time may have had on his attitude. 68 Whilst it is clearly relevant that Jarvis has not engaged in contravening conduct for several years, in the circumstances of Jarvis’ repeated past contraventions, I give this little weight. The mere passage of time without further adverse conduct does not lead to satisfaction as to a reformation of character.69 Expressions of regret and remorse are in my view particularly relevant in cases involving multiple acts of contravening conduct because they assist in the conclusion that the relevant person has learned from, and left behind, their past inappropriate behaviors.70 Without such an indication I am not persuaded that the provision of training to Jarvis will have the desired effect and there is no satisfactory basis to consider Jarvis will act any differently in the future. The training undertaken by Jarvis on 8 November 2010 which resulted in the issuing of a permit on 31 January 2011, seemed not to prevent Jarvis from engaging in contravening conduct only six months later, the result of which was the imposition of penalties on him and the CFMEU and an undertaking by him in relation to the exercise of entry rights.

[65] I am also not satisfied that imposing a condition requiring Jarvis to advise the Commission within two weeks of any findings, penalties or proceedings relating to the qualification for a permit under the Act adequately address the concerns. This is akin to locking the stable gates after the horse has bolted. Depending on the nature of the contravention, a notification requirement might result in a more expeditious consideration of the suspension or revocation of an entry permit or the imposition of further conditions but my concerns about Jarvis’ future conduct will have been realised. Such a condition might be adequate if there was some evidence of acceptance of wrongdoing of the part of Jarvis, but there is none.

[66] For the reasons given, the conditions proposed by the Applicants do not address my concerns nor do they appropriately, absent any evident acceptance of wrongdoing by Jarvis and commitment by him to pursue grievances through lawul means, target that which appears to me to be an unwillingness to obey industrial laws. Absent such acceptance and indication, I am not persuaded that some other form of condition might be able to be imposed which would satisfy me that Jarvis is a fit and proper person to hold an entry permit.

[67] Taking into account the permit qualification matters and the possibility that a condition or conditions might be imposed on any permit issued to Jarvis, I am not satisfied as required by s.512 of the Act. The holder of an entry permit is given a right to enter premises for particular prescribed purposes whether or not the occupier or employer approves of the entry. Such a permit holder must, in my view, show a willingness to comply with prevailing industrial laws. My assessment is that Jarvis has shown a repeated unwillingness to comply with industrial laws, something which the passage of time alone has not, in my view, diminished. Given Jarvis’ history of contravening conduct, the circumstances and nature of that conduct as disclosed in the judgments and agreed statement of facts, the absence of any explanation as to how entry by Jarvis to the sites at which the contravening conduct occurred was gained, and the absence of any evidence of contrition, acceptance that the conduct was wrong and any undertaking that he will not engage in similar conduct whilst entering a workplace, I am not satisfied that Jarvis is a fit and proper person to hold an entry permit whether conditions are imposed or not.

Permit qualification matters s. 513(1)(a) - (g); Conditions s 515 - TeMoho

[68] Before turning to the permit qualification matters relevant to TeMoho, it is necessary that I deal with a statement prepared by TeMoho dated 20 November 2014 (TeMoho statement) and filed by the CFMEU on 21 November 2014 in these proceedings. During the proceeding, Counsel for the Applicants in the TeMoho permit application said that the CFMEU did not seek to read the TeMoho statement. 71 The Director had made written submissions about the TeMoho statement.72 Counsel for the Applicants did not submit, properly in my view given the nature of the proceedings, that I could not have regard to the TeMoho statement. I consider that I should have regard to the TeMoho statement and I propose to do so because it addresses matters that are relevant to the determination that I need to make and because it discloses inconsistencies in the various explanations that have been given for a non-disclosure of permit qualification matters identified in s.513(1)(d) of the Act in declarations filed originally by the Applicants and TeMoho. I will return to this later in this decision.

[69] TeMoho has been employed as an organiser with the CFMEU (and presumably with the CFMEIUQ) since March 2008, and continues in that employment. 73

[70] TeMoho has received training about the rights and responsibilities of a permit holder. On 14 April 2014 TeMoho completed an on-line training course conducted through the ACTU. 74 I am satisfied that TeMoho has received appropriate training about the rights and responsibilities of a permit holder, however as he did not attend to give any evidence before me, I am unable to assess for myself how well he does understand those rights and responsibilities. I regard this as relevant because in TeMoho’s declaration filed in support of the issuing of an entry permit TeMoho asserts that “I have had my attention drawn to the changes to right of entry provisions made by the Fair Work Act 2009, and I understand the effect of those changes.”75 In the TeMoho statement, TeMoho says he has no “specific recollection of signing the application but knew that a new application was being lodged on my behalf.”76 It is also clear from the affidavit of Michelle Clare,77 provided subsequent to the hearing of the application at my request, that subsequent declarations purportedly made by TeMoho and filed on TeMoho’s behalf78 do not bear his electronic signature.79

[71] Ms Clare also deposes as to her usual practice in preparing permit applications and declarations 80 but says she has no specific recollection of the execution of TeMoho’s declarations of 3 March 2014.81 In the circumstances, as TeMoho does not have a recollection of singing the first “application”, which I take to be a reference to his declaration of 21 January 2014, his signature is not affixed to the subsequent declarations of 3 March 2014, and the person who usually prepares these documents has no specific recollection of the execution of the declarations and there is no other evidence about them, I have significant doubt about the assertion in these declarations that TeMoho understands the effect of changes to right of entry laws said to have been drawn to his attention. To the extent that Mr Ravbar’s declarations contain the same assertion, it seems obvious that the assertion cannot carry any weight since Mr Ravbar cannot give evidence about what TeMoho understands about the changes. For completeness, the Applicants were asked whether a further hearing to deal with the signature issue was necessary. The Applicants submitted that it was not. Ultimately, noting the Director’s view that a further hearing should be held, I decided not to conduct a further hearing.

[72] My concerns about TeMoho’s understanding of his right and obligations as a permit holder are not assuaged by particular aspects of the TeMoho statement. TeMoho says that in early 2014 he attended a site in Brisbane and was advised that the company on whose site he was entering could not find any record of TeMoho having a valid entry permit. 82 After making enquiries with the Commission, TeMoho learned that his permit had expired and because his entry permit had expired the CFMEU was required to make a new application for a permit.83 A simple perusal of his entry permit would have given the same information. Moreover, the information given by TeMoho is not correct. As is evident further below, the relevant entry permit was issued on 2 March 2011. The permit therefore expired on 2 March 2014. The CFMEU application for a permit was lodged on 23 January 2014, before the permit expired.

[73] I accept that TeMoho has not been convicted of any offence against an industrial law, 84 nor has he been convicted of any offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving conduct described in s.513(c)(i) – (iii) of the Act.85

[74] TeMoho has previously been issued with right of entry permits as follows:

By letter dated 12 March 2008, the CFMEU, applied for an entry permit for TeMoho. The application was received on 17 March 2008. Concurrent applications were lodged by The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEU-TRQ) (a Transitionally Recognised Association), and by the Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees (FEDFAQ) (a Transitionally Recognised Association).

Further applications were made by:

CFMEU on 16 February 2011

CFMEU-TRQ on 16 February 2011

FEDFAQ on 16 February 2011

Permit Number	Applicant	Application Date	Issued Date	Date Returned	Notes
RE2008/2194	CFMEU	17 March 2008	20 March 2008	28 February 2011	Returned on time
RE2008/2195	CFMEU-TRQ	17 March 2008	28 March 2008	28 February 2011	Returned on time
RE2008/2206	FEDFAQ	25 March 2008	26 March 2008	28 February 2011	Returned on time
RE2011/2640	CFMEU	16 February 2011	2 March 2011	23 January 2014	Returned on time
RE2011/2641	CFMEU-TRQ	16 February 2011	2 March 2011	23 January 2014	Returned on time
RE2011/2642	FEDFAQ	16 February 2011	2 March 2011	18 July 2013	Returned on time
RE2014/467	CFMEU-TRQ	23 January 2014	30 June 2014	23 October 2014	Present matter
RE2014/468	CFMEU	23 January 2014	30 June 2014	23 October 2014	Present matter

[75] I accept that none of these permits have been revoked, suspended or made subject to conditions 86 except as a consequence of the Full Bench decision earlier mentioned, but that revocation was consequent upon the successful appeal brought by the Director, not because of any act or omission on the part of TeMoho. Similarly, no right of entry for industrial or OHS purposes that TeMoho might have had under a State or Territory industrial law or OHS law has been cancelled, suspended or had conditions imposed,87 nor has TeMoho been disqualified from exercising, or applying for, a right of entry for industrial or OHSpurposes under a State or Territory industrial law or OHS law.88

[76] Both TeMoho and the CFMEU have been ordered to pay penalties under theBCII Act, in relation to action taken by TeMoho. For the reasons earlier given (in relation to Jarvis), I am satisfied that the BCII Act is an “industrial law” for the purpose of s.513(1)(d) of the Act.

[77] There are two cases in which action taken by TeMoho resulted in the imposition of penalties on TeMoho and the CFMEU, or on the CFMEU by reason, in part, of action taken by TeMoho, which are as follows:

● Hogan 89and
● Director FWBII 90

[78] The details and circumstances in which penalties were imposed in each case are set out below.

Hogan

In Hogan the Court imposed the following penalties:

● TeMoho - $3,300 for contravening s.38 of the BCII Act; and
● CFMEU - $36,300 contravening s.38 of the BCII Act by reason of the actions of Jarvis and TeMoho.

[79] I have earlier set out s.38 of the BCII Act and need not repeat it here.

[80] The action of TeMoho, which led to the imposition of a penalty in Hogan, occurred on 26 November 2009. The circumstances in which the action taken by TeMoho resulted in the imposition of a penalty are set out in the reasons for judgment in Hogan and since they are set out earlier in relation to Jarvis, they are not repeated here.

[81] As earlier indicated, in approving agreed penalties, the Court accepted that the contraventions involved deliberate acts by Jarvis and TeMoho. 91 The Court noted that Jarvis and TeMoho arrived at the workplace unannounced and commenced to instigate meetings of employees during working time.92 The Court accepted that the involvement of Jarvis and TeMoho as paid officials of the CFMEU was an aggravating factor to take into account and that their actions were not wildcat in nature but were planned and deliberate.93 The Court noted a level of cooperation on the part of Jarvis and TeMoho evidenced by the agreement on facts and on penalty, but there was no direct evidence of any contrition or remorse on the part of Jarvis and TeMoho.94

Director FWBII

[82] In Director FWBII the Court imposed the following penalty:

CFMEU - $99,000 for contravening s 43(l)(b) of the BCII Act by reason of actions taken in part by TeMoho and other union officials

[83] I have earlier set out s.43 of the BCII Act and need not repeat it here.

[84] The actions of TeMoho which led to the imposition of a penalty in Director FWBII occurred on 9 November 2010. The circumstances in which the action taken by TeMoho resulted in the imposition of a penalty are set out in the reasons for judgment in Director FWBII, and since those reasons are reproduced earlier in relation to Jarvis, they are not reproduced here.

[85] In making orders for penalties proposed by the parties, the Court observed that the conduct (including that of TeMoho) caused cessation of work on the sites over two days and that it appeared to be a calculated and co-ordinated campaign against Watpac over those two days. 95 The Court observed further that the conduct of both respondents (and it is clear from the extract passages above, engaged in by Jarvis and TeMoho) was deliberate, and that both respondents were aware of the potential legal consequences of the conduct.96 The Court also observed that neither of the respondents (and by necessary implication, Jarvis and TeMoho) demonstrated any contrition for the conduct but they did cooperate with the Director in reaching an agreement on relevant facts and penalties.97

[86] The Court also considered that “the facts demonstrate the need to impose penalties which meet the objectives of specific deterrence, particularly in relation to the CFMEU whose organisers have shown a somewhat cavalier disregard both to the need to comply with the law and of penalties which have previously been imposed on the union for similar conduct”. 98

[87] As I have earlier indicated, it seems clear from the judgment in Director FWBII that the contravening conduct occurred after entry to the site by Jarvis and TeMoho was gained. The circumstances of the entry are not set out in the judgment and remain unexplained before me as neither Jarvis nor TeMoho attended to give evidence.

TeMoho’s actions, disclosure and explanation.

[88] TeMoho’s actions in Hogan and Director FWBII occurred in November 2009 and November 2010 and some four and a half years have passed since the last of those incidents. As I indicated in relation to Jarvis above, the effluxion of time is a matter that bears upon the weight that is to be attributed to the fact that by reason of TeMoho’s actions, he and the CFMEU were ordered to pay penalties under the BCII Act, and I do so.

[89] However, there is no indication from TeMoho of any contrition or remorse or any indication that he will not engage in action of the kind that led to the imposition of the penalties in Hogan and Director FWBII which the Court in each case observed was planned and deliberate.

[90] Moreover, TeMoho’s actions involved entry onto site (and it may be inferred, given the deliberate nature of the actions, for the purpose of causing disruption), caused disruption to work, caused financial losses to building contractors, and in Director FWBII was part of a coordinated campaign. It is not clear how entry to the sites was obtained. TeMoho was a permit holder at the time of each entry and similar questions to those relating to Jarvis arise. These questions remain unanswered. They bear upon the question I need to determine. They remain unanswered because TeMoho has chosen not to attend and give evidence in the proceeding before me.

[91] Apart from recently undertaking right of entry training, no other evidence is offered that the CFMEU took any step to counsel, advise, discipline or train TeMoho about his conduct which led to the imposition of penalties on him and upon the CFMEU. Indeed, TeMoho seems not to have been aware that his actions in Director FWBII contributed to the imposition of a $99,000.00 penalty on the CFMEU. 99

[92] It was submitted by the Applicants in relation to TeMoho that he has not engaged in any contravening conduct for over three years (now four and a half) and that an inference may be drawn that the previous matters in Hogan and Director FWBII have had a scarifying effect on him and that he has learned from his previous experiences. 100 The TeMoho statement asserts that following the conduct in Director FWBII he was served with a summons and visited at home by Australian Building and Construction Commission inspectors. He asserts that the experience was upsetting and he did not wish it to happen again.101Presumably, this part of his statement was prepared to underpin the earlier submissions of the application as to the scarifying effect on TeMoho.

[93] I do not accept, on the material before me, that such an inference can be drawn. First, in each of the various statements and declarations that were filed in these proceedings by TeMoho, there is no indication that he has learned his lesson and will not engage in similar conduct again. Moreover, the TeMoho statement asserts that since the earlier contravening conduct TeMoho has been assigned to the local government sector which he says has less industrial unrest than the sector in which he had previously organised. 102 The clear implication is that the industrial unrest in the previous sector in which he organised is responsible for his contravening conduct. That indicates an absence of any understanding of his culpability for the conduct. The statement seeks to sheet home the blame to the sector in which TeMoho organised, rather than TeMoho taking responsibility for his conduct.

[94] The scarifying effect submission seems to me to draw a long bow, when in the case of Director FWBII, TeMoho says he was unaware that his actions had particular consequences 103, and one explanation given by TeMoho for his initial failure to disclose of the Hogan and Director FWBII matters suggests a failure to have recalled the matters at the time he made the original declaration in support of this application because of the “extensive time elapsed since the contraventions”. 104

[95] It is difficult to see how matters about which TeMoho was either unaware, or could not recall, could be said to have had a scarified effect or could support the proposition that he had learned from his previous experiences. The TeMoho statement 105 says:

I have learnt from this experience and wish to continue performing my job as an organiser. I now have a better understanding of the responsibilities that I hold as a right of entry permit holder . . . 106

[96] In the circumstances, this statement does not advance the matter and does not hold up to scrutiny in light of his earlier memory lapses and his apparent shifting of blame to the sector in which he had organised continued in the same statement. The submission is therefore rejected.

[97] It is accepted that the Hogan and Director FWBII matters were not disclosed in the material lodged with the applications lodged by the CFMEU and CFMEIUQ. Subsequently, disclosure was made and some explanation provided. In the TeMoho statement, TeMoho says:

. . .The application for a new permit was prepared by office staff in the Bowen Hills office.

I do not have a specific recollection of signing the application but knew that a new application was being lodged on my behalf.

I was subsequently notified that the Fair Work Commission had an issue with the non-disclosure of past findings on the application form.

Once I was informed that the disclosure had not been made I apologised for the non-disclosure and declared the past matters.

The failure to disclose these matters was unintentional. I was not the person that present cared the application. 107

[98] It is apparent that TeMoho makes the assertions above in order to explain why the original application contained erroneous statements by him, and which did not disclose his previous conduct. That TeMoho seems to blame others for his failure to disclose indicates that he does not accept responsibility for the accuracy of a statement apparently signed or approved by him, and lodged with the Commission for his benefit.

[99] In the earlier made TeMoho statutory declaration, TeMoho seems to provide a different explanation. TeMoho says:

I made a declaration on 21 January, 2014 in support of the application.

. . .

… At the time of making my previous declaration I was not aware at (sic) the CFMEU was required to pay a penalty in respect of an allegation made against me. As a consequence I did not disclose the matter in my previous declaration.

I apologise for the nondisclosure of the above matters. This was due to an administrative oversight resulting from the extensive time elapsed since the contraventions and was not intentional. 108

[100] This explanation is suggestive of TeMoho being unaware of the result in Director FWBII and lapse of memory in relation to both matters. No mention is made of preparation of the declaration by anyone other than himself. It is difficult therefore to reconcile the explanation given by TeMoho in February 2014 with the explanation given in November 2014. TeMoho did not attend the hearing to give evidence explaining the apparently different explanations. This is despite being on notice that issue was taken by the Director about the veracity of his explanations.

[101] The conflicting explanations raise serious questions about whether TeMoho knowingly signed or authorised an erroneous declaration or whether it was mere inadvertence. This question was squarely raised by the Director in his submissions 109 and it is in that context that the absence of TeMoho at the hearing of the applications, which were convened to consider whether he was a fit and proper person to hold an entry permit, should be viewed.

[102] Absent an explanation from TeMoho, I agree with the Director’s submission that TeMoho’s conduct surrounding the applications and his dealings with the Commission are disingenuous, and that this is a matter that should be taken into account in assessing whether TeMoho is a fit and proper person to hold an entry permit, as it speaks to his level of honesty and integrity.

[103] As I have earlier indicated, following the Full Court’s decision in MUA I gave the parties a further opportunity to make submissions on concerns that I had in relation to the fitness and propriety of TeMoho to hold an entry permit, with particular focus on conditions that might be imposed to overcome my concerns. I have given consideration to whether a condition or conditions might be imposed on an entry permit issued to TeMoho that would address my concerns as to his fitness and propriety to hold a permit. The Applicants’ submissions on this question, earlier discussed, also applied to TeMoho. My reasons for not accepting that the conditions suggested, or any other conditions, applicable to an entry permit issued to Jarvis would overcome my concerns are also apposite to TeMoho.

[104] When I take all of the matters discussed above into account, I am presently not satisfied that TeMoho is a fit and proper person to hold an entry permit. There are the questions discussed in these reasons that remain unanswered and the absence of any evidence about the issues I have identified. I am not satisfied on the material relied on by the Applicants that TeMoho is a fit and proper person to hold an entry permit.

Conclusion

[105] The right of entry scheme established by Part 3 – 4 of the Act confers upon a permit holder a statutory right to enter business premises of an employer or occupier. As such it is an encroachment on the right that an occupier or employer would otherwise have to determine who is permitted to enter and who may be excluded from entering premises owned or controlled by the occupier or employer. With those entry rights come responsibilities. The legislature has determined that only those officials of an organisation in relation to whom the Commission is satisfied are fit and proper persons to hold a permit should be permitted to exercise entry rights. Where an official has a history of contravening conduct, especially where the conduct occurred during an unexplained entry to a workplace, elects not to attend the Commission to explain the circumstances of the entry and conduct or does not seek to persuade the Commission by evidence that there is some contrition and acknowledgment of wrongdoing, and that similar conduct is unlikely to reoccur, they run the risk that the Commission will not be satisfied as required by s.512 of the Act. Of course each case will turn on the facts peculiar to it.

[106] Moreover, where submissions are made that the contravening conduct did not relate to right of entry laws, as is the case here, and should be given little weight, it seems to me incumbent that the submission makes good the point by some evidence. Relying on the passage of time since the contravening conduct might not be enough. The need to lead positive evidence seems to me to be all the more necessary where it is clear that the contravening conduct occurred after a workplace entry but the circumstances of the entry are not disclosed. It is accepted that the penalties in each case relating to Jarvis and TeMoho were not imposed for right of entry breaches and that no factual findings were made about how entry was obtained. That no such finding was made is not a complete answer. The circumstances of the entry are relevant for the purposes of my assessment. This is all more the case since the Applicants sought initially to conduct their case on the basis that “the criteria in section 513… must be specific in their effect to the right of entry permit, that is, unrelated breaches of industrial law without more are not matters to be taken into account”. 110 No positive evidence was sought to be led, at any stage, that the circumstances in any of the Hogan, Sutherland, Lend Lease and Director FWBII matters were unrelated to the exercise of a right of entry.

[107] In each case of contravening conduct, entry to a workplace was obtained. In each case a disruption to the work caused by either or both of Jarvis and TeMoho followed. It is, with respect, far too simplistic to say the contravening conduct did not relate to right of entry laws. It seems to me that the circumstance of the entry in each case raises the questions to which I have already referred. Answers to those questions are relevant to my determination. In the present circumstance where there is an absence of any explanation, combined with the other matters set out in these reasons, I am unable to satisfy myself that either of Jarvis or TeMoho is a fit and proper person for the purposes of s.512 of the Act.

[108] Each application is dismissed. An order dismissing the applications is separately issued in PR569222.

DEPUTY PRESIDENT

Appearances:

E. White of Counsel, L. Tiley for the CFMEU

A. Herbert of Counsel, B. Vallence for the Director of Fair Work Building Industry Inspectorate

Hearing details:

Brisbane.

2015

17 February

Melbourne, Brisbane.

2015

5 May

Final written submissions:

14, 17, 24 April 2015

2, 16, 24 June 2015

1 [2014] FWCD 1004, [2014] FWCD 694 and [2014] FWCD 695

2 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate[2014] FWCFB 7194

3 Ibid at [55] and [42]

4 See for example The Maritime Union of Australia [2014] FWCFB 1973; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Director of the Fair Work Building Industry Inspectorate[2014] FWCFB 4397; Re Construction, Forestry, Mining and Energy Union[2014] FWCFB 6497; Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate[2014] FWCFB 7194; and Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154

5 [2015] FCAFC 56

6 Ibid at [13]-[17]

7 Ibid at [42]

8 Ibid at [43]

9 [2015] FWC 1522

10 Ibid at [32]

11 [2015] FCAFC 56 at [25] and [43]

12 Applicants’ outline of submissions in reply (13 February 2015) at [12] – [14]

13 Transcript PN33 - PN60 (17 February 2015)

14 [2015] FCAFC 56 at [18]-[25]

15 See for example Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184; Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62]; Construction, Forestry, Mining and Energy Union v New Oakleigh Coal Pty Ltd and another[2012] FWAFB 5107 at [15]

16 [2014] FWCFB 5947

17 Ibid at [23]-[27]

18 Exhibit 2 at [2]

19 Declaration by proposed permit holder (Timothy Jarvis) dated 17 January 2014 at (a) and attachment thereto

20 Ibid

21 Ibid at (m)

22 Declarations by member of committee of management (Gregory Simcoe) dated 8 November 2010 attached to Application for an Entry Permit (Timothy Jarvis) filed 8 November 2010

23 Declaration by proposed permit holder (Timothy Jarvis) dated 17 January 2014 at (b)

24 Ibid at (c)

25 Ibid at (n)

26 Ibid at (o)

27 Ibid at (p)

28 [2012] FMCA 189

29 [2012] FCA 1144

30 BRG1008/2011

31 [2013] FCA 846

32 [2012] FMCA 189 at [6] – [12]

33 Ibid at [22]

34 Ibid

35 Ibid at [23]

36 Ibid

37 [2012] FCA 1144 at [15] – [23]

38 Ibid at [36]

39 Ibid at [37]

40 Ibid at [38]

41 Ibid at [39]

42 Ibid at [40]

43 Ibid at [41]

44 Ibid at [42]

45 Specific Submissions of the Director of the Fair Work Building Industry Inspectorate (RE2014/531)dated 14 April 2014 at [6]

46 Ibid at [7]

47 [2012] FCA 1273

48 [2012] FCA 1144 at [48]

49 Ibid at [49]

50 CFMEU correspondence to FWC dated 28 April 2014 at [14]

51 Ibid at [15]

52 Agreed Statement of Facts filed in BRG1008/2011 at [3] – [10]

53 [2013] FCA 846 at [25] - [29]

54 Ibid at [34]

55 Ibid

56 Ibid

57 Ibid at [35]

58 Applicant’s Outline of Submissions in Reply dated 13 February 2015 at [17]

59 Transcript PN149 - PN152 (17 February 2015)

60 Applicants’ submissions pursuant to the statement and directions of Deputy President Gostencnik dated 19 May 2015 dated 2 June 2015 at [8]-[9]

61 See Lend Lease at [37]

62 Ibid at [40]

63 Declaration by proposed permit holder (Timothy Jarvis) dated 17 January 2014 at j) and k)

64 Declaration of member of the committee of management (David Hanna) dated 17 January 2014 at b) and c)

65 Applicants’ submissions pursuant to the statement and directions of Deputy President Gostencnik dated 19 May 2015 dated 2 June 2015 at [12]

66 Ibid at [13]

67 Ibid at [14]

68 Submissions of Director of the Fair Work Building Industry Inspectorate dated 16 June 2015 at [23]

71 Transcript PN 114 (17 February 2015)

72 Submissions of the Director of the Fair Work Building Industry Inspectorate dated 5 December 2014 at [12] – [21]; Transcript PN 272 – PN 293 (17 February 2015)

73 Exhibit 1 at [2]

74 Declaration by proposed permit holder (Andrew TeMoho) dated 3 March 2014 at (a) and Declaration by member of committee of management (Michael Ravbar) dated 3 March 2014 at (a)

75 See Declaration by proposed permit holder (Andrew TeMoho) dated 21 January 2014

76 TeMoho statement at [19]

77 Affidavit of Michelle Clare affirmed on 17 April 2015

78 Declaration by proposed permit holder (Andrew TeMoho)dated 3 March 2014

79 Affidavit of Michelle Clare affirmed on 17 April 2015 at [4]-[12]

80 Ibid at [2]-[3]

81 Ibid at [5] and [9]

82 TeMoho Statement at [15] – [16]

83 Ibid at [17] - [18]

84 Declaration by proposed permit holder (Andrew TeMoho) dated 21 January 2014 at (b) and Declaration by member of committee of management (Michael Ravbar) dated 21 January 2014 at (a)

85 Declaration by proposed permit holder (Andrew TeMoho) dated 3 March 2014 at (c) and Declaration by member of committee of management (Michael Ravbar) dated 3 March 2014 at (c)

86 Ibid at (e) where second appearing in each case

87 Ibid at (f) in each case

88 Ibid at (g) in each case

89 [2012] FMCA 189

90 [2013] FCA 846

91 [2012] FMCA 189 at [22]

92 Ibid

93 Ibid at [23]

94 Ibid

95 [2013] FCA 846 at [34]

96 Ibid

97 Ibid

98 Ibid at [35]

99 Statutory Declaration of Andrew TeMoho dated 26 February 2014 at [9]

100 Letter from CFMEU to the Commission dated 18 March 2014 at [27]

101 TeMoho statement at [6] - [9]

102 TeMoho statement at [11] - [14]

103 Statutory Declaration of Andrew TeMoho dated 26 February 2014 at [9]

104 Ibid at [11]

105 TeMoho statement

106 Ibid at [29]

107 Ibid at [19] - [22]

108 Statutory Declaration of Andrew TeMoho dated 26 February 2014 at [5], [9] and [11]

109 Submissions of the Director of the Fair Work Building Industry Inspectorate dated 5 December 2014 at at [56] – [57]

110 Transcript PN 40 (17 February 2015)

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