The Office of the Australian Building and Construction Commissioner v Mr Brett Harrison
[2010] FWA 1528
•26 FEBRUARY 2010
[2010] FWA 1528 |
|
DECISION |
Fair Work Act 2009
s.507 - Application for action to be taken against permit holder
v
Mr Brett Harrison
(RE2009/10011)
COMMISSIONER CARGILL | SYDNEY, 26 FEBRUARY 2010 |
Application for revocation of entry permit
[1] This decision arises from an application by Mr D Robertson, an Australian Building and Construction Inspector (ABC Inspector), pursuant to section 507 of the Fair Work Act 2009 (the Act) for an order to revoke the entry permit of Mr B. Harrison, an organiser with the Construction, Forestry, Mining and Energy Union (CFMEU).
[2] It is not in dispute that Mr Robertson has standing to bring the application. He is, and at all relevant times was, appointed as an ABC Inspector pursuant to section 57 of the Building and Construction Industry Improvement Act 2005 (BCII Act). Mr Robertson is authorised to make the application by virtue of section 73 of the BCII Act.
[3] It is also agreed that Mr Harrison is the holder of a permit to enter and inspect premises, RE2008/2338, Exhibit Applicant 2. This permit was issued on 20 May 2008 by a Deputy Industrial Registrar under Part 15 of the Workplace Relations Act 1996. The permit continues to have effect under the Act by reason of the operation of Schedule 14, Item 1 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
[4] The grounds on which the application is made are as follows:
“GROUNDS FOR THE APPLICATION
Conviction involving fraud and dishonesty
On 13 May 2009 in the Albury Local Court the Respondent was convicted of the following offences:
(a) Thirteen charges of using a false instrument with intent under section 300(2) of the Crimes Act 1900 (NSW); and
(b) One charge of obtaining money/valuable thing/financial advantage by deception under section 178BA(1) of the Crimes Act 1900 (NSW)
The above charges relate to events occurring between 9 September 2007 and 17 February 2008.
The above charges relate to his employment with Abigroup Contractors Pty Ltd.
Through his actions resulting in the convictions above the respondent fraudulently claimed a total of $3,595.00 from Abigroup Contractors Pty Ltd.
The respondent was sentenced to a twelve month good behaviour bond and ordered to pay $3,595.00 to Abigroup Contractors Pty Ltd as compensation for the above offences.”
[5] The matter was the subject of a number of mentions and directions hearings. The substantive hearing was conducted on 3 February 2010. It was heard in Sydney with a video link to Perth for the purpose of taking evidence. The applicant, Mr Robertson, provided an affidavit which became Exhibit Applicant 3. He was not required for cross-examination. Two other witnesses gave evidence in the applicant’s case:
| Human Resources Manager with Abigroup Contractors Pty Limited (Abigroup). She provided an affidavit, Exhibit Applicant 4. Her oral evidence is at PN 72-162 of Transcript; |
| General Superintendent with Abigroup. He provided an affidavit, Exhibit Applicant 5. His oral evidence is at PN 164-324 of Transcript. |
[6] Mr Harrison gave evidence. He provided two affidavits. The first, sworn on 20 January 2010, was marked Exhibit Respondent 4. The second, sworn on 1 February 2010, was marked Exhibit Respondent 5. Mr Harrison’s oral evidence is at PN 347-692 of Transcript.
[7] Evidence was given on behalf of Mr Harrison by Mr D Hall, Acting Secretary of the Australian Capital Territory Branch (ACT) of the CFMEU. Mr Hall provided an affidavit, Exhibit Respondent 6 and his oral evidence is at PN 694-734 of Transcript.
[8] Affidavits were provided by two additional witnesses on behalf of Mr Harrison. Neither witness was required for cross-examination. Those witnesses are:
| Concreter, small business employer and President of the Yass Acclimatisation Society, an organisation with which Mr Harrison is a volunteer. His affidavit is Exhibit Respondent 2; |
| Site Manager with Construction Pacific. His affidavit is Exhibit Respondent 3. |
[9] Mr Robertson was represented in this matter by Ms Hayes, solicitor with the Office of the Australian Building and Construction Commissioner. Mr Harrison was represented by Mr. Sivaraman, solicitor.
SUMMARY OF FACTS AND EVIDENCE
[10] Mr Harrison is from the A.C.T. He commenced employment with Abigroup working on the M7 project in Sydney. He worked on that project for about 18 months and during that time lived in a caravan and paid his own expenses.
[11] At the conclusion of that project Mr Harrison was directed to work on the Albury bypass project. Whilst he worked on that project he received a “distance allowance” of $220 per week. That was paid into his bank account with his wages and was noted on his payslips as a “non-taxable addition”. Mr Harrison was not required to account to Abigroup for how that money was spent.
[12] At some point whilst working on that project Mr Harrison had dinner with one of the foremen employed by Abigroup. Mr Harrison’s evidence is that this named foreman informed him that the company paid for all his living away from home expenses including meals. The foreman told him that these expenses were more than $1,600 a month.
[13] On 1 September 2007 Mr Harrison was promoted to the position of foreman and was directed to work at the Hume Highway Southern Alliance Project about 15kms north of Albury (Alliance Project). That was a salaried position. Mr Harrison’s terms and conditions are set out in a letter of appointment, Annexure AK1 to Exhibit Applicant 4. He signed the letter of appointment, however his evidence is that he did not read it closely.
[14] As a salaried employee Mr Harrison became entitled to claim a “living away from home expenses/accommodation” allowance. I note that the letter of appointment only provided for the reimbursement of accommodation. There is no mention of food or drinks. In order to claim the allowance an employee is required to submit a claim form with receipts to support each claim. Ms Kenward’s evidence is that the amount claimable was not fixed, but determined on an individual basis.
[15] Mr Harrison’s unchallenged evidence is that, shortly after being promoted, he asked his project manager about the amount of his living away from home allowance. He was informed that it was $350 per week.
[16] For much of the period during which he worked on the Alliance Project Mr Harrison stayed at the Boomerang Hotel. His evidence is that he did not keep track of the number of nights he stayed there or the amount of food and beverages he purchased. Sometimes he paid in cash, sometimes by credit card and at times the food and beverages were charged to his room. Mr Harrison’s evidence is that he was unaware of the cost per night of his accommodation.
[17] Mr Harrison’s evidence is that, at first, he asked the hotel for receipts amounting to $300 per week. From about the middle of October 2007 he asked for receipts for $350 per week as he felt that $300 was probably not covering all his expenses.
[18] Mr Harrison submitted and was paid in respect of seven separate “expense report” claims during the period of 9 September 2007 through to 9 March 2008. Each of the claims was accompanied by tax invoices from the Boomerang Hotel. The claim forms and the tax invoices are at Annexure AK2 to Exhibit Applicant 4.
[19] Each of the claims was for an amount which was greater than the actual accommodation costs which were incurred by Mr Harrison. In some instances this difference was related to the number of nights of accommodation charged for and the number claimed. In other instances the difference related to the cost per night charged and the cost claimed. In several claims the difference was due to a combination of both of these factors.
[20] Two of the claims were made in respect of periods during which Mr Harrison did not stay at the Boomerang Hotel. His evidence is that he stayed at another hotel at that time. Mr Harrison’s evidence is that he supplied receipts from the Boomerang and not the other hotel because of convenience as he had his meals there. His evidence is that he knew he was submitting receipts from the wrong establishment but thought it didn’t matter as he wasn’t “double dipping” or claiming more than his entitlement.
[21] The details of the discrepancies in the claims are set out in the police Facts Sheet which is Annexure BH2 to Exhibit Respondent 4. The total of the differences between the accommodation charged for and the amounts claimed is $3,595. I note that there is no offsetting for the accommodation costs at the other hotel stayed at by Mr Harrison for which he presumably would have been entitled to claim.
[22] Mr Bull’s evidence is that, in February or March 2008, the issue of the accommodation receipts was brought to his attention. He undertook various inquiries and, as a result, a meeting with Mr Harrison and various company representatives including Ms Kenward was held on 11 March 2008. At the conclusion of the meeting Mr Harrison was informed that he was to be summarily dismissed.
[23] During April 2008 Mr Harrison was offered the position with the CFMEU. The union applied for a right of entry permit on his behalf. That application, dated 8 May 2008, is part of Exhibit Applicant 2. It is in the standard format for such applications and includes a declaration by Mr Harrison that, among other things, he had not been convicted of an offence involving fraud or dishonesty.
[24] In June 2008 Mr Harrison was charged with several counts of using a false instrument with intent and one count of obtaining money by deception. He sought legal advice. His evidence is that he then realised that what he had done was wrong and that he should not have used the incorrect receipts. Mr Harrison’s evidence is that as soon as he realised this he decided to plead guilty at the first opportunity.
[25] The charges were dealt with at the Local Court in Albury on 13 May 2009. Mr Harrison pleaded guilty. Convictions were recorded in respect of 13 offences as charged. Mr Harrison was placed on a 12 month good behaviour bond. As part of the proceedings that day Mr Harrison paid into the Court the amount $3,595 to be forwarded to Abigroup. Mr Harrison’s evidence is that he had previously attempted to find out how much he owed but that 13 May was the first time he had been made aware of the amount.
[26] Mr Harrison’s evidence is that he estimates that he has exercised his right of entry on more than 500 occasions. During those visits he has provided employees with information and assistance about various industrial and occupational health and safety issues.
[27] There is no suggestion that Mr Harrison has ever abused his right of entry powers. His evidence is that he has exercised that right on three different sites managed by Baulderstone Pty Ltd. The Project Manager for those sites has provided a reference for Mr Harrison, Annexure BH5 to Exhibit Respondent 5. The reference is in very positive terms and specifically notes that Mr Harrison has conducted himself in accordance with the National Code of Practice for the Construction Industry.
[28] In each of their respective affidavits, Exhibits Respondent 2 and 3, Mr Pollack and Mr Starr speak of Mr Harrison in very positive terms. Each attests to Mr Harrison’s honesty and trustworthiness in his dealings with them. Each also states that Mr Harrison is a fit and proper person to exercise right of entry powers.
[29] Mr Hall’s evidence is that he has accompanied Mr Harrison on more than 50 occasions when he has been exercising his right of entry. On each occasion Mr Harrison acted in a very professional manner. Mr Hall provided an example of such an instance. Mr Hall’s evidence is that he thinks Mr Harrison is a person of integrity and a fit and proper person to exercise right of entry. His evidence is that he believed that the offences committed by Mr Harrison were due to a lack of understanding and sophistication.
[30] Mr Harrison is the primary income earner for his family. He has a partner who works 5 to 10 hours per week at the local club. They have two children, one eight years old and the other who will turn four this year. The family has a mortgage on their home.
[31] Mr Hall’s evidence is that, if Mr Harrison’s permit is revoked he will be unable to carry out the required duties of his position. Mr Hall’s evidence is that he would have no choice but to terminate Mr Harrison’s employment.
[32] Mr Harrison’s evidence is that he is remorseful for what occurred. He accepted that he had done the wrong thing and so pleaded guilty to the charges against him. Mr Harrison’s evidence is that he had never been in any trouble prior to that time, had not been in trouble since and did not intend to be in any future trouble.
[33] Mr Harrison is involved in various community activities. He is a member of a volunteer bush fire brigade, plays rugby league and organises charity events. As indicated earlier in this decision he is a member of the Yass Acclimatisation Society which stocks dams and waterways with native fish. Mr Harrison is also involved in the Ngunnawal Aboriginal Corporation. A reference from the Manager of that body is Annexure BH4 to Exhibit Respondent 4.
[34] Mr Bull’s evidence is that Abigroup is presently working on a number of sites in the A.C.T. area. In particular the company is a joint partner in the Bulk Water Alliance which has at least five projects in the area.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[35] Ms Hayes referred to the provisions of section 507, 513 and 517 of the Act and the interaction between them.
[36] She submitted that a range of circumstances were relevant to the determination of this matter. Mr Harrison is an organiser with the CFMEU and is defined as a building industry participant under the BCII Act. The employer in connection with which he carried out the actions which led to his convictions is also a building industry participant under that Act. Mr Harrison’s right of entry permit gives him power to enter that employer’s premises.
[37] Ms Hayes submitted that there were a number of aggravating features in Mr Harrison’s offences. He had been promoted to a position of importance and trust and within a week of that promotion had begun to obtain falsified invoices. She noted that the amounts claimed by Mr Harrison escalated in terms of both their monetary value and the number of nights claimed. Ms Hayes also noted that the offences occurred over a period of five months and involved an amount of over $3,000.
[38] Ms Hayes submitted that the position of a permit holder is one of trust. The incumbent of such a position is able to exercise very important rights. They are entitled to enter premises, interview persons, inspect work processes and documents, copy documents and exercise rights under relevant occupational health and safety legislation.
[39] Ms Hayes submitted that, in the context of such rights, the offences for which Mr Harrison was convicted are very relevant to whether or not he is a fit and proper person to hold a permit. This is especially relevant given that the offences were carried out against another building industry participant.
SUBMISSIONS ON BEHALF OF MR HARRISON
[40] Mr Sivaraman noted that the only basis upon which the appliction had been brought was the fact of Mr Harrison’s convictions. He submitted that those convictions were only one of the factors to be considered in my determination. Section 507(1) of the Act provided that the making of an order to revoke a right of entry permit was discretionary.
[41] Mr Sivaraman noted that there is limited authority on the approach to be adopted in matters such as this. He referred to a decision of Deputy Industrial Registrar Jenkins in a matter concerning the issue of a right of entry permit for an official of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2008] AIR 814 (CEPU case).
[42] Mr Sivaraman submitted that, although that matter was heard under the previous legislation, comments about whether someone is a fit and proper person and the exercise of discretion remained relevant. He referred in particular to paragraph 8 of the decision and noted the reference therein to the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond’s case).
[43] Mr Sivaraman noted that the evidence had shown that Mr Harrison had been properly exercising his right of entry powers for almost two years without any complaint about his conduct. There had been no recurrence of the behaviour for which he was convicted and indeed no dishonest conduct at all since that time. Mr Sivaraman submitted that the references and uncontested statements produced on behalf of Mr Harrison attested to him being a person of good character and someone who is a fit and proper person to hold a right of entry permit.
[44] Mr Sivaraman submitted that the evidence also demonstrated that, in exercising his right of entry, Mr Harrison had been providing information and assistance to employees sometimes in cases of great significance.
[45] Mr Sivaraman noted that Mr Harrison was remorseful for his earlier conduct. He submitted that it was not a sophisticated or carefully planned crime but more like a failure to pay proper regard to the way in which Mr Harrison should have conducted himself. Mr Sivaraman submitted that Mr Harrison’s conduct was not that of a person who posed a threat to employers. Neither should his conduct affect perceptions of or assumptions about him now. Mr Harrison had been penalised for his actions which had not occurred whilst he was a union official or in the course of exercising a right of entry. The comments of the Magistrate in sentencing Mr Harrison were also of relevance.
[46] Mr Sivaraman submitted that Mr Harrison’s behaviour in the last two years was more relevant and should be given greater weight: CEPU case @ paragraph 65.
[47] Mr Sivaraman referred to the objects in section 480 of the Act. He noted that those objects were different to the relevant objects in the previous legislation. In particular there is a new object concerning the right of employees to receive information and representation from union officials. Mr Sivaraman also noted that other objects in the earlier legislation had not been included in the Act.
[48] Mr Sivaraman submitted that, in view of the changes in the relevant objects, the discretion to revoke or suspend a right of entry permit should only be exercised if the decision maker was convinced that it was necessary to protect the right of employers to go about their business without undue convenience.
[49] Mr Sivaraman also submitted that a right of entry was an important and valuable right, a point which had been recognised for a long time. In this regard he referred to the following decisions: In reIron and Steel Works Employees (Australian Iron & Steel Limited) Conciliation Committee 1937 A.R. 178; Application by Real Estate Association of N.S.W., Industrial Commission of New South Wales,AILR @ 461; and, H W Thompson Pty Ltd v CFMEU [PR908721]. Mr Sivaraman submitted that such an important right should be revoked only where there is evidence of a real risk to employers.
[50] Mr Sivaraman submitted that revocation of Mr Harrison’s permit would be unfair and a gross injustice. It would not satisfy the objects of the Act but rather would be a punitive measure. He noted the evidence of the substantive effect such action would have upon Mr Harrison and his family.
CONCLUSIONS
[51] Part 3-4 of the Actdeals with right of entry. The object of the Part which is set out in section 480 provides as follows:
“The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF outworkers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”
[52] The powers of FWA in dealing with right of entry matters are contained in Division 5 of Part 3-4. Section 507 provides that, on application by an inspector or prescribed person, FWA may take action against a permit holder. That action may involve the imposition of conditions on the permit or the suspension or revocation of the permit. Subsection (2) of the section provides that, in deciding whether to take action, FWA must take into account the “permit qualification matters”.
[53] “Permit qualification matters” are set out in section 513. The section provides that, in deciding whether an official to whom it is contemplated a permit may be given is a fit and proper person, FWA must take into account a number of “permit qualification matters”. The matter which is of particular relevance in this case is that contained in paragraph (c) of subsection (1). That provides:
“(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;”
[54] There is no dispute in this case that Mr Harrison has been convicted of offences against the law of New South Wales involving fraud and dishonesty. It is important to note that those convictions concern conduct relating to Mr Harrison’s former employer which is a large building industry participant under the BCII Act, an industry in which Mr Harrison exercises his right of entry. However that of itself does not mean that he is not a fit and proper person to hold a right of entry permit.
[55] In the absence of a definition of the term “fit and proper person” in the legislation the best guidance on its meaning comes from the High Court in the extract from Bond’s case set out at paragraph 8 of the CEPU case referred to above. For ease of reference that extract is repeated here:
“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 an indication of likely future conduct) or reputation (because it provides an indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”
[56] I accept that Mr Harrison’s conduct which formed the basis for his convictions was improper conduct. As a result of that conduct he lost his job and has criminal convictions on his record. However, there is nothing before me to suggest that Mr Harrison is likely to engage in any similar conduct or indeed any conduct involving dishonesty in the future.
[57] For a period of almost two years Mr Harrison has been exercising right of entry powers under his permit without any suggestion of improper conduct on his part or indeed any complaint about his behaviour at all. There is no contest in the evidence on this point. In addition, the evidence is that, during the course of his duties as an organiser, Mr Harrison has provided information and assistance to employees and has done so in an appropriate and responsible manner. This activity furthers the objects set out in paragraph (b) of section 480.
[58] There is no evidence that Mr Harrison has engaged in any conduct which has adversely affected the rights of occupiers and employers to go about their business without undue inconvenience. I appreciate that Abigroup is involved in a number of projects in the area of the A.C.T. However there is nothing to suggest that, if there was a need for Mr Harrison to attend any of those projects, his presence would cause undue inconvenience to Abigroup or any other employer on site.
[59] I accept that Mr Harrison is genuinely remorseful for the actions which led to his convictions. I have confidence, and am of the view that the general community could have confidence, that Mr Harrison’s previous improper conduct would not reoccur.
[60] Mr Hall’s evidence is that, if Mr Harrison’s permit is revoked, he will have no choice but to terminate Mr Harrison’s employment as he will be unable to carry out the inherent requirements of his job. That will clearly have a detrimental impact upon Mr Harrison and his family.
[61] In all of the circumstances I consider Mr Harrison to be a fit and proper person to hold a right of entry permit. I have decided that I should not exercise my discretion to revoke Mr Harrison’s permit.
[62] In my view this is not a case in which either suspension of the permit or the imposition of conditions upon its use is warranted. Suspension may be useful in situations where there has been misuse or abuse of a permit. That is not the case in this matter. Requiring Mr Harrison to undertake further education and training in the rights and responsibilities of a permit holder would have little utility in the circumstances.
[63] There is no condition which I consider should be imposed upon the use of Mr Harrison’s permit. It may be that if Mr Harrison is required to attend an Abigroup site he may wish to be accompanied by another CFMEU official. However I am not inclined to impose such a condition upon him.
[64] The application is refused.
COMMISSIONER
Appearances:
E. Hayes, solicitor, for the Office of the Building and Construction Commissioner.
G. Sivaraman and A Bucknell, solicitors, for and on behalf of Mr B. Harrison.
Hearing details:
2009
Sydney/Canberra -Video Link
July 16, 29,
Sydney
October 2, 20,
2010
Sydney/Perth - Video Link
February 3.
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