"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)- Victorian Branch [2017] FWC 346

1 Fair Work Act 2009 s.512 - Application for a right of entry permit "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)- Victorian Branch (RE2016/1489) DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 18 JANUARY 2017 Application for a right of entry permit for John Webb; satisfied that fit and proper person; permit issued. Introduction [1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr John Webb. Mr Webb is employed as an organiser within the Victorian State branch of the AMWU. [2] The Australian Building and Construction Commissioner (Commissioner) filed and served a written submission in relation to the application. The submission addressed inter alia the permit qualification matters so far as they raised relevant matters relating to Mr Webb and the AMWU’s application, but the Commissioner did not make any submission as to whether an entry permit should be issued to Mr Webb and was otherwise content for the application to be determined without a hearing. Relevant statutory provisions and application [3] Subdivision A, Division 6 of Part 3 – 4 of the Act contains provisions dealing with entry permits. So far as it 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: [2017] FWC 346 DECISION -- 1 of 10 -- [2017] FWC 346 2 (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 of 10 -- [2017] FWC 346 3 (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).” [4] In Maritime Union of Australia v Fair Work Commission and Another1 (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 Full Court observed the following: “[13] 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. [14] 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– 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 439–440 per von Doussa J. [15] 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 1 [2015] FCAFC 56. -- 3 of 10 -- [2017] FWC 346 4 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. [16] 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’. [17] 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.’”2 [5] The Full 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 in s.513 of the Act 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.3 [6] The Full Court also concluded that conditions may be imposed pursuant to s.515 of the Act to remedy or address deficiencies or reservations in respect of a proposed permit holder, which deficiencies or reservations could otherwise lead to the conclusion that the person was not fit and proper.4 2 Ibid at [13]–[17]. 3 Ibid at [42]. 4 Ibid at [43]. -- 4 of 10 -- [2017] FWC 346 5 [7] Before MUA was decided, the relevant principles applicable to applications of this kind were usefully summarised by Vice President Hatcher in Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia5 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.” 6 [8] It would seem to me self-evident, having regard to the structure and content of s.513, that in deciding whether an official of a registered organisation is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. Whilst it will often be the case that the likely area of focus and 5 [2015] FWC 1522. 6 Ibid at [32]. -- 5 of 10 -- [2017] FWC 346 6 attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight. [9] 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 and the assessment of the fitness and propriety of a proposed permit holder, in light of the power to impose conditions when a permit is issued and the Full Court’s observations about weight attaching to the permit qualification matters.7 With those modifications and the observation I have made in the preceding paragraph, I respectfully agree with and adopt the Vice President’s summary. [10] I turn to consider the application. Consideration [11] Mr Webb commenced as an apprentice boilermaker with the former State Electricity Commission of Victoria (SECV) at the Yallourn power station in January 1979. In about 1982, he joined a union now known as the Australian Manufacturing Workers' Union, and has since remained a member. On completing his apprenticeship, Mr Webb continued his employment at SECV until 1993. Mr Webb thereafter commenced employment with a maintenance contractor, Silcar, which had been engaged at the Morwell mine operated by SECV. He remained in that employment for about 18 months. Mr Webb subsequently worked in heavy engineering construction and maintenance in Victoria and interstate with various employers until he commenced employment as a full-time organiser with the AMWU on 17 October 2016. [12] Mr Webb has not previously held a right of entry permit under the Act or any predecessor legislation. Permit qualification matters – s.513(1)(a), (b), (c), (e) and (f) [13] According to the declarations filed by the AMWU in support of the application for the grant of a permit to Mr Webb (the Declarations):  Mr Webb has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of federal right of entry conducted by the ACTU on 19 October 2016 (s.513(1)(a) of the Act);  He has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act); 7 [2015] FCAFC 56 at [25] and [43]. -- 6 of 10 -- [2017] FWC 346 7  He has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;  He has not had any entry permit issued under Part 3 – 4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act);  He has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Webb held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act); and  He has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act). [14] None of the above was disputed by the Commissioner and I accept that this information as disclosed in the Declarations concerning these matters is accurate and correct. Permit qualification matters – s.513(1)(d) [15] The Declarations also disclose that Mr Webb has never been ordered to pay a penalty under the Act or any other industrial law in relation to his action, nor has any other person been ordered to pay a penalty in respect of any such action. At the time that the Declarations were made on 26 October 2016 that information was correct, however as disclosed in the Declarations, on 13 February 2015, Mr Webb engaged in unprotected industrial action and a proceeding in the Federal Court of Australia8 in relation to that conduct was at the time pending. The Declarations disclose that Mr Webb cooperated with the applicant in that proceeding and that in the agreed statement of facts had been filed, in which Mr Webb, the fifty-second respondent makes an admission in respect of conduct in contravention of s.417(1)(a) of the Act. [16] On 25 November 2016, Justice Tracey made declarations in the above-mentioned proceeding, so far as is relevant, that Mr Webb had failed and refused to attend for work on 13 February 2015, without authority from his employer in contravention of s.417(1) of the Act and ordered that Mr Webb pay a pecuniary penalty of $1000 in respect of his contravention.9 [17] In his reasons for judgement, Justice Tracey observed: “It was not suggested that specific deterrence should be treated as a significant consideration in the circumstances of the present case. It was agreed that no respondent had previously contravened the Act. On the other hand none of them proffered an apology, expressed 8 Director of the Fair Work Building Industry Inspectorate v Robert Ellen and Ors (VID 147 of 2016). 9 Director of the Fair Work Building Industry Inspectorate v Robert Ellen and Ors [2016] FCA 1395. -- 7 of 10 -- [2017] FWC 346 8 contrition or gave an assurance that he would, in future, familiarise himself with and observe the legal constraints which fell upon him under the Act.”10 [18] In the current application, Mr Webb filed a statement dated 10 January 2017 and indicated he would make himself available for cross-examination if required. In that statement, Mr Webb provides some context about his conduct on 13 February 2015 and relevantly, having regard to His Honour’s observation above, he now says: “22. Upon taking on my job as a union official, I now appreciate that the current system of industrial laws requires that we all must follow rules about how workers are compensated, how parties can protest, and how redress can be sought for unlawful protest or breaches of the rules. 23. I might not agree with the laws in place from time to time, but if I am to take the benefit of the laws, I must follow them just like everyone else. If I want to bring about changes in the law, there is a political process to follow. 24. In particular, I realise that if I am granted a right of entry permit, I will have special rights above those I currently hold. Subject to various conditions, I will be given powers to enter premises against the wishes of the occupiers of the premises and to view and inspect things to investigate suspected contraventions of industrial laws. 25. I accept that it would not be fair for me to take the benefits of these rights and powers if, at the same time, I paid scant regard to the obligations the Fair Work Act imposed on me. 26. As a union official and permit holder (if granted), I would be expected to uphold the law and not infringe it-this I fully understand and accept.” [19] Although these statements do not amount to an apology or an expression of contrition for the conduct in relation to which a pecuniary penalty was imposed, the statements serve as an indication that Mr Webb understands that he must comply with the law and has given an assurance that he will do so, and I accept the statements as truthful and genuinely given. [20] As his Honour observed above, Mr Webb had not prior to 13 February 2015 engaged in conduct in contravention of the Act, and there is no suggestion that he has done so since. I have taken into account the contravening conduct that resulted in the imposition of a pecuniary penalty and Mr Webb’s attitude to compliance with the law as set out in his statement of 10 January 2017 in attributing appropriate weight to this particular permit qualification matter. Permit qualification matters –s.513(1)(g) [21] There are no relevant matters of which I am aware or which have been disclosed by the AMWU or Mr Webb, or raised by the Commissioner. Conclusion [22] The nature of the contravening conduct engaged in by Mr Webb is conduct of a serious kind and ought not lightly be disregarded. As his Honour observed: 10 Ibid at [35]. -- 8 of 10 -- [2017] FWC 346 9 “The decision of each respondent to take industrial action rather than have resort to the dispute settling mechanism in their enterprise agreement must, therefore, be viewed seriously: cf Esso Australia Pty Ltd v Australian Workers’ Union [2015] FCA 758; (2015) 253 IR 304 at [175] (Jessup J); Director of the Fair Work Building Industry Inspectorate v Merkx [2015] FCA 316 at [28] (Besanko J). The catalyst for the strike action was the perceived injustice to a fellow employee. That does not diminish the seriousness of the contravention or otherwise assist the respondents. As Gilmour J observed in Hadgkiss v Aldin [2007] FCA 2068; (2007) 164 FCR 394 at [97]: “The respondents’ perception that Ballard’s dismissal was unfair or unlawful did not constitute a warrant for the unlawful industrial action, nor does it constitute any relevant mitigating circumstance. It would be extraordinary if a wilful disregard of the main object of the legislation, and in particular, in this case, the promotion of the rule of law, should be regarded as somehow mitigating the contravention.” The contraventions, with which his Honour was dealing, arose under the Workplace Relations Act 1996 (Cth). Section 417 of the Act, which the respondents have contravened, is one of the foundation stones on which the scheme of enterprise bargaining is based: disregard of the proscriptions (whether intentional or reckless) undermines the workplace stability which is meant to apply during the life of agreements.”11 [23] Such conduct appropriately raises questions about Mr Webb’s fitness and propriety to hold an entry permit. The contravening conduct was deliberate, caused inconvenience and disruption to or at the Longford Gas Plant, and it appears was a deliberate industrial strategy deployed instead of utilising and thus, showing a disregard for alternative and lawful means by which employee grievances should be resolved. Mr Webb’s conduct also displayed a disregard for important industrial laws which regulate or proscribe particular conduct and for the rights of others. Weighed against this, is the fact that the conduct engaged in on 13 February 2015 appears to have been the first and the only occasion on which Mr Webb has engaged in contravening conduct resulting in the imposition of a pecuniary penalty; that there are no other identified permit qualification matters which would tell against Mr Webb’s fitness and propriety to hold a permit and the fact that Mr Webb has recently received appropriate training about the rights and obligations of a permit holder and he seems to well understand those rights and obligations. In addition, Mr Webb has given a statement in which he acknowledges his obligation to comply with the law and gives an assurance that he will do so. [24] Ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Webb for his past wrongdoing. The assessment is whether having regard to the permit qualification matters, some of which discloses past wrongdoing, Mr Webb is now a fit and proper person to hold an entry permit. Taking into account the totality of the material and for the reasons already given, I am satisfied that Mr Webb is a fit and proper person to hold an entry permit. Given this conclusion it is unnecessary to consider the question of conditions that might be imposed under s.515 of the Act. 11 ibid at [32]. -- 9 of 10 -- [2017] FWC 346 10 [25] The application is therefore granted. An entry permit will be issued to Mr Webb separately. DEPUTY PRESIDENT Written submissions: The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 10 January 2017. The Australian Building and Construction Commissioner, 15 December 2016. Printed by authority of the Commonwealth Government Printer <Price code C, PR589466> -- 10 of 10 --