| [2022] FWC 2332 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.512—Right of entry
Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2022/360)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 2 SEPTEMBER 2022 |
Application by CFMMEU for issue of right of entry permit for Dean Lesley Rielly – not satisfied that fit and proper person – application dismissed.
[1] On 10 May 2022 the Construction, Forestry, Mining and Energy Union (Applicant) made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Dean Lesley Rielly, who is employed by the CFMMEU.
[2] Mr Rielly has been employed as an Organiser with the Applicant for about six years. For almost all of that time he has held right of entry permits under the Act and the Work Health and Safety Act 2011. Mr Rielly’s current permit under the Act was due to expire on 24 June 2022. On 14 June 2022, I extended the time for expiry of that permit until the application for a new permit was determined. 1
[3] On 14 June 2022, I made directions permitting the Applicant and the Australian Building and Construction Commissioner (ABCC) to file and serve material in relation to the application for a new entry permit for Mr Rielly. Both parties filed and served material in accordance with those directions. I have read and considered those materials.
[4] By consent, I have determined this application ‘on the papers’, being the material filed and served by the Applicant and the ABCC.
[5] Part 3–4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.
[6] The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, 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. 2
[7] Part 3–4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 3 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.4 Accordingly, the right of entry scheme established by Part 3–4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.5
[8] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold the entry permit. The Commission’s discretion whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the “permit qualification matters” set out in s.513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose. 6
[9] Section 513 of the Act sets out the permit qualification matters as follows:
“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.”
[10] Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:
“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).”
[11] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 7 Vice President Hatcher set out the following principles relevant to the interpretation and application of sections 512 and 513(1) of the Act as follows:
“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, 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] FWFCB 7194. The relevant principles may be summarised 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.”
[12] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 8, a Full Court of the Federal Court of Australia made the following observations in relation to the phrase “a fit and proper person”:
“[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.’” 9
[13] In MUA v FWC, the Full Court ultimately concluded as follows:
“[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work 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 decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged ‘unreasonableness’.” 10
[14] I will now take into account all of the permit qualification matters specified in s 513(1) of the Act in relation to the application for an entry permit for Mr Rielly.
[15] I am satisfied on the basis of information contained in the application, declarations made by Mr Michael Ravbar, Divisional Branch Secretary of the Applicant, and Mr Rielly, and the affidavit made by Mr Brian Lacy AO on 27 June 2022, that:
(a) Mr Rielly received appropriate training about the rights and responsibilities of a permit holder on 26 April 2022 and 21 June 2022 (s 513(1)(a) of the Act);
(b) Mr Rielly has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);
(c) Mr Rielly has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, or fraud or dishonesty, or intentional use of violence against another person or intentional damage or destruction of property (s 513(1)(c) of the Act);
(d) Mr Rielly has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions (s 513(1)(e) of the Act); and
(e) Mr Rielly has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit (s 513(1)(f) of the Act).
[16] The permit qualification matters set out in s 513(1)(a), (b), (c), (e) and (f) of the Act weigh in favour of a conclusion that Mr Rielly is a fit and proper person to hold an entry permit.
Permit qualification matter – s 513(1)(d)
[17] In ABCC v Rielly (No 3) (Coffs Harbour Hospital Case), 11 Mr Rielly was ordered to pay a pecuniary penalty of $10,000 for contravening ss 340, 346, 348 and 355 of the Act. The Applicant was ordered to pay a pecuniary penalty of $80,000 for contravening the Act, partly as a result of Mr Rielly’s conduct. The contravening conduct took place in January and March 2019. In his liability judgment,12 Judge Driver made the following relevant observations and findings:
“[6] These proceedings concern events that occurred between January and March 2019 with regard to the construction of extensions worth $120 million to Coffs Harbour Hospital by Health Infrastructure, a division of NSW Health, at 345 Pacific Highway, Coffs Harbour in New South Wales (the Project).
[7] The principal contractor for this construction work was CPB Contractors Pty Ltd (CPB). CPB operated a Precast Facility Yard at the corner of Engineering Drive and Industrial Drive, North Boambee Valley (the Yard) at which it manufactured precast concrete elements for the Project, transported after their manufacture to the Project by CPB for installation.
…
[9] The events allegedly involve contraventions by the respondents of civil penalty provisions of the Fair Work Act, specifically:
(a) section 348 – a person must not threaten to organise or take action against another person with an intent to coerce the other person to engage in industrial activity: allegedly contravened by each of Mr Rielly and Mr Fitzpatrick;
(b) section 355 – a person must not threaten to organise or take any action against another person with an intent to coerce the other person to employ or not employ a particular person (s 355(a)), or to engage or not engage a particular independent contractor (s 355(b)): allegedly contravened by each of Mr Rielly and Mr Fitzpatrick;
(c) section 346 – a person must not take adverse action against another person because the other person engages in industrial activity, including, by reason of s 362, by advising, encouraging or inciting someone else to take such adverse action against that other person: allegedly contravened by Mr Rielly; and
(d) section 340 – a person must not take adverse action against another person because the other person had not exercised a workplace right by making an enterprise bargaining agreement (s 341(2)(e)), including, by reason of s 362, by advising, encouraging or inciting someone else to take such adverse action against that other person: allegedly contravened by Mr Rielly.
…
[12] The final position of the respondents is:
(a) Mr Rielly filed an amended defence denying each of the alleged contraventions and some of the facts forming their basis;
(b) Mr Fitzpatrick has maintained a claim of privilege against exposure to civil penalties and has not filed any amended defence and elected to call no evidence; and
(c) the Union has filed an amended defence reflecting Mr Rielly’s amended defence and Mr Fitzpatrick’s defence (so far as it applies to him) and has called no evidence of its own.
[13] Some formal matters are not in dispute:
(a) the Commissioner is entitled to apply for the relief sought in relation to the contraventions under his statutory powers in the Fair Work Act;
(b) each of Mr Rielly and Mr Fitzpatrick was at the relevant times a member, and employed officer, agent and official of the Union;
(c) CPB operated the Yard;
(d) the Union was an “industrial association” within the meaning of s 363 and a “body corporate” within the meaning of s 793.
…
[16] In early 2019 CPB employed four full time workers at the Yard to manufacture elements for the Project, all of whom were covered by the Leighton Contractors Coffs Harbour Precast Facility Agreement 2015-2019, which had a nominal expiry date of 23 March 2019 (the CPB EBA7). The CPB EBA identified the Australian Workers’ Union (AWU) as the relevant “union” covered.
[17] On 4 March 2019 Brad Hooper, the Industrial Relations Manager of CPB, possibly with Mr Percival and Mr Whitaker, met with the CPB employees at the Yard and provided them with a proposed new CPB EBA for consideration. The new EBA was later agreed to and was lodged and approved on 13 June 2019.
[18] CPB also engaged a labour hire company, Telum Precast (Qld) Pty Ltd (referred to as “Telum”), which provided approximately 40 workers to the Yard. Those workers were not covered by any Union EBA, but are said to have been covered by a non-union EBA known as the TCL Solutions Pty Ltd Enterprise Agreement 2016.
[19] There was in existence at the relevant time a separate Union EBA that covered the CPB construction workers located at the Project site (but not the Yard), known as the CPB Contractors CFMEU New South Wales Building Agreement 2018, with a nominal expiry date of 31 December 2018.
…
[22] The Commissioner’s central case is that Mr Rielly sought that the CPB site be covered by an enterprise agreement covering the Union. The respondents contend that, even if that demand was made, it was not unlawful. There is said to have been no workplace right to make such an agreement. The respondents assert that the subsidiary claims as to Telum fail for different reasons, being that at no stage did it ever receive, let alone entertain, a claim from the Union.
…
[171] The evidence establishes a factual case that is consistent with the hypothesis that Mr Rielly was actuated by an intent to negate the choice of CPB.
[172] I find from the evidence presented by the Commissioner that, in the absence of any Union EBA covering the workers at the Yard, Mr Rielly made a threat to prevent the delivery to the Project of precast products, coupled with a demand that all of the workers in the Yard be members of the Union and therefore covered by a Union EBA. Mr Fitzpatrick did also attend one of the meetings but let Mr Rielly do the talking. He is alleged to have intervened at the crucial point to ram home the genuineness of the threat articulated by Mr Rielly, thus giving his endorsement and authority to the threat. In their oral evidence neither Mr Percival nor Mr Whitaker could recall Mr Fitzpatrick saying the words attributed to him, or indeed anything else he may have said. He was present throughout the meeting, did not disassociate himself from what Mr Rielly was saying, and allegedly lent his aid to Mr Rielly’s threatening conduct by his presence and approval of Mr Rielly’s conduct. He was, however, in my view, no more than a merely passive observer.
[173] There is evidence of an intent in Mr Rielly but not Mr Fitzpatrick to negate CPB’s choice, or, alternatively, such an intent can be readily inferred. The Commissioner seeks to draw support for the allegations against Mr Fitzpatrick from the written evidence of Mr Percival and Mr Whitaker. However, as the Commissioner concedes, their affidavits were prepared in part for them, at least in relation to template formal parts. Other substantive parts of their written evidence bear a material similarity. While that does not concern me in relation to the alleged conduct of Mr Rielly, in relation to Mr Fitzpatrick, to the extent that the oral evidence of Mr Percival and Mr Whitaker conflicts with their written evidence, I prefer their oral evidence. The role played by Mr Fitzpatrick can and should be discounted.
[174] The Commissioner relies on s 361 of the Fair Work Act, which applies to the first element of s 348, to the effect that unless Mr Rielly proved otherwise it is presumed that he took the action he did with that particular intent. Section 361 applies to threats to organise or take action for the purposes of s 348.
[175] The High Court has stated that usually the presumption of intent provided for by s 361 will ordinarily be difficult to rebut unless the person taking the alleged action gives evidence as to his or her actual intention or reasons for acting. Mr Rielly did give evidence. In his affidavit he stated that he had had conversations with the workers at the Yard in which they had raised safety issues, and he also asserted that the “issues” with various contractors, the engagement by CPB of which he was opposing in text messages to Mr Ryan, related to safety matters. However, it was not suggested in any of his evidence, and not recorded in the notes of conversations made with him by Mr Gray and Mr Ryan, or in any of the statements made by Mr Ryan, Mr Gray, Mr Percival and Mr Whitaker, that safety issues were in any way related to his motivations when having the relevant conversations relied on in these proceedings.
[176] Mr Rielly did make mention to the CPB managers that he considered the AWU workers employed by CPB and the Telum workers to be underpaid or incorrectly paid. Mr Rielly accepted, as was the position as explained by Mr Percival, that any difference in payment was a product of the different awards that applied, but the way in which he intended to overcome this “issue”, he accepted, was by the very requirements he was seeking to impose on CPB, having the workers join the Union and be covered by a Union EBA. The evidence establishes that Mr Rielly’s primary motivation was to organise the Yard, increase Union membership and have a Union EBA cover the workers. Even if increasing wages was part of that motivation, that does not preclude Mr Rielly having the intent to coerce for the purpose of having the workers become members of the Union and being covered by a Union EBA. Indeed it would reinforce the conclusion that he had that motivation. In any event, that motivation need only be one of multiple motivations.
…
[180] The Commissioner submits and I accept that the threatened conduct, that of preventing the CPB trucks entering the Project site to deliver the precast elements for the Project, if carried out effectively as threatened, necessarily involved picketing the Project site in the sense of obstructing entry to the site and besetting, and therefore would constitute a nuisance and unlawful conduct. In Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia the NSW Court of Appeal affirmed that picketing outside a person’s hotel if persisted in, for the purpose of persuading tradesmen and their employees from delivering supplies vital to the running of the hotel in order to compel that person to submit to the person’s demands, is a common law nuisance.
[181] Further, the threatened conduct would have constituted an intentional inducing or procuring a breach of contract, the contract being that between Health Infrastructure and CPB, of which the respondents were aware, which they would have known would be breached if CPB failed to deliver precast product to the Project site in accordance with the scheduled use of sub-contractors on site, and would result in loss and damage to Health Infrastructure.
[182] Furthermore, the conduct threatened was illegitimate or unconscionable conduct which in its nature was likely to, and did, produce real concern and belief in CPB that it would be carried into effect with real and serious potential consequences. As such there was no reasonable or justifiable connection or proportionality between the pressure applied and the demand that the pressure supported. It was disproportionate to insist that the products manufactured by the Yard should be prevented from being delivered to the Project, causing the Project to stall and be delayed, and for workers to lose their jobs, merely because the Union was pursuing a demarcation dispute with the AWU and wished the workers at the Yard to be covered by a Union EBA.
[183] I accept the evidence presented on behalf of the Commissioner that the threats were made in a deliberate and direct manner, and, on 5 March 2019, delivered in an at times heated conversation in which Mr Rielly swore and raised his voice, citing to Mr Percival and Mr Whitaker the previous blockades effected by the Union of precast deliveries to construction sites to give force and substance to his threats. The threats by Mr Rielly were made over a period of time to several senior representatives of CPB and were foreshadowed by, and followed up by, the meeting with, and phone calls to, Mr Gray and Mr Ryan. The threats were not a one-off isolated utterance.
[184] The action which was threatened, if not unlawful, would have constituted illegitimate or unconscionable conduct for the same reasons. The threat was to interfere with the performance of CPB’s contract with Health Infrastructure by preventing it delivering the contracted for precast products to the Project. Such interference with contractual relations, in a business, not a legal, sense has been held to be illegitimate conduct. Depending upon the circumstances it might, if taken, have infringed s 45D of the Competition and Consumer Act 2010 (Cth) as a secondary boycott.
[185] Conduct of a similar nature has been held to be illegitimate conduct:
(a) threatening to put a company out of business if a particular scaffolding contractor was not engaged;
(b) threatening to organise stoppages of work;
(c) threatening to return the next day to continue a blockade;
(d) threatening to disrupt work on the site, or other sites of the contractor, if the contractor did not have its workers join the Union and pay union fees to the Union;
(e) obstructing the use of cranes where the officials had no right to do so; and
(f) calling stop work meetings disrupting work on the site in order to coerce the contractor to accept the terms of a Union proposed EBA.
[186] The Commissioner submits, and I find on the evidence that Mr Rielly (but not Mr Fitzpatrick) contravened s 348 as pleaded.
…
[188] The Commissioner alleges and I accept that the particular persons which Mr Rielly intended to coerce CPB to employ were employees who were members of the Union, and that the particular independent contractor he intended to coerce CPB to engage was either the “Lack Group”, as described by Mr Rielly in his texts to Mr Ryan and his statement to Mr Gray, or a labour hire business whose workers were covered by a Union EBA.
[189] It is not necessary for the purposes of s 355 that the contravenor have nominated a particular individual or a particular contractor. It is sufficient if what is nominated identifies a class, such as “457 workers” or “self-employed carpet layers”, or “persons who have been nominated by the CFMEU for employment by Grocon”.
[190] The submissions made above with regard to s 348 are relied on equally with regard to the s 355 contraventions alleged by the Commissioner, including the submission about the application of the s 361 presumption as to the intention and motivations of Mr Rielly. I accept that the evidence establishes that Mr Rielly’s motivation as expressed in the meeting on 5 March 2019 was to pressure CPB into replacing Telum with Lack Group or a labour hire contractor whose employees were covered by a Union EBA.
…
[193] The Commissioner alleges that Mr Rielly advised, encouraged or incited CPB to take action against its engaged labour hire company, Telum. The action which CPB was encouraged by Mr Rielly to take was to terminate its contract with Telum Labour Hire. Mr Rielly’s particular reasons for doing so were:
(a) because Telum had engaged in industrial activity in that it had not advanced the claims or interests of the Union by making a Union EBA or employing members of the Union (s 347(b)(v)); or
(b) because Telum had not exercised a workplace right by making a Union EBA (s 341(2)(e)).
[194] If CPB had terminated Telum’s contract for either of these reasons, the Commissioner submits and I accept that would have been a contravention by CPB of ss 346(b) and 340(1)(a)(ii)185 of the Fair Work Act.
…
[196] The termination of the contract by CPB would have constituted adverse action for the purposes of ss 346 and 340 (by reason of s 342, item 3(a)).
[197] In those circumstances, by reason of Mr Rielly’s advising, encouraging and inciting of CPB in that manner, and by operation of s 362, he is taken to have contravened s 346(b) and s 340(1)(a)(ii) himself.
[198] “Advising, encouraging or inciting” requires more than mere suggestion or aspiration. The evidence establishes, as described above, that Mr Rielly’s conduct went much further than suggestion or aspiration, and so far as to make threats intended to place pressure on CPB to comply with his encouragement of CPB to terminate Telum’s contract in order to ensure that Lack Group were engaged or other labour hire employees at the Yard were covered by a Union EBA.
[199] It has been found sufficient that a union official made a statement that if someone did not join the union there would “trouble”.
[200] Section 361 applies to the mental element of s 362, that is, that Mr Rielly, when advising, encouraging or inciting CPB did so for the purposes referred to above. The Commissioner repeats and I accept his submissions above concerning the application of ss 360 and 361, and I am satisfied Mr Rielly had those reasons and has not discharged his onus of proof to prove otherwise.
[201] It does not matter that if in having those reasons Mr Rielly was somehow misinformed or mistaken as to the position with Telum provided they were his reasons or included in his reasons, however, the evidence is that neither of the Telum entities had made a Union EBA covering its workers at the Yard, and the relevant Telum agreement did not involve the Union.”
(footnotes omitted)
[18] On 3 March 2021, Judge Driver made the following declarations in the Coffs Harbour Hospital Case:
“1. By his conduct on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, the First Respondent, Dean Rielly, contravened s 348 of the Fair Work Act 2009 (Cth) (FW Act) by threatening to organise or take action against CPB Contractors Pty Ltd (CPB) with an intent to coerce CPB to engage in industrial activity by complying with a request or requirement of the Third Respondent, the Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU), that CPB’s employees working at its precast yard in North Boambee Valley become members of the CFMMEU and all of the labour hire workers at the Yard be covered by a CFMMEU enterprise bargaining agreement (EBA).
2. By his conduct on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, the First Respondent, Dean Rielly, contravened s 355 of the FW Act by threatening to organise or take action against CPB with an intent to coerce CPB to employ members of the CFMMEU and engage a particular independent contractor, being either the “Lack Group” or a labour hire business whose workers were covered by a CFMMEU EBA.
3. By his conduct on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, the First Respondent, Dean Rielly, contravened s 346(b) of the FW Act by advising, encouraging or inciting CPB to take action against Telum Precast (Qld) Pty Ltd (Telum) because Telum had engaged in industrial activity, namely it had not advanced the claims and interests of the CFMMEU by making a CFMMEU EBA or employing members of the CFMMEU.
4. By his conduct on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, the First Respondent, Dean Rielly, contravened s 340(1)(a)(ii) of the FW Act by advising, encouraging or inciting CPB to take adverse action against Telum because Telum had not exercised a workplace right, namely to make a CFMMEU EBA.
5. In respect of the declarations 1 to 4 above, the conduct, actions and state of mind of the First Respondent was by reason of s 363(1) and 793(1) of the FW Act the conduct, actions and state of mind of the Third Respondent, the CFMMEU.
6. The CFMMEU contravened:
a. section 348 of the FW Act on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, by the conduct of the First Respondent, Dean Rielly, in threatening to organise or take action against CPB with an intent to coerce CPB to engage in industrial activity by complying with a request or requirement of the CFMMEU, that CPB’s employees working at its precast yard in North Boambee Valley become members of the CFMMEU and all of the labour hire workers at the Yard be covered by a CFMMEU EBA;
b. section 355 of the FW Act on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, by the conduct of the First Respondent, Dean Rielly, in threatening to organise or take action against CPB with an intent to coerce CPB to employ members of the CFMMEU and engage a particular independent contractor, being either the “Lack Group” or a labour hire business whose workers were covered by a CFMMEU EBA;
c. section 346(b) of the FW Act on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, by the conduct of the First Respondent, Dean Rielly in advising, encouraging or inciting CPB to take action against Telum because Telum had engaged in industrial activity, namely it had not advanced the claims and interests of the CFMMEU by making a CFMMEU EBA or employing members of the CFMMEU;
d. section 340(1)(a)(ii) of the FW Act on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, New South Wales, by the conduct of the First Respondent, Dean Rielly, in advising, encouraging or inciting CPB to take adverse action against Telum because Telum had not exercised a workplace right, namely to make a CFMMEU EBA.”
(footnotes omitted)
[19] Judge Driver made the following relevant observations in his penalty judgment in the Coffs Harbour Hospital Case: 13
“[45] In the present case, the actions taken by Mr Rielly over the period from January to March 2019 constituting the s 348 and s 355 contraventions involved coercive conduct, which is to be regarded as a particularly serious form of industrial misconduct. Blockades intended to coerce employers to comply with industrial demands should attract a separate penalty. Threats made with the intention to coerce are also to be regarded as separate contraventions and penalised accordingly, and such actions repeated on a second or third day (or in this case, on several occasions over a period) have also been treated as separate contraventions to be penalised separately, as has been held by the Full Federal Court.
[46] The specific conduct grounding the s 348 and s 355 contraventions was the threat to prevent delivery of the precast product of CPB Contractors Pty Ltd (CPB), which was conduct aimed at CPB. The conduct was the threat made to Mr Gray on 4 March 2019 and the repetition of that threat in a more direct and emphasised manner to Mr Percival and Mr Whitaker on 5 March 2019. It was that threat which was particularised in [23] and [33] of the Further Amended Statement of Claim (FASOC). It was that conduct which I found to constitute the contraventions of ss 348 and 355.
[47] The s 340 and s 346 contraventions involved conduct of a comparatively less serious nature, namely advising, encouraging and inciting CPB to take adverse action against Telum Precast (Qld) Pty Ltd (Telum). The Commissioner submits that though the conduct on which these contraventions are based includes the conduct on which the s 348 and s 355 contraventions are based (being the specific threat to prevent delivery of precast product to a hospital site), it extends beyond that to all of the statements made by Mr Rielly to the CPB managers which involved criticisms of Telum and advising, encouraging and inciting CPB to terminate Telum’s contract and replace it with another labour hire company, which had made a CFMMEU Enterprise Bargaining Agreement (EBA). All of that conduct, for the purposes of making a finding of contraventions of ss 340 and 346, was directed against Telum, CPB being the vehicle through which Mr Rielly intended to have action taken against Telum. I made findings at [193]-[194] and [206]-[207] of the Liability Judgment based on my acceptance of the Commissioner’s evidence as recorded in the Liability Judgment. I also recorded that some of the conduct was accepted by the respondents and put to the Commissioner’s witnesses, Mr Gray and Mr Percival.
[48] Thus, the conduct underlying the s 340 and s 346 contraventions involved a broader set of acts and statements, and is not the same particular conduct engaged in by Mr Rielly in contravening ss 348 and 355. In the Commissioner’s submission these considerations support and warrant the Court, when applying course of conduct principles, penalising each contravention by a separate penalty, albeit taking into account some overlap and concurrency between them.
…
[147] As noted above, I found that Mr Rielly contravened the following sections of the Fair Work Act by his conduct between 25 January and 14 March 2019:
(a) section 348 by threatening to organise or take action against CPB with intent to coerce it to engage in industrial activity by complying with a requirement of the Union to employ Union members, and enter into a CFMMEU EBA covering its employees and labour hire workers at its Precast Yard;
(b) section 355 by threatening to organise or take action against CPB with intent to coerce CPB to employ Union members and engage a labour hire independent contractor whose workers were covered by a CFMMEU EBA;
(c) section 346(b) by advising, encouraging or inciting CPB to take action against Telum because Telum had not advanced the interests of the Union by making a CFMMEU EBA; and
(d) section 340(1)(a)(ii) by advising, encouraging and inciting CPB to take adverse action against Telum because Telum had not exercised a workplace right by making a CFMMEU EBA.
[148] The issues for the Court now are: (a) the quantum of penalty or penalties to be imposed on Mr Rielly and the Union; and (b) whether or not Mr Rielly should be subject to a personal payment order, as sought in order 10 of the Originating Application, under s 546 of the Fair Work Act.
…
[177] Mr Rielly seeks low range penalties in relation to his own actions, having regard to the fact that there is no evidence or any prior or subsequent contraventions by him. In addition, while coercive threats were made, they were not carried out. This was a case of attempted coercion which failed when CPB resisted it. Nevertheless, I accept the Commissioner’s submission that coercion, even when unsuccessful, is a serious breach of the legislation which calls for the imposition of penalties in the mid rather than low range. The Commissioner seeks penalties of between $5,670 and $8,190 in relation to the established breaches. In my view, a penalty of $5,000 for each course of conduct, as modified by the double jeopardy principle, is an appropriate penalty to impose. I will impose penalties of $5,000 for the consolidated breaches of ss 348 and 355 and $5,000 for the consolidated breaches of ss 340 and 346, making a total penalty imposed on Mr Rielly of $10,000.
…
[182] I have decided not to make a personal penalty order against Mr Rielly under s 546. It is in my view unnecessary in order to establish a deterrent effect upon Mr Rielly, against whom there is no evidence of any prior or subsequent infringements. As an Organiser of the Union, Mr Rielly was carrying out what he perceived to be actions in the interests of the Union, in respect of which the Union should take the greater responsibility. Further, Mr Rielly impressed me as a witness. He was moderate, polite and clear in giving his evidence. While he denied any infringing conduct, and that conduct has been established, it is also apparent that initially Mr Rielly attempted to pursue the Union’s objectives in a friendly and moderate manner. It was only when he encountered resistance that he resorted to attempted coercion. There will be no personal penalty order against Mr Rielly.”
(footnotes omitted)
[20] In ABCC v CFMEU (No 4) (Pacific Highway Upgrade Case), 14 Mr Rielly was ordered to pay a pecuniary penalty of $8,820 for contravening s 500 of the Act. The Applicant was ordered to pay a pecuniary penalty of $100,800 for contravening the Act, partly as a result of Mr Rielly’s conduct. The contravening conduct took place on 22 August 2019. In his liability judgment,15 Judge Humphreys made the following relevant declaration, observations and findings:
“1. Pursuant to s 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCoA Act) or s 545 of the Fair Work Act 2009 (Cth) (FW Act), declaring that the second respondent (Mr Rielly) and the third respondent (Mr Fitzpatrick) contravened s 500 of the FW Act in that they:
(a) intentionally hindered or obstructed Seymour Whyte Constructions Pty Ltd (SWC) and/or KFC Construction Pty Ltd (KFC) from completing a concrete pour at the site of the construction of bridge number 22 (known as the ‘A22’ site) located approximately 12 kilometres north of an SWC compound located off the Pacific Highway in or near Glenugie at the corner of Wants Lane and Avenue Road, approximately 10 kilometres south of Grafton (Project Site),
while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act at the Project Site on 22 August 2019 (Rielly’s Contravention).
…
[3] It is broadly alleged that Mr Rielly and Mr Fitzpatrick entered a work site, as the holders of work entry permits, and positioned themselves in between the rear of a concrete truck and the site of a concrete pour, thereby preventing the truck from reversing towards a concrete pour area for the purpose of completing the pour. This caused the concrete pour to be abandoned and the contents of the concrete truck, amounting to 6 cubic metres of concrete, to be dumped, as it was no longer usable. It is alleged that one and a half days of work time was lost as a result of the actions of Mr Rielly and Mr Fitzpatrick.
…
[134] The Court accepts that the following factual matters are correct, are uncontroversial and/or are common ground between the parties:
a. On 22 August 2019, a crew of KFC workers were pouring concrete at the A22 bridge site. The crews were using concrete from concrete agitator trucks.
b. At approximately 12:04PM, the Union Officials parked their cars under the A22 Bridge and climbed an embankment of scour rocks as depicted in Exhibit 22 and Exhibit 19. The Union Officials entered the site without following the protocol for entry onto site, as communicated to them by Pacific Complete in Exhibit 17. In so doing, the Union Officials exercised their rights under the Work, Health and Safety Act 2011 (NSW) (WHS Act).
c. Prior to entering the site, Mr Rielly commenced filling out a notice of entry form pursuant to s 119 of the WHS Act.
d. On the way up the embankment, the Union Officials spotted a red plastic container they described as a jerry can used for fuel. It had a lid on it. They assumed the container had fuel in it and were concerned about a lack of bunding. The container was not inspected to ascertain if it was full or empty.
e. Shortly after 12:04PM, after climbing the embankment, the Union Officials approached KFC employees working on the project site and spoke with Paul Jordon.
f. Shortly thereafter, James Fleetwood and Gareth Morrison arrived.
g. The Union Officials proceeded to position themselves in between the rear of the agitator and the site of the concrete pour. At this time, Mr Rielly claims the concrete truck was some distance away being tested and subsequently reversed back towards him.
h. The Union Officials did not move from that position. Mr Fitzpatrick confirmed they did not move away from that position until he commenced taking photographs at around 12:30PM.
i. While standing in the area between the rear of the truck on the site of the concrete pour, Mr Lawson and Mr Williams arrived. Discussions took place as to various safety concerns raised by the Union Officials.
j. Mr Reilly completed the WHS Act notice he had commenced filling out in his vehicle prior to entering the site and after it was signed by Mr Fitzpatrick it was handed to Mr Williams.
k. The pour was abandoned at about 12:30PM. The Court is satisfied on the totality of the evidence that the pour was abandoned as the concrete in the agitator that was parked was no longer useable. That concrete was subsequently dumped as not useable. This amounted to six cubic metres of concrete
l. At approximately 1:10PM the Union Officials left the pour site and proceeded to the Tyndale compound where further discussions regards safety concerns took place between the Union Officials and various employer representatives.
m. There is no evidence before the Court as to further follow up by Mr Rielly or Mr Fitzpatrick following the meeting at the Tynedale compound as regards the safety concerns they raised regarding the A22 worksite.
n. It is common ground between the parties that the incident involved only one agitator/concrete truck and that there were not two concrete trucks at the pour site during the relevant time period.
[135] The Court is satisfied that the Union Officials were permit holders and exercised a valid right of entry to the A22 worksite pursuant to the WHS Act. The question for determination is whether in doing so the Union Officials first intentionally hindered or obstructed another person or secondly otherwise acted in an improper manner in contravention of s 500 of the Act.
…
[142] Mr Rielly and Mr Fitzpatrick gave differing evidence as to the reason why they were at the A22 site at approximately 12:00PM on 22 August 2019. They had booked to attend the Tyndale compound at 2:00PM. That is uncontested. Why they would have driven by the worksite so early, is puzzling. Mr Rielly gave evidence that he planned to have lunch with Mr Fitzpatrick at a pie shop prior to the 2:00PM meeting at Trynedale. Mr Fitzpatrick was unable to recall that reason. Evidence was that the Tyndale site was some 15 to 20 minutes away from the A22 site. The fact that Mr Fitzpatrick and Mr Rielly arrived at the site while a pour was being undertaken and observed, while driving from a considerable distance, safety concerns such that they felt the need to immediately stop and enter the site, may be viewed as rather convenient. It raises some credibility concerns with their evidence but it is not conclusive of itself.
[143] Evidence was given, over objection of ongoing disputes between the Union Officials and Seymour White and Pacific Complete regarding access by then to the project. There is also unchallenged evidence of one of the Officials making derogatory remarks as to Seymour White as an employer. There is clear evidence that Seymour White had views that the Union Officials were trying to enter the site improperly. It is in this already tense atmosphere that the events the subject of the litigation took place.
[144] The Union Officials admitted that they positioned themselves behind the concrete agitator. They claimed that this was in an attempt to force the safety concerns regarding a Spotter being addressed. Mr Jordan stated that he could not signal the agitator to reverse into the pour position as a group of Union Officials and SWC managers were in the way. Further, Mr Jordan stated that he heard the Union Official in the orange shirt state “I do not have to go anywhere”. The Court accepts this evidence.
[145] Mr Rielly claims that he did not know the area where he was standing was an exclusion zone. That claim is difficult to accept. Mr Rielly was standing behind an agitator that was waiting to reverse into a position where it could undertake the pour. That it was a dangerous position to the Court’s mind, is a matter of common sense. That it was an exclusion zone is also a matter of common sense. Further, Mr Rielly was asked by Mr Morison to move. Mr Rielly refused, and also refused to look at documentation, being the task card that he was asked to sign, that would have shown where the exclusion zone was. The Court however, does accept that there was no requirement for the Union Officials to sign the task card, as they were not workers on the site. The Court also notes that the task card is not before the Court in evidence.
[146] The Court accepts Mr Morison’s evidence that Mr Rielly replied when asked to move from behind the agitator as it was an exclusion zone, “No as soon as I move, you’ll continue the pour”. The Court also accepts Mr Lawson’s evidence that he also asked Mr Rielly to move away from behind the truck. The Court accepts Mr Lawson’s recollection of Mr Rielly stating, “There’s no toilets. Fix this issue and I will move”.
[147] Any justification that there being no toilets within a reasonable distance from the pour being a matter of imminent danger, cannot be sustained.
[148] In accepting this evidence, the Court finds as a fact that, it was the intent of both Mr Rielly and Mr Fitzpatrick to stand where they were. In so doing, they obstructed or hindered the concrete pour such that it had to be abandoned.
[149] Mr Rielly claims that the concrete truck/agitator reversed on a number of separate occasions while he was present at the site, without a Spotter, including in a dangerous manner, placing himself and workers in imminent danger. Mr Rielly is alone in that evidence. The Court rejects that evidence. Mr Fitzpatrick gives no such evidence as to the vehicle reversing while they were present. The absence of any support by Mr Fitzpatrick on this issue gives rise to considerable credibility concerns as to the entirety of the evidence of Mr Rielly. The Court, notwithstanding one answer from Mr Morison, is satisfied that the agitator did not move at any time from the position it was photographed in. It did not reverse from the testing Ute.
[150] The Court prefers the evidence of Mr Jordan as to the work method for the site as set out in his second Affidavit and his observations on the day. The Court is satisfied that the concrete truck turned left onto the pavement depicted in the photographs from the access road and then reversed back a short distance well short, about 25 metres of the pour site. Testing of the concrete took place in that position, with the tester coming from the testing vehicle to the truck.
[151] The Court rejects the claim by Mr Rielly that the truck first drove up to the testing ute some distance away as depicted in the photographs and then reversed some considerable distance back to the concrete pour site. The Court also rejects the evidence of Mr Rielly that the truck reversed on any other occasion.
[152] Photograph PJ02 was taken at 12.16 pm. By reference to the particular markings on the road surface, and comparing those markings to all subsequent photographs, clearly indicates that the truck did not move from the position it was in, when photograph PJ02 was taken. It was still in that position when the pour was abandoned.
[153] Mr Fleetwood also specifically denied any complaint by Mr Rielly about the vehicle reversing without a Spotter and nearly running him over.
[154] The Court draws further comfort in this conclusion in that the s 117 WHS Act Notice served on Seymour White, makes no mention of a truck reversing without Spotter or that it nearly ran Mr Rielly over. This would have been such a significant matter that it would reasonably have warranted specific attention in the Notice. Instead, the best that can be said is a box relating to “traffic management” is ticked. The Court does accept however, that there was reference to the reversing in the subsequent meeting notes at the Tyndale compound.
[155] The Court accepts without reservation, the evidence of Mr Jordan, as to the usual work practice for the pour that day, being that, the tester came to the truck and the truck did not reverse into the pour without a Spotter. The Court has noted however, a clear error in Mr Jordan’s evidence as to times. Mr Jordan is one hour later in his recollection than what is the common ground of the time of the events. This error does not affect the reliability of Mr Jordan’s other evidence.
[156] The Court has considered evidence by Mr Morison in cross examination that appears to indicate that the truck reversed back after the concrete had been tested (see Transcript p136.26-30, 44-45 2 Nov 21). The Court considers that evidence to be that, Mr Morison initially accepted that the truck reversed back without a Spotter. However, later on, Mr Morison clearly clarifies that, it did not happen. The Court accepts that, properly understood, the truck was ready to reverse if called to do so but could not due to the Union Officials being behind it.
[157] Mr Fitzpatrick accepts that he did not move from behind the agitator till about 12.30pm, when he commenced taking photographs. It was at this stage that the concrete pour had been abandoned. The Court is satisfied that Mr Fitzpatrick also intended to stand where he did, with the result that the concrete pour was abandoned.
[158] The Court has noted that some possible witnesses were not called by the applicant. The Court is satisfied that it can safely make the factual findings it has, without those witnesses being called.
[159] Accordingly, the Court finds that both Mr Rielly and Mr Fitzpatrick breached s 500 of the Act, by intentionally hindering or obstructing Mr Jordan and Mr Morrison in conducting the concrete pour.”
[21] Judge Humphreys made the following relevant observations in his penalty judgment in the Pacific Highway Upgrade Case: 16
“[2] In that judgement, the Court found that each of the respondents contravened s 500 of the Fair Work Act 2009 (Cth) (“the Act”) by intentionally hindering, or obstructing Seymour Whyte Constructions Pty Ltd and/or KFC Constructions Pty Ltd from completing a concrete pour at the site of the construction of a bridge, known as the A22 on the Pacific Highway upgrade project near Glenugie, while exercising or seeking to exercise rights of entry in accordance with Part 3-4 of the Act.
[3] The full facts of the contraventions are set out in the previous judgement, but may be summarised as follows. Mr Dean Reilly (“the second respondent”) and Mr Paul Fitzpatrick (“the third respondent”) were Officials of the first respondent, the Construction, Maritime, Mining and Energy Union (“CFMMEU”).
[4] On 22 August 2019, Mr Reilly and Mr Fitzpatrick lawfully entered the worksite, on the Woolgoolga to Ballina Pacific Highway upgrade, as the holders of work entry permits, in relation to issues concerning workplace safety. Mr Reilly and Mr Fitzpatrick intentionally positioned themselves in between the rear of a concrete truck and the site of a concrete pour, thereby preventing the truck from reversing towards the concrete pour area, for the purpose of completing the pour. This caused the concrete pour to be abandoned and the contents of the concrete truck, amounting to 6 m³ of concrete, to be dumped as no longer usable. It was alleged that one and a half days of work time was lost as a result of the actions of Mr Reilly and Mr Fitzpatrick. The proceedings against the CFMMEU proceeded upon the basis of accessorial liability, by reason of the operation of ss 793 and 550 of the Act.
[5] The Court notes that the maximum penalty the Court can impose on each of the respondents for a breach of s 500 of the Act is 300 penalty units. This equates as at 22 August 2019 to:
a. $12,600 in respect of Mr Reilly and Mr Fitzpatrick.
b. $63,000 in respect of the CFMMEU for each of the contraventions.
…
[27] In an Affidavit of Timothy McCauley affirmed 7 July 2022, the Court was provided with material that indicated that Mr Reilly has undertaken a training in respect of his obligations under the Act. This appears however, to be also related to circumstances where Mr Reilly is seeking a renewal of his right of entry permit and it is being opposed.
[28] A further Affidavit was tendered showing that that Mr Fitzpatrick had also undertaken retraining directed to his contravening conduct, and provided with sufficient knowledge to facilitate his future compliance with the law. This training was also undertaken Mr Brian Lacey AO. The Court has perused the content of the training provided and notes the opinion provided by Mr Lacey that both Mr Fitzpatrick and Mr Reilly now understand their responsibilities as a right of entry permit holder and have “the ability and a willingness to comply with the law in the future”.
…
[58] The Court notes that the contraventions were not occasioned by senior employees of the CFMMEU. The nature of the loss occasioned by the contravention was agreed by the parties to be moderate, being the loss of 6 m2 of concrete and 1.5 days of work on a relatively small concrete pour.
[59] The Court is also taken account that no remorse or contrition has been evidenced by the CFMMEU, and accordingly, no reduction in penalty is available in relation to this factor. Further, that has been no cooperation with the applicant post the initiation of the proceedings, and indeed, it would be fair to say that the prosecution has been very hard fought at every stage.
[60] While the Court welcomes the conduct of remedial training in relation to its Officers, the Court does not consider that the conduct of this training is a matter that should attract a significant discount in the appropriate penalty. It is not unreasonable to expect that a Union Official should be fully trained upon their initial employment and aware of their rights under the Act and what conduct is appropriate when entering a worksite. That is, remedial training should not be necessary. The remedial training has, however, been considered when assessing the appropriate penalties to be imposed.
[61] Whilst the Court accepts that Mr Rielly and Mr Fitzpatrick had a right of entry into the work site, the Court is satisfied that their conduct in standing at the rear of the concrete truck in between the truck and the poor side was intentional and deliberate.
[62] The Court is reasonably satisfied that whilst there are two breaches of s 500 of the Act by the CFMMEU, the two breaches should be treated as a course of conduct and the overall pecuniary penalty moderated.
[63] Taking all of the relevant factors into account, including the principle of totality, the Court is of the view that the appropriate penalty in respect of each contravention of s 500 of the Act should be set at 80% of the maximum available of $63,000.00. This equals $50,400.00 in respect of each contravention or a total of $100,800.00.
[64] In relation to Mr Rielly, the Court notes the submission by the applicant is that it should be set at 70% to 80% of the maximum or between $8,820 and $10,800. The Court is satisfied that Mr Rielley took the lead role in the contraventions. At all times, Mr Rielly deliberately and intentionally refused to move away from the back of the concrete agitator until after the concrete pour was abandoned.
[65] According to Mr Rielly’s LinkedIn profile, which was contained in evidence tendered by the applicant, he has been involved in the building industry for some considerable point of time and has been employed by the CFMMEU for over six years. The Court acknowledges that he has undertaken retraining, but notes this is in circumstances apparently where his application for a right of entry permit is being opposed.
[66] No evidence has been put to the Court as to his financial situation and the Court assumes that his income is relatively modest but that, in the absence of any information to the contrary, he has the capacity to pay a pecuniary penalty.
[67] There is no evidence before the Court that Mr Rielly has exhibited any contrition or remorse or that he has cooperated in any way with the applicant either prior to or post the initiation of the proceedings.
[68] The Court notes Mr Reilly has a previous proven contravention but that the proceedings in relation to that contravention occurred post the date of this contravention. The Court has given very little weight to this previous contravention in assessing the overall appropriate penalty.
[69] The Court is satisfied that there is a significant requirement for specific deterrence in his case and that there is a need for general deterrence amongst officials of the CFMMEU with in relation to breaches of the Act. Taking into account all of the relevant considerations, the Court is satisfied the appropriate penalty in this case should be $8,820.00.”
[22] On 5 August 2022, the penalty orders made by Judge Humphreys in the Pacific Highway Upgrade Case were stayed by consent, pending an appeal being filed within 28 days. Notwithstanding the stay, Mr Rielly has been ordered to pay a penalty under the Act and I consider it is appropriate that I take this matter into account under s 513(1)(d) in determining the application for a new right of entry permit for Mr Rielly.
[23] Mr Rielly’s conduct in contravention of the Act in the Coffs Harbour Hospital Case and the Pacific Highway Upgrade Case is plainly relevant to my assessment of Mr Rielly’s fitness and propriety to hold a right of entry permit. Such conduct weighs against a conclusion that Mr Rielly is a fit and proper person to hold a right of entry permit because it reduces my confidence that Mr Rielly would, in the future, comply with his legislative obligations when exercising his right of entry powers as a permit holder under the Act.
[24] Pursuant to s 513(1)(g) of the Act, in deciding whether Mr Rielly is a fit and proper person I must take into account any other matters that I consider relevant. Any such matters must be relevant to whether Mr Rielly is a fit and proper person to hold a right of entry permit.
[25] I consider it relevant to take into account and weigh in his favour that Mr Rielly not only undertook an approved permit holder training course on 26 April 2022, he also attended a one-on-one training session with Mr Lacy, a former Presidential Member of the Australian Industrial Relations Commission, on 21 June 2022. Mr Lacy’s report, which I have read and considered, in relation to the one hour and 45 minute training session he gave Mr Rielly is attached to his affidavit. Mr Lacy was instructed by the Applicant that his training of Mr Rielly was to “be aimed at addressing his previous contravening conduct and provide him with an opportunity to reflect on and learn from that conduct”.
[26] Mr Lacy explained the training he provided to Mr Rielly, together with his conclusions in relation to Mr Rielly’s training, in paragraphs [14] to [23] of his report:
“14. Mr Rielly participated positively in the training provided and responded well to the direction and instruction given. I tested his understanding of the Court’s findings, by having him articulate how his conduct was said to be in contravention of the FW Act. In addition Mr Rielly raised matters by way of questions about the legislation in particular scenarios.
15. For example Mr Rielly questioned the meaning and application of s 340 of the FW Act, suggesting that it seems to benefit employers more than it does unions or their members. Following a discussion on the application of s 340 in the context of ss 346, 361 and 362 of the FW Act in the context of the findings made against him by Driver J, Mr Rielly exhibited an understanding of the importance of context in applying the legislation.
16. While discussing s 499 of the FW Act, and the requirement to comply with reasonable requests to comply with site occupational health and safety (OHS) requirements, Mr Rielly questioned the practice of site managers in requiring organisers to complete induction or sign in on each visit to a site. He said the “WHS regulator Queensland” has advised that it is unnecessary for him to sign in when exercising powers of inspection or investigation with his WHS entry permit. I advised Mr Rielly that it would depend on the reasonableness of the requirement in all the circumstances. For example a requirement that an organiser undertake site induction and sign in on a first visit to a site may be reasonable as a matter of health and safety, but it may be unreasonable on subsequent visits depending on the time elapsed between visits, the nature of any changes in the site environment and the connection
it has to site OHS requirements.
17. Mr Rielly demonstrated an understanding of the meaning of adverse action and coercion, what it means to hinder or obstruct and why his past conduct in those regards was wrong. He was acquainted with the decisions in the Cases reviewed and he acknowledged his history of contravening or being involved in contraventions of penalty provisions under the FW Act. He said he now understands that he cannot take coercive action against contractors or subcontractors to secure employment or conditions for CFMMEU members. He said he will not engage in the same sort of conduct that has been found to be hindering or obstructing and will approach similar situations in a different way in future.
18. Mr Rielly understands that in considering his qualifications for an entry permit the FWC will take into account among other things any contraventions of industrial laws with which he has been associated. Asked if he is committed to complying with his obligations as a permit holder in the future, Mr Rielly said “I now have a better understanding of the scope of my obligations as a permit holder under Part 3-4 the FW Act, and I will stick with that.”
19. I am satisfied Dean Rielly has a sound knowledge of what constitutes hindering or obstructing and coercion and that he understands the rights and obligations of a permit holder in those regards and will comply with them.
20. Mr Rielly was made aware of the matters the FWC must take into account in considering an application for an entry permit. He said he understands, and I am satisfied he does understand the FWC will take into account any contraventions of the FW Act in which he was involved or with which he was associated.
21. Dean engaged positively in the training. Based on his participation, his capacity to articulate how his conduct was found to have contravened relevant provisions of the FW Act and his responses to propositions put to him in the training session I am satisfied Dean Rielly understands:
a. why his admitted conduct in relation to the Coffs Harbour project in January and March 2019 constitutes adverse action and coercion;
b. why his conduct in relation to the Pacific Highway Upgrade Case constitutes hindering or obstructing;
a. the concepts of adverse action, coercion and hindering or obstructing;
b. coercive action is considered a serious form of industrial misconduct;
c. the conditions and qualifications for grant of an entry permit under the FW Act and how his past conduct will be relevant to a determination of an application for a permit.
22. In my opinion Dean Rielly has learnt from his contravening conduct in the cases discussed. He said he knows that making demands on an employer with threats of action for non-compliance with the demand may be coercion and that intentionally hindering or obstructing work constitutes acting in an improper manner. He has committed to not engaging in that conduct in the future.
23. I am satisfied Dean has the knowledge, the ability and willingness to comply with the law in future. He has said he is committed to doing so.”
[27] I accept from Mr Lacy’s report that Mr Rielly now has a better understanding of the scope of his obligations as a permit holder under Part 3-4 of the Act. However, it is clear from the nature of the contravening conduct in which Mr Rielly engaged in 2019 in connection with the Coffs Harbour Hospital Case and the Pacific Highway Upgrade Case that he must or ought to have been aware that he was acting in a manner contrary to his obligations under the Act. By acting in the deliberate manner that he did in those cases, Mr Rielly allowed his motivation to behave in what he considered to be in the bests interests of workers to take priority over his obligations under the Act. That causes me serious concern that Mr Rielly will act in a similar manner in the future when he faces difficult situations while exercising a right of entry onto a workplace.
[28] Mr Rielly elected not to file a statement in support of the Applicant’s application for a new right of entry permit for him. As a result, although I have the declarations made by Mr Ravbar and Mr Rielly and the affidavit of Mr Lacy, I do not have any direct evidence from Mr Rielly to demonstrate any remorse or contrition for his past contravening conduct or to explain how or why he will act differently in the future if he is faced with a difficult situation when exercising a right of entry onto premises owned or controlled by a third party.
[29] After taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act, I am not satisfied, on balance, that Mr Rielly is a fit and proper person to hold a right of entry permit. The matters which weigh in favour of a finding that Mr Rielly is a fit and proper person to hold a right of entry permit are outweighed by those that weigh against such a conclusion. On the material before the Commission, I do not have confidence that Mr Rielly will comply with his obligations as a right of entry permit holder on occasions when he is on premises owned or controlled by a third party and he is confronted by a difficult situation in which he perceives that one or more employees have been treated adversely or unfairly.
[30] I have considered whether any conditions should be imposed on any entry permit issued to Mr Rielly conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. No particular conditions have been proposed. My conclusion in relation to this issue is that I cannot reach the necessary state of satisfaction that Mr Rielly is a fit and proper person to hold such a permit, regardless of any conditions which may be imposed.
[31] In the circumstances, I am not satisfied that it is appropriate to exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Rielly with an entry permit. The application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR745435>
2 Section 480 of the Act
3 Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J
4 Ibid at 405 [56] per Flick J
5 Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]
6 Construction, Forestry, Mining and Energy Union v Fair Work Commission [2017] FWCFB 4141
8 [2015] FCAFC 56
9 Ibid at [17]
10 Ibid at [42]
11 [2022] FedCFamC2G 1
12 ABCC v Rielly (No 2) [2021] FCCA 43
13 ABCC v Rielly (No 3) [2022] FedCFamC2G 1
14 [2022] FedCFamC2G 608
15 ABCC v CMFFEU & Ors (No 3) [2022] FedCFamC2G 388
16 ABCC v CFMEU (No 4) [2022] FedCFamC2G 608