DECISION

Fair Work Act 2009
s.512—Right of entry

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch
(RE2017/435)

Application by AMWU for right of entry permit - Stephen Dodd.

[1] On 13 April 2017, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) – Victorian Branch made an application under s.512 of the Fair Work Act 2009 (Cth) (the FW Act) for an entry permit for Mr Stephen Dodd.

[2] On 19 April 2017, a copy of the application was provided to the Australian Building and Construction Commission (the ABCC) upon request. On 1 June 2017, the ABCC wrote to the Fair Work Commission giving notice under s.110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) that the ABCC would be making submissions in respect of this application and at any hearing.

[3] On 2 June 2017, a mention and directions hearing was conducted by telephone. The AMWU and the ABCC subsequently filed written submissions. The application was heard in Sydney (via video to Melbourne) on 25 July 2017. Mr Terzic appeared for the AMWU and Mr Vallence appeared for the ABCC.

[4] Mr Terzic tendered a statement from Mr Dodd dated 19 June 2017 1. Mr Dodd gave evidence at the hearing and was cross-examined.

[5] At the conclusion of the hearing, I reserved my decision.

The legislative provisions

[6] The provisions concerning entry permits are to be found in Part 3-4 of the FW Act, which deals with right of entry. The object of Part 3-4 is set out in s.480:

‘480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.’

[7] In Maritime Union of Australia v Fair Work Commission (MUA v FWC), the Full Court of the Federal Court (North, Flick and Bromberg JJ) observed:

‘Section 480 … sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.’2

[8] Section 512 of the FW Act states:

‘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.’

[9] Section 513(1) of the FW Act states:

‘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.’

In The Maritime Union of Australia,³ a Full Bench referred to the concept of a ‘fit and proper person’ in the following terms:

‘[23] … the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. Taking into account context, the structure of s.512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

[24] The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the 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. Rather the permit qualification matters must be taken into account to decide 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.

[25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act.’ (references omitted)

[10] Those observations were adopted by the Full Bench in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union.⁴ The Full Bench in that matter made the following additional observations:

‘[22] Thus the “fit and proper person test” is necessarily concerned with the personal characteristics of the person for whom the issue of an entry permit is sought. The large number of cases concerned with the use of the “fit and proper person” criterion in a variety of statutory contexts have consistently taken that approach. In the South Australian Supreme Court Full Court decision in Teachers Registration Board of South Australia v Edwards, Anderson J said:

“[103] [T]he cases show in my view that although the expression “fit and proper person” takes its meaning from the content of the legislation, there are nevertheless certain consistent notions which emerge in the relevant decisions.

[104] These are that a consideration of whether a person is fit and proper looks to the suitability and eligibility to hold a position. The suitability in turn is viewed against a consideration of the person’s previous conduct and their general reputation.”

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

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

[11] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,⁵ Hatcher VP articulated the following relevant principles:

‘[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 the s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia, CEPU v Director of the Fair Work Building Industry Inspectorate, Director of the Fair Work Building Industry Inspectorate v CFMEU, Construction, Forestry, Mining and Energy Union, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate. 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] Section 515 of the FW 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).’

[13] In MUA v FWC, the Federal Court held that the consideration of whether conditions ought to be imposed on an entry permit can be made in conjunction with the assessment of whether a person is a fit and proper person to hold the permit:

‘… the assessment of fitness and propriety is to be made by reference to all of the applicable conditions upon the exercise of rights conferred by the grant of a particular permit, including any imposed under s 515…

This construction of s 515 is to be preferred, as it is consistent with the discernible legislative intent to provide the Commission with a capacity to facilitate the balance contemplated by s 480 and, regarding the imposition of conditions, to do so harmoniously both in relation to the grant of a permit and the Commission’s supervision of its subsequent use (see ss 505(2), 505A(3)(a), 507(1) and 508(2).’⁶

Background

[14] Mr Dodd has been a State Organiser with the AMWU since the early 2000s (having worked for the AMWU as an organiser for various periods in the mid-1990s). He works out of the AMWU office in Morwell, Victoria. His organising round extends over the Gippsland region. He is also the Secretary of the Gippsland Trade and Labour Council. 7

[15] Mr Dodd has been involved in two disputes that have led to penalties being imposed on him for breaches of industrial law.

[16] The first dispute occurred in late 2007 to early 2008. The dispute concerned the pay and conditions of employees of contractors on the Maryvale paper mill construction project (the Maryvale site).

[17] On 26 August 2009 Burchardt FM declared, in the case of Stuart v Australian Workers Union and Ors, that on 25 October 2007, Mr Dodd contravened s.38 of the Building and Construction Industry Improvement Act 2005 (the BCII Act) by engaging in unlawful industrial action constituted by a failure or refusal by employees engaged at the Maryvale site to attend for and/or perform building work. Mr Dodd was ordered to pay a penalty of $1500 in respect of this contravention. The AMWU was penalised $8000 for the same contravention. 8

[18] On 25 August 2009 Burchardt FM declared, in the case of Cozadinos v Australian Workers Union and Ors, that on 23 November 2007, Mr Dodd contravened s.38 of the BCII Act by engaging in unlawful industrial action constituted by a failure or refusal by employees at the Maryvale site to attend for and/or perform work. Mr Dodd was ordered to pay a penalty of $1750 in respect of this contravention. The AMWU was penalised $8750 in respect of the same contravention. 9

[19] On 25 August 2009 Burchardt FM declared, in the case of Keene v Automotive Food Metals Engineering Printing and Kindred Industries Union and Anor, that on 5 February 2008, Mr Dodd contravened s.38 of the BCII Act by engaging in unlawful industrial action constituted by a failure or refusal by employees of BMC Welding and Construction Pty Ltd (BMC) to perform work at the Maryvale site. Mr Dodd was ordered to pay a penalty of $1200 in respect of this contravention. The AMWU was penalised $5800 in respect of this contravention. 10

[20] On 28 August June 2009 North J found that the AMWU and Mr Dodd had each contravened s.44 of the BCII Act by placing undue pressure on a building contractor to make an industrial agreement. Mr Dodd was penalised $5000 for this contravention. The AMWU was penalised $25,000. 11

[21] These penalties were taken into account by the Delegate, Mr Nassios, in 2010 when the AMWU sought that Mr Dodd’s permit be renewed. Mr Nassios took the view that the penalties ‘were not a result of recent actions, but rather actions in 2007 and early 2008.’ He continued:

‘I have not been made aware of any adverse conduct engaged in by Mr Dodd since early 2008. In essence, three years have elapsed since the conduct in which penalties were imposed.’ 12

[22] Mr Nassios noted that Mr Dodd had not indicated any contrition for his conduct; however he found that ‘in the light of just under three years having elapsed since the adverse conduct, any inference that Mr Dodd may continue to contravene workplace laws solely because of an absence of contrition has been rebutted.’ 13

[23] On 1 March 2017, Jessup J found that Mr Dodd had contravened ss.417(1), 421(1) and 346 of the FW Act by his involvement in the contravention of these provisions by the employees of BMC and John Beever (Aust) Pty Ltd (JBA) and (in the case of s.346) two health and safety representatives (HSRs), on the site of the installation of a de-inking plant at the paper mill in Maryvale. 14 The relevant conduct occurred in March 2014.

[24] The site of the installation of the de-inking plant was a defined area within the much larger site of the Maryville Mill operated by Australian Paper (AP). It had its own entry gate, while the entrance gate to the mill site as a whole (the mill gate) was about 800-1000 metres away.

[25] Michael Cuddy, a crane driver/rigger, was acting as the HSR for the employees of JBA. David Cockrane, a rigger/scaffolder, was the HSR for the mechanical trades employees of BMC. Adam Robertson was the HSR for the electrical trades employees of BMC.

[26] On Saturday 22 March 2014 a BMC electrician employed on the site sustained a cut to his left wrist. He was taken to and treated at AP’s first aid facility (located at the mill gate) and was then taken to hospital, where he received some stitches. He returned to work later that day.

[27] This incident gave rise to concerns on the part of the HSRs for the employees of BMC and JBA that the first-aid establishment at the site was unsatisfactory. Although there was a first-aid room at the site, no-one was employed as a first-aid attendant as such. There was an adequately-equipped first-aid facility at the mill gate which was manned by a first-aid attendant, but Mr Robertson though there should be a dedicated level 3 first-aider located in the construction site first aid-room. Mr Robertson directed the electricians employed by BMC to cease work because in his opinion the work of those electricians involved an immediate threat to their health and safety. He informed Messrs Cuddy and Cockrane of what he had done and why, and all of the employees of BMC and JBA ceased work and sat in the site sheds. No further work was done by these employees on 22 March 2014.

[28] All the employees resumed work on Monday 24 March 2014, and worked normally for their ordinary time on that day, and each of the next two days. All the employees also worked normally on the morning of Thursday 27 March 2014. On that day, the JBA employees, and the mechanical trades employees employed by BMC, attended a lunch-break meeting, held in the car park, which was addressed by Mr Dodd as well as officials from the CFMEU and the AWU. After the meeting, the employees did not resume work but sat in the site sheds. For the whole of Friday, and for the morning of the following Monday, they likewise sat in the sheds. At that point the dispute was resolved and the employees returned to normal work.

[29] Jessup J found that the employees of JBA sat in the sheds after the lunch-break meeting on 27 March 2014 because they had been directed to do so by Mr Cuddy. While the mechanical trades employees of BMC also stayed in the sheds, he was unable to find that this was either because they had been directed to do so by Mr Dodd or by Mr Cockrane, the acting HSR. There was then a meeting between the union officials (including Mr Dodd), the HSRs, and representatives of AP and the contractors. The main issue discussed was whether the first-aid room on the site should be permanently manned by a full-time level 3 first-aid attendant. There was also some discussion about whether the employees who had sat in the sheds on 22 March 2014 would be paid for the time they had done so. Jessup J found that the union officials ‘led the way’ on the part of the employees during the meeting in presenting their claims. 15 Following the conclusion of the meeting, the union officials informed the employees, still in the sheds, that the dispute had not been resolved.

[30] A further meeting was held between the employee representatives and the companies on the morning of 28 March 2014 after which Mr Dodd and the other union officials reported back to the employees who were then sitting in the site sheds where they remained until the end of the normal rostered shift.

[31] On the morning of 28 March 2014, the Commission made three interim orders under s.420(2) of the FW Act. The orders, inter alia, required the unions, and their officials, delegates, employees and agents, to stop organising and/or from recommencing the organisation of any ban, limitation or restriction on the performance of work by any of the relevant employees and of any failure or refusal by any of those employees who attended for wok to perform any work at all. The employees and the officials appear to have taken the view that the orders did not apply, because the issue in contention concerned safety.

[32] A meeting of the site safety committee was held on the morning of 31 March 2014 at which the parties resolved the disputes concerning safety that existed between them. After a site safety walk, at about 1:30pm that day, the employees recommenced normal work.

[33] Jessup J found that Mr Cuddy’s direction on 27 March 2014 to the employees to cease work and sit in the sheds was not properly made under the Occupational Health and Safety Act 2004 (Vic) (the OHS Act). This was because, when he made the direction, the issue did not concern ‘work which involves an immediate threat to the health or safety of any person.’ (s.74(1)(b) of the OHS Act).

‘That there was such a threat seems most unlikely on the probabilities, since everyone had been working since 7 am the previous Monday. It was not the immediacy of a threat to the health or safety of any person which caused the employees to cease work when they did on 27 March: it was the arrival of the meal break.’ 16

[34] Jessup J continued:

‘…In the absence of evidence, I am not prepared to find that the absence of a full-time level 3 first-aider, or the companies’ failure to introduce any of the other safety measures which were under discussion, immediately threatened the health or safety of any person. The “issues” (to use the terminology of s 74) related to protective or precautionary measures which had not been taken, rather than to work which was being done and which involved a threat of the kind referred to. Indeed, the continuation of work over three days and a morning that week speaks loudly of the absence of an immediate threat. What eventually induced Mr Cuddy to give his cease-work direction on 27 March 2014 was not some new or changing work situation since the Monday morning: it was his frustration with the fact that these protective or precautionary measures had not been taken, and there was every indication that, absent some escalation of the issues, they would not be taken.’ 17

[35] Jessup J went on to find that the conduct of the workers was industrial action as defined by s 19 the FW Act. He considered the exclusion in s 19(2)(c) which is as follows:

‘(2) However, industrial action does not include the following:

…

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.’

[36] Jessup J was unable to find, based on the evidence, that the employees held concerns about imminent risks to their health and safety; rather the evidence was much more consistent with the employees ‘having been worried and concerned, in the sense of frustrated, that the first-aid and related issues raised on their behalves had not been resolved than with them having been concerned that continuing to work on the site would expose them to risks of the kind referred to in s 19(2)(c).

‘…I am not satisfied that the employees who sat in the sheds in the period under consideration held concerns about an imminent risk to their health and safety on the site. It follows that the action which they took was not based on such concerns….

For the above reasons, s 19(2)(c) of the FW Act was not engaged in the circumstances of the case. When the employees sat in the sheds on 27, 28 and 31March 2014, that was industrial action within the meaning of s 19, and the employees’ conduct amounted to a contravention of s 417(1). 18

[37] Jessup J then turned to whether Mr Dodd and the other two officials organised the industrial action. He accepted that the officials did not instruct the employees to cease work at the meeting on 27 March 2014. He continued:

‘I am not satisfied that Messrs Dodd or Thornton [the CFMEU organiser] organised the industrial action taken on the afternoon of 27 March 2014. Neither am I satisfied that either of them organised the continuing industrial action on 28 and 31 March 2014, or on either of those days.’ 19

[38] Jessup J then considered whether the officials were liable for the industrial action based on s 550 of the FW Act, which provides as follows:

‘(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2)  A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)  has conspired with others to effect the contravention.’

[39] Jessup J found that Mr Dodd and the other officials did not counsel, procure or induce the employees to take industrial action. 20 Likewise he found that the officials did not instruct, advise or encourage the employees to refuse to work, or to sit in the sheds, on the afternoon of 27 March 2014.

[40] However, Jessup J went on to find:

‘They were, however, knowing and willing participants in the project, to which I infer that there was at least majority assent at the meeting in the car park, to prevail upon the company representatives to arrive at a more accommodating resolution of the safety issues in dispute than had been achievable in the previous days. They had their role to play: bringing their experience and authority, as full-time union officials, to bear in negotiations with the companies. The employees had their role to play: refusing to work….For their parts, it is readily to be inferred that the organisers well knew that the circumstances prevailing on the site – where no work was being done – dealt them a stronger hand in their negotiations with the companies than they would have held had work been proceeding normally. They intended that this be so.’ 21

[41] Jessup J went on to consider whether the organisers’ participation was ‘based upon knowledge of the essential elements of the employees’ contraventions.’ 22 They clearly know the employees were going to fail or refuse to perform any work. They also knew that the employees were covered by in-term enterprise agreements.

‘It was however, submitted, on behalf of the respondents that, because they believed that the cessation of work was associated with the employees’ concerns about health and safety, it could not be concluded that the organisers “knew” of so much of the elements of the definition as consisted of the absence of concerns of that kind.’ 23

[42] This proposition was rejected by Jessup J. Conduct does not cease to be industrial action merely because it involves concerns about health and safety (as opposed to the much narrower exception in s.19(2)(c) concerning an imminent risk to health or safety). He added that the test concerning the knowledge of the essential elements of the contravention needs to be applied objectively.

‘What is necessary is that the putative respondent know the facts that would make the primary actor’s conduct a contravention. If that bar is crossed, it will not assist the respondent to say that he or she knew the facts but did not realise that those facts amounted to a contravention. Likewise, if the facts known to the respondent were such as would establish a defence for the primary actor, the former may have defence to an allegation of liability under s 550, but it would not assist the respondent to say, contrary to the truth of the matter, that he or she believed the facts to be such as would establish such a defence. In the present case, I have held that the facts would not sustain a defence under s 19(2)(c).’ 24

[43] Accordingly, Jessup J found that the officials, including Mr Dodd were knowingly concerned in the employees’ contraventions of s 417 of the FW Act on 27, 28 and 31 March 2014 and had therefore contravened s 417 of the FW Act pursuant to the operation of s.55(2)(c) of that Act. 25

[44] Jessup J also found that the officials, including Mr Dodd, were knowingly concerned in the employees’ contravention of the interim orders issued by the Commission on 28 March 2014 under s 420 of the Act that they immediately stop and not further engage in industrial action. 26

[45] Jessup J also found that the officials, including Mr Dodd, were knowingly concerned in adverse action taken by Messrs Cuddy and Cockrane against the contractors for payment for the time lost on 22 March 2014. 27

[46] On 11 April 2017, Jessup J made orders in consequence of his findings of 1 March 2017. He ordered that Mr Dodd pay a pecuniary penalty of $4500. He also ordered that the AMWU pay a penalty of $25000 as a result of Mr Dodd’s conduct.

[47] In his reasons for judgement Jessup J made the following observations:

‘Commencing with the contraventions of s 417(1), they were wilful not only in the sense of not being accidental but also in the sense that, save for one aspect to which I shall turn, it was, I would infer, self-evident that the conduct of the employees of BMC and JBA amounted to industrial action within the terms of the applicable enterprise agreements. …Furthermore, as full-time officials responsible for the relevant areas of industry, the organisers would rightly have been perceived by the workers as their advisers on any issue as to the consistency of their conduct with the FW Act. They should have counselled against the taking of industrial action. If status as a registered organisation means anything, it must bring with it a responsibility to assist the members concerned in a dispute to keep their actions within the requirements of industrial laws. On this occasion, the organisers took the opposite course: they took advantage of the employees’ unlawful conduct to strengthen their hands in their negotiations with the companies. The penalties imposed in the present case should be such as will act as a deterrent, both specific and general, against this kind of stratagem.

The one aspect which has the potential to qualify what I said in the previous paragraph is the view, which appears to have been given currency in the advice which the workers received, that the work stoppages over the period 27-31 March 2014 were related to safety and did not, therefore, amount to unlawful industrial action. That view was a mistaken one. What is more important for present purposes is that the organisers’ evidentiary cases were not framed around the proposition that this supposedly exculpating circumstances was the subject of any considered advice taken by them or offered to them by the workers. Before involving themselves in industrial action which clearly had a serious impact on a significant construction project, and which led to their members losing about two days’ pay, they ought to have been more conscientious about the correctness of the proposition that, because it related to safety in some way, that action could not have been unlawful.

…

I also recognise that none of these contraventions involved conduct taken at the instigation, or on the initiative, of the unions concerned. In some building and construction cases, one finds an otherwise peaceable workplace being disrupted by the intervention, and the demands, of a visiting union official for reasons which have little or nothing to do with the workers on the site. The present case is not in that category. The genesis of the dispute was on the site itself, and the organisers were brought into the prosecution of the dispute by workers on the site. They very properly responded positively to the workers’ needs, and it is only by reason of their involvement in the unlawful methods being deployed that I have found them to have contravened the FW Act.

…

In three cases in 2008-2009 in the Federal Magistrates Court, and in one instance the Federal Court, Mr Dodd was found to have contravened the Building and Construction Industry improvement Act 2005 (Cth) … in a number of respects which are directly relevant to the exercise now being undertaken. Furthermore, those contraventions arose out of conduct at one or other sites at the Maryvale Mill. In all, penalties totalling $9450 were imposed on Mr Dodd. Less than five years after these findings against him, he contravened again in the circumstances which have led to the present proceeding. I consider that the findings made in 2008-2009 are relevant to the need for penalty imposed on him to act as a specific deterrent.’ 28

[48] In his statement, Mr Dodd described the dispute thus:

‘25. The second dispute happened in late March 2014. I was called in by AMWU members who were participating in an on-site stoppage of work at a later Mill construction project, the de-inking plant project. When I arrived, the workforce was not working because they had serious concerns about occupational health and safety on the project as there had been a number of injuries to workers and the rendering of first aid and first response were wholly inadequate.

26. A summary of the dispute with its lead up is below:

a. The Mill itself is deemed to be a “Major hazard facility” (“MHF”) under occupational health and safety laws – one of about 40 in Victoria. It is an inherently dangerous workplace and over the last decade there have been 2 fatalities – I attended the aftermath of both.

b. The de-inking plant project was probably more dangerous again, as it was a construction project in a MHF.

c. On a de-inking plant project, in late February or early March 2014, an AMWU member was injured due to the improper lift of pipework. The pipework fell and rolled on to him and he was badly burned by freshly wielded steel and eventually his thumb was amputated. In this situation, he had to extricate himself and then drive 2 kilometres to the front gate because of a lack of proper first responders on site.

d. Immediately before I was called in, and what precipitated the stoppage of work, was an electrician’s lacerations. Again, the first response was wholly inadequate.

e. After this, all of the project’s workers stopped work and I was one of 4 union organisers to attend about 100 aggrieved workers. They all held serious concerns about the site’s safety.

27. In a site like this, first aid facilities, first aid officers, emergency responders and safety management plans are vital to save lives and attend to injuries. If a worker is trapped, crushed, lacerated, electrocuted etc., unless there is a proper response, deaths can easily occur.

28. I found that the workers were resolute – there is no way they would have resumed their full duties until these issues were fixed.

29. Over the next few days, I like to think that I acted responsibly in developing a 10 point safety plan in conjunction with the project’s health and safety representatives, shop stewards, the other organisers, site managers (including the safety managers) and WorkSafe. At the end of the dispute, I did not think that I had done anything improperly; in fact, I was proud of the way the safety on the project had been transformed positively to the satisfaction of all concerned.

30. Thus, about 2 years later, I was surprised to see that a lawsuit had been launched against me and 3 of the 4 organisers involved.

31. The matter went to trial in the first half of this year. I was found to be an accessory to the workers’ stoppages and fined. As I understand the reasons of the Court, it was accepted by the Court that I did not instigate any stoppage of work, but the Court reasoned that I should have done more to promote an early return to work. I also understand that the way the law was used to hold me liable in this matter was somewhat of a precedent; and I, was unaware, at the time of my actions, that I was acting contrary to the law.

32. I accept that I received a fair trial and that the matter was decided in accordance with the law. But, in my opinion, if I had made representations to the workers to resume work before the safety issues were addressed to their satisfaction, I would have been rebuffed.’ 29

[49] During his cross-examination by Mr Vallence Mr Dodd was asked:

‘In terms of your communications with the workers, did you try and tell them that they were acting unlawfully? ---I think that was one of the problems that I had. My view was there had been a cease work order put in place by the safety reps, which I had found out later that hadn’t happened.

Yes?---Or hadn’t happened appropriately under the Act, but those guys were never going to go back to work until they felt safe.’ 30

[50] Mr Dodd agreed with Mr Vallence that he had never attempted to make representations to the workers to resume work before the safety issues had been addressed to their satisfaction. 31

[51] When asked why he responded:

‘Because I believed the site wasn’t safe. That was my own calculation of what was going on there, pretty much based on previous experience where one of our guys got hurt and ultimately had his thumb amputated. Previous incidents had happened on the Saturday before with the electrician. There was a whole range of issues that really needed to be fixed. I mean, the company didn’t even have – they didn’t even have a safety plan for the site, which is normal under construction.’ 32

[52] I asked Mr Dodd what, if anything he would do differently now, if he was in the same situation as he was facing in 2014. He responded:

‘Well, what I would do differently, I would try and make sure that there was a cease work order and if I had any angst about it, I would contact our industrial officer and ask him---or seek advice from the industrial people, the union, to see whether I was within the confines of it being legal or illegal. If it was found to be illegal, I would recommend that the guys go back to work.’ 33

[53] Mr Dodd said he had told workers that they were taking unlawful industrial action. 34

[54] In his statement, Mr Dodd described his attitude to complying with the law.

‘33. An entry permit confers on me important rights that I can use to the benefit of the AMWU and the workers I represent. I am aware that holding a permit is a privilege.

34. Furthermore, in using a permit against the wishes of an occupier, I would be taking advantage of legal rights. It would be hypocritical of me to say that the law should work only in my favour.

35. At times, all of us might hold an objection to some laws, but at other times we would highly value laws that work to our benefit. That said, I accept that the penalties imposed on me by the Court (to which I refer above) are a function of the law of the land, and I am not above the law in any way.

36. As for laws I object to, I will voice my opposition to such laws and pursue changes to these laws by peaceful, lawful, political means. That is a right all of us have in a democracy.

37. In almost two decades as a union official, at times in hard fought disputes and campaigns, I have tried to remain within legal boundaries. I acknowledge the transgressions referred to above; and, on a few other occasions, it has been found by courts and tribunals that I appeared to be party to unlawful industrial conduct, but out of these latter events, I was not ordered to pay a penalty. Nowadays, I make it a practice to seek legal advice and representation to keep me on the right side of the law and make the law work for the benefit of workers and their families.’

[55] Mr Dodd concluded his written statement as follows:

‘38. Lastly, to be an effective union official, I must act with principle and honourably. If I give my word, I keep it. I remain honest with all whom I deal with. I drive a hard bargain on behalf of the members I represent, and I do so openly and democratically.’ 35

Consideration

[56] I am satisfied that Mr Dodd:

● Has received appropriate training about the rights and responsibilities of a permit holder;

● Has never been convicted of an offence against an industrial law:

● Has never been convicted of an offence against a law of the Commonwealth, a State or a Territory or a foreign country, involving

(i) Entry onto premises;

(ii) Fraud or dishonesty; or

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

● Has not had revoked, suspended or been made subject to conditions, any permit issued under part 3-4 of the FW Act or a similar law of the Commonwealth (no matter when in force);

● Has not had cancelled, suspended or had imposed conditions on a right of entry for industrial or occupational health and safety (OHS) purposes, by any court, or other person or body, under a State or Territory industrial law or an OHS law; and

● Has not been disqualified, by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law.

[57] All these findings weigh in favour of concluding that Mr Dodd is a fit and proper person to have an entry permit.

[58] On the other hand both Mr Dodd and the AMWU have been ordered to pay penalties under the FW Act and the BCII Act (an industrial law) as a consequence of Mr Dodd’s actions.

[59] As acknowledged by Mr Terzic 36, respect for the rule of law is highly relevant to the issue of whether an official is a fit and proper person to hold an entry permit.

[60] Mr Dodd has been found to have breached industrial law on a number of occasions. How can one square this with his testimony that he is committed to complying with the law – even when he does not necessarily agree with it?

[61] There has been no repetition of the breaches Mr Dodd committed in 2007-2008. I am satisfied that Mr Dodd has learned from that experience and is unlikely to behave in the same way again.

[62] This leaves the 2014 dispute. I am satisfied that Mr Dodd thought during this dispute that he was acting lawfully at the time. Of course ‘ignorance of the law is no excuse’ and as an experienced union official he should have known better. However Mr Dodd indicated that faced with similar circumstances in the future he would seek legal advice. That does make it less likely that he would break the law again. Nevertheless I would be more confident of this if I was more satisfied than I am that Mr Dodd understood precisely what he had done wrong. I am still concerned that he does not fully understand the interaction between industrial and occupational health and safety law. I am not sure that it is enough by itself to rely on his assurance that he would seek legal advice in a similar situation.

[63] I am inclined to impose a condition on Mr Dodd’s permit that he receive training on the interaction between occupational health and safety and industrial law – particularly with regard to when work may lawfully stop. With the imposition of such a condition I would be inclined to find that Mr Dodd was a fit and proper person.

[64] The issue of conditions was not canvassed during the hearing on 25 July 2017.

[65] I would ask the AMWU and the ABCC to hold discussions to see if they can reach agreement on the form of a suitable condition that might be imposed on Mr Dodd’s permit. If they are unable to reach agreement I would ask the AMWU to notify me within 14 days of this decision and the matter can be re-listed for further programming.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr B Terzic appeared for the Applicant

Mr B Vallence appeared for the Australian Building and Construction Commission

Hearing details:

Sydney and Melbourne (by video)

2017

25 July

 1   AMWU1

2 [2015] FCAFC 56 at [15]

3 The Maritime Union of Australia [2014] FWCFB 1973

4 [2014] FWCFB 5947

5 [2015] FWC 1522

6 [2015] FCAFC 56 at [35]-[36]

 7   AMWU1 at [12]-[15]

 8   MLG1179/2008

 9   MLG390/2009

 10   MLG331/2009

 11   VID484/2009

 12   [2010] FWAD 10039 at [19]

 13   Ibid at [20]

 14   Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) [2017] FCA 167

 15   Ibid at [86] – [87]

 16   Ibid at [122]

 17   Ibid at [123]

 18   Ibid at [137] – [140]

 19   Ibid at [146]

 20   Ibid at [148]

 21   Ibid at [155]

 22   See York v Lucas (1985) 158 CLR 661, 670

 23   [2017] FCA 167 at [156]

 24   Ibid at [158]

 25   Ibid at [160]

 26   Ibid at [173]

 27   Ibid at [210]

 28   Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 at [21] – [26]

 29   AMWU1

 30   PN81-82

 31   PN84-85

 32   PN86

 33   PN90

 34   PN97

 35   AMWU1

 36   PN22

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