[2018] FWC 1777
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.512 - Application for a right of entry permit

Application by the Construction, Forestry, Maritime, Mining and Energy Union for a right of entry permit to be issued to Mr Michael Kenneth Robinson
(RE2017/1380)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 APRIL 2018

Application for issue of right of entry permit to Mr Michael Kenneth Robinson; satisfied that Mr Robinson is a fit and proper person to hold an entry permit; application granted; permit to issue.

Introduction

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (Commission) under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Mr Michael Kenneth Robinson. Mr Robinson is presently based at the Townsville office of the CFMMEU as an organiser.

[2] The Australian Building and Construction Commissioner (Commissioner) advised of his intention to make submissions in respect of the application. The application was listed for hearing on 6 February 2018.

Relevant statutory provisions and application

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

“512 FWC may issue entry permits

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

513 Considering application

514 When the FWC must not issue permit

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

515 Conditions on entry permit

[4] The operation of these provisions and their application is now well settled. In previous decisions I summarised the relevant principles and without repetition I adopt what is therein said. 1 In short compass however the assessment of whether an official of an organisation is a fit and proper person to hold an entry permit requires taking into account the permit qualification matters set out in s.513 of the Act considered in the context of the rights the holder of an entry permit may exercise under the Act, the limitations on and conditions attaching to the exercise of those rights and the responsibilities that must be exercised in respect of those rights.

[5] I turn to consider the application.

Consideration

[6] Mr Robinson commenced employment with the CFMMEU on 1 October 2008 in Townsville. 2 From 2008 until 4 April 2017, Mr Robinson has held a Federal right of entry permit under the Act or the Workplace Relations Act 1996. Mr Robinson also holds a State right of entry permit under the Industrial Relations Act 2016 (Qld).3

Permit qualification matters – s.513(1)(a), (b), (c) and (f)

[7] According to the declarations filed by the CFMMEU in support of the application for the grant of a permit to Mr Robinson (the Declarations):

•  Mr Robinson has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of federal right of entry conducted by the CFMMEU on 4 September 2017 (s.513(1)(a) of the Act); additional training was also provided by Mr Jeffrey Lawrence, a former Presidential Member of the Commission on 8 November 2017; 4

•  He has never been convicted of an offence against an industrial law 5 (s.513(1)(b) of the Act);

•  He has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act; 6

•  He has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Robinson held under a State or Territory industrial law or a State or Territory occupational health and safety law 7 (s.513(1)(f)(i) of the Act); and

•  He has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law 8 (s.513(1)(f)(ii) of the Act).

[8] Save for the quality and detail of the training provided to Mr Robinson by Mr Lawrence, none of the above matters was disputed by the Commissioner. I accept that the information as disclosed in the Declarations concerning these matters is accurate and correct. These matters all weigh in favour of a conclusion that Mr Robinson is a fit and proper person to hold a right of entry permit.

[9] As evidence of the additional training undertaken by Mr Robinson, the CFMMEU provided a statutory declaration made by Mr Lawrence on 1 December 2017. In that declaration Mr Lawrence says that he had been asked to and provided training to Mr Robinson in Sydney on 8 November 2017. The training provided was of approximately two and half hours duration and covered inter alia the operation of the right of entry and industrial action provisions of the Act. Mr Lawrence sets out the following his declaration:

“26. I took Mr Robinson through the right of entry provisions under the Act. This included covering the following topics:

(a) the requirements that needed to be in existence before a right of entry could be exercised, including the holding of the permit, notice of entry, coverage and the like;

(b) what rights a permit holder had when on site, for example what room or area could be visited;

(c) the importance of keeping a copy of the right of entry permit on your person at all times;

(d) the significant penalties that can apply for a permit holder if those obligations are breached, or if they hinder, obstruct or act in an improper manner while on site; and

(e) the operation of the fit and proper person test in permit applications, including VP Hatcher's decision in CEPU [2015] FWC 1522.

27. Mr Robinson engaged actively in the discussion with me around those issues. He

demonstrated a clear understanding of the various requirements and how to comply with them.

28. I next took Mr Robinson through the history of industrial action provisions under the Act.

This included covering the following topics:

(a) the process of protected action ballots;

(b) the requirements for industrial action to be protected, including there being no current enterprise agreement and the notice requirements;

(c) the consequences of industrial action not being protected;

(d) how protected industrial action can be suspended or terminated;

(e) the serious penalties and compensation that can occur for the taking of unprotected industrial action;

(f) what constitutes organising industrial action by a union official; and

(g) how to deal effectively with situations of unprotected industrial action occurring at a site as a union official.

29. Mr Robinson engaged actively in the discussion with me around those issues. He

demonstrated a clear understanding of the origins of the provisions and how to comply

with them.

30. There did not appear to me to be any issue with Mr Robinson's knowledge or

understanding of the right of entry and industrial action requirements in the Act.” 9

[10] Prior to his appointment to the Commission, Mr Lawrence had a long career as a union official dating back to 1977. Whilst at the Commission, the Deputy President was a member of the organisations panel of the Commission which entailed the Deputy President exercising from time to time the jurisdiction conferred by s.512 of the Act in relation to the issuing of entry permits. Given Mr Lawrence’s background and experience I consider that he is qualified to deliver the training that he delivered to Mr Robinson in December 2017. It seems to me based on the declaration that the training was relevant and appropriate and will have supplemented the training that Mr Robinson had undertaken in September 2017.

[11] The Commissioner indicated that he was not in a position to make any submissions as to the adequacy of training provided as he was not aware of the content or materials used as part of the training undertaken. Based on the declaration I am satisfied that Mr Lawrence covered relevant subject matter in relation to the exercise of entry rights and the obligations of a permit holder under the Act and that Mr Lawrence was well qualified to deliver that training. In those circumstances I am satisfied that the training was appropriate training and as I have already observed the training will have supplemented the training earlier received by Mr Robinson. That Mr Robinson has received appropriate training about the rights and obligations of a permit holder on two occasions in 2017 through different vehicles is a matter that weighs in favour of a conclusion that he is a fit and proper person to hold a right of entry permit and the Act.

Permit qualification matters – ss. 513(1)(d) and (e)

[12] In his declaration lodged in support of the application for a permit, Mr Robinson has disclosed that in Director of the Fair Work Building Industry Inspectorate v Robinson and Other (FWBI v Robinson) 10 he and the CFMMEU were found to have contravened s.417 of the Act and that he and the CFMMEU were ordered to pay a penalty in relation to the action taken by him. Specifically, Mr Robinson was found to have contravened the Act by organising industrial action that was not protected action. Section 417 of the Act proscribes the organising and engaging in, industrial action before the nominal expiry date of an enterprise agreement.

[13] The Court imposed a $6,700 penalty on Mr Robinson. In determining to impose a penalty on Mr Robinson, the Court took into account Mr Robinson’s early admission as to liability and cooperation throughout the proceeding and reduced the penalty imposed accordingly. 11 The Court noted that the reduction would have been greater had the admissions ultimately made, been made at an earlier time.12

[14] As to the seriousness of the contravening conduct, the Court said:

“71    I have found that the industrial action organised by the respondents involved the cessation of work by 66 employees for one day at a construction site. Their absence from the workplace caused significant disruption and inconvenience to O’Rourke on that day, although no serious or ongoing economic loss is proven. I reject the respondents’ submission that both the scale of the industrial action and the seriousness of their contraventions are to be regarded as “low-level”.

72    The following paragraphs summarise the inferences I have drawn from the affidavit material in respect of the individual respondents’ states of mind.

73    Put simply, the individual respondents deliberately contravened s 417 of the FW Act. They knowingly encouraged the employees to do the same. Their actions formed a part of an organised strategy in respect of which their contraventions of s 417 were not merely an accidental or collateral consequence, but a planned and central feature. They were aware of at least the possibility that O’Rourke or some other person with standing may, as a result of their contraventions, suffer the costs and inconvenience of obtaining orders under s 418 of the FW Act to compel the employees’ compliance with the requirements of the FW Act. Mr Robinson and Mr Taylor referred to that possibility at their respective meetings and Mr Haire, as I have found, both endorsed Mr Taylor’s statements and added words of encouragement of his own.

74    It is reasonable to infer that the individual respondents knew that the industrial action taken by the employees was not protected industrial action and that the employees would be in breach of their obligations as employees to O’Rourke and enjoy no immunity under the FW Act in respect of it. The ballots conducted by them were not secret ballots and were accompanied by language intended to influence as many O’Rourke employees as possible to vote collectively in favour of the stop work proposals.” 13

[15] As to the need for specific deference the Court said:

“81    Mr Robinson, Mr Taylor and Mr Haire have committed no prior contraventions of the FW Act. Notwithstanding that, the circumstances of these respondents’ contraventions call for a penalty that meets the proper objective of specifically deterring each of them from engaging in like conduct and from maintaining the mental attitudes I have found in respect of each of them. Their knowledge that their actions were unlawful did not deter them, on this occasion, from contravening the law, and there is no evidence that they have since gained any insight into the importance of compliance by union organisers with the requirements of the FW Act. There is, in that circumstance, a considerable need for specific deterrence notwithstanding their status as first-time contraveners.” 14

[16] The CFMMEU contend that there was no allegation of any property damage, violence, threatening or similar behaviour in FWBI v Robinson and that the relevant conduct occurred in excess of 3 years ago. 15 It says that the Commission is entitled to take the contravention into account but in doing so, should have positive regard to the voluntary and early admission of liability which it says, evinces Mr Robinson’s understanding of the unsatisfactory nature of the offending and thus recidivism is unlikely.16

[17] Against this submission it must be said that while it is true that Mr Robinson made a voluntary admission during the proceedings, as noted by the Court that admission came approximately six months after the proceedings had been commenced by the Director of the Fair Work Building Industry Inspectorate and after the Director had prepared and filed affidavit material upon which he intended to rely at the trial. 17 I also note that the Court considered that in the circumstances there was a “considerable” need for specific deterrence despite the fact that Mr Robinson was at that time a first-time contravener. This was because there was a need to deter Mr Robinson from engaging in like conduct and maintaining the mental attitude that the Court found Mr Robinson maintained. The Court observed that Mr Robinson knew that his actions were unlawful but that this did not deter him from engaging in conduct and that there was no evidence that he had since gained any insight into the importance of compliance by union organisers with the requirements of the Act.18

[18] On its own, the contravening conduct in FWBI v Robinson would weigh against a conclusion that Mr Robinson is a fit and proper person to hold an entry permit, however noting that the contravening conduct occurred nearly 4 years ago combined with that which follows below, I consider overall that the contravening conduct and the penalty imposed on him and the CFMMEU as a consequence of the contravening conduct is a less weighty matter.

[19] As a consequence of the contravention, Vice President Watson made the following orders by consent:

[20] The CFMMEU contend that there was no breach of the condition and that regard should be had to the fact that the contravention referred to above has already been dealt with. 20 It is not suggested that Mr Robinson breached the condition imposed and I accept the CFMMEU’s contention. I also take into account the fact that the CFMMEU and Mr Robinson consented to the imposition of the condition.

Permit qualification matters – s. 513(1)(g)

[21] Mr Robinson also declares in his declaration in support of the application for a permit the decision and order of Commissioner Hunt in Lendlease Building Pty Ltd T/A Lendlease Building v Construction, Forestry, Mining and Energy Union (Lendlease v CFMEU). 21 Lendlease v CFMEU concerned an application by Lendlease seeking an order to stop unprotected industrial action. The Commissioner was satisfied that the CFMMEU and its officials were organising industrial action and in the circumstances required for an order to be made under s.418(1)(c) of the Act. The decision and order made adverse findings against, inter alias, Mr Robinson. Mr Robinson did not give evidence in the proceeding and the decision and order were not the subject of an appeal.

[22] The CFMMEU contend that little weight, if any, should be given to this matter. It contends that Mr Robinson was not a party to the application and the conduct alleged against him was not related to an exercise of rights granted by his permit. 22 The CFMMEU also contend in light of Mr Robinson’s declaration in support of the application for a permit which states that he did not commit any wrongdoing on the day in question, the conclusions of the Commissioner should not be accepted.23

[23] In Construction, Forestry, Mining and Energy Union – Construction and General Division, Queensland and Northern Territory Branch 24 Senior Deputy President Hamberger refused to grant Mr Robinson a right of entry permit in part taking into account the adverse finding in respect of Mr Robinson in the Lendlease v CFMEU. The CFMMEU appealed the decision however, the Full Bench declined to grant permission to appeal.25 The CFMMEU contend that the Senior Deputy President’s sole reliance on the Lendlease v CFMEU decision was not one which was reasonably open to him and that little weight should be given to this decision in determining whether to grant Mr Robinson a right of entry permit.26 I note that the Full Bench rejected this contention in its decision refusing permission to appeal27 and I do not propose to revisit that issue here.

[24] The Commissioner contends that the CFMMEU is wrong to suggest that this matter should be given little weight. 28 He says that the present application is not an opportunity for the CFMMEU or the proposed permit holder to re-litigate matters that have already been determined and that in the absence of pursuing their appeal rights at the time, the CFMMEU must accept the consequences of its acquiescence.29 In effect, it is the Commissioner’s contention that the decision in Lendlease v CFMEU does not weigh in favour of granting Mr Robinson a right of entry permit.

[25] Whilst appropriate deference is to be given to the findings made in Lendlease v CFMEU, in the context of considering what weight should attach to those findings in deciding whether Mr Robinson is a fit and proper person to hold an entry permit, it is appropriate to consider the findings made and the evidence upon which those findings are based. Firstly, it is to be observed that the findings were made in the context of an application by Lendlease for orders under s.418 of the Act. Relevantly, so far as Mr Robinson is concerned orders under s.418 “must” be made “if it appears” to the Commission that industrial action by one or more employees, is not or would not be protected industrial action, “is being organised”.

[26] By way of summary background in the Lendlease v CFMEU matter, employees of Lendlease were at the relevant time engaged in protected industrial action in furtherance of their prosecution for a proposed enterprise agreement. The industrial action complained of in the proceeding was the refusal or failure by a number of employees of subcontractors of Lendlease to attend for work. The Commissioner set out in the evidence concerning Mr Robinson and his conduct by which it was said he was organising industrial action by employees of subcontractors of Lendlease as follows:

“[48] Mr Gary Brett is a Site Manager at the James Cook University ‘The Science Place’ Project.

[49] At 5.28am on 28 September 2016, Mr Brett saw Mr Mick Robinson, CFMEU organiser and Mr Terry Cronin, Lendlease employee placing CFMEU flags and signs against the site temporary fencing.

[50] From 6.00am and ongoing, Mr Brett’s uncontested evidence is that he saw Mr Robinson confronting all workers approaching the project gate. Mr Brett heard Mr Robinson inform all subcontractor employees who approached the entry words to the effect, “We are here for a protected action against Lendlease, as negotiations with Lendlease and the union have broken down.”

[51] It is Mr Brett’s evidence that most of the subcontractor employees entered the project, however some left the site immediately and some remained outside the gate.

[52] Mr Robinson had conversations with subcontractor employees from RISSAFETY Pty Ltd and Schindler Lifts. Mr Brett attests to Mr Chris Lane from Metalrig being ‘confronted’ by Mr Robinson, however Mr Brett did not attend the Commission and therefore it is not understood what is meant by ‘confronted’. It would seem that Mr Lane had reported to Mr Brett his concerns, but there is no direct evidence of the manner in which Robinson spoke with Mr Lane.” 30

[27] As to this evidence the Commissioner reasoned as follows:

“[95] It is not often that respondents to s.418 applications will attend the Commission and give evidence in proceedings. Where only an applicant’s witnesses give evidence, and there is opportunity for respondent witnesses to give evidence and they choose not to, the Commission must decide applications on the material before it.

[96] I am satisfied that 450 subcontractor employees across six worksites spread across Queensland did not all have a meeting of the minds at around 6.30am on a single day and decide that they individually did not wish to cross a CFMEU established picket line. The pattern of behaviour across all six sites is remarkably similar.

[97] Even without direct evidence of ‘organisation’ being undertaken, I would find that the ‘surrounding circumstances’, as per Richards SDP in Lendlease v CFMEU, have been met on this occasion to draw the relevant inference that the size and breadth of the industrial action was organised by the CFMEU and its officials and employees. 


[98] There is evidence of Mr Brett at [50] that Mr Robertson confronted all workers approaching the project gate at the ‘Science Project’ in Townsville. Some subcontractor employees chose to enter the site gate to perform their ordinary work; many did not. It would be an intimidating path to traverse to seek to commence work, and have a CFMEU organiser ‘informing’ or ‘confronting’ such workers that there was protected action being undertaken. While there is no direct evidence as to what discussions occurred between those workers and Mr Robertson where those workers did not enter the site gates, the inference is that those workers, on the first occasion being informed by Mr Robertson that there was industrial action being taken, then sought to not attend for work.

[99] If not for Mr Robertson seeking to ‘inform’ these workers of the industrial action being undertaken, I conclude on the evidence before me that at least some of those employees are likely to have entered the site and performed work. Instead, some left immediately and some remained near the gate and did not enter site.” 31

[28] It must be said for my own part that I find this reasoning less than compelling given the evidence above and notwithstanding the fact that Mr Robinson did not give evidence. In assessing the weight that should attach to the findings I do not take into account the matters about which Mr Robinson now seeks to give evidence in his declaration because he an opportunity to give that evidence before the Commissioner and either he or the CFMMEU decided that he not be called to give that evidence.

[29] That said I would not have drawn the inferences that the Commissioner drew in concluding that Mr Robinson was organising industrial action by employees of subcontractors. The Commissioner’s observation that “it would have been an intimidating path to traverse” does not appear to me to have been supported by any evidence (at least not any evidence recounted in the decision). The observation does not therefore support the inference. Moreover, the Commissioner’s conclusion that “if not for” Mr Robinson seeking to inform certain employees of subcontractors of the industrial action that was being undertaken, the workers would have entered the site and performed work, in my respectful opinion simply does not provide a sound basis to infer that Mr Robinson was organising industrial action. This is because first, there was no evidence from sub-contractor employees. Secondly, the only evidence (as disclosed in the decision) about the information which Mr Robinson provided to some employees of sub-contractors was that “we are here for a protected action against Lendlease, as negotiations with Lendlease and the union have broken down”. 32 There is nothing in this reported statement of Mr Robinson which is inaccurate in the circumstances. There is nothing in the statement which makes any suggestion to the employees about what they should do. Nor is it evidence of organising unprotected industrial action.

[30] It is also to be remembered that the appearance of industrial action being organised was all that was required to support the making of an order. It is another thing altogether to show proof on the balance of probabilities that Mr Robinson was organising unprotected industrial action in the circumstances. For these reasons it would in my view be unsafe to ascribe any weight, in assessing whether Mr Robinson is a fit and proper person to hold an entry permit, to the adverse findings made against Mr Robinson in Lendlease v CFMEU and I do not propose to do so.

[31] Also declared in Mr Robinson’s declaration in support of the application for a right of entry permit is the decision of Commissioner Booth in Bechtel Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (Bechtel). 33 In Bechtel, the Commissioner found that Mr Robinson had breached occupational health and safety requirements concerning entry to a project being undertaken on Curtis Island. Consequently, the Commissioner suspended Mr Robinson’s entry permit.34 On appeal however, it was found that the order to suspend Mr Robinson’s right of entry permit was not validly made as it could not be characterised as an order dealing with the issue in dispute.35

[32] Despite the decision at first instance being overturned on appeal, the Commissioner notes that as was observed by SDP Hamberger in refusing to grant Mr Robinson a right of entry permit last year, the Full Bench did not undermine the findings that were made by the Commission in relation to Mr Robinson’s conduct. 36 In light of this, the Commissioner says that the determination in Bechtel is a relevant matter to be taken into account in determining whether Mr Robinson is a fit and proper person to be granted a right of entry permit.

[33] The CFMMEU contend that little weight, if any, should be attributed to this matter given the conduct occurred 5 years ago and that the decision was overturned on appeal. 37 I agree generally with this submission. I take into account the conduct but note that the conduct occurred in 2014, and that Mr Robinson has received additional training since the conduct which is directed to his obligations as a permit holder.

[34] The Commissioner contends that Mr Robinson is not a fit and proper person to hold a right of entry permit. He says that Mr Robinson’s lack of remorse and unwillingness to attend the Commission to give evidence demonstrates a complete disregard for the law and that the Commission cannot be satisfied that Mr Robinson has learnt from his misconduct. Mr Robinson’s so called unwillingness to attend the Commission to give evidence does not demonstrate a disregard for the law. First, Mr Robinson made a declaration, a copy of which was available to the Commissioner. Secondly, no request was made by me that Mr Robinson attend. Thirdly, the Commissioner made no request for such an attendance nor did he apply for any order that would have compelled Mr Robinson’s attendance. In these circumstances, it cannot seriously be submitted that Mr Robinson was “unwilling” to attend and no adverse inference should be drawn. This is not the first occasion on which I have observed that if the Commissioner wishes to make a submissions about the no attendance at a hearing by a proposed permit holder, the Commissioner should either give notice that he wishes to cross-examine the proposed permit holder, or make an application that the proposed permit holder be required to attend a hearing. 38

[35] The Commissioner submits that the lack of appearance and evidence from Mr Robinson should be of concern to the Commission. It says that neither the statutory declaration of Mr Robinson or Mr Lawrence in support of the application go towards satisfying the Commission that Mr Robinson comprehends the obligations of a permit holder. 39 The Commissioner contends that the CFMMEU’s assertion that undertaking additional training should go towards satisfying the Commission that Mr Robinson has good grasp of his obligations as a permit holder, might be more persuasive if Mr Robinson gave that evidence himself.40 Consequently, the lack of any such direct evidence does not cast Mr Robinson in a good light. For reasons already given, I do not accept the Commissioner’s contention. Neither, Mr Lawrence nor Mr Robinson were required or requested to attend to give further evidence or be cross-examined. I accept that the further training received by Mr Robinson shows a willingness to learn from his past wrongdoing and that its purpose was to reinforce the rights and obligations of a permit holder under the Act. The additional training augurs well for the prospect that Mr Robinson will continue to comply with industrial laws.

[36] The Commissioner contends that it should be a concern to the Commission that Mr Robinson has failed to show any remorse for the conduct that has been earlier outlined. It says that the Commission cannot be satisfied that Mr Robinson understands the non-compliant nature of the conduct and that if he did so, he would have indicated such to the Commission through evidence. 41 I accept that an indication of remorse is a factor that in many cases is to be weighed in the balance, but the absence of such an indication needs to be assessed in context of a given application. First, the need to show contrition in respect of past wrongdoing by proposed permit holders in entry permit applications is not a decision rule. Both the need for and the context of any expression of contrition is to be assessed in the context of the circumstances that pertain to each application. Secondly, there has been no contravening conduct found by a Court involving Mr Robinson since FWBI v Robinson. Thirdly and perhaps related to the second, the Court in FWBI v Robinson took into account the need for specific deference vis-à-vis Mr Robinson in determining the question of the quantum of the penalty that should be imposed. That there has been no further acts of contravening conduct suggests that the specific deference may have had the desired effect. Fourthly, that Mr Robinson and the CFMMEU consented to the imposition of a condition of Mr Robinson’s permit in the proceedings before Vice President Watson shows an acceptance of wrongdoing. Fifthly, that no contravention of the condition imposed occurred also needs to be weighed in assessing whether an expression of contrition is necessary. Sixthly, so far as contrition for the conduct in respect of the other proceedings to which reference has been made, for the reasons earlier given, I can well understand why contrition is not expressed and do not propose to give the absence of contrition in respect of that conduct any weight. On the whole, I do not consider that the absence of any express contrition by Mr Robinson in the circumstances of this case warrants weight attaching to it.

[37] The Commissioner says that the fact that some time has passed since the events referred to in these submissions involving Mr Robinson should be given little weight by the Commission. The Commissioner says that as the authorities have repeatedly held, the Commission should not assume that by virtue of the mere passage of time, Mr Robinson has reformed his previous behaviours. 42 To make good its point the Commissioner relies on the following passage from Ex Parte Tziniolis:43

“Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.”

[38] Further, the Commissioner submits that in the absence of probative evidence as to how the mere effluxion of time may have reformed his previous behaviour, no weight should be given by the Commission to the fact that some time has elapsed in relation to some of the matters involving Mr Robinson. This is especially so considering the conduct involved in Lendlease v CFMEU occurred in September 2016. 44 The correct approach is to assume that he retains those non-compliant behaviours unless and until he satisfies the Commission by clear evidence otherwise.45 Whilst, I accept that the mere passage of time is not a significant countervailing factor, the conduct of real significance occurred nearly four years ago, there has been no further contravening conduct found by a Court, Mr Robinson has complied with the condition attached to his permit consequent on the contravening conduct and he has taken active steps to receive further relevant training.

Conclusion

[39] As I have stated on more than one occasion, it would seem to me self-evident, having regard to the structure and content of s.513, that in deciding whether an official of a registered organisation is a fit and proper person to hold an entry permit, all of the permit qualification matters identified in s.513(1) of the Act must be taken into account. Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct of an official giving rise to the matters identified in s.513(1)(d) of the Act, the other permit qualification matters cannot be ignored and must be given appropriate weight. The absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight.

[40] For these reasons and taking into account the permit qualification matters, I am satisfied that Mr Robinson is a fit and proper person to hold an entry permit under the Act. The permit will separately be issued.

Seal of the Fair Work Commission with Member's signature

DEPUTY PRESIDENT

Appearances:

Mr W L Friend, QC for the Construction, Forestry, Maritime, Mining and Energy Union

Mr R Dalton, Counsel for the Australian Building and Construction Commissioner

Hearing details:

Melbourne.

6 February.

2018.

Printed by authority of the Commonwealth Government Printer

<PR601499>

 1   See for example [2017] FWC 666 at [4] – [8]

 2   Statutory Declaration of Mr Jeffrey Lawrence dated 1 December 2017 at [12]

 3   Ibid at [20] and Transcript dated 6 February 2018 at PN90 – PN91

 4   Form F42 – Application for an entry permit at question 3 and Statutory Declaration of Mr Jeffrey Lawrence dated 1 December 2017 at [6] – [7]

 5   Construction, Forestry, Maritime, Mining and Energy Union’s Outline of Submissions dated 13 December 2017 at [10(c)(i)]

 6   Ibid at [10(c)(ii)]

 7   Ibid at [12]

 8   Ibid

 9   Statutory Declaration of Mr Jeffrey Lawrence dated 1 December 2017 at [26] – [30].

 10   [2016] FCA 525; (2016) 241 FCR 338.

 11   Ibid at [98] – [99].

 12   Ibid.

 13   Ibid at [71] – [74]

 14   Ibid at [81]

 15   Construction, Forestry, Maritime, Mining and Energy Union’s Outline of Submissions dated 13 December 2017 at [18]

 16   Ibid at [19]

 17   [2016] FCA525; (2016) 241 FCR 338 at [99]

 18   Ibid at [81]

 19   PR582420

 20   Construction, Forestry, Mining and Energy Union’s Outline of Submissions dated 13 December 2017 at [16]

 21   [2016] FWC 7198

 22   Construction, Forestry, Mining and Energy Union’s Outline of Submissions dated 13 December 2017 at [23]

 23   Ibid at [24] – [25].

 24  [2017] FWC 1457

 25   [2017] FWCFB 3132

 26   Construction, Forestry, Mining and Energy Union’s Outline of Submissions dated 13 December 2017 at [29] and [33]

 27   [2017] FWCFB 3132 at [20].

 28   Australian Building and Construction Commissioner’s Outline of Submissions dated 19 January 2018 at [34]

 29   Ibid at [36]

 30   [2016] FWC 7198 at [48] – [52]

 31   Ibid at [95] – [99]

 32   [2016] FWC 7198 at [50]

 33   [2014] FWC 5900

 34   Ibid at [115]

 35   Construction, Forestry, Mining and Energy Union v Bechtel (Australia) Pty Ltd [2015] FWCFB 946 at [33] – [36]

 36   Ibid at [29]

 37   Construction, Forestry, Mining and Energy Union’s Outline of Submissions dated 13 December 2017 at [21]

 38   See for example application for a right of entry permit for Mr Peter Ong and Mr Mark Bateman [2015] FWC 4450 at [29]

 39   Australian Building and Construction Commissioner’s Outline of Submissions dated 19 January 2018 at [43]

 40   Ibid at [44]

 41   Ibid at [46]

 42   Ibid at [48]; 1967 1 NSWLR 357 and [2013] NSWCA 151

 43   1967 1 NSWLR 357

 44   Australian Building and Construction Commissioner’s Outline of Submissions dated 19 January 2018 at [50].

 45   Ibid at [51].