Fair Work Act 2009

s.512 - Right of entry

Application by the Construction, Forestry, Maritime, Mining and Energy Union

Application for a right of entry permit for Beau Richard Seiffert - satisfied that Mr Seiffert is a fit and proper person to hold an entry permit - application granted - permit to issue.

[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 a right of entry permit to be issued to its official, Mr Beau Richard Seiffert.

[2] Mr Seiffert's current permit, issued on 24 August 2017, was to expire before this application could be determined. Consequently, and having otherwise been satisfied that the requirements in s.516(2) of the Act had been met and that no matter in s.516(4) precluded an extension of the period of operation of the permit, I exercised my discretion to extend the period of operation.[1]

[3] On 17 July 2020, the Australian Building and Construction Commissioner (ABC Commissioner) advised the Commission that he wished to be heard in relation to the application. A directions hearing was held on 31 July 2020 and I directed that the parties file written submissions by suggested dates. One of the directions was that by no later than 5.00pm on Friday, 4 September 2020 any party requesting an oral hearing should so indicate in writing and absent any request the application would to be determined on the papers. On 4 August 2020, the Applicant confirmed that it did not request an oral hearing. No request for an oral hearing was received from the ABC Commissioner. In the circumstances, I have decided to determine the application on the papers without holding a hearing.

[4] The applicable principles for determining right of entry permit applications under s.512 are now well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s.513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission's inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense_._ The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.[2] The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

[5] The permit qualification matters contained in s.513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a 'relevant consideration' in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend),[3] that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process.[4] As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:[5]

"To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant".[6]

[6] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:[7]

"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable"."[8]

[7] Having regard to the structure and content of s.513, in deciding whether a proposed permit holder 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. There is no indication in the right of entry permit provisions of the Act nor in the more general right of entry scheme established by the Act that any particular permit qualification matter should be given more weight than any other. But each matter must be accorded appropriate weight. The absence, for example, of a conviction of an official for 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.

[8] Section 513(1)(g) of the Act requires the Commission to take into account any other matter it considers relevant. A matter will be relevant if it can rationally affect the assessment of whether the proposed permit holder is a fit and proper person to hold an entry permit. Matters that may be relevant and therefore fall to be considered under s.513(1)(g) are matters that relate to the personal characteristics of the proposed permit holder and are pertinent to the discharge of the functions and exercise of the rights and privileges associated with holding a permit.

[9] I turn to consider the application.

[10] In support of its application the CFMMEU filed declarations by Mr Seiffert and Mr Michael Ravbar, Divisional Branch Secretary of the Construction & General Division of the Queensland and Northern Territory Branch of the CFMMEU, in conjunction with the application (the Declarations).

[11] Mr Seiffert is employed as an Organiser by the CFMMEU. As mentioned above, Mr Seiffert currently holds a right of entry permit, issued on 24 August 2017. That permit was issued without any conditions.

[12] According to the Declarations, Mr Seiffert has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 24 June 2020.[9]

[13] The ABC Commissioner submits that the fact that Mr Seiffert has undertaken training about the rights and responsibilities of a permit holder should carry little weight in support of the application. The ABC Commissioner contends that as the training was facilitated by the Applicant, the Commission should consider whether the training can be properly characterised as 'appropriate' given the CFMMEU's repeated contraventions of Commonwealth workplace laws.[10]

[14] The CFMMEU submits that the training provided by the Applicant is approved by the Commission and accordingly there is no basis to suggest that it is inappropriate for the purposes of s.513(1)(a) of the Act.[11] I accept the CFMMEU's submission. It is plainly correct.

[15] I am therefore satisfied that the training was appropriate training. That Mr Seiffert has received appropriate training about the rights and obligations of a permit holder 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.

Permit qualification matters - s.513(1)(b), (c), (d), (e) and (f)

[16] According to the Declarations

• Mr Seiffert has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[12]

• Mr Seiffert 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;[13]

• Neither Mr Seiffert nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s.513(1)(d) of the Act);[14]

• Mr Seiffert has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act);[15]

• Mr Seiffert has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Seiffert held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act);[16] and

• Mr Seiffert has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).[17]

[17] The ABC Commissioner did not make any submissions in relation to these matters.[18]

[18] 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 Seiffert is a fit and proper person to hold a right of entry permit.

[19] The Declarations disclose a number of other relevant matters in considering whether Mr Seiffert is a fit and proper person to hold an entry permit.

[20] On 17 December 2018, Mr Seiffert was charged with trespass under s.11(2) of the Summary Offences Act 2005 (Qld).[19] The charge was dismissed with costs by a Magistrate on 24 May 2019. An appeal was filed and on 14 April 2020 the appeal was allowed.[20] The District Court found that there was a case to answer.[21] The matter was remitted to the Magistrates Court to be reheard. On 1 May 2020, an appeal to the Court of Appeal was commenced and is yet to be listed for hearing.

[21] The CFMMEU contends that given that the matter is ongoing, and no findings or admissions of wrongdoing have been made, it should not be given any weight.[22]

[22] The ABC Commissioner submits that the substance of this matter falls squarely within matters which are relevant and required to be considered by the Commission and the Commission is entitled to have regard to the decision of the District Court notwithstanding the Court of Appeal proceedings.[23]

[23] In circumstances where no findings have been made, I do not consider this proceeding and the allegations on which it is based should be taken into account under s.513(1)(g) of the Act. The charges were dismissed by a Magistrate after the close of the prosecution case, and the defendant has not had the opportunity to give or call evidence.[24] I will not take this into account in determining whether Mr Seiffert is a fit and proper person to hold an entry permit and I attribute this matter no weight.

[24] In Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union & Ors[25] (Bruce Highway) (QUD238/2018) Collier J found that Mr Seiffert:

• contravened s.497 of the Act on eight occasions, in circumstances where he was a permit holder, was required to produce his entry permit, was requested to produce his entry permit by the occupier and/or an affected employer, did not produce his entry permit when requested to so do, and subsequently exercised a State or Territory OHS right; and

• contravened s.500 of the Act when, on four occasions in April 2020, he acted in an improper manner whilst exercising rights in accordance with Part 3-4 of the Act at a section of the Bruce Highway between Caloundra and the Sunshine Coast Motorway which was being upgraded at material times.

[25] The judgment is subject to an appeal. No order that a pecuniary penalty be paid by Mr Seiffert or any other person in relation to the contravening conduct the subject of the declaration has been made.

[26] The ABC Commissioner submits that Mr Seiffert's contravening conduct was deliberate, repeated and in direct conflict with the responsibilities of a permit holder.[26]

[27] The Applicant submits that this matter should be attributed little weight at this stage and viewed with caution as the judgment and reasons are subject to appeal.[27] The Applicant further contends that if the Commission were to rely on the decision in a manner adverse to Mr Seiffert, and the decision were to be overturned on appeal, he would have been deprived of his permit for no good or sound reason.[28]

[28] In my view, it does not follow from the fact that an appeal has been lodged that the Commission must treat the Court's findings and conclusions with caution. Nor does the fact that an appeal has been lodged diminish the significance of the Court's decision for the purposes of the present proceedings.

[29] The CFMMEU's contention that as no penalty has yet been imposed on Mr Seiffert, the specific criterion in s.513(1)(d)[29] of the Act has not been engaged[30] is correct. Nonetheless, that there has been a declaration of contravening conduct may be considered under s.513(1)(g) of the Act, because the contravening conduct as found is plainly relevant to the assessment of whether Mr Seiffert is a fit and proper person to hold an entry permit.

[30] The CFMMEU submits that the matter involved what was, in effect, a misapprehension of law.[31] Mr Seiffert believed that he had a legal basis to be at the site and that he was not exercising a right of entry under the Act, while the occupier disagreed. The CFMMEU points to the absence of any aggravating conduct to buttress this submission. I accept this submission. The submission by the ABC Commissioner at [33] of his submissions does not contradict the force of the CFMMEU's submission. To the contrary, it is clear from the judgment that Justice Collier found relevantly, Mr Seiffert believed that he had a legal basis to be at the site in observing:

". . . the fact that all individual respondents refused to leave the Site despite being asked by representatives of the joint venturers to do so indicates that the individual respondents believed that they had exercised a right to enter the Site in accordance with s 81(3) of the WHS Act."[32]

[31] The ABC Commissioner submits I should have regard to Mr Seiffert's status as an official of the CFMMEU, a recidivist when it comes to contravening industrial laws, and Mr Seiffert's susceptibility to comply with the CFMMEU's directions to engage in unlawful conduct.[33] A determination whether an official of an organisation is a fit and proper person to hold an entry permit involves a focus on the proposed permit holder's personal attributes. Whether there is a susceptibility on the part of the proposed permit holder to follow a direction to engage in unlawful conduct must involve an inquiry which is based in some fact or circumstance. It is my view contentions of this nature should have some factual basis and should be put directly to a proposed permit holder in the course of evidence in order that the proposed permit holder might be given an opportunity to respond. Such a contention criticises the character of the proposed permit holder. It says "you will not or may not resist" complying with a direction to engage in unlawful conduct. Despite having been given the opportunity to request an oral hearing, the ABC Commissioner did not make such a request. He could have but elected not to cross-examine Mr Seiffert. In the circumstances, I do not give the submission any weight.

[32] Mr Sieffert's contraventions of ss.497 and 500 of the Act are matters weighing against a conclusion that he is a fit and proper person to be issued with an entry permit. The contraventions of the Act by Mr Seiffert are matters which, in my view, ought be given appropriate weight. The significance of the contravening conduct on the assessment I must make is diminished by the circumstances in which the contravening conduct occurred and which are the subject of the CFMMEU's submission which I have accepted above. If I ultimately issue a permit to Mr Seiffert, and subsequently a penalty is imposed on Mr Seiffert or on another person, s.510 of the Act will be engaged.

[33] Mr Seiffert is named as a respondent in Australian Building and Construction Commission v Blake Hynes & Ors[34] in relation to alleged contraventions of right of entry provisions. The matter was commenced on 30 June 2020 and no defence has yet been filed and no hearing conducted. Mr Seiffert is also named as a respondent in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union & Ors.[35] This proceeding has been adjourned since November 2018 pending the outcome of other proceedings.

[34] The Applicant submits that as these matters are ongoing and no findings or admissions of wrongdoing have been made, they should not be given any weight.[36]

[35] In relation to the current matters before the Federal Court, it is neither possible nor appropriate to give them any weight when no findings of contravention have been made and the allegations of contravention are denied. In these circumstances, it is not appropriate to take these matters into account and I do not do so.

[36] Mr Seiffert was named as a respondent in Australian Building and Construction Commission v Blake Hynes & Ors (BRG34/2019), but the claim against him was discontinued by the applicant in July 2019. In the circumstances, I do not take this matter into account.

[37] Having considered the permit qualification matters and giving each appropriate weight, I am satisfied that Mr Seiffert is a fit and proper person to hold a right of entry permit.

[38] The only matter of weight which tells against a conclusion that Mr Seiffert is a fit and proper person to hold a right of entry permit is the contraventions in the Bruce Highway proceedings. While those contraventions are not insignificant and constitute a failure by Mr Seiffert to uphold his legal obligations as the holder of an entry permit, I do not consider that, absent the imposition of penalty, they are so weighty as to disqualify him from holding an entry permit. Balanced against the contraventions are the factors in ss.513(1)(a), (b), (c), (d), (e) and (f) of the Act, all of which weight in favour of a conclusion that Mr Seiffert is a fit and proper person to hold a right of entry permit.

[39] On an overall balance of the matters I am required to take into account, I am satisfied that Mr Seiffert is a fit and proper person to hold a right of entry permit.

[40] A permit will be separately issued.

[1] [2020] FWC 4024

[2] Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]

[3] [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379; Ho v Professional

Services Review Committee No 295 [2007] FCA 388 at [23]- [26] and cited in Hasim v Attorney-General of the

Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

[4] Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and

Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail

Association v Fair Work Commission [2014] FCAFC 118

[5] (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at [62]

and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another [2011] FCA 719; (2011) 195 FCR 74

[6] (1987) 16 FCR 167 at 184

[7] [1986] HCA 40, (1986) 162 CLR 24

[9] Form F42, declaration by proposed permit holder dated 14 July 2020 at (a) and 'CFMEU QLD/NT Certificate of Achievement'.

[10] Submissions of the Australian Building and Construction Commissioner dated 27 August 2020 at [23]

[11] Applicant's Submissions in Reply dated 4 September 2020 at [2]

[12] Form F42, declaration by proposed permit holder dated 14 July 2020 at (b)

[18] Submissions of the Australian Building and Construction Commissioner dated 27 August 2020 at [19]

[19] Form F42, declaration by proposed permit holder dated 14 July 2020 at 1(h)(i)

[20] [2020] QDC 50

[22] Applicant's Outline of Submissions dated 14 August 2020 at [33]

[23] Submissions of the Australian Building and Construction Commissioner dated 27 August 2020 at [36]

[24] [2020] QDC 50 at [140]

[25] [2019] FCA 1737

[26] Submissions of the Australian Building and Construction Commissioner dated 27 August 2020 at [32]

[27] Applicant's Outline of Submissions dated 14 August 2020 at [18] - [19]

[29] The Applicant's Outline of Submissions refer to s.512(1)(d). This is plainly a typographical error and should be a reference to s.513(1)(d) of the Act.

[30] Applicant's Outline of Submissions dated 14 August 2020 at [20]

[32] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737 at [83]

[33] Submissions of the Australian Building and Construction Commissioner dated 27 August 2020 at [45]

[36] Applicant's Outline of Submissions dated 14 August 2020 at [34]

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