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[2016] FCAFC 169
Federal Court of Australia (Full Court)
2016-12-12
Wigney JJ
Original judgment source is linked above.
Date of hearing: 5 August 2016
Registry: Queensland
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 73
Counsel for the Applicant: Mr C O'Grady QC with Mr MJ Follett
Solicitor for the Applicant: Ashurst Australia
Counsel for the First and Second Respondents: Mr R Reitano with Mr C Massy
Solicitor for the First and Second Respondents: Hall Payne Lawyers
Counsel for the Third Respondent: The Third Respondent filed a submitting notice
24 January 2017 Appearance for Counsel for the Applicant "Mr PM O'Grady" has been replaced with "Mr C O'Grady QC".
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent
JUDGES: BARKER, RANGIAH AND WIGNEY JJ DATE OF ORDER: 12 DECEMBER 2016
THE COURT: 1 This is an application for judicial review by the office holder previously known as the Director of the Fair Work Building Industry Inspectorate and now known as the Australian Building and Construction Commissioner (since the coming into operation of the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) on 2 December 2016) (applicant) of a decision of the Fair Work Commission made on 13 April 2015, granting an entry permit to the second respondent, Mr Michael Ravbar (first instance decision). In the alternative, the applicant seeks judicial review of a decision of the Full Bench of the Commission made on 9 October 2015, refusing the applicant permission to appeal against the first instance decision (Full Bench decision). 2 The decisions and orders now under review came about in the following circumstances. 3 On 19 June 2014, the first respondent, the Construction, Forestry, Mining and Energy Union (CFMEU), applied to the Commission for the issue of entry permits to some of its officials, including Mr Ravbar, under s 512 of the Fair Work Act 2009 (Cth). At all material times, Mr Ravbar was the Divisional Branch Secretary of the Construction and General Division, Queensland/Northern Territory Divisional Branch of the CFMEU. 4 Section 512 of the Act allows the Commission to issue an entry permit to an official of an organisation if it is satisfied that the official is a "fit and proper person" to hold an entry permit. In deciding this, the Commission must take into account the "permit qualification matters" set out in s 513(1) of the Act, which, at material times, provided: 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. 5 When the CFMEU made its application, there was an existing application by Bechtel Construction (Australia) Pty Ltd under s 505 of the Act in respect of its Curtis Island Construction project near Gladstone, in which orders were sought revoking or suspending the entry permits of the 15 officials who were respondents to the proceeding, including Mr Ravbar. 6 On 18 September 2014, the Commission suspended Mr Ravbar's existing entry permit for a period of two months. It did so as a result of finding that he acted inconsistently with the obligations in s 499 of the Act by acting contrary to reasonable occupational health and safety requirements when entering the Curtis Island Construction project. See Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors [2014] FWC 5900. 7 On 18 February 2015, a Full Bench of the Commission quashed the order suspending Mr Ravbar's entry permit. It did not, however, disturb the factual findings made by the Commission at first instance, or its conclusion that Mr Ravbar acted inconsistently with s 499 of the Act. See Construction, Forestry, Mining and Energy Union v Bechtel Construction (Australia) Pty Ltd [2015] FWCFB 946 (Bechtel Appeal). 8 On 18 July 2014, the applicant exercised his power under s 72 of the Fair Work (Building Industry) Act 2012 (Cth) to provide the Commission with two sets of submissions in relation to the CFMEU's application for entry permits. 9 The applicant relevantly submitted that, in effect, Mr Ravbar was not a "fit and proper person" under s 513(1) of the Act to hold an entry permit, after taking into account that in Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 585, the CFMEU was found to have contravened s 298P(3)(a) and (b) of the Workplace Relations Act 1996 (Cth) (WR Act) as a result of conduct engaged in by Mr Ravbar and another union official, for which pecuniary penalties were imposed; Mr Ravbar was, at the time, a respondent in the Bechtel proceeding and was alleged to have contravened the Act and the WR Act; Mr Ravbar was, at the time, a respondent in proceeding BRG771/2012 before the Federal Circuit Court of Australia; and Mr Ravbar was a person who held senior office in an organisation that appeared to have manifested a "continuing attitude of wilful disobedience to the law". 10 The applicant further submitted that the CFMEU and Mr Ravbar failed to provide "full and frank disclosure" in relation to a number of these matters, which he said were permit qualification matters that were relevant for the purposes of determining whether Mr Ravbar was a fit and proper person. 11 On 13 April 2015, despite the applicant's opposition, the Commission decided to grant an entry permit to Mr Ravbar. See Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch [2015] FWC 2158. 12 On 9 October 2015, a Full Bench of the Commission refused the applicant permission to appeal against this decision. See Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch [2015] FWCFB 6035. 13 The applicant, by originating application for relief under s 39B of the Judiciary Act 1903 (Cth) filed 23 December 2015, now seeks the following orders: (1) a writ of certiorari issue to the Commission removing into this Court and quashing its first instance decision; (2) a writ of mandamus issue to the Commission requiring it to hear and determine the CFMEU's application according to law; (3) within seven days of the date of these orders, Mr Ravbar return to the Commission the permit issued to him by it on or around 13 April 2015 pursuant to s 512 of the Act; (4) pending the return of the permit pursuant to para 3 above, Mr Ravbar be restrained from using or seeking to use that permit for any purpose, including for any purpose for which it may be used under the Act; (5) in the alternative to paras 1 to 4 above, a writ of certiorari issue to the Commission removing into this Court and quashing the Full Bench decision; (6) in the alternative to paras 1 to 4 above, a writ of mandamus issue to the Commission requiring it to hear and determine the applicant's application and appeal against the first instance decision according to law; and (7) no order as to costs. 14 The applicant alleges that the first instance decision or, in the alternative, the Full Bench decision was affected by jurisdictional error. 15 Two primary questions now arise: (1) Are either or both the first instance decision and the Full Bench decision amenable to certiorari? (2) If so, should certiorari go to quash the relevant decision?
First instance decision 16 With regard to para (b) of the "permit qualification matters" contained in s 513(1) of the Act, the Deputy President at first instance found the CFMEU's application disclosed that Mr Ravbar had been convicted of an offence in Hamberger, which involved a contravention of s 298P(3) of the WR Act. 17 The Deputy President also found that, for the purposes of para (d), Mr Ravbar had been ordered to pay a penalty under an industrial law, being $750 in Hamberger. The Deputy President noted that this decision was made in 2002, and related to actions in early 1999 that were an attempt to get an employer to take action against an employee because he refused to join a union. In the Deputy President's view, the long period of time since the actions and their nature meant that they did not weigh heavily against the granting of a permit to Mr Ravbar. 18 The Deputy President noted, for the purposes of para (c), that Mr Ravbar had never been convicted of an offence against a law of the Commonwealth, a State or a Territory, or a foreign country, involving entry into premises, fraud or dishonesty, intentional use of violence against another person or intentional destruction of property. 19 With regard to para (e), the Deputy President found that, as a result of the Bechtel Appeal, Mr Ravbar's permit had not been revoked or suspended. 20 The Deputy President noted that, while the Full Bench in the Bechtel Appeal quashed the orders made in Bechtel on the basis that suspending the relevant individuals' right of entry permits did not deal with the dispute at hand, it was satisfied that the Deputy President in Bechtel took into account the relevant submissions and evidence, and accepted the Deputy President's characterisation of the dispute as about how the CFMEU and its individual officials would exercise their rights of entry in the future, in light of past conduct. In those circumstances, the Deputy President concluded that, in balancing the relevant factors set out in s 513 of the Act, the main relevance of Bechtel and the Bechtel Appeal was that Mr Ravbar's permit was not suspended - something that did not weigh in the scales against him. 21 Finally, as matters that the Deputy President considered relevant under para (g) in deciding whether Mr Ravbar was a fit and proper person, the Deputy President had regard to whether or not the CFMEU fully disclosed all matters relevant to the entry permit application, and whether Mr Ravbar could be considered responsible, as Divisional Branch Secretary, for the contraventions of the Divisional Branch while Mr Ravbar was Secretary. 22 With regard to disclosure, the Deputy President held that the CFMEU did disclose fully with respect to Hamberger, noting that the case and the penalty were referred to in the declarations in support of the application, and the details were a matter of public record. He also held that the CFMEU did disclose the litigation that subsequently became Bechtel and the Bechtel Appeal. 23 The Deputy President considered it understandable that the CFMEU did not disclose the litigation in BRG771/2012, to which Mr Ravbar was a respondent, in circumstances where there had been no decision at the time of the Deputy President's decision. While he considered that the litigation should have been disclosed, its non-disclosure did not weigh greatly against the CFMEU. 24 In the result, the Deputy President was satisfied that the CFMEU's level of disclosure was of a reasonable standard which did not weigh against the granting of a permit. 25 With regard to Mr Ravbar's alleged responsibility for contraventions of the Divisional Branch, the Deputy President considered as follows: [58] The main thrust of the FWBC's attack was on Mr Ravbar's responsibility as Divisional Branch Secretary for the contraventions of the Divisional Branch whilst Mr Ravbar has been the Secretary. I have had regard the Full Bench's comments in paragraph [27] of Kong quoted above. [59] The FWBC details the seven matters in which branch officials contravened industrial laws leading to penalties of $926,710. They all involved industrial action engaged in contrary to the building industry legislation applicable at the time. The evidence was that the action was in support of various industrial and/or health and safety agendas of the Applicant. [60] As I have already mentioned, Mr Herbert undertook an extensive analysis of the CFMEU rules which were tendered in evidence. I accept that Mr Ravbar is the Executive Officer under the rules responsible for the affairs of the Branch. Of course, his role is subject to the control of the democratically elected governing bodies of the union. The argument about Mr Ravbar's responsibility for each of the seven breaches relies on the analysis of the rules. [61] I accept that Mr Ravbar would come within the term used by the Full Bench in Kong: "an official with management responsibility in an organisation". However, there is no specific evidence linking these seven breaches to the personal characteristics or involvement of Mr Ravbar or his suitability to hold a right of entry permit. It is not sufficient, in my view, to rely on the theoretical operation of the rules without concrete evidence as to Mr Ravbar's conduct. Nor is it sufficient to rely on an assertion as to the CFMEU's 'history of non-compliance with industrial laws' and its 'culture of wilful disobedience'. It cannot be said that Mr Ravbar is 'responsible' for the actions of all CFMEU officials in a manner which is consistent with principles established by Full Benches to deal with right of entry permits. [62] As the Full Bench pointed out in Kong there are a range of remedies available under the Act, the RO Act and the Building Industry Act against the Applicant and Mr Ravbar, as its Secretary, to deal with the alleged conduct of its officials. I am not satisfied that this ground of attack is consistent with the Commission's established approach to the application of s.513(1). Nor am I satisfied that it is an appropriate use of the right of entry provisions. [63] The Applicant was criticised for not providing a more detailed witness statement from Mr Ravbar which could have been the subject of cross-examination. I do not think that this criticism is justified. There was no specific allegation in relation to Mr Ravbar's personal conduct to be answered. The courts' decisions in the seven matters which the FWBC relied on were tendered and dealt with extensively in submissions. There was no evidence that Mr Ravbar was 'a ring-master in a union office in a managerial position who was sending his organisers out to breach the law' (Transcript PN394). Rather, the general picture which emerges is of the union determinedly pursuing its industrial and health and safety agendas and its activity coming into collision with the industrial legislation. There are remedies under that legislation to deal with that conduct if breaches are found to occur. 26 In the result, the Deputy President held that, having regard to the matters in s 513(1) of the Act, Mr Ravbar was a fit and proper person as required by s 512. In reaching this conclusion, the Deputy President stated as follows: [64] It is now necessary to balance the matters that I have considered above under s.513(1) and come to an overall conclusion as to whether Mr Ravbar is, for the purpose of s.512, a fit and proper person to hold a right of entry permit. [65] Mr Ravbar has been a union official for 25 years and has been Branch Secretary for eight years. He holds a senior position within the CFMEU nationally. He has received one penalty during that period and that was for events that occurred 16 years ago. He has never been found to have contravened right of entry laws. In the conflict-ridden world of the construction industry he has a relatively clean record. Overall, I have found that the level of disclosure by the Applicant was reasonable and should not be a bar to the granting of the permit. Finally, I have found that the objection to the granting of the permit based on the industrial transgressions of the Applicant and other officials does not have sufficient evidentiary links to the personal characteristics of Mr Ravbar. [66] I therefore find that these factors do not prevent Mr Ravbar from being considered a 'fit and proper person'. 27 The Deputy President therefore granted the application for an entry permit to Mr Ravbar under s 512 of the Act. 28 The applicant seeks to impugn this first instance decision as one affected by jurisdictional error, on the various bases set out below. 29 The applicant submits that while the Full Bench subsequently refused permission for the applicant to appeal against the first instance decision, the first instance decision remains amenable to review in this proceeding. This question is dealt with below
The Full Bench decision 30 On 4 May 2015, pursuant to s 604 of the Act, the applicant filed a notice of appeal against the first instance decision. 31 In considering the nature of the appeal before it, the Full Bench stated as follows at [7]-[8] of its decision: Nature of the Appeal [7] Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision-maker. [Footnote omitted]. An appeal may only be made with the permission of the Fair Work Commission (the Commission); there is no right to appeal. [8] Section 604 of the Act provides: '604 Appeal of decisions (1) A person who is aggrieved by a decision: (a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or (b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act; may appeal the decision, with the permission of the FWC. (2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so. Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.' 32 This passage accurately identifies the legislative provision and relevant principles governing the appeal before the Full Bench. However, the applicant highlights its apparent incongruity with the Full Bench's conclusion at [39], in that the Full Bench proceeded to make reference to s 400(1): [39] We have reviewed all of the relevant material before the Commissioner. We are not persuaded an arguable case of appealable error has been demonstrated by the Appellant. No basis upon which the public interest is attracted has been identified. We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, as required by s.400(1), permission to appeal is refused and the appeal is dismissed. 33 It may be noted at this point, in passing, that the applicant fixes on the reference to s 400(1) and says it indicates the Full Bench decision is affected by jurisdictional error and/or error of law on the face of the record because the Full Bench appeared to have regard to and apply the wrong statutory provisions governing its consideration of the question of whether to grant permission to appeal. He notes that s 400(1) of the Act concerns appeals in unfair dismissal cases, which was not relevant to the appeal at hand. He says the incongruous reference cannot merely be a typographical error in the context of the preceding sentence which, read literally, says the Full Bench was required by s 400(1) not to grant permission to appeal because it found there was no public interest in the appeal. This, he says, wrongly imposed the mandatory requirement in s 400 that there be public interest in an appeal before permission to appeal is granted, which is not relevant to appeals under s 604. 34 Returning to the Full Bench's reasons for refusing permission, in concluding that, in all the circumstances of the case, it was not minded to grant permission to appeal on the basis of any of the grounds raised by the applicant, the Full Bench stated: [34] In these proceedings the Appellant has invited the Full Bench to conclude that misconduct by Mr Ravbar should be implied when dealing with section 513(1)(g). In the decision at first instance, the Deputy President took the view that there was no evidence before him linking Mr Ravbar to the contraventions by the CFMEU, and that no such implication could be made. In these circumstances, the Deputy President found that it was not sufficient to rely on the operation of the rules to imply misconduct without concrete evidence. Nor was it sufficient to rely on the assertion of the CFMEU's history of non-compliance with industrial laws and cultural wilful disobedience. [35] In granting a permit to a person who is fit and proper, the Commission is required to have a certain level of satisfaction as to the evidence about an individual and their level of general integrity. Forensically, bearing in mind the seriousness of taking away a right of entry permit, the Commission needs to be satisfied that it is done appropriately in all of the circumstances. The Appellant has argued that the Respondent did not, at any point in the proceedings at first instance, attempt by evidence of any kind, to seek to rebut the allegedly clear inferences that were being suggested about Mr Ravbar's involvement in the contraventions. We note that this issue was picked up at paragraph [70] of the Decision where it was squarely examined by the Deputy President: '[70] The Applicant was criticised for not providing a more detailed witness statement from Mr Ravbar which could have been the subject of cross-examination. I do not think that this criticism is justified. There was no specific allegation in relation to Mr Ravbar's personal conduct to be answered. The courts' decisions in the seven matters which the FWBC relied on was tendered and dealt with extensively in submissions. There was no evidence that Mr Ravbar was "a ring-master in a union office in a managerial position who was sending his organisers out to breach the law" (Transcript PN394). Rather, the general picture which emerges is of the union determinedly pursuing its industrial and health and safety agendas and its activity coming into collision with the industrial legislation. There are remedies under that legislation to deal with that conduct if breaches are found to occur.' [36] We consider that there were no facts in evidence before the Deputy President or on appeal that supported an inference that Mr Ravbar omitted to take any reasonable steps to ensure that others under his control failed to comply with the law, or encouraged or directed or tolerated a general culture of non-compliance with the law. [37] We accept the submissions of the Respondent that the Appellant misread Kong. Applying Kong to the circumstances of the matter before us, our inevitable conclusion is that there was no evidence before the Deputy President to support a finding that the CFMEU's history of contraventions said anything about Mr Ravbar's personal conduct, character or reputation, either as relevant to the exercise of rights of entry under the Act, or at all. [Footnote omitted]. [38] The appeal process is not intended to provide an avenue for an unsuccessful party to re-run their case or redress deficiencies in the manner in which their case was run at first instance. [Footnote omitted]. With respect, an examination of the appeal grounds of the Appellant, fail to demonstrate any error on the part of the decision maker at first instance and are, as the Respondent rightly characterised, riddled with unsubstantiated hyperbole. All relevant circumstances and matters before the Deputy President were considered, none were given undue weight and the Deputy President's findings were not unreasonable or plainly unjust. 35 In the result, the Full Bench refused permission to appeal and the appeal.
Is each decision amenable to certiorari? 36 The first question that arises is whether the first instance decision and the Full Bench decision are each amenable to certiorari, or just one of them; and, if so, which one. 37 It may be arguable, in theory, that there could be two decisions, in circumstances such as the present, both having continuing legal effect, each of which is amenable to being quashed. 38 So far as the Full Bench decision is concerned, it constitutes an exercise of the power of the Full Bench under the Act to grant or refuse permission to appeal, which power is conferred on it by s 604 and s 613(1) of the Act. 39 If that power is exercised, so that permission to appeal is granted, then a substantive appeal will follow which will have the effect, usually, either of affirming a first instance decision or replacing it in some relevant way. The decision of the Commission then having operative effect will be the Full Bench decision on appeal, even if it operates by affirming the first instance decision the subject of the appeal. 40 However, there has been some controversy about this in decided cases. For example, in The Transport Workers' Union v Mayne Nickless Ltd [1998] FCA 1022, a Full Court considered that certiorari should go to quash a first instance decision in circumstances where it considered the second, Full Bench decision on appeal was dependent upon the first instance order. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148, at [165], Katzmann and Rangiah JJ, in a joint judgment, drew attention to the decision of the High Court in The Queen Against Marks And Others; Ex Parte Australian Building Construction Employees And Builders Labourers' Federation (1981) 147 CLR 471; [1981] HCA 33, which they noted had not been drawn to the attention of the Full Court in Mayne Nickless, where the Court rejected a submission that, if the challenge to the first instance decision in that case succeeded on the footing that it was void, the confirmation of that decision by the Full Bench would have no operative effect. 41 Katzmann and Rangiah JJ, at [169], noted that Mason J (with whom other members of the Court agreed on this point), in so ruling in Marks, did not rule that prohibition cannot issue against the first instance decision-maker in circumstances where there has been an unsuccessful appeal to the Full Bench. Rather, he indicated that it was first necessary to examine the statutory scheme to ascertain whether Parliament's intention was that the only remedy for a denial of procedural fairness, the matter in issue in that case, was to be by way of appeal. 42 Their Honours, at [170], considered there was nothing in the language of the Act currently to indicate an intention to exclude the Federal Court's jurisdiction to issue writs of prohibition and mandamus under s 39B of the Judiciary Act against a first instance decision-maker where there has been an appeal. 43 Their Honours accepted, at [173], however, that a denial of procedural fairness, where that is the issue, may be cured by an appeal. 44 In the result, their Honours, at [176], said they would refuse relief against the first instance decision-maker unless they were to conclude that the Full Bench decision involved jurisdictional error. Their Honours said that that was "because it would be futile to grant relief in respect of a decision at first instance when the appellate decision stands and is conclusive and operative". 45 In the present application before the Court, where the Full Bench did not grant permission to appeal, there is no appellate decision which stands and which is conclusive and operative. There does not appear to be any particular reason, therefore, why prohibition and mandamus may not go either to the Full Bench decision or to the first instance decision. 46 The decision to refuse permission to appeal does not materially undermine the operation of the first instance decision and, indeed, may itself be impugned. However, as authority indicates, the exercise of such a power is not easily impugned.
Should certiorari go to quash the full bench decision? 47 It is necessary to emphasise that the combined effect of s 604 and s 613 of the Act confer a broad discretionary power on a Full Bench in relation to the grant of permission to appeal. Section 604(1) makes it clear that the person who is aggrieved by a relevant decision may appeal the decision, "with the permission of the FWC". Section 604(2) provides that, without limiting when the Commission may grant permission, the Commission "must grant permission if the FWC is satisfied that it is in the public interest to do so". Section 613(1) then provides that a Full Bench must (except as provided by subs (2)) decide under s 604 whether to grant permission to appeal a decision and if it does so, hear the appeal in accordance with s 607. 48 The question of the public interest is a broad consideration. Unless it can be shown that the Full Bench in the exercise of its power to grant permission to appeal misunderstood the nature of its jurisdiction, or somehow misconceived its duty, then, in accordance with the principles of jurisdictional error established in such cases as Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; [2000] HCA 47 and Marks, any error made in relation to a permission decision will be considered an error within jurisdiction. See also Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees' Union (2015) 234 FCR 405 at [58]-[69]; [2015] FCAFC 105. 49 In this case no proper basis has been established to show that in refusing to grant permission to appeal, the Full Bench made any such jurisdictional error. 50 While the applicant has drawn attention to the Full Bench's incorrect reference to s 400 at [39] of its reasons as evidence of it applying a wrong test thus indicating jurisdictional error, on proper analysis this submission is not made out. Despite the initial error, at [31] of its decision the Full Bench applied the correct statutory test in stating, by reference to s 604(2), that it "must grant permission to appeal if it is satisfied it is in the public interest to do so". When this is understood, together with the Full Bench's explicit reference at [7]-[8] of its reasons for decision, to s 604 and principles relevant to appeals under that provision, the incongruent reference to s 400 at [39] is seen to be no more than an inadvertent or typographical error. The Full Bench correctly applied, in substance, the test under s 604. No jurisdictional error in the exercise of the permission to appeal power is thereby revealed.
Should certiorari go to quash the first instance decision? 51 The applicant contends that the Commission fell into jurisdictional error at first instance on the following bases: (a) the Commission misconceived its duty, asked itself the wrong question and misunderstood the nature of the opinion it was required to form under sections 512 and 513 of the FW Act, when it came to considering the relevance to the question of whether Mr Ravbar was a fit and proper person to hold and entry permit (FPP question), of the conduct of the Divisional Branch of the CFMEU and various of its officers and agents whilst Mr Ravbar was Secretary (Branch conduct); (b) the Commission misconceived its duty, asked itself the wrong question and misunderstood the nature of the opinion it was required to form under sections 512 and 513 of the FW Act, when it came to considering the relevance to the FPP question of the failure of the CFMEU, Mr Ravbar or anyone else to provide any evidence regarding what (if anything) Mr Ravbar had done in relation to the Branch conduct, or to limit or prevent such conduct in the future; (c) further or alternatively to (a) above, the Commission failed to have regard to relevant considerations which it was bound to take into account and which affected its exercise of power, by failing to pay any regard to the Branch conduct; (d) further or alternatively to (b) above, the Commission failed to have regard to relevant considerations which it was bound to take into account and which affected its exercise of power, by failing to pay any regard to the lack of any evidence from the CFMEU, Mr Ravbar or anyone else regarding what (if anything) Mr Ravbar had done in relation to the Branch conduct, or to limit or prevent such conduct in the future; and (e) further or alternatively to (a)-(d) above, the Commission failed to have regard to relevant considerations which it was bound to take into account and which affected its exercise of power, by failing to pay any regard to the behaviour of Mr Ravbar (and the associated findings of the Commission) when using or seeking to use his entry permit regarding entry to the Bechtel Curtis Island worksite on 20 March 2012 (Bechtel conduct). 52 The applicant's principal contention before the Commission concerning whether Mr Ravbar was a "fit and proper person to hold the entry permit" related to a number of contraventions of industrial relations legislation and financial penalties imposed on the CFMEU and various of its officials, including because of the conduct of those officials and other representatives of the Divisional Branch of the CFMEU, which conduct was engaged in whilst Mr Ravbar was Secretary of that Branch. It was contended that these were matters to be considered relevant and hence must be taken into account under s 513(1)(g) of the Act. 53 In granting an entry permit, the applicant contends, the Commission misconceived its role and its duty, and failed properly to apply itself to the statutory question in s 512 of the Act. In essence, the applicant contends, the Commission adopted some form of "presumption of fitness" with respect to Mr Ravbar and essentially reversed a "dispositive onus". 54 The applicant contends this approach was wrong. The applicant says he had met what could be described as an "evidential onus" with respect to those matters. The evidence before the Commission, he says, was clearly capable of supporting an inference against Mr Ravbar's personal fitness and propriety. The applicant complains, however, that the Commission decided that, in the absence of any "concrete evidence" that Mr Ravbar himself was personally involved in the contravening conduct, he was not responsible for that conduct and it was therefore not relevant to an assessment of his fitness. The applicant complains in particular about the finding of the Commission that this evidence did "not have sufficient evidentiary links to the personal characteristics of Mr Ravbar". 55 The applicant also complains about the Commission having regard to the "range of remedies available under the Act, the RO Act and the Building Industry Act … to deal with the alleged conduct" of officials of the CFMEU, as a reason for refusing to consider such matters in the context of s 513 of the Act. The applicant complains about the Commission's statement that it was not satisfied that it was "appropriate" for them to be raised. 56 Another aspect of the applicant's opposition to the issue of an entry permit to Mr Ravbar was what it described as the Bechtel conduct. The history of the Bechtel proceeding is set out above. The applicant says that by the time the Commission came to decide the application for an entry permit, the suspension order in respect of Mr Ravbar had been quashed, but the quashing order related only to the legal issue about whether the suspension order resolved the dispute, and the factual findings as to Mr Ravbar's conduct were not disturbed. 57 The applicant says that the factual conduct by Mr Ravbar was, on any view, a relevant matter to be taken into account in assessing whether Mr Ravbar was a fit and proper person to hold an entry permit, and could only operate against the granting of the application. 58 However, despite this, he contends, the Commission did not take this into account. The applicant contends that whilst it appears that the Commission accepted the relevance of the conduct, it then said that the main relevance was that Mr Ravbar's permit was not suspended. The Commission thus concluded: "[i]t is therefore not something that weighs in the scales against him". 59 Thus, the applicant contends, the Commission did not consider whether the conduct of itself was a matter to be taken into account, nor did it take it into account and, given the significance of that point to the case advanced by the applicant before the Commission, this failure demonstrates jurisdictional error. 60 In our opinion, the manner in which the Commission, by Lawrence DP, dealt with the application is not redolent of jurisdictional error on the Commission's part. At [47]-[63] of the first instance decision, the Deputy President dealt with each of the matters that he was required to take into account by s 513(1)(a) to (g) in deciding whether or not to issue an entry permit to Mr Ravbar. We would agree with the submission of the CFMEU and Mr Ravbar that this involved an "unremarkable" exercise of the discretion. That the applicant considers more weight should have been given to the fact that Mr Ravbar was a senior official of the CFMEU at material times when questionable conduct occurred, goes to the merits of the Commission's decision-making, but not to excess of jurisdiction. The question of what significance and weight should be attached to particular facts and factors in the decision-making process was for the Commission to determine. Any error that it made in the course of conducting that exercise may be characterised as an error within its jurisdiction to make the decision whether or not an entry permit should be issued, but it does not establish that the Commission exceeded its jurisdiction to make that decision. 61 For this reason, no doubt, the applicant seeks to draw special attention to the conduct it labels as the Bechtel conduct. The applicant seeks to elevate Mr Ravbar's Bechtel conduct to the status of a factor the Commission was bound to take into account in its decision-making. 62 There is no doubt, however, that the Deputy President did take account of Bechtel and the Bechtel Appeal and the Bechtel conduct allegations made against Mr Ravbar. 63 As explained further below, while the Deputy President was not "bound" to take that conduct into account, he was entitled to do so on the basis that it was a relevant matter that could be considered pursuant to s 513(1)(g), as indeed he did. 64 The decision-making record of the Commission makes it quite plain that the so-called Bechtel conduct of Mr Ravbar was taken into account. The Commissioner considered that the "main relevance" of that conduct was that "Mr Ravbar's permit is not suspended". 65 If it were an error for the Commission not to attach greater weight than that to the relevance of that conduct in deciding whether or not an entry permit should be granted to Mr Ravbar, the error plainly was one made within jurisdiction and not one that reveals any jurisdictional error on the part of the Commission. The Commission did what it was required to do by s 513(1)(g) by taking into account any other factors it considered relevant. It took account of the Bechtel conduct. The weighing of that factor in the making of the final decision, whether or not to grant an entry permit, fell to the Commission to make. No jurisdictional error is revealed in that process. 66 On the hearing of the current application, senior counsel for the applicant sought to emphasise the submission that various forms of conduct of the CFMEU or its senior officials, which he considered constituted contraventions of the Act and should in effect be attributed to Mr Ravbar, as well as Mr Ravbar's Bechtel conduct, when one took account of the scope and objects of the Act and s 513, were matters that the Commission was "bound" to take into account under para (g). 67 In other words, the applicant contended that the particular conduct referred to was conduct that the Commission was obliged to take into account in the course of reaching the decision under review. 68 In a well-known statement of the law, Mason J in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 39-40; [1986] HCA 40, said the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision. His Honour added: What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors … are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard 69 Section 513(1)(g) simply provides that the Commission must take into account "any other matters that the FWC considers relevant". Paragraph (g) obliges the Commission to take into account other matters, beyond those prescribed by paras (1)(a) to (f), that it considers relevant. It is for the Commission to determine what other matters it considers relevant. It is not open, in our view, for the applicant, simply by making submissions about what he considers the Commission must regard, thereby to require the Commission to regard those matters for the purposes of para (g). It is for the Commission to decide what other matters are relevant. If it were to identify a matter as relevant, but then to ignore it in its subsequent decision-making, then jurisdictional error would be indicated. But the Commission did not make any such error here. 70 For the sake of completeness, there is nothing in the subject matter, scope and purpose of the statute and within s 513 of the Act itself, to cause the implication of an obligation to take into account the matters that were the subject of the applicant's submissions to the Commission. The Commission was obliged to consider those matters to the extent that they fell within s 513(1)(a) to (f), and then to take into account, albeit as a mandatory obligation, other matters that it considered relevant. 71 Here, all the matters that the Commission considered relevant were addressed in its decision. They included all the conduct to which the applicant has drawn attention, including the Bechtel conduct. 72 The real complaint of the applicant is that the Commission did not attach the same weight to that conduct that the applicant attached to it. That, however, does not reveal any jurisdictional error on the part of the Commission in the course of making its entry permit decision concerning Mr Ravbar.
Conclusion and orders 73 For the reasons given above, the applicant's application filed 23 December 2015 should be dismissed. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Barker, Rangiah and Wigney.
Australian Building and Construction Commissioner
Construction, Forestry, Mining and Energy Union
[2015] FWC 2158
[2015] FWCFB 6035
[2014] FWC 5900
[2015] FWCFB 946
(2000) 203 CLR 194
(1986) 162 CLR 24
(2015) 234 FCR 405
(1981) 147 CLR 471