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[2017] FWCFB 4141
General information, not legal advice.
Fair Work Commission (Full Bench)
2017-08-08
Original judgment source is linked above.
s.604 - Appeal of decisions
Construction, Forestry, Mining and Energy Union
Appeal against decision [2017] FWC 1227 of Senior Deputy President O'Callaghan at Adelaide on 8 March 2017 in matter number RE2016/1607.
[1] This is an appeal by the Construction, Forestry, Mining and Energy Union - Construction and General Division (CFMEU), South Australian Divisional Branch (Appellant) against a decision[1] (Decision) of Senior Deputy President O'Callaghan in relation to an application for a right of entry permit to Mark Gava.
[2] Mr Gava is an official of the CFMEU South Australian Branch. He applied to the Fair Work Commission (Commission) for a right of entry permit under s.512 Fair Work Act 2009 (FW Act). Having considered the matters he was required to consider under s.513 of the FW Act the Senior Deputy President refused the application for a permit. The Senior Deputy President was not satisfied that Mr Gava was a fit and proper person.
[3] The Decision involved the Senior Deputy President exercising discretion. Consequently, the CFMEU must demonstrate an error of a type described in House v King.[2] Further, permission to appeal is also required.
[4] At the hearing of the appeal:
Mr M Aird appeared for the CFMEU, and
Mr M Felman of Counsel sought permission to appear for the Australian Building and Construction Commissioner (ABCC). Given the complexity of the matter, and having regard to s.596 of the FW Act, permission was granted to the ABCC to be represented.
[5] Under s.512 of the FW Act, Commission may, on an application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a "fit and proper person" to hold an entry permit. In deciding whether to grant an application for a right of entry permit the Commission must take into account the "permit qualification matters" set out in s.513(1).
[6] Section 513(1) of the FW Act is set out below:
(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:
(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."
[7] Sections 512-513 are within Part 3-4 of the FW Act, entitled 'Right of Entry'. The objects of Part 3-4 are set out at s.480:
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience."
[8] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[3] (Mooney's Case) Vice President Hatcher helpfully sets out the principles relevant to the interpretation and application of s. 512 and 513(1) as follows:
"[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of the s.512 of the FW Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:
[9] As we have observed, under s.512 of the FW Act, Commission may, on an application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a "fit and proper person" to hold an entry permit. It is clear from the use of the word 'may' that the Commission retains discretion as to whether or not to issue a permit. That discretion must be exercised having regard to the matters in s.513. That is to say, it is not discretion conferred in general, unqualified, terms. Further, it must be exercised in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose.
[10] Appeals brought pursuant to s.604 of the FW 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.[4] An appeal may only be made with the permission; there is no right to appeal.
[11] Section 604 of the FW Act provides:
(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."
[12] The test to be applied to the determination of permission to appeal depends on the characterisation of the decision subject to appeal. In the usual case s.604(2) applies. That subsection requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so'. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[6] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
'... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...'[7]
[13] Other than the special case in s.604(2), the grounds for granting permission to appeal in what we have referred to as 'the usual case', are not specified. Considerations which have traditionally been adopted in granting 'leave to appeal' and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[9] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[10]
[14] 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.[11]
[15] The factual background to the matter is as follows:
Mr Gava has been an official of the South Australian branch of the CFMEU since 2001. He has held permits under the FW Act and its predecessor was, as well as South Australian OHS legislation, consistently until his permit expired on 29 November 2016.
On 30 October 2013 Mr Gava entered sites controlled by Lend Lease.
On 11 November 2013 the Commission, of its own motion, commenced proceedings pursuant to s.508 of the FW Act (initially) in respect of the events of 30 October 2013.
On 16 May 2014 Mr Gava completed a right of entry training programme including about his conduct on 30 October 2013.
e) On 13 June 2014 the Commission placed restrictions on Mr Gava's right of entry permit. His permit was made the subject to conditions and a suspended suspension.[12]
f) In 2015 Mr Gava engaged in conduct which resulted in the Director of the Fair Work Building Inspectorate (now the ABCC) to commence proceedings against him on 10 February 2016 (Unresolved Proceedings).[13] Mr Gava denies the allegations.
g) On 20 November 2015 the Federal Court of Australia found that Mr Gava had contravened the FW Act on 30 October 2013.[14]
h) On 22 April 2016 the Federal Court made declarations in respect of Mr Gava's 30 October 2013 conduct and ordered that he pay pecuniary penalties.[15]
[16] In his decision, the Senior Deputy President:
a) set out the background to the application,[16]
b) identified the legislative scheme,[17]
c) considered and rejected a submission made by the ABCC that the application for a right of entry permit should be stayed pending a determination of an appeal in a matter before the Federal Court of Australia,[18]
d) set out the evidence,[19]
e) summarised the submissions made by the CFMEU and the ABCC,[20] and then,
Training about rights and responsibilities - s.513(1)(a)
[17] The Senior Deputy President held that he was:
"[30]... satisfied that Mr Gava has received appropriate training about the rights and responsibilities of a permit holder. In this respect, I am satisfied that he has undergone training to that effect on numerous occasions, including before the events of October 2013."
Convictions against industrial law - s.513(1)(b)
[18] The Senior Deputy President accepted the position set out by Hatcher VP in Construction, Forestry, Mining and Energy Union of Workers,[21] (referred to as Pallot's case) and, in adopting that approach was,
"[32] ... satisfied that Mr Gava has not been convicted of an offence against an industrial law."
Convictions involving fraud, dishonesty or intentional use of violence - s.513(1)(c)
[19] The Senior Deputy President accepted that,
"[33] ... Mr Gava has not been convicted of an offence against a law involving entry onto premises, fraud or dishonesty or the intentional use of violence or intentional damage or destruction."
Orders to pay a penalty under an industrial law in relation to action taken by the official - s.513(1)(d)
[20] The Senior Deputy President found that:
"[34] In the [Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[22] (Liability Decision)] and the [Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union[23] (Penalty Decision)], Mr Gava was ordered to pay a penalty under the FW Act. I have taken into account the circumstances of that matter. This matter arose as a consequence of the behaviour of Mr Gava and a number of other CFMEU officials who entered a Lend Lease Flinders University construction site on 30 October 2013 for the purposes set out in s.484 without having provided an entry notice in accordance with s.487 and who refused to leave when requested, and who held discussions with workers on that site. The Court found that Mr Gava threatened to organise, or to take, action against Lend Lease with the intention of coercing it to comply with the request that it fly the CFMEU flag on a crane hook, or to advance the interests of the CFMEU by flying its flag. Additionally, the Court found that Mr Gava and the CFMEU contravened s.500 on an adjacent Lend Lease construction site at Tonsley Park on 30 October 2013.
[35] The penalties imposed on Mr Gava were not at the maximum end of the scale available to the Court. In the Penalty Decision (which I emphasise is subject to appeal), White J. addressed the principles applicable to the determination of penalties and substantially accepted the proposition that Mr Gava's actions occurred in the course of a concerted and deliberate campaign by the CFMEU. In terms of Mr Gava, White J noted that no expression of regret, apology or contrition had been established.
[37] Having dismissed the contention that Mr Gava's actions should be regarded as part of a single course of conduct, his Honour concluded:
'120. Penalties of $1,400 are appropriate in respect of each of Mr Gava's contraventions of ss 348 and 500 at Flinders University site on 30 October 2013 and a penalty of $1,000 is appropriate in respect of his contravention of s 500 at the TAFE site. This penalty would have been higher but for the willingness to facilitate the course of justice reflected in Mr Gava's early admission of that contravention.'"
Permits revoked, suspended or made subject to conditions under Commonwealth law - s.513(1)(e)
[21] The Senior Deputy President observed that:
"[39] Mr Gava's entry permit was made subject to conditions as a consequence of the s.508 action taken by the FWC which culminated in the decision of 13 June 2014. I note that this decision followed a number of other decisions and appeal proceedings in relation to the ultimate findings of misuse of entry rights. In that final decision, I excluded Mr Gava from my general suspension of entry rights for all CFMEU officials with respect to Lend Lease sites in South Australia because I was satisfied that he was one of a number of officials who had participated in a right of entry training programme which included specific reference to the misuses which had been confirmed. Notwithstanding this, Mr Gava was one of four CFMEU officials whose entry rights with respect to Lend Lease sites in South Australia were suspended for a period of six months, with that suspension itself to be suspended, such that it would apply only in the event that further misuses involving any of those officials, relative to Lend Lease in South Australia were established to the Commission within the following 12 months. Additionally, a number of other restrictions were applied. These included a specific obligation for a CFMEU permit holder to give Lend Lease an entry notice for any proposed entry with a minimum of 24 hours' notice and not more than 14 days' notice. The entry notice was required to advise of the contravention or basis upon which the entry was sought and was required to be in the form set out in the Regulations. Additionally, the CFMEU permit holder seeking to exercise an entry right was required to provide a copy of this entry notice to the Director of Fair Work Building and Construction at the same time as it was provided to Lend Lease. Finally, any CFMEU official seeking to enter a Lend Lease site in South Australia was required to comply with all generally applicable right of entry requirements and the Work Health and Safety Act 2012 and to:
Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law - s.513(1)(f)
[22] The Senior Deputy President observed that:
"[41] There is no suggestion that any other suspension or cancellation or other form of disqualification has applied to Mr Gava."
[23] The findings in relation to s.513(a)-(f) were not challenged in this appeal. However, in the Amended Notice of Appeal the CFMEU advanced a ground of appeal that, the "Senior Deputy President erred in failing to take into account by evaluating and giving due weight to the following permit qualification matters."
[24] After considering each of the matters referred to s.513(a)-(f), the Senior Deputy President made the following relevant findings in relation so s.513(1)(g), which are the primary focus of this appeal:
[42] In terms of s.513(1)(g) I consider that a number of other matters are relevant. Firstly, in this respect, I have had regard to the written references provided by Mr Gava. Whilst I must observe that it is rare for adverse references to be relied upon in circumstances such as this, it is clear that these referees have a substantial regard for Mr Gava.
[43] The CFMEU contends that I should have regard to the extent to which Mr Gava was chastised by his wife for the October 2013 incidents and his evidence to the effect that his family commitments and responsibilities mean that he will not repeat behaviour of that nature.
[44] The CFMEU contends that I should have regard to the undertaking given by Mr Gava that he would refuse to follow any CFMEU instructions which would require him to act in an unlawful manner and that he has admitted that his October 2013 behaviour was wrong and undertaken not to repeat that behaviour. Mr Gava has also acknowledged the significant fines against the CFMEU have damaged the South Australian Branch and inhibited its capacity to properly service its members.
[45] I consider Mr Gava's concerns about his inability to properly service its members without an entry permit, to be a relevant matter. Whilst I have noted that, as an elected official, the absence of a permit does not immediately impact on his employment tenure, it may do so in the future. Notwithstanding this, the effect of the absence of an entry permit on Mr Gava cannot, of itself, form the basis for a conclusion that he is a fit and proper person to hold such a permit. Accordingly, I have considered this issue from the perspective that Mr Gava's concerns about the potential impact of the absence of a permit are an indication of his intention to comply with the requirements of the FW Act.
[46] I consider that Mr Gava's inability to recall his specific behaviour on 30 October 2013 is relevant, particularly given his undertaking not to repeat that behaviour. Simply put, Mr Gava does not recall exactly what he did but has undertaken not to do it again.
[47] I have noted that Mr Gava has apologised for his conduct on 30 October 2013 in his witness statement and has confirmed that he has also apologised to certain of his members and to at least one Lend Lease manager. The times at which these apologies were made is not clear to me but it does seem clear from the Penalty Decision that any expression of remorse was not made clear to the Court before that penalty determination, and remorse was not a feature in the course of the significant number of proceedings that culminated in the final s.508 decision.
[48] I have had regard to the current Court proceedings involving Mr Gava to the extent only that the nature of these proceedings casts an element of doubt about Mr Gava's categoric advice to me that, since October 2013 he has not engaged in any behaviour which could represent a breach of his right of entry obligations. No definitive conclusions can be drawn from this matter at the present time.
[49] I have had regard to Mr Gava's admission that he issued a right of entry notice on 1 December 2016 and exercised an entry pursuant to that notice on the following day, when he acknowledges that he had handed his expired entry permit to a CFMEU administrative officer on 28 November 2016. Mr Gava advised that this reflected an oversight, which may in fact be the case, but it raises a significant concern about the reliability of Mr Gava's memory and the credibility of his advice to me that, apart from the 30 October 2013 incidents, he has always complied with his legislative obligations and will continue to do so. These concerns are heightened by the extent to which Mr Gava then signed a statutory declaration on 16 December 2016 in which he confirmed he had not attempted to use his permit after it had expired, and, nearly one month later had to make a further statutory declaration recording that this was not correct.
[50] Finally, I accept the advice provided by the ABCC in relation to the substantial penalties which have been awarded against the CFMEU and its officials for contraventions of industrial laws in South Australia. Mr Gava's evidence also recognised the significance of these penalties and the impact they had on the CFMEU's capacity to properly represent its members. Those penalties amount to more than $1.5 million. The penalty decisions are indicative of a culture of wilful disregard for workplace relations laws within the CFMEU. I note that a number of those penalty decisions involve actions taken by the State Secretary of the CFMEU and I have concluded from those decisions that this culture of wilful disregard extends to that senior position.
[52] There is nothing before me that establishes that this culture of wilful disregard for workplace relations laws within the CFMEU has changed. I have considered the evidence of Mr Gava, to the effect that, following the additional training he received after the October 2013 incidents, he is committed to refusing any requests or suggestions that he should participate in any further unlawful behaviour in the context of the history of poor behaviour on the part of the CFMEU.
[53] I have discounted two factors from consideration of whether Mr Gava is a fit and proper person to hold an entry permit. Firstly, I have accepted that the delay in the receipt, by the FWC of Mr Gava's entry permit, reflected an administrative error which should not be taken into account in considering Mr Gava's circumstances. Secondly, I have accepted the evidence of Ms Candy and Mr Gava to the effect that the failure to reference the current Court proceedings in the application and attendant material reflected an oversight."
[25] The Senior Deputy President included the passage from Mooney's Case (set out above) and noted that,
"[54] The matters in s.513(1) need to be balanced and considered as a whole and do not uniformly suggest one particular outcome."
[26] The Senior Deputy President then had regard to the majority decision in Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate[24] (Tadic's Case) which referred to the decision in the Director of Fair Work Building Inspectorate v CFMEU[25] (Kong's Case).
[27] The Senior Deputy President then observed that,
"[56] Those approaches seem to me to be predicated on the requirement that the Commission must reach a positive satisfaction that a person is a fit and proper person to hold an entry permit.
[57] That discretionary conclusion must be a positive finding such that serious doubt or serious uncertainty would mitigate against such a finding.
[58] My decision in this matter is not predicated on the application of a higher bar than normal for considering whether Mr Gava is a fit and proper person to hold an entry permit, but it commences from the premise that he is an official of the CFMEU, with its history of disregard for legislative obligations.
[59] I have concluded that the October 2013 incident was a serious and significant incident. That Mr Gava had imposed upon him fines which were substantially less than those which could have been applied, reflected his good record up to that time and his admissions. Nevertheless, Mr Gava was an active and key official who was involved in a blatant and deliberate strategy to coerce an employer into agreeing to various claims. I am not satisfied that Mr Gava's contrition for his actions was at all obvious for some time and have concluded that his publicly explicit expression of contrition was only made as part of this application.
[60] I am not satisfied that the CFMEU has established to me that it's method of operation and management is such that the normal type of constraints, limitations and obligations placed on officials who are permit holders applies. Indeed, whilst I have not assumed it to be necessarily the case, there is a likelihood that Mr Gava will be expected to be an active participant in one or more of the campaigns it is currently pursuing."
[28] The Senior Deputy President continued,
"[61] I have commenced from the premise that I am satisfied that the significant training which Mr Gava has undertaken, together with his experience, means that he is aware of the obligations on a permit holder under the FW Act.
[62] In this context Mr Gava's undertaking to ensure that he rejects any notion that he would behave in a manner contrary to the requirements of the FW Act and will not repeat his October 2013 behaviours, becomes particularly significant. I do not accept that this undertaking is sufficiently clear on the evidence currently before me. In this respect I have considered the present time as the relevant time and have simply looked at the information that is currently before me. That approach appears to be consistent with the position adopted by Hatcher VP in Construction, Forestry, Mining and Energy Union-Construction and General Division, SA Divisional Branch.
[63] Mr Gava has advised that he cannot recall his specific behaviours on 30 October 2013. In that context, his undertaking to not repeat those behaviours is unclear. To the extent that this undertaking is based on the findings in the Liability Decision, Mr Gava has disagreed with various of the behaviours and words attributed to him in that Liability Decision. Consequently, I have concluded that Mr Gava is, either, equivocal about his commitment, or that his memory about his behaviour is such that he is genuinely unsure of what he did. These factors create serious doubt about the level of confidence that I can have about Mr Gava's commitment to act in a manner consistent with the provisions of Part 3-4 of the FW Act.
[64] This doubt is exacerbated by Mr Gava's behaviour three days after he handed his expired entry permit to an administrative officer for return to the FWC. Mr Gava's actions in providing an entry notice and relying on that notice to effect his entry to a site cast substantial doubt over his credibility, or at best, his memory. That doubt is compounded by the erroneous statutory declaration which he initially made out. I am not satisfied that Mr Gava has adequately explained his position in this respect. In this regard, Mr Gava's position is quite different to that considered by Hatcher VP in Construction, Forestry, Mining and Energy Union Construction and General Division, Victorian and Tasmanian Divisional Branch.
[65] Finally and to a far lesser extent, the current Court proceedings are relevant in that, had such a proceeding not been commenced at all, or had it reached a conclusion which completely exonerated Mr Gava, either outcome may have reinforced the credibility of the undertakings he has provided to me.
[66] I have weighed these concerns against the indicators that favour a finding that Mr Gava is a fit and proper person to hold an entry permit. The most significant matters in this context go to his traditional good record prior to 2013, the references he has provided and his stated desire to properly represent and service the CFMEU members as an official of the CFMEU with an entry permit."
[29] The Senior Deputy President concluded,
"[67] In summary form, the magnitude of the October 2013 behaviours, the uncertainties about Mr Gava's recollections of behaviours he has now undertaken not to repeat, his reliance on his entry permit three days after he handed it in, his erroneous statutory declaration and the uncertainty associated with the extent Court proceedings, do not support a finding that he should be regarded as a fit and proper person to hold an entry permit. Further, I am not satisfied that Mr Gava expressed contrition for his 2013 actions in a manner which reflected a clear understanding of the import of those actions as distinct from a position convenient to this application. I have taken into account the extent to which the CFMEU currently only has three permit holders in South Australia and Mr Gava's evidence that this impacts on service delivery. In the same context I have also had regard to Mr Gava's concerns that, without a permit his representational capacity is reduced. Whilst I have noted the position adopted by Hatcher VP in Construction, Forestry, Mining and Energy Union, I do not regard this consideration as a factor which overrides my concerns. A shortage of persons with entry permits does not make Mr Gava a fit and proper person. I have concluded that Mr Gava's expression of contrition is different to that considered by Hatcher VP in CFMEU and must be considered in the context of his limited memory of the October 2013 behaviours. In terms of the discretion which I am required to exercise, I am not satisfied that the factors which favour a finding that Mr Gava is a fit and proper person, address the more fundamental concerns about the credibility of his undertakings and the consistency of that undertaking with his actions in December 2016."
[30] Having made the above findings in respect of s.513, the Senior Deputy President held that Mr Gava was not a "fit and proper person" and made the following ultimate finding:
"[69] At the present time, and on balance, I am not satisfied that Mr Gava is a fit and proper person to hold an entry permit and, accordingly the CFMEU application is refused. Given that conclusion it is neither necessary nor appropriate that I consider the imposition of conditions on an entry permit pursuant to s.515 of the FW Act. The imposition of conditions would not, in my view, address the inherent inconsistencies in the advice which Mr Gava has provided to me."
[31] In the Amended Notice of Appeal the grounds of appeal were expressed as follows:
"1. The Senior Deputy President acted on a wrong principle by assessing Mr Gava's suitability for an entry permit on the premise he was an official of the Appellant's South Australian Branch that had a history of disregarding its legal obligations and a method of operations whereby permit holders were not subject to normal constraints, limitations and obligations.
2. The Senior Deputy President erred in finding, in the absence of any evidence, that there was a likelihood Mr Gava would be expected to be an active participant in "one or more of the campaigns" the Appellant's South Australian Branch was currently pursuing.
3. The Senior Deputy President acted on a wrong principle and took into account an irrelevant or extraneous consideration that it was for the Appellant to establish that its South Australian Branch had changed its method of operation and management.
4. The Senior Deputy President denied the Appellant procedural fairness by:
(a) taking into account a matter not the subject of evidence or submissions, namely, that Mr Gava would be expected to be an active participant in a campaign of the Appellant's South Australian Branch;
(b) failing to put the Appellant on notice that he proposed to consider that Mr Gava would be expected by its South Australian Branch to participate in a campaign involving conduct not compliant with legislative obligations;
(c) failing to put the Appellant on notice that he proposed to determine it was incumbent on its South Australian Branch to show it had changed its method of operation and management.
The Senior Deputy President acted on a wrong principle and in the absence of evidence by determining that the existence of current unconcluded Federal Court proceedings involving Mr Gava undermined his credibility.
6. The Senior Deputy President took into account as an irrelevant or extraneous consideration that the current unconcluded Federal Court proceedings created uncertainty that militated against finding Mr Gava was a fit and proper person.
7. The Senior Deputy President erred in concluding that the current unconcluded Federal Court proceedings cast doubt on Mr Gava's evidence that he had not breached his right of entry obligations.
8. The Senior Deputy President erred in concluding that Mr Gava needed to demonstrate a clearer understanding of the obligations on him after finding was aware from significant training of permit holder's obligations.
9. The Senior Deputy President erred in failing to take into account by evaluating and giving due weight to the following permit qualification matters:
(a) that Mr Gava had received appropriate training;
(b) that Mr Gava had never been convicted of an offence against an industrial law;
(c) that Mr Gava had never been convicted of an offence against a law involving entry to premises, fraud or dishonesty or the intentional use of violence against another person or intentional damage or destruction to property;
(d) that Mr Gava had held a permit under State OHS law which had never been cancelled, suspended or made subject to conditions, and that Mr Gava had never been disqualified from exercising or applying for a right of entry under State OHS law.
10. The Senior Deputy President mistook the facts in concluding that Mr Gava was not contrite and accepting of responsibility for his actions on 30 October 2013 and that his undertaking to comply with his legal obligations was equivocal.
11. The Senior Deputy President failed to take into account as a relevant consideration that save for the 30 October 2013 incidents, Mr Gava had an unblemished record as a permit holder."
[32] The CFMEU, in its Amended Notice of Appeal, claimed that it was in the public interest for the Commission to grant permission for the appeal for the following reasons:
"1. The Senior Deputy President acted contrary to the reasoning of the Full Bench in Director of the Fair Work Building Industry Inspectorate v CFMEU [2014] FWCFB 5947 (Kong's Case) and the majority of the Full Bench in CFMEU v Director of the Fair Work Building Industry Inspectorate [2016] FWCFB 6058 (Tadic's Case) in approaching consideration of Mr Gava's fitness and propriety by reference to Court proceedings that did not involve Mr Gava. The Senior Deputy President adopted a similar erroneous approach in Construction, Forestry, Mining and Energy Union - Construction and General Division, WA Divisional Branch [2017] FWC 999 (Roberts' Case). Appellate correction of this approach is a matter of general importance for permit applications under s 512.
2. The Senior Deputy President acted contrary to Tadic's case by imposing a higher bar for Mr Gava to establish he was a fit and proper person by considering his application from the premise that he was an official of the Appellant's South Australian branch and worked in an organisational context of non-compliance with legal obligations. A similar erroneous approach was adopted by the Senior Deputy President in Roberts' Case. Appellate correction of this approach is a matter of general significance and importance.
3. The Senior Deputy President's approach in according weight to unproven allegations against prospective permit holders (which are denied) in statements of claim and other initiating processes in unconcluded court proceedings is contrary to the approach of Hatcher VP in Application by Construction, Forestry, Mining and Energy Union - Construction and General Division, SA Divisional Branch [2016] FWC 161, Construction, Forestry, Mining and Energy Union - Gerard Benstead [2016] FWC 4256 and Construction, Forestry, Mining and Energy Union - Robert Graauwmans [2016] FWC 4180. The question of whether and to what extent such matters can and should be considered and relied on in permit application matters is an issue of significant importance that would benefit from Full Bench guidance and resolution.
4. The Senior Deputy President failed to evaluate and give appropriate weight to the permit qualification matters that were positive for Mr Gava, as stressed by Gostencnik DP in Application by Construction, Forestry, Mining and Energy Union - Construction and General Division, Victoria-Tasmania Divisional Branch [2017] FWC 666 (Harkin's Case). His Honour's approach, which involved not evaluating or according those matters any weight, was at variance with that adopted by Gostencnik DP in Harkin's Case. The tendency of decision-makers dealing with applications under s 512 to fixate on contravening conduct with the effect that the other permit qualification matters are not evaluated and afforded appropriate weight is a matter of general significance that requires appellate guidance.
5. The Senior Deputy President's decision is infected by jurisdictional error as he made findings without evidence concerning Mr Gava being an active participant in unlawful campaigns and denied the Appellant procedural fairness by considering matters in his decision on which there had been no evidence or argument.
6. The Senior Deputy President's decision manifests an injustice to Mr Gava and the Appellate.
7. The Senior Deputy President's decision is attended by sufficient doubt to warrant its reconsideration."
"2. The gravamen of O'Callaghan SDP's finding that Mr Gava was not a fit and proper person to be issued a permit were:
(a) the application fell to be assessed on the premise that Mr Gava was an official of the appellant. The appellant had a record of non-compliance with industrial law and had not established it had changed its methods of management and operation;
(b) undetermined court proceedings involving Mr Gava caused uncertainty and counted against him being considered a fit and proper person;
(c) Mr Gava was likely to be involved in one of the campaigns the appellant was pursuing;
(d) Mr Gava's expression of contrition for misconduct on 30 October 2013 failed to demonstrate a clear understanding of what had occurred that day;
(e) Mr Gava's commitment to comply with his legal obligations was equivocal;
(f) Mr Gava had not demonstrated a clear understanding of his obligations.
3. Propositions (a)-(b) involved O'Callaghan SDP failing to address the correct question under s512 and taking into account irrelevant considerations. Proposition (a) also involved a denial of procedural fairness to the appellant. Proposition (c) was without evidentiary foundation and reflected a further denial of procedural fairness to the appellant. Propositions (d)-(f) were wrong and involved a misapprehension of the facts. Additionally, O'Callaghan SDP failed to take into account the mandatory considerations under s 513(1)(a)-(c) and (f) and Mr Gava's record as a permit holder. These errors, singly or in combination, are sufficient to vitiate the Decision."
C. Assessment on the premise Mr Gava was a CFMEU official: Appeal Grounds 1 and 3
9. The fit and proper person test under s 512 focuses on the personal characteristics of the prospective permit holder. The fitness and propriety of an official impels an individualised assessment of their status and attributes, prior conduct, general reputation and character. These principles are not altered by the fact that under s 512 it is the official's organisation that applies for the permit. The status and attributes of an official that may be relevant to their fitness and propriety can include, in the circumstances of a particular case, their susceptibility to comply with their organisation's directions to engage in unlawful conduct. Past contraventions of industrial law by the official's organisation that do not involve any act or omission of the official may be relevant if they pertain to the individual official's suitability to hold a permit. For instance, contraventions could be relevant in assessing the fitness or propriety of a senior official who is found to have encouraged or tolerated a culture of non-compliance with the law. There must, however, be probative evidence that an organisation's history of contraventions impacts on the assessment under s 512 of the personal conduct, character or reputation of the official.
10. Seemingly conscious of the majority decision in Tadic's Case (which determined that it was wrong to elevate a context of past contraventions by an industrial organisation to operate as imposing a higher bar for a prospective permit holder to clear before the Commission could conclude they were a fit and proper person), his Honour said:
My decision in this matter is not predicated on the application of a higher bar than normal for consideration whether Mr Gava is a fit and proper person... but it commences from the premise that he is an official of the CFMEU, with its history of disregard for legislative obligations. (emphasis added)
11. This 'premise' buttressed his Honour's further conclusions that the CFMEU had failed to establish it had changed its method of operation and that Mr Gava would be expected to be an active participant in a campaign the CFMEU was currently pursuing (just what particular campaign his Honour had in mind was not disclosed in his reasons).
12. His Honour's attempt to distinguish his approach from that in Tadic's Case was flawed. Notwithstanding his assertion, it is patent he approached assessment of Mr Gava's application on the postulate that a 'higher bar' existed for Mr Gava because of the identity of his employing organisation with its history of contraventions of industrial law.
13. By approaching the application in this manner, his Honour acted on a wrong principle. He also took into account an irrelevant consideration. These were House v King errors. They were errors that illustrated a misconception of the principles expounded by Full Benches in Kong's Case, Ravbar's Case and by the majority in Tadic's Case. A similar misapprehension is evident in his Honour's decision in Roberts' Case. This was a fundamental error of principle that should be reversed.
14. Likewise, his Honour's consideration that the CFMEU had failed to satisfy him that it had changed its 'methods of operation' at [60] was completely irrelevant to a determination of whether Mr Gava was a fit and proper person to hold a permit. This involved consideration of an irrelevant matter and adoption of an incorrect principle. This was a further House v King error requiring reversal on appeal.
D. Mr Gava's involvement in 'current campaigns': Appeal Grounds 2 and 4(a)
15. His Honour determined at [60] that whilst he did not assume it would be the case, there was a likelihood Mr Gava would be expected to be an active participant in one or more of the campaigns the CFMEU was currently pursuing. This determination was made in the context of conclusions reached at [50]-[60] that the CFMEU had a history of disregarding its legal obligations and a culture of wilful disregard for workplace laws that extended to its South Australian State Secretary. Presumably, his Honour considered there to be a likelihood Mr Gava would be called upon to actively participate in unlawful conduct in the context of one of the CFMEU's current campaigns.
16. There was not a scintilla of evidence before the Commission that the CFMEU was involved in any campaigns. Nor was there any evidence that Mr Gava would be expected to involve himself actively in such unspecified campaigns. His Honour's conclusion at [60] was conjectural. Making findings in the absence of evidence based on mere suspicion or speculation is an error of law. Findings based on mere supposition also involved a denial of procedural fairness. As Deane J observed:
There would be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker remained free to make an arbitrary decision. If [a] decision, in such a case, were to be based on mere suspicion or speculation, the rules of procedure aimed at governing the process of making findings of material fact would involve no more than a futile illusion of fairness...
17. The finding that Mr Gava would be expected to involve himself in CFMEU campaigns was an error of law and denied the appellant procedural fairness.
E. Denial of Procedural Fairness: Appeal Grounds 4(b) and (c)
18. The Commission has an obligation to accord parties procedural fairness and to act judicially. It is an aspect of procedural fairness that a party who will be directly affected by a decision be given the opportunity of ascertaining the relevant issues and being informed of the nature and content of material adverse to them. A party is entitled to respond to any adverse conclusion that may be drawn by a decision-maker that is not an obvious or natural evaluation of the material before the decision-maker.
19. At no point during the course of evidence and submissions was there any reference to it being (or potentially being) incumbent on the appellant to demonstrate that it had changed its methods of operation or management. Furthermore, at no time was there any reference to the potential that his Honour might form the view that Mr Gava would be expected to engage in a campaign the Appellant currently had on foot. These were matters which were not obviously open on the material before the Commission. They were matters his Honour should have put the Appellant on notice of if he thought they were important - which the Decision makes clear he did. This would have afforded the Appellant the opportunity to make relevant submissions and lead evidence. This was a denial of procedural fairness that deprived the Appellant of a properly conducted trial and the possibility of a successful outcome. These findings entail the hearing before his Honour miscarried and the Decision is infected by jurisdictional error.
F. The Undetermined Federal Court Proceedings: Appeal Grounds 5-7
20. The appellant properly disclosed the existence of the undetermined Federal Court proceedings where it was alleged Mr Gava had contravened ss 348 and 500 of the Act. Mr Gava undertook to relay the ultimate result of these proceedings to the Commission. Copies of an amended originating application and amended defence as well as the unamended pleadings were furnished to his Honour prior to the hearing. By his amended defence, Mr Gava denied the allegations levelled against him. Importantly, the ABCC adduced no evidence in support of these allegations before O'Callaghan SDP.
21. His Honour said that no definitive conclusions could be drawn from this matter. Notwithstanding this proclamation, he went on to determine that the existence of the proceedings cast doubt on Mr Gava's evidence that he had not engaged in behaviour amounting to a breach of his obligations under Part 3-4.38 This finding was elaborated by a further conclusion that the proceedings adversely affected the credibility of Mr Gava's undertaking that he would comply with his obligations if granted a permit.39 In the final analysis, his Honour considered the uncertainty surrounding the "extent [sic] Court proceedings" militated against Mr Gava being a fit and proper person.
22. The existence of present or pending court proceedings involving allegations of contraventions of industrial law by a putative permit holder are matters that should be disclosed to the Commission and have been treated as relevant under s 513(1)(g). However, where all that is before the Commission are untested (and denied) allegations of misconduct in initiating processes, the Commission has consistently held that such bare allegations should not be accorded any weight in assessing the fitness and propriety of a prospective permit holder. This approach follows from it being an error of law to make findings of fact for which there is no evidence or other appropriate factual material. As Hatcher VP has observed:
Probative evidence that Mr Merkx had committed contraventions of ss.348 and 355 would clearly be a relevant matter required to be considered under s.513(1)(g), but there was no such evidence before me, only a series of untested allegations which have not been admitted. The Director was unable to articulate any basis upon which I could give the allegations in the originating application any weight beyond saying they were serious in nature. It may be accepted that the allegations are serious, but at this stage they are only allegations at least so far as Mr Merkx is concerned. For this reason I cannot give them any weight in my consideration of the CFMEU's application.
23. It was an error for O'Callaghan SDP to take into account the allegations about Mr Gava in the undetermined Federal Court proceedings. His conclusions that these (mere) allegations undercut Mr Gava's undertaking to comply with the law, called into question whether he had behaved lawfully and otherwise created uncertainty were made in an evidentiary lacuna. They also involved him taking into account of an irrelevant consideration and departing from the accepted approach of the Commission. This was a fundamental error of principle that ought be reversed.
G. Failure to take into account ss 513(1)(a)-(c) and (f): Appeal Ground 10
24. Section 513 mandates that the Commission take into account the permit qualifications spelled out in ss 513(1)(a)-(g). Failure to take these matters into account means an exercise of power under s 512 will be invalid. Taking a matter into account involves more than merely adverting to it. As Wilcox J explained in Nestle Australia Ltd v Commissioner of Taxation:
... To take a matter into account means to evaluate it and to 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.
25. Gostencnik DP explained the imperative under s 513 for all the permit qualification matters to be taken into account and given appropriate weight:
... Whilst it will often be the case that the likely area of focus and attention during a contested application will be on contravening conduct... the other permit qualification matters cannot be ignored and must be given appropriate weight. The absence of, for example, a conviction of an official for an offence... 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.
26. O'Callaghan SDP was specifically taken to the above analysis during submissions and received submissions about the necessity to actually evaluate the permit qualifications matters positive for Mr Gava and give them appropriate weight. His Honour, however, merely noticed s 513(1)(f), saying that there was no suggestion that any other suspension of cancellation or disqualification had applied to Mr Gava. Mr Gava's had had a State OHS permit for a period of over 15 years without any issues. This was a material matter bearing on his suitability to be issued a further permit. It was neither evaluated nor accorded any weight. O'Callaghan SDP also expressed 'satisfaction' that Mr Gava had received appropriate training for the purposes of s 513(1)(a) and had not been convicted of an offence within the meaning of s 513(1)(b). He also 'accepted' that no convictions for offences under s 513(1)(c) existed.
27. None of these positive permit qualification matters were evaluated by his Honour. None were given proper, genuine or realistic consideration.54 O'Callaghan SDP fixated on the events of 30 October 2013 and other matters negative to Mr Gava. In so doing, he failed to take into account the mandatory considerations in ss 513(1)(a)-(c) and (f). This was a House v King error. His Honour's approach was also disharmonious with the (correct) approach articulated by Gostencnik DP in Harkins' Case and requires appellate correction.
H. Mr Gava's knowledge of permit holders' obligations: Appeal Ground 9
28. Mr Gava's knowledge and understanding of his obligations as a permit holder were not gainsaid during the proceedings. O'Callaghan SDP expressed satisfaction that the significant training undertaken by Mr Gava together with his experience entailed that he was aware of his obligations under the Act.55 He then determined that the Appellant could initiate a further application for Mr Gava to be issued a permit if he had "a clearer understanding of the obligations on him".56 This finding was illogical, irrational and untenable. In so concluding, his Honour mistook the facts and made a finding that was patently incorrect.
29. Mr Gava's record as a permit holder, save for the 30 October 2013 incidents, was impressive. He had held a permit for some 15 years and exercised right of entry literally thousands of times both before the 30 October 2013 incidents and afterwards. His conduct prior to and post 30 October 2013 demonstrated a history of law-abiding conduct. This history, coupled with the training he had undertaken post 30 October 2013, his contrition for his conduct and adherence to the s 508 orders, pointed to the Commission being able to have a degree of confidence that he would adhere to his responsibilities as a permit holder moving forward.
30. This was a matter relevant to his personal characteristics that bore on the discharge of functions and exercise of rights and privileges associated with holding an entry permit.57 It fell to be considered under s 513(1)(g). It did not rate a mention in his Honour's analysis. This was a failure to take into account a relevant consideration and an error of law. It affected a manifest injustice to Mr Gava who was entitled to have his favourable history as a permit holder brought into account by the Commission.
J. Mr Gava's contrition and undertaking: Appeal Ground 11
31. O'Callaghan SDP concluded that Mr Gava had expressed contrition for his conduct of 30 October 2013 in a manner that did not evidence a clear understanding of his actions on that day. He also determined that his expression of contrition was conveniently made for the s 512 application and that his undertaking to comply with his obligations were equivocal. These findings were premised on Mr Gava's evidence that he did not have a specific recollection of what occurred on 30 October 2013. His Honour noted acerbically at [46] that Mr Gava had undertaken to not do again what he had no recollection of doing.
32. Mr Gava set out that he did not have a specific recollection of what occurred on 30 October 2013 but had read the Federal Court judgment and accepted the findings there made about him. He recited in detail in his statement what those findings were. He also outlined the provisions of Part 3-4 of the Act that he had not complied with as found by the Court and expressed his contrition about this. Mr Gava's expression of remorse was unequivocal. He acknowledged his actions were wrong, unlawful and contrary to the standards he held out for himself. He apologised for what the Court found he had done.
33. It is not to the point that Mr Gava could not remember the precise details of an incident that occurred over three years ago. It is not unsurprising or unusual for witnesses to have poor memories of what occurred weeks, months or years back. Mr Gava could not recall, for instance, the identity of the lawyer that acted for him in the proceedings. What was important and what his Honour failed to appreciate was that Mr Gava unreservedly accepted those findings, whilst noting there were some he did not agree with. He apologised for the conduct the Court found he had engaged in and undertook to not engage in such conduct ever again. There was nothing equivocal about this undertaking. He was not, as his Honour glibly suggested, undertaking to not do something he did not remember doing. He was undertaking not to engage in unlawful conduct as found by the Federal Court.
34. O'Callaghan SDP mistook the facts in finding Mr Gava was not contrite and that his undertaking to comply with his lawful obligations was equivocal. This was a House v King error."
[34] The ABCC submitted that the Senior Deputy President properly considered each of the matters that he was bound to take into account and that the appeal should be dismissed for the following reasons:
"Grounds 1 and 3: Consideration of the CFMEU's history of contraventions of industrial legislation
5. The CFMEU alleges that O'Callaghan SDP acted on a wrong principle by assessing Gava's suitability for a permit on the premise that he was an official of the CFMEU's South Australian Branch that had a history of disregarding its legal obligations and method of operations. Further, his Honour took into account an irrelevant consideration that the South Australian Branch had not changed its methods of operation and management.
6. These grounds of appeal misconstrue the principles applicable to the relevance of the CFMEU's history of contravening industrial legislation. Contrary to the CFMEU submissions (at [9]), it is not necessary for there to be probative evidence that past contraventions of industrial laws by the CFMEU impact on an assessment of Gava's personal conduct, character or reputation.
7. Rather, the authorities establish that the history of the CFMEU's conduct as an organisation is relevant as follows:
(a) past contraventions of industrial laws by an organisation can be relevant to the consideration of an official's fitness or propriety to hold an entry permit even where those contraventions did not involve any direct contravening conduct on the part of the official; and
(b) the CFMEU's history and ongoing approach of disregarding its legislative obligations is a relevant factor, as is the potential for ongoing unlawful activity.
8. In relation to the CFMEU's reliance on Ravbar's case, the facts in that case were different from those in this appeal. Ravbar was the Divisional Branch Secretary of the CFMEU. It was submitted by the ABCC that Ravbar was a senior official who had shown a continuing attitude of willful disobedience to the law. The Full Bench, in the context of Ravbar's senior role, rejected this argument and concluded that there was no evidence to support a finding that the CFMEU's history of contraventions said anything about Ravbar's personal conduct. The Full Bench, in reaching these conclusions, followed Kong's case. It did not establish any principle governing the consideration of this issue.
9. In this case, Gava was an organiser. There was evidence before the Commission that his conduct on 30 October 2013 involved Gava telling Lend Lease management that "[w]e are not going to be filling out right of entry notices ... that's come from the Secretary" and "[w]e've been instructed to do this by our boss, whether that's right or wrong, that's not our decision."
10. O'Callaghan SDP dealt with this issue as follows. His Honour noted the CFMEU's significant history of contravening industrial legislation in South Australia and that many of these contraventions also involved conduct of the State Secretary. His Honour then said that there was nothing before him that established that this culture of wilful disregard for workplace laws within the CFMEU has changed.10 His Honour then said that he was not satisfied that the CFMEU had established that its method of operation and management was such that the normal type of constraints, limitations and obligations placed on officials who are permit holders applies.11 These observations were uncontroversial.
11. There was no error in O'Callaghan SDP's approach. His Honour did not assess Gava's suitability solely on the premise that Gava was an official with the CFMEU. Rather, a reading of the Decision as a whole makes it very clear that this issue was but one factor that was taken into account by his Honour. To the extent that his Honour gave significant weight to this factor, that was a matter for him.
12. Further, his Honour made it clear that Gava being an official of the CFMEU did not predicate the application of a higher bar than normal for considering whether he was a fit and proper person. In this respect, his Honour followed the decision in Tadic's case. The Full Bench ought not go behind the reasons of the Commission at first instance.
13. His Honour's conclusion that the CFMEU failed to satisfy him that the CFMEU had not changed its method of operation was not an irrelevant consideration. Ultimately, the issue of the CFMEU's previous history was dealt with under s.513(1)(g) "any other matter". This is a very broad discretion and the Commission ought not lightly find that a matter taken into consideration by the Commission pursuant to this sub-section is an irrelevant consideration, particularly in circumstances where it clearly has a rational and logical relationship to the decision-making process. It is relevant to the continued prospect of senior officials of the CFMEU requiring or requesting organisers engage in conduct in breach of their right of entry obligations (as occurred in many of the South Australia Branch's previous contraventions).
14. Ultimately, his Honour's conclusions in relation to this issue involved the orthodox application of well-established principles on the facts before him. There was no error.
Grounds 2 and 4(a): Gava's participation in CFMEU campaigns
15. The CFMEU allege that O'Callaghan SDP erred in finding, in the absence of evidence, that there was a likelihood that Gava would be expected to be an active participant in one or more of the campaigns that the CFMEU's South Australian Branch was currently pursuing. Further, in doing so, his Honour took into account an irrelevant consideration.
16. His Honour did observe (at [60] of the Decision) that while he did not assume it necessarily to be the case, there was a likelihood that Gava would be expected to be an active participant in one or more of the campaigns the CFMEU was currently pursuing. However, prior to this statement, his Honour noted (at [50] of the Decision) that the penalty decisions in relation to the CFMEU's historical contraventions of industrial laws in South Australia were indicative of a culture of wilful disregard for workplace relations laws and that a number of those penalty decisions "involve actions taken by the State Secretary of the CFMEU and I have concluded from those decisions that this culture of wilful disregard extends to that senior position". Further, Gava gave evidence that he used his right of entry powers to attend sites at least once a day. Gava also gave evidence that his responsibilities as an organiser were partly to resolve disputes.
17. This evidence, taken together with the CFMEU's history of contravening industrial legislation, and involvement of a senior official in these contraventions, and Gava's statement on 30 October 2013 attributing his conduct to the CFMEU office, provided sufficient evidence and material for the conclusion that Gava would be expected (by his employer) to be an active participant in one or more CFMEU campaigns.
18. In order to establish an error in this respect, there needed to be no evidence (that is, the absence of any foundation in fact) for this finding, not merely an insufficiency of evidence. There was, as discussed above, such evidence, and it was reasonably open for O'Callaghan SDP to make the finding that he did.19 Further, to assert that a finding that the South Australian Branch of the CFMEU was involved in a current campaign, was based on mere suspicion or speculation is, with respect, industrially unrealistic given the history of that branch's contraventions of industrial laws.
19. By reason of the above, O'Callaghan SDP did not err in this respect.
20. The CFMEU alleges that O'Callaghan SDP denied the CFMEU procedural fairness by taking into consideration the fact that Gava would be expected to be an active participant in current campaigns of the CFMEU's South Australian Branch when that matter was not the subject of evidence or submission, and the CFMEU was not put on notice that his Honour proposed to consider this issue.
21. The Senior Deputy President was obliged to put evidence or material that would be adverse to Gava's case to the CFMEU. As discussed above, such material that his Honour relied on was before the CFMEU. However, his Honour was not required to disclose his mental processes to the CFMEU before he reached an adverse conclusion against Gava. His Honour's mental processes included consideration, in relation to the issue of the CFMEU's history of contravening industrial laws, of the likelihood that Gava continued to be expected to participate in current campaigns.
22. An exception to this principle is that a subject (that is, Gava) is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material. That exception does not apply to this appeal. The CFMEU's campaigns are an obvious and natural consequence of its previous history.
23. Another exception is that the CFMEU was entitled to have its mind directed to critical issues on which the decision was likely to turn. In this respect, the CFMEU was clearly on notice that a relevant and critical issue in the proceeding was the CFMEU's historical contraventions of industrial legislation, its ongoing behaviour and Gava's role as an organiser with the CFMEU. Indeed, the ABCC's written submissions below clearly dealt with this issue. Further, the CFMEU dealt with this issue in its oral submissions. The likelihood of Gava being expected to participate in current campaigns was part of this issue.
24. Ultimately, the onus was on the CFMEU to establish that Gava was a fit and proper person. It could have put on evidence or made submissions that the CFMEU had, in effect, changed its ways or would not ask Gava to engage in unlawful behaviour. This was an obvious response to the criticism of its past behaviour. It did not. In the context where the CFMEU knew that its industrial history would be a factor counting against Gava, this was simply a forensic decision that the CFMEU made, and cannot now complain about. Further, the CFMEU has not identified precisely the evidence it would have led in this respect, and from whom.
25. By reason of the above, O'Callaghan SDP did not deny the CFMEU procedural fairness.
26. The CFMEU alleges that O'Callaghan SDP erred in principle, and by taking into account an irrelevant consideration, in the way in which his Honour dealt with the extant Federal Court proceedings against Gava.
27. Contrary to the CFMEU submissions, the Commission has, in a number of decisions, held that extant Federal Court proceedings can be taken into account in an assessment of whether an applicant is a fit and proper person, although no significant weight can be attached to this factor.
28. His Honour dealt with the issue of the extant Federal Court proceedings in the following two ways:
(a) that those proceedings cast an element of doubt about Gava's categoric advice to the Commission that, since October 2013, he had not engaged in any behaviour which could represent a breach of his right of entry obligations. His Honour said that "no definitive conclusions can be drawn from this matter at the present time"; and
(b) that those proceedings were relevant in respect of the undertakings provided by Gava that he would not behave in a manner contrary to the requirements of the FW Act or repeat his October 2013 behaviour. His Honour said that these proceedings are relevant in that had such a proceeding not commenced at all, or had it reached a conclusion which completely exonerated Gava, either outcome may have reinforced the credibility of the undertakings.
29. In light of the above, it could not be said that O'Callaghan SDP afforded any significant weight to the extant Federal Court proceedings. His Honour did not err in this respect.
Grounds 9 and 10: Weight to permit qualification matters
30. The CFMEU alleges that the Commissioner failed to properly take into account the permit qualification matters set out in s.513(1)(a)-(g).
31. This is incorrect. O'Callaghan SDP took into account each of the mandatory considerations in s.513(1)(a)-(f), that were both favourable and unfavourable to Gava. These factors were set out at length by the Commissioner at [30]-[40] of the Decision. His Honour then considered a number of factors under s.513(1)(g) as follows:
(a) the written references provided by Gava ([42]);
(b) Gava's concerns about his inability to properly service the CFMEU's members without an entry permit ([45]);
(c) Gava's undertaking not to repeat his behaviour on 30 October 2013 ([46]);
(d) Gava's apology for his conduct on 30 October 2013 and the extent to which Gava expressed contrition in this respect ([47]);
(e) the current extant Federal Court proceedings involving Gava ([48]);
(f) the fact that Gava had issued a right of entry notice on 1 December 2016 when he had already handed his expired entry permit on 28 November 2016 ([49]);
(g) the CFMEU's history of contravening industrial laws in South Australia ([50]-[52]);
(h) the delay by Gava in returning his permit and his failure to reference the current Federal Court proceedings in his right of entry permit application ([53]); and
(i) the training that Gava had undertaken in relation to his obligations as a permit holder ([61]).
32. Each of these factors were clearly considered and taken into account by O'Callaghan SDP. This is expressly set out in his reasons, where his Honour also made it clear that he had evaluated these factors (see [66]-[67]). It cannot therefore be said that his Honour merely noted and erroneously discarded these factors as irrelevant. Ultimately, however, the weight that his Honour placed on each factor was a matter for him.
33. In relation to Gava having a State OHS permit for over 15 years without any problems, this issue was first noted by his Honour at [41]. It was then considered as a factor weighing in favour of a finding that Gava was a fit and proper person to hold an entry permit, where his Honour said: "I have weighed these concerns against the indicators that favour a finding that Mr Gava is a fit and proper person to hold an entry permit. The most significant matters in this context go to his traditional good record prior to 2013, the references he has provided and his stated desire to properly represent and service the CFMEU members as an official of the CFMEU with an entry permit." (see at [66]) (emphasis added)
34. In truth, by this ground of appeal, the CFMEU seeks a merits review of his Honour's decision. His Honour did not err in his task of evaluating and giving weight to the various permit qualification matters.
Ground 8: Gava's demonstration of an understanding of the obligations on him
35. The CFMEU alleges that O'Callaghan SDP, while expressing satisfaction that the training undertaken by Gava ensured that he was aware of his obligations under the FW Act, then determined that the CFMEU could initiate a further application for Gava if he had a "clearer understanding of the obligations on him". It is alleged that this finding was illogical, irrational and untenable.
36. At the outset, it is noted that the nature of an alleged error on the grounds of illogicality and irrationality is not an error of the House v The King type. However, in any event, in order to make out a ground of illogicality or irrationality, it is necessary to establish that a particular decision was clearly unjust, arbitrary, capricious or unreasonable. Not every lapse in logic will give rise to such an error and a court should be slow, although not unwilling, to interfere.
37. The finding that Gava was aware of his obligations as a permit holder was made in the context of his Honour weighing this consideration in assessing whether Gava was a fit and proper person. Ultimately, his Honour concluded that Gava was not (see [69]).
38. After this conclusion, his Honour merely noted, in an advisory sense, that the CFMEU could seek a further application for Gava relying on various matters, including a "demonstrably clearer understanding of the obligations on him" (see [70]). Gava's awareness of obligations on him as a permit holder are not inconsistent with his Honour's view that Gava could have a clearer understanding of obligations on him generally. This could encompass, for example, a better understanding of his behaviour on 30 October 2013, returning his entry permit three days after it was due, and submitting a right of entry request after Gava's right of entry permit had expired. His Honour's observation at [70] is neither illogical nor irrational.
39. Further, and in any event, any error in [70] (which is denied) had no bearing on the ultimate decision that Gava was not a fit and proper person to hold a permit and was merely advisory in its nature, after the conclusion had already been reached. It was simply not part of the reasons for his Honour's Decision.
40. The CFMEU alleges that O'Callaghan SDP mistook the facts in finding that Gava was not contrite and that his undertaking to comply with his lawful obligations was equivocal.
41. As the evidence led before O'Callaghan SDP clearly demonstrated, Gava's apology was not unreserved. In his statement, Gava says he had no specific recollection of the events of 30 October 2013, but said that he admitted the contraventions found against him. However, in cross-examination, Gava denied a significant number of statements alleged to have been made by him on 30 October 2013.
42. Further, in his statement, in respect of his conduct on 30 October 2013, Gava apologised for not complying with a requirement to wear Personal Protective Equipment on the site, for not signing in at the site and for not leaving the site when requested to do so. However, Gava did not apologise for not putting in a notice to enter the site, nor did he apologise for any demands he made about a CFMEU flag. Further, Gava also admitted that he did not apologise to the Lend Lease managers until his statement (dated 8 February 2017).
43. In these circumstances, it was clearly open for O'Callaghan SDP to conclude that he was "not satisfied that Mr Gava expressed contrition for his 2013 actions in a manner which reflected a clear understanding of the import of those actions as distinct from a position convenient to this application".
44. It was in the context of this conclusion about Gava's contrition that his Honour did not accept that Gava's undertaking not to engage in this behaviour again was clear. This was also buttressed by the fact that Gava could not even recall his behaviour on 30 October 2013.
45. His Honour did not err in regard to his conclusions in this respect."
[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.
[36] In all the circumstances of this case, we are not minded to grant permission to appeal on the basis of any of the grounds raised by the CFMEU for the reasons set out below.
Assessment on the premise Mr Gava was a CFMEU official: Appeal Grounds 1 and 3
[37] Consistent with the authority in Kong's Case,[26] the Senior Deputy President was required to focus on the personal characteristics of Mr Gava. Consistent with the authority in Tadic's Case[27] the Senior Deputy President was also entitled to have regard to Mr Gava's status and attributes as an official of the CFMEU and his susceptibility to comply with the CFMEU's directions to engage in unlawful conduct. The Senior Deputy President was also entitled to have regard to the CFMEU's past contraventions of industrial law to the extent that they pertained to his suitability to hold a permit. So much is also apparent from both Kong's Case[28] and Tadic's Case[29].
[38] The decision of the Senior Deputy President must be read as a whole and considered fairly, such that what may be characterised as infelicitous expressions do not too readily give rise to an inference of error.[30]
[39] Contrary to the CFMEU's submission, the passage complained about at [58] of the Decision does not support the proposition that the Senior Deputy President acted on a wrong principle or took into account irrelevant or extraneous considerations. Indeed the paragraph complained about, when read in its entirety and in the context of the Decision as a whole, is indicative of the Senior Deputy President having had regard to and correctly applying the principles in Kong's Case and Tadic's Case. The Senior Deputy President did not assess Mr Gava's suitability for a permit solely on the basis of him being an official of the CFMEU. It is clear from the words used by the Senior Deputy President that he did not apply a higher bar to Mr Gava.
[40] The CFMEU's submission that the "premise" referred to in paragraph [58] "buttressed his Honour's further conclusions" overstates the position and takes the language used by the Senior Deputy President too far. The submission invites us to too readily infer error. We reject it.
[41] We are also not persuaded that the Senior Deputy President considered irrelevant matters at paragraph [60] of the Decision. His express reference to the fact that he had made no unequivocal assumption answers the complaint now made by the CFMEU. The Senior Deputy President's treatment of the material before him was consistent with well-established principles he was required to (and did) apply.
[42] For these reasons we are not persuaded that the Senior Deputy President erred in the manner contended by the CFMEU.
Mr Gava's involvement in 'current proceedings': Appeal Grounds 2 and 4(a)
[43] Appeal grounds 2 and 4(a) also relate to paragraph [60] of the Decision. This paragraph is to be read in the context of the Decision as a whole, not in isolation. Further, as we have observed above the Senior Deputy President prefaced the words complained about by writing "I have not assumed it to be necessarily the case."
[44] In any case, we do not accept the submission that the Senior Deputy President did not sufficient evidence and material before him to conclude that Mr Gava "will be expected to be an active participant in one or more of the campaigns" of the CFMEU. Paragraph [50] of the Decision is relevant to this point. So too the evidence about Mr Gava's use of his permit and his responsibilities as an official of the CFMEU. Having regard to the matters referred to by the Senior Deputy President and considered by him, it was open to him to make the finding that he did. To suggest, as the CFMEU did, that it was "conjectural" is wrong. It was not a finding based on supposition. It did not involve a denial of procedural fairness.
[45] For these reasons we are not persuaded that the Senior Deputy President erred in the manner contended by the CFMEU.
Denial of procedural fairness: Appeal Grounds 4(b) and (c)
[46] The Senior Deputy President had an obligation to accord Mr Gava and the CFMEU with procedural fairness and to act judicially.[31] However, the Senior Deputy President was not required to disclose his mental processes.[32]
[47] Having regard to the material that Senior Deputy President had regard to and is referred to by him in the Decision, it must have been apparent to the CFMEU that its previous history was relevant to the matters under consideration. In this regard the Senior Deputy President evaluated the material that was before him. There was no denial of procedural fairness. There is no jurisdictional error in this regard.
[48] Further we note that the CFMEU addressed these issues in its written submissions and oral submissions before the Senior Deputy President.[33] Appeals are for the purpose of correcting error, not to provide an opportunity for unsuccessful parties to recast the case they put at first instance.
[49] For these reasons we are not persuaded that the Senior Deputy President erred in the manner contended by the CFMEU.
The undetermined Federal Court proceedings: Appeal Grounds 5 - 7
[50] Noting that bare allegations of contraventions should not be given any weight in assessing fitness and propriety of a prospective permit holder[34] it is again necessary to focus on the statement of the Senior Deputy President at paragraph [48]:
"No definitive conclusions can be drawn from this matter at the present time."
[51] That statement answers the complaint now made by the CFMEU. It is not a fair reading of the Decision as a whole to submit, as the CFMEU does, that the Senior Deputy President acted on a wrong principle, took into account irrelevant or extraneous considerations or, in fact, came to any conclusion about the un-concluded Federal Court proceedings.
[52] For these reasons we are not persuaded that the Senior Deputy President erred in the manner contended by the CFMEU.
Mr Gava's knowledge of permit holders' obligations: Appeal Ground 8
[53] As we have mentioned, the Decision must be read as a whole and considered fairly. On a fair reading of the Decision as a whole we are not persuaded that the Senior Deputy President made a finding as alleged that was "illogical, irrational and untenable." The Senior Deputy President was, at paragraph [70], merely alluding to the fact that the CFMEU could pursue another application. It was a statement of fact which we do not consider impugns the Decision as a whole. There is nothing in paragraph [70] that was relied upon by the Senior Deputy President in finding (earlier in the Decision) that Mr Gava was not a fit and proper person to hold an entry permit.
[54] For these reasons we are not persuaded that the Senior Deputy President erred in the manner contended by the CFMEU.
Failure to take into account ss.513(1)(a)-(c) and (f): Appeal Ground 9
[55] On a fair reading of the Decision as a whole we are not persuaded that the Senior Deputy President failed to evaluate or accord any weight to the matters that positively weighed in favour of granting Mr Gava a permit. It is clear that the Senior Deputy President, as a part of his deliberative process, gave each matter proper, genuine and realistic consideration and appropriate weight.
[56] As is evident from the extracts of the Decision referred to above it is clear the Senior Deputy President properly considered all the matters in ss.513(1)(a)-(c) and (f) to the extent that they weighed in favour of Mr Gava.
[57] We consider the Senior Deputy President considered all of the relevant matters and his approach was consistent with that articulated by Deputy President Gostencnik in Construction, Forestry, Mining and Energy Union - Construction and General Division, Victoria-Tasmania Divisional Branch.[35]
[58] For these reasons we are not persuaded that the Senior Deputy President erred in the manner contended by the CFMEU.
Mr Gava's contrition and undertaking: Appeal Ground 10
[59] There was clear evidence before the Senior Deputy President that:
Mr Gava's apology was not unreserved,
Mr Gava had no specific recollection of the events of 30 October 2013, and yet
Mr Gava admitted to the October 2013 contraventions, and
the timing of the apology was around February 2017.
[60] It was in this context that the Senior Deputy President concluded that he was not satisfied with Mr Gava's statement of contrition demonstrated an understanding of the importance of his actions. It was a finding open to the Senior Deputy President to make. There was no mistaking of the facts on behalf of the Senior Deputy President.
[61] For these reasons we are not persuaded that the Senior Deputy President erred in the manner contended by the CFMEU.
[62] Finally, it is to be observed that the Senior Deputy President very clearly found that the most significant matters in favour of granting Mr Gava a permit was his "traditional good record prior to 2013..."[36]. In this context the submission that the Senior Deputy President failed to take account of Mr Gava's record as a permit holder lacks foundation.
[63] For these reasons we are not persuaded that the Senior Deputy President erred in the manner contended by the CFMEU.
[64] For all the reasons above, we are satisfied that an examination of the appeal grounds of the CFMEU fails to demonstrate any error on the part of the decision maker at first instance. All relevant circumstances and matters before the Senior Deputy President were considered and we are not persuaded that any were given either undue or insufficient weight. The Senior Deputy President's findings were not unreasonable or plainly unjust.
[65]
We have reviewed all of the relevant material before the Senior Deputy President. We are not persuaded an arguable case of appealable error has been demonstrated by the CFMEU. No basis upon which the public interest is attracted has been identified and we are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, permission to appeal is refused and the appeal is dismissed.
[1] CFMEU - Construction and General Division, South Australian Divisional Branch [2017] FWC 1227
[4] Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at 203-4 per Gleeson CJ, Gaudron and Hayne JJ.
[5] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; Coal & Alllied v Lawler [2011] FCAFC 54 at [44]- [46].
[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe
[8] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481
[9] Wan v AIRC [2001] FCA 1803 at [30]
[10] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[11] Melbourne Stadiums Ltd v Sauter [2015] FCAFC 20 at [128]; Esso Australia Pty Ltd v Australian Workers Union & Ors [2015] FWCFB 210 at [17] (citing KA Murphy v SF Finance Pty Ltd (unreported, Print P1395, AIRCFB, 29 May 1997); Curtis v Darwin City Council (2012) 224 IR 174 at [80]).
[12] Fair Work Commission [2014] FWC 3907, [67] - [75].
[13] Australian Building and Construction Commissioner v Michael McDermott & Ors SAD 39/2016.
[14] Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293.
[15] Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413
[16] [2017] FWC 1227, [1] and [6] - [7].
[17] [2017] FWC 1227, [2] - [5] and [27 - [28].
[18] [2017] FWC 1227, [8] - [12].
[19] [2017] FWC 1227, [13] - [21].
[20] [2017] FWC 1227, [22] - [26].
[24] [2016] FWCFB 6058, paras [84] - [87].
[26] Director of the Fair Work Building Industry Inspectorate v CFMEU [2014] FWCFB 5947, [22].
[27] CFMEU v Director of the Fair Work Building Industry Inspectorate [2016] FWCFB 6058, [85].
[28] Director of the Fair Work Building Industry Inspectorate v CFMEU [2014] FWCFB 5047, [26] - [27].
[29] CFMEU v Director of the Fair Work Building Industry Inspectorate [2016] FWCFB 6058, [85].
[30] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 291.
[31] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666, 685 and 689; R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456, 487-488.
[32] Commissioner for Australian Capital Territory Revenue v Alphone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 590-591.
[33] [2017] FWC 1227, [47]-[50] and PN609-614.
[34] Application by Construction, Forestry and Mining and Energy Union - Construction and General Division, SA Divisional Branch [2016] FWC 161, [34].
[35] [2017] FWC 666, [8].
[36] [2017] FWC 1227, [66].
Printed by authority of the Commonwealth Government Printer
Construction, Forestry, Mining and Energy Union
Fair Work Commission [2017] FWCFB 4141
(2000) 203 CLR 194
(2010) 197 IR 266
(1980) 31 ALR 666
(1936) 55 CLR 499
(1989) 168 CLR 210
(1998) 89 FCR 200
(2001) 116 FCR 481
(2012) 224 IR 174
(1996) 185 CLR 259
(1994) 49 FCR 576