We grant permission to appeal, but for the reasons given, we dismiss the appeal.
[2014] FWCFB 1973
The attached document replaces the document previously issued with the above code on 26 March 2014.
The catchwords on the top of page 1, is amended from 7 November 2013 to 29 November 2013.
Abbygayle Lang
Associate to Deputy President Gostencnik
Dated 27 March 2014.
[2014] FWCFB 1973 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Maritime Industry | |
DEPUTY PRESIDENT GOSTENCNIK |
MELBOURNE, 26 MARCH 2014 |
Appeal against decision [[2013 ]FWCD 8459] of Chris Enright at Melbourne on 29 November 2013 in matter number RE2013/1617; Proper construction of ss. 512 and 513 of the Act; Meaning of “fit and proper person to hold an entry permit”; Application of “permit qualification matters”; Permission to appeal granted; Appeal dismissed
Introduction
[1] William Warren Tracey is an Assistant Branch Secretary of the Maritime Union of Australia (Appellant). On 14 October 2013 the Appellant applied under s.512 of the Fair Work Act 2009 (Act) for an entry permit to be issued to Mr Tracey. At the time the application was made, Mr Tracey was the holder of an entry permit which was due to expire on 21 December 2013. During his period as an official of the Appellant, Mr Tracey was first issued with an entry permit under predecessor legislation on 9 January 2008. He has been an Assistant Branch Secretary since 31 December 2009 and whilst holding that position he was issued with an entry permit on 21 December 2010.
[2] Before his period as an official with the Appellant, Mr Tracey was an official with The Australian Workers Union (AWU). During this period Mr Tracey was issued with entry permits under predecessor legislation on three occasions, and on two occasions his entry permit was revoked. 1 The last occasion of revocation whilst Mr Tracey was an official with the AWU was 13 November 2002. Following his period with the AWU, Mr Tracey became an official of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). As an official of the AMWU, Mr Tracey was issued with an entry permit under predecessor legislation on 9 February 2006.
[3] In 2009 and again in 2010 Mr Tracey was involved in conduct which resulted in penalties being imposed by the Federal Court of Australia for contraventions of predecessor legislation, and of this Act. 2
[4] On 29 November 2013 Mr Chris Enright, acting pursuant to a delegation (Delegate) dealt with the Appellant’s application and concluded that he was not satisfied Mr Tracey is a fit and proper person to hold an entry permit. In consequence the Delegate refused the application (Decision) 3. On 11 December 2013 the Appellant lodged a notice of appeal pursuant to s. 604 of the Act and it seeks permission to appeal against the Decision.
[5] The appeal is from a discretionary decision and so the Appellant will need to demonstrate an appellable error of the kind identified in House v The King. 4 The Appellant also alleges that there was a failure to provide adequate reasons, which if established, will also be an appellable error.
[6] At the hearing of this appeal Patrick Stevedores Holdings Pty Ltd (Patrick Stevedores) sought permission to make a submission in relation to the appeal. The Appellant neither opposed nor consented to that application. We were satisfied that Patrick Stevedores had a sufficient interest in the matters the subject of the appeal beyond that of an ordinary member of the public and accordingly we granted it permission to make a submission.
[7] We have decided to grant permission to appeal because the appeal raises important questions about the correct approach to the construction and application of sections 512 and 513 of the Act which deal with issuing of right of entry permits to officials of organisations. However for the reasons that follow we have decided to dismiss the appeal.
Grounds of appeal
[8] Without reciting the 13 grounds of appeal advanced by the Appellant in its notice of appeal, and putting to one side the ground of appeal relating to the adequacy of the Delegate’s reasons, the issue requiring resolution in this appeal may be shortly stated. The issue at the heart of the appeal concerns the correct approach to the interpretation and application of the permit qualification matters enumerated in s.513 (1) when read with the discretionary power to issue an entry permit in s.512 and in light of the context in which those provisions appear, namely in Part 3 – 4 of the Act which regulates the rights of officials of organisations to enter premises for particular purposes.
[9] According to the Appellant, the Delegate, in dealing with the application under s 512, adopted an erroneous approach to the application of the permit qualification matters in s.513 (1). In particular, the Appellant criticises the way that previous revocations of permits and contraventions of industrial laws resulting in the imposition of a penalty were assessed by the Delegate. According to the Appellant, the Delegate should have but did not assess the permit qualification matters in light of the overarching question of whether the applicant is a fit and proper person to be issued with a permit under Part 3-4 of the Act.
[10] In adopting an erroneous approach, the Appellant says that the Delegate:
[11] Returning to the adequacy of reasons ground, the Appellant also says the Delegate committed a jurisdictional error by failing to give reasons or adequate reasons with respect to any of the matters set out in grounds 1 through 10 of the notice of appeal.
[12] As to the central issue, Patrick Stevedores submits that the Appellant’s attack on the Decision essentially amounts to a submission that words of limitation, which are not there, should be read into s.513(1) to the effect that the matters enumerated should be considered only to the extent that they are relevant to the exercise of entry permit rights under the Act. There was no basis for reading into s.513(1) any words of limitation, and the Delegate was correct in his approach to that section.
[13] Before dealing with the substantive issues raised in this appeal it is necessary to make a few brief observations about the proper approach to statutory construction, at least so far as is relevant for the disposition of this appeal.
Approach to construction of the relevant statutory provisions
[14] In considering the relevant statutory provisions the starting point is to construe the words of the statute according to their ordinary meaning having regard to the context and legislative purpose. 5 The words of the statute being construed should be read by reference to the language of the statute as a whole.6 As Lawler VP and Bissett C observed in JJ Richards and Sons Pty Ltd v Transport Workers’ Union of Australia7, after reciting relevant authorities concerning statutory construction:
“Drawing these principles together, the task of statutory interpretation is concerned with ascertaining the intention of the legislature as manifested by the text of the legislation. Context (using that word in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy) and the purpose or object underlying the legislation must always be considered . . . The text of a provision, read in context and having regard to the object and purpose of the provision, is always the surest guide.” 8
[15] In J.J. Richards & Sons Pty Ltd and Another v Fair Work Australia and Another 9 Flick J discussed three long established and fundamental principles to statutory construction. In so doing His Honour said:
“First, the so-called “golden rule” of the common law as to statutory construction is that “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther”. . .
Second, the common law also recognised that “[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”. . .
Third, a construction of a statutory provision is to be preferred “that would best achieve the purpose or object of the Act’. The requirement to look to the purpose or object of an Act is more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction; s 15AA requires no ambiguity or inconsistency in a statutory provision before a court is not only permitted, but required to have regard to purpose.” 10 (References omitted)
[16] We respectfully agree and apply these principles to construing the provisions at issue in this appeal.
Construction and application of the relevant provisions
[17] Provisions governing right of entry for officials of organisations are contained in Part 3-4 of Chapter 3 of the Act. The object of that Part is as follows:
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”
[18] Part of the framework that is established by Part 3-4 is the scheme for issuing entry permits in Division 6, Subdivision A, and for the mandatory revocation or suspension of entry permits in Subdivision B Division 5.
[19] Section 512 sets out the circumstances in which the Commission may issue an entry permit in particular circumstances to an official of an organisation. It provides as follows:
“512 FWC may issue entry permits
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.”
[20] In deciding whether an official is a fit and proper person, the Commission must take into account the permit qualification matters enumeration in s.513. That section provides as follows:
(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.
(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.
Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.”
[21] Section 510 sets out the circumstances in which the Commission must either revoke or suspend each entry permit held by permit holder. That section provides as follows:
“510 When the FWC must revoke or suspend entry permits
When the FWC must revoke or suspend entry permits
(1) The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued:
(a) the permit holder was found, in proceedings under this Act, to have contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part);
(b) the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);
(c) the Information Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a complaint relating to action taken by the permit holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;
(d) the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder;
(e) a court, or other person or body, under a State or Territory industrial law:
(i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or
(ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law;
(f) the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.
(2) Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.
Minimum suspension period
(4) A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies:
(a) if the FWC has not previously taken action under subsection (1) against the permit holder—3 months;
(b) if the FWC has taken action under subsection (1) against the permit holder on only one occasion—12 months;
(c) if the FWC has taken action under subsection (1) against the permit holder on more than one occasion—5 years.
Banning issue of future entry permits
(5) If the FWC takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).
(6) The ban period must:
(a) begin when the action is taken under subsection (1); and
(b) be no shorter than the minimum suspension period.”
[22] The framework in Part 3-4 also permits the Commission to impose conditions on an entry permit when it is issued. Section 515 provides:
“515 Conditions on entry permit
(1) The FWC may impose conditions on an entry permit when it is issued.
(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.
(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).
(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.
(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).”
[23] As is apparent from the above, the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. 11 Taking into account context, the structure of s. 512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.
[24] The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the entry permit”. The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se. Rather the permit qualification matters must be taken into account to decide whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.
[25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act.
[26] We reject so much of the Appellant’s submission as suggested that section 513 must be read down in the sense that the various permit qualification matters must be taken into account only to the extent that they are relevant to the exercise of entry permit rights. In our view there is no basis for reading down s.513. In a given application for an entry permit, if a matter that is a permit qualification matter, then that matter must be taken into account in determining whether the official of the applicant organisation is a fit and proper person to hold an entry permit. Parliament has determined that such matters are relevant to that question and it would be wrong to only have regard to those matters if they are relevant to the exercise of entry permit rights. Such words of limitation appear nowhere in s.513. Where parliament intended for particular matters to have a more narrow application, as is the case for the mandatory revocation suspension of entry permits, it has expressly so provided. So it is that s.510(1)(d) provides that the Commission “. . . must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that . . . the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder” since the first of those permits was issued (our underlining).
[27] Put simply, the determination of whether an official is a fit and proper person to hold an entry permit involves an assessment of the effect that the existence of any of the matters in s.513, described as the “permit qualification matters”, has on the suitability of the official to hold an entry permit, with all of its attendant rights, conditions, limitations, and responsibilities.
The Delegate’s decision and Appellant’s criticism of it on appeal
Fit and proper person to hold the entry permit
[28] To begin with the Delegate correctly sets out the relevant issue that he must determine, namely whether the official is a fit and proper person to hold an entry permit. 12 Next the Delegate correctly identifies that in deciding that issue he must take into account the permit qualification matters in s.513(1).13 Later in the Decision the Delegate refers to relevant authority which directs his attention to the need to construe the description “fit and proper person” having regard to its context, the activities in which the official will engage and the ends served by those activities, and then says the following:
“[54] I accept that the expression ‘fit and proper person’ is coloured somewhat by the context in which it appears and that it should be construed by having regard to the rights and responsibilities associated with the grant of an entry permit. Parliament has expressed an intention that the Commission “must” take into account the permit qualification matters set out in s.513(1) of the Act to “ensure that only appropriate persons are conferred with the significant rights to access premises”. Although previous judicial authorities regarding the meaning of particular terms applied in legislation, such as the exposition of the term “fit and proper person” in Tribunal v Bond are binding in similar factual circumstances, care must be exercised lest such judicial expositions replace the actual statutory text.” 14 (Citations omitted)
[29] It is at this point that the Appellant says the Delegate erred. The Appellant submits that despite having set out an authority which correctly directed the Delegate’s attention to context, at [54] of the Decision, the Delegate diminishes the role of context describing it as “colouring somewhat” the way in which the description “fit and proper person” should be read. Thereafter, so it was submitted, the Delegate latched onto the word “must” in s. 513 and treated the permit qualification matters set out therein as if the task facing the Delegate was to see whether any of those matters were engaged, and then treating those matters as matters requiring the rebuttal by Mr Tracey before the Delegate could conclude that Mr Tracey was a fit and proper person to hold an entry permit.
[30] We do not think the Appellant’s criticism is correct. Though perhaps inelegantly expressed, it seems to us clear that the Delegate is saying no more than the description “fit and proper person” will carry its meaning from its context but that he must take into account the permit qualification matters in s.513(1) in determining whether Mr Tracey is a fit and proper person to hold the entry permit the subject of the application. The Delegate, in our view, does not latch on to the word “must” in s.513, but merely highlights the word to emphasise the directory nature of that section to make the point that he is not at liberty to disregard any such matter.
[31] In other words, but for the matters to which regard must be had in s.513, in assessing whether an official is a fit and proper person to hold a permit, a decision-maker might otherwise be free to disregard matters such as whether the official has been ordered to pay a penalty under the Act, because for example, the period of time that has elapsed since the order was made or that the order arose from contraventions unrelated to entry to premises. But s.513 makes clear that the fact that such an order has been made, must be taken into account in the assessment. The Delegate is thereafter permitted to assess the weight that should attach to such matters but not disregard them. We therefore do not discern any appellable error in the Delegate’s construction and application of s.513 of the Act.
Permit qualification matters
[32] At [13] – [28] of the Decision, the Delegate gives consideration to the permit qualification matters. Later, the Delegate says:
“[57] I have taken into account the penalties imposed on Mr Tracey and the MUA in both Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 and Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521 and the conduct of Mr Tracey that was found to have occurred in those matters which led to the imposition of those penalties. Such conduct is clearly inconsistent with the the (sic) object of “the right of occupiers of premises and employers to go about their business without undue inconvenience”.
[58] The conduct to which I have referred raises significant concerns regarding Mr Tracey’s willingness to adhere to provisions of industrial legislation and whether he is a “fit and proper person” for the purposes of s. 512 of the Act.
[59] The total quantum of penalties imposed upon Mr Tracey under both the Act and the WR Act amounts to $7,260. The total quantum of penalties imposed upon the MUA in both matters amounts to $26,400. However, as noted above, the penalty imposed upon the MUA in Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521 did not arise as a consequence of actions taken solely by Mr Tracey.
[60] Although I note that the relevant conduct in both Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 and Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521 resulted in industrial action being taken for a relatively short period of time, I do not accept the MUA’s characterisation of these matters, and the penalties imposed in them, as “relatively minor events”. Rather, as noted above, they demonstrate two instances of a lack of regard for the provisions of industrial legislation concerning engaging in unlawful industrial action.” 15 (Endnotes omitted)
[33] Here the Appellant says the Delegate also erred. First, it is said the Delegate erred because he took into account the penalties imposed by the Federal Court of Australia in the cases cited above even though these cases did not involve the exercise of permit rights. This submission is rejected for the reasons given at paragraphs [26] and [27] above and because it runs counter to the express direction in s. 513.
[34] Secondly, the Appellant submits that the Delegate’s finding at [57] that Mr Tracey’s conduct in the cases cited by the Delegate was inconsistent with “the right of occupiers of premises and employers to go about their business without undue inconvenience” is flawed. This is because the rights referred to appear in the object of part 3 – 4 set out in s. 480 (c) and that object is concerned with the balancing of that right against other rights in the context of establishing a framework for officials of organisations to enter premises. We agree that this reasoning is flawed but it does not follow that the Delegate erred in his application of the matter involving the penalties imposed by the Federal Court of Australia on Mr Tracey. To begin with, that matter is a permit qualification matter which must be taken into account and the Delegate rightly took it into account. Next, the Delegate made an assessment as to the impact of that matter on the suitability of Mr Tracey to hold an entry permit. In doing so the Delegate addresses the gravamen of that assessment, namely, that the conduct involved in the matter “raises significant concerns regarding Mr Tracey’s willingness to adhere to the provisions of industrial legislation and whether he is a “fit and proper person” for the purposes of s. 512 of the Act”. 16 Still later, the Delegate considers the matter by reference to weight describing the matter as “serious”.17
[35] In our view, this is correct. Both cases involved unlawful industrial action and Mr Tracey organised that action. 18 In both cases Mr Tracey’s conduct in organising the action, which amounted to the contravention of predecessor legislation and of this Act, was deliberate.19 In both cases it was noted that there was a lack of evidence of any contrition,20 and in both cases there was no attempt by Mr Tracey to follow the dispute settlement procedure in the applicable enterprise agreement instead of organising unlawful industrial action. 21 This conduct when viewed in its totality, clearly raises questions about Mr Tracey’s willingness to adhere to industrial legislation and consequently is a matter that is to be taken into account in assessing whether he is a fit and proper person to hold an entry permit with all of its attendant rights, conditions, limitations, and responsibilities that are contained in Part 3 – 4 of the Act. We therefore do not identify any appellable error in this regard.
[36] Thirdly, the Appellant submits that taking into account Mr Tracey’s willingness to adhere to industrial legislation was irrelevant for the purposes of s.512. For the reasons given above we disagree. Furthermore such a submission is patently incorrect. That Mr Tracey engaged in deliberate conduct to organise unlawful industrial action on two occasions in the not too distant past, and did so disregarding dispute settlement procedures in the relevant enterprise agreements, with which the organisation of which he is an officer agreed to comply, shows a propensity not to follow rules that are established by industrial legislation. That same legislation established, and the Act now establishes rules with which the holder of an entry permit must comply. The propensity not to follow rules set out in industrial legislation plainly raises a question that is relevant to assessing whether Mr Tracey is a fit and proper person to hold an entry permit.
[37] On a related point the Appellant says that in assessing the significance of the matter involving the penalties imposed by the Federal Court of Australia, the Delegate erred in failing to take into account Mr Tracey’s clean record in relation to compliance with right of entry laws, and in failing to take into account the fact that Mr Tracey undertook right of entry training in December 2010, which was after the conduct that was the subject of the penalties imposed occurred. There is no substance to this submission. The Delegate notes that Mr Tracey has not been convicted of an offence, 22 that he has been a permit holder since 2000 23 and that he has not had an entry permit suspended or revoked since the last revocation occurred on 13 November 200224. The Delegate notes that Mr Tracey undertook training about the rights and responsibilities of the permit holder on 16 December 2010.25 The Delegate also notes that more than “a decade elapsed since Mr Tracey’s previous permit revocations”.26 The submission made is really directed to the weight the Delegate attached to these matters and that is not a basis for finding error. Consequently no appellable error is disclosed.
Effect of previous entry permits issued
[38] At [29]-[33] of the Delegate’s decision, the Delegate refers to Mr Tracey’s history as a permit holder of various organisations. At [34] the Delegate says:
“[34] Since the permit issued in matter RE2001/694 was revoked in BHP Billiton v Tracey, the following permits have been issued to Mr Tracey:
[39] Arising from the chronology above, the Appellant says that the Delegate was in error because he did not apply a legal presumption that as Mr Tracey was a fit and proper person to hold an entry permit from the time of granting the last entry permit, this meant that even relevant prior offences cannot be used as a basis for concluding that a person is not a fit and proper person if those prior matters were considered in any earlier assessment. In order to displace the presumption, something new must have occurred to warrant a change in the assessment. We do not need to decide whether the legal presumption arises in the manner suggested by the Appellant. We are prepared to assume, without deciding, the presumption arises. On the Appellant’s own analysis, the presumption is displaced because something new has occurred since the last assessment made in or about 21 December 2010.
[40] The matters to which the Delegate was required to turn his attention included considering whether Mr Tracey had been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by him. The penalties imposed by the Federal Court of Australia in the two cases referred to earlier were each imposed by orders made on 31 October 2012. Self evidently the fact that these penalties were imposed could not have been and was not taken into account in the assessment concluded on 21 December 2010. It follows that there is no appellable error identified in this regard.
Imposition of conditions
[41] The Appellant submits that the Delegate misconceived his jurisdiction to issue an entry permit because he failed to consider whether or not he should impose any conditions under s.515 of the Act. It was submitted that the imposition of appropriate conditions may have addressed the Delegate’s concern about Mr Tracey’s suitability to hold an entry permit. It was submitted that the need to consider whether to impose conditions under s.515 was an integral part of the process under s.512 or alternatively it was at least a relevant matter be taken into account in considering whether to issue an entry permit under s.512. Further it was submitted that if the Delegate did give consideration to the imposition of conditions under s.515, then he failed to give the Appellant and Mr Tracey an opportunity to address him on that question and there was thereby a denial of procedural fairness. On this last point we note the Appellant’s submission at first instance that given the time that had elapsed since the last occasion on which Mr Tracey had undertaken right of entry training, it may be appropriate to make further training a condition of the permit being issued 27. The Delegate also referred to that submission.28However, that aside, we do not see anything in the Delegate’s decision which would suggest that he gave consideration to the imposition of any conditions and is unnecessary therefore to deal with any procedural fairness point.
[42] Section 515 provides that the Commission may impose conditions on an entry permit when it is issued. 29 In deciding whether to impose conditions, the Commission must take into account the permit qualifications matters.30 The full text of s.515 appears earlier in this decision at paragraph [22].
[43] It is firstly to be observed that the exercise of the power to impose a condition on an entry permit when it is issued is discretionary. Secondly, an entry permit will only be issued if the Commission is satisfied that the officer of the applicant for a permit is a fit and proper person to hold an entry permit. If the Commission is not satisfied that the officer is a fit and proper person to hold an entry permit, there is no power in s.512 to issue the permit. It must follow that the question of whether the Commission will impose a condition on an entry permit when it is issued will only arise after the Commission is first satisfied that the officer of the applicant for a permit is a fit and proper person to hold the permit.
[44] As s.512 makes clear, entry permits may only be issued to a person whom the Commission is satisfied is a fit and proper person to hold an entry permit. It would undermine the legislative intent that underpins s.512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions. The power to impose a condition under s.512 seems to us to be exercisable usually after the Commission is satisfied that a relevant official is a fit and proper person to hold an entry permit but there is some concern, for example about the past conduct of the official having regard to the permit qualification requirements in s.513(1), which falls short of rendering that official unsuitable to hold an entry permit. It may also be the case that in an appropriate application the question whether a person is a fit and proper person to hold an entry permit is very finely balanced and the imposition of a condition might tip the balance in favour of the level of satisfaction required. But this is not such a case. Here the Delegate concluded that he was not satisfied that Mr Tracey was a fit and proper person to hold a permit. Having so concluded, the Delegate did not have power to issue a permit (whether with or without conditions), and so the question of whether to impose conditions on the permit did not arise. Consequently we do not discern any appellable error in this regard.
[45] Furthermore had the Parliament intended that the Commission should consider whether to impose conditions in the manner suggested by the Appellant, it would have expressly so provided.
[46] We also note that the Delegate was not asked to consider the imposition of a condition by the Appellant. The submission about imposition of a condition noted earlier above was put by the Appellant only to address any concern that the Delegate may have had about permit qualification matter specified in s.513(1)(a). 31 As to the matters involving the penalties imposed by the Federal Court of Australia, the Appellant conceded that these were problematic and then made submissions in mitigation32. No submission was made that a condition directed to these matters should be imposed. In the circumstances we do not consider the Delegate erred in not considering the imposition of a condition.
Inadequate reasons
[47] The Appellant submits that the Delegate failed to give adequate reasons that deal with the following:
[48] The principles that govern the duty to give adequate reasons for a decision are usefully summarised in Barach v University of New South Wales. 33 In Barach a Full Bench of Fair Work Australia said:
“The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.” 34 (Footnotes omitted)
[49] In our view there is little foundation in the criticisms of the Delegate’s reasons. Taking each criticism in turn, the matters involving penalties imposed by the Federal Court of Australia were relevant to the determination under s.512 because they were permit qualification matters which the Delegate was required to consider under s.513. The Delegate explains the relevance at [19] – [21] and at [57] – [60]. We have already observed at [34] above that the Delegate’s reasoning, so far as reference was made to s.480 (c), was flawed, but for the reasons there given we do not consider there was an appellable error as a consequence. It makes no difference to that conclusion, whether the reasons underpinning the reference to s.480(c) were adequate.
[50] As to the conduct of Mr Tracey occurring before 21 December 2010 and its relevance, s.513 required the Delegate to turn his mind to whether the Mr Tracey “has ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken” 35 by him. As we noted earlier, the orders imposing penalties were not made until 31 October 2012. It is only at that point that they become permit qualification matters. That the conduct, which was the subject of the penalty, occurred prior to 21 December 2010 does not render the subsequent imposition of penalties irrelevant. As the fact that a penalty was imposed is relevant, so too, is the contravening conduct, and the circumstances in which the conduct arose. The Delegate adequately explains how this is relevant for the purposes of his determination under s. 512 at [57] – [60] of the Decision.
[51] As to the alleged failure to give adequate reasons for not taking into account the fact that Mr Tracey was issued with an entry permit on 21 December 2010 on the basis that he was a fit and proper person and that there has been no offending conduct thereafter, for the reasons given earlier this criticism misses the point. The permit qualification matters that must be taken into account are the penalties imposed by the Federal Court of Australia. This occurred after 21 December 2010. Self evidently the Delegate was required to take those into account and the conduct which resulted in the penalties being imposed, as they were not and could not have been taken into account in the assessment resulting in the issuing of a permit on 21 December 2010.
[52] Finally for the reasons given earlier, it was not necessary for the Delegate to give reasons for not considering the imposition of conditions under s.515, having already concluded that he was not satisfied that Mr Tracey was a fit and proper person to hold an entry permit.
Other matters
[53] The Appellant also submits that the Delegate erred because he took into account, and unnecessarily elevated, Mr Tracey’s position of an Assistant Branch Secretary of the Appellant in March 2010, when the contravening conduct leading to the imposition of a penalty occurred. It was submitted that merely occupying such a position at the time the contravention occurred does not demonstrate that Mr Tracey is not a fit and proper person to hold a right of entry permit. We agree. However that is not how the Delegate approached that issue. At [28] and [50] of the Decision, the Delegate identifies the issue as relevant in his consideration of whether Mr Tracey is a fit and proper person to hold a permit. At [51] – [52] the Delegate explains why it is relevant, and at [66] the Delegate attaches some weight to the issue in describing it as a serious matter. In our view there is nothing erroneous in the Delegate’s reasoning. The Delegate is merely pointing out that he is giving greater weight to the second penalty imposition matter because of the position Mr Tracey occupied at the time. Moreover, the fact that Barker J in Fair Work Ombudsman v Maritime Union of Australia and William Tracey did not consider that as material in his assessment of penalty does not mean that the delegate was not entitled to consider it in the manner he did. In our view, the Delegate was entitled to give consideration to that issue and the extent to which that issue ultimately moved the Delegate to reach the conclusion he did, is a question of weight.
[54] The notice of appeal also raises as grounds, the Delegate’s failure to have regard to the fact that Mr Tracey undertook right of entry training in December 2010, which was after the conduct that was the subject of the penalties imposed by the Federal Court Australia occurred; and that he erred in failing to have regard to or take into account that Mr Tracey was granted an entry permit on 21 December 2010 which was after that conduct occurred, and therefore not relevant conduct for the purposes of determining the Appellant’s application. These grounds lack substance and misunderstand that which is required to be taken into account under s.513(1)(d). That subsection directs attention to whether a penalty has been imposed. The conduct that gave rise to the imposition of a penalty is relevant in assessing the extent to which the fact that a penalty was imposed should carry weight in assessment of whether a person is a fit and proper person to hold an entry permit. As to Mr Tracey’s circumstances, the relevant penalties were not imposed until 31 October 2012. The proceedings that gave rise to the imposition of the penalties were not commenced until 19 April 2011, and relevantly, Mr Tracey did not admit liability until 24 September 2012. 36 The conduct could hardly have been taken into account in determining whether Mr Tracey should be issued with an entry permit in December 2010.
Disposition of the appeal
[55] As is apparent from our reasons above, we have not identified any appellable error in the Decision. Much of the criticism by the Appellant of the Decision is really directed to the weight given by the Delegate to the various matters that the Delegate was required to take into account. In our view the Delegate correctly applied the relevant provisions and took into account required and relevant matters. The conclusion the Delegate came to was open to him on the material before him, and whilst we may well have come to a different conclusion, that is an insufficient basis to uphold the appeal.
[56]
We grant permission to appeal, but for the reasons given, we dismiss the appeal.
DEPUTY PRESIDENT
Appearances:
R. Doyle SC and S. Fitzgerald of Counsel for the Appellant.
M. Follett of Counsel for the Intervenor, Patrick Stevedores Pty Ltd.
Hearing details:
Melbourne.
2014.
13 February.
Written submissions:
Appellant (Outline of submissions) 24 January 2014.
Intervenor (Outline of submissions) 12 February 2014.
1 See BHP Iron Ore v Tracey PR905041 and BHP Billiton Iron Ore v Tracey PR924632
2 See Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521 and Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232
3 AB4; [2013] FWCD 8459
4 (1936) 55 CLR 499 at 504-505
5 Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74 at [70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [14]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
6 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]
8 Ibid at [29]
9 (2012) 201 FCR 297
10 Ibid at 311
11 See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380
12 AB2 at 7; [2013] FWCD 8459 at [7]
13 Ibid
14 Ibid at [54]
15 Ibid at [57] – [60]
16 Ibid at [58]
17 Ibid at [66]
18 [2012] FCA 1232 at [2] – [6]; [2012] FCA 1521 at [2] – [6]
19 Ibid at [29]; at [29]
20 Ibid at [36]; at [36]
21 Ibid at [25]; at [25]
22 AB4 at [A]; [2013] FWCD 8459 at [17]
23 Ibid at [64]
24 Ibid at [29] – [34] and [61]
25 Ibid at [14] – [15]
26 Ibid at [66]
27 AB21 at [5]
28 AB4 at [15]; [2013] FWCD 8459 at [15]
29 Section 515(1) of the Act
30 Section 515(2) of the Act
31 AB 21 at [5]
32 AB 22 at [10]
33 (2010) 194 IR 259
34 Ibid at 262 – 263
35 Section 513(1)(d)
36 [2012] FCA 1232 at [7] – [8]; [2012] FCA 1521 at [7] – [8]
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