A majority Full Bench of the Fair Work Commission (FWC) has found that a CFMEU official’s right of entry permit application was wrongly rejected by focusing on the CFMEU’s track record of industrial behaviour rather than the official’s as an individual, writes AMMA principal adviser – workplace policy, Lisa Matthews.

Lisa Matthews

Lisa Matthews

The original decision

IN his original May 2016 decision, Vice President Graeme Watson rejected a permit application by CFMEU organiser and OHS adviser Alex Tadic, an application that Fair Work Building & Construction (FWBC) also opposed.

VP Watson noted a series of matters previously and currently before the courts against Tadic and the CFMEU, including several significant fines against the CFMEU and Tadic as an individual.

In reaching his finding that Tadic was not a fit and proper person to hold an entry permit, VP Watson said:

“The Federal Court has found that the branch of the CFMEU which seeks a right of entry permit with respect to Mr Tadic has displayed a continuing attitude to disobedience of the law and has an organisational culture in which contraventions of the law have become normalised. In my view this context establishes a higher bar than normal for considering whether Mr Tadic is a fit and proper person to hold the right of entry permit in question.”

The majority decision

The CFMEU raised multiple grounds of appeal against VP Watson’s decision, with the majority Bench stating the most relevant ground was that the VP had acted on ‘wrong principle’ by applying a higher bar than normal to establish whether Tadic was a fit and proper person to be granted an entry permit in the context of him being an official of that particular branch of the CFMEU.

The CFMEU argued there was nothing in the Fair Work Act to indicate that the standard to establish an official is a fit and proper person will change depending on the particular union or branch of the union making the application.

In their majority decision, Senior Deputy President Richard Clancy and Commissioner Tim Lee rejected VP Watson’s findings, noting the VP had ‘taken into account matters external to the relevant personal characteristics of the individual concerned in relation to the activities for which the satisfaction of the standard is required’.

“We agree that it is highly relevant to consider an applicant’s attitude and track record relating to compliance with the relevant legal obligations, however, we consider it erroneous to elevate a context of past contraventions of industrial or other relevant laws by an organisation so that it automatically operates to impose a ‘higher bar than normal’ for an individual to clear in order to satisfy the Commission that he or she is a fit and proper person to hold an entry permit, regardless of his or her past behaviour,” the majority said.

The majority found the VP acted on a ‘wrong principle’ in finding there was a higher bar under s512 and s513 for an entry permit application depending on the actions of the applicant’s union. However, organisational/ union transgressions could be addressed through other sections of the Fair Work Act.

“Our interpretation of sections 512 and 513 of the [Fair Work] Act does not mean that a context of continuing disobedience of the law by an organisation and organisational cultures in which contraventions of the law have become normalised cannot be addressed as far as rights of entry are concerned. Section 508 of the Act empowers the Commission to restrict rights of entry where those rights have been misused by an organisation or its officials,” they said.

Having found that the original decision denying Tadic’s entry permit was based on flawed findings, the majority remitted the matter of whether the permit should be granted back to VP Watson to determine. The majority said there was not enough evidence before the Full Bench to arrive at a decision on the permit issue itself. The CFMEU had unsuccessfully argued the permit application should be remitted back to a different commission member.

The minority dissenting decision

In his minority dissenting decision, Senior Deputy President Matthew O’Callaghan disagreed with the majority, finding no error in the original decision.

According to SDP O’Callaghan, in the context of s512 and s513, ‘the character and demonstrated behaviour of the applicant organisation [union] can become a relevant consideration’.

“While the focus must be on the individual being assessed as a fit and proper person, the environment in which they work can become relevant,” SDP Callaghan said.

“Put another way, the assessment of whether a person is a fit and proper person to hold an entry permit cannot be undertaken in a vacuum and the characteristics of the organisation for which they work may represent a significant influence on the requests, demands or circumstances within which they work.”

Consequently, he said VP Watson was able to have regard to the demonstrated behaviour of the CFMEU in considering whether Tadic was a fit and proper person under s513(1)(g).

“I see no inherent error in recognising that, where a union demonstrates a culture which endorses common disdain for industrial laws, an official needs to be assessed as a fit and proper person, not against the behavioural norms in that union, but against the standards elsewhere applicable,” he said.

To the extent that the CFMEU, by its actions, puts its employees and officials at risk of breaching industrial laws, SDP O’Callaghan said ‘it simply creates a greater number of circumstances where the behaviour of those officials must be considered’.

Click here for the appeal decision.

Implications for employers

It remains to be seen whether Tadic will be found a fit and proper person to hold an entry permit when the matter is remitted back to VP Watson for determination. However, the majority in this decision confirmed that the particular union to which an official belongs will not be seen as imposing a higher hurdle for that official to prove they are a fit and proper person for an entry permit than they would face as an individual.