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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052093
VICE PRESIDENT WATSON
RE2015/486 RE2015/487
s.512 - Application for a right of entry permit
RE2015/486 RE2015/487
Application by Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2015/486)
Brisbane
10.02 AM, MONDAY, 29 JUNE 2015
PN1
THE VICE PRESIDENT: Can I have the appearances please.
PN2
MR WHITE: If the Commission please, I seek leave to appear for the applicants in each of the matters.
PN3
THE VICE PRESIDENT: Mr White.
PN4
MR A HERBERT: If it please the Commissioner, your Honour, for the record my name is HERBERT, initial A. I seek permission to appear on behalf of the Director of the Fair Work Building Commission.
PN5
THE VICE PRESIDENT: Yes, thank you, Mr Herbert. I make the necessary finding for the purposes of section 596 of the Act and I grant permission to counsel in both cases. Is there an agreed way in which we should proceed, Mr White?
PN6
MR WHITE: Mr Herbert and I haven't discussed that but given we're the applicants, perhaps we should go first.
PN7
THE VICE PRESIDENT: Yes.
PN8
MR WHITE: I'm happy if Mr Herbert wants to take the lead but - - -
PN9
THE VICE PRESIDENT: He's not leaping to his feet.
PN10
MR WHITE: What your Honour has is - - -
PN11
THE VICE PRESIDENT: He often does if he does want to take the lead.
PN12
MR HERBERT: Not take the lead but should I mention the material upon which we rely so my friend can make his submissions accordingly.
PN13
THE VICE PRESIDENT: Should we deal with the evidence at the outset? Admit the evidence and then I gather none of the witnesses are required for cross-examination.
PN14
MR HERBERT: No.
PN15
MR WHITE: No, but there are - there will be an application that none of the evidence should be admitted, none of the statements should be admitted into evidence.
PN16
THE VICE PRESIDENT: I see. Well perhaps you should start, Mr White, and we'll see where that goes.
PN17
MR WHITE: Perhaps it may well be, your Honour, that the most convenient course is to chop and change a little bit, depending on how you go.
PN18
THE VICE PRESIDENT: Well certainly if you're going to make applications about the evidence then now is the time.
PN19
MR WHITE: Yes, well your Honour there is on the Commission file a number of statements which the director seeks to rely on. Namely, affidavits of Messrs McEwan, Prestridge, Ross, Salotti, Thompson, Fitzjohn and Weare. All of these statements go to events which have not been the subject of any judicial consideration. They are not the subject of any court proceeding, nor are they the subject of any proceeding separately in the Commission.
PN20
The case may be described in this way; the only material that the director relies on, as we apprehend, which would go to Mr Myles having engaged in the - perhaps I'll paraphrase and short circuit it - bad conduct which would render him not a fit and proper person is contained in those affidavits. That is the director doesn't rely on earlier convictions or earlier findings that Mr Myles has breached in industrial law. Now each of the matters, the subject of those affidavits, accordingly stands alone and presumably the way in which the director seeks to rely on them is evidence of conduct which would lead the Commission to find that Mr Myles is not a fit and proper person to hold a permit. In other words, the director is in effect asking the Commission - that's the only way that could be relevant - to make findings about conduct. This is in the context of the Act which sets out a scheme, sets out roles for the Commission, sets out roles for courts and there's obviously a clear and long delineation between judicial and administrative functions.
PN21
When one goes to section 513, these are the matters which the Commission must consider or take into account in deciding the application. There is, we say, one very stark observation to make, and that is in relation to subsections 1(a) to (f), each of those matters relates to earlier found contraventions or acts. So see subsection 1(a) is about appropriate training, put that to one side for the moment. (b) "has ever been convicted of". So clearly a past judicial act. (c) "whether has been convicted of an offence", similarly. (d) "been ordered to pay", once again a past judicial act operating on conduct, (e) "whether a permit has been revoked", not judicial conduct but earlier findings within the purview of the Commission and then (f), once again this is within the purview not only of the Commission but possibly other courts but all operative past events. That is, there has to have been an act of cancellation, suspension of the imposition of conditions.
PN22
Your Honour, in circumstances then we say where the subject matter of the evidence clearly does not operate on concluded matters, we say it's not relevant to the exercise of the Commission's discretion. To the extent it might be argued that subsection 513(1)(g) provides any assistance, we say in relation to that section the following. First, whether it be by way of the operation of ejusdem generis or whether it be by the dividing of the intention of the legislature, we say section 513(1)(g) matters can only include what I have earlier described as concluded matters.
PN23
THE VICE PRESIDENT: Is there no law on this?
PN24
MR WHITE: Beg your pardon, your Honour?
PN25
THE VICE PRESIDENT: Is there no law on this provision?
PN26
MR WHITE: Not that I'm aware of, your Honour.
PN27
THE VICE PRESIDENT: There have never been considered by the Commission any factors other than concluded matters?
PN28
MR WHITE: Yes. Yes, there have been, I think, but - well, I don't know. I'm certainly not aware of this argument having been put and I'm certainly not aware of the ruling on this but just bear with me. Certainly the predominance of permit matters have, say, in relation to the ones I'm more familiar with, the officials at the CFMEU operated on findings of cause.
PN29
THE VICE PRESIDENT: What about the recent matters concerning MUA officials which I think went all the way to the Full Court of the Federal Court. There were no matters taken into account that didn't involve findings of course?
PN30
MR WHITE: Can you just bear with me.
PN31
THE VICE PRESIDENT: I think it concerned applications in relation to Mr Tracy, a recent matter. I don't have those cases in front of me and I haven't looked at them.
PN32
MR WHITE: Perhaps I haven't paid as good attention as I should have. The essential argument in the MUA involved the proposition that it was only matters going to a breach of the right of entry provisions. That was the way the argument was put on behalf of the MUA. In that case, Mr Tracy had been ordered to pay penalties and permits previously held by him had been invoked. When one looks at the Full Bench, paragraph 10, and we can hand your Honour a copy of that decision. In that bundle there's the Full Bench and the Full Court decisions and looking at the Full Court decision, certainly connecting paragraph 10, it says:
PN33
In concluding, Mr Tracy was not a fit and proper person the delegates reason for decision made reference to; 1) offences against an industrial law and the fact that he had been ordered to pay penalties and the fact that entry permits previously held by him had been revoked.
PN34
It refers to a number of decisions that the delegate had regard to. So from memory I think it was past conduct for which consequences had flowed. The reference to the latter part of paragraph 10 to the offences refers earlier to the two Federal Court matters referred to in the first dot point in paragraph 10. You will see at the beginning of the decision of the Full Bench the Full Bench recites some of Mr Tracy's history which records that previously the permit had been revoked and in 2009/2010 conduct which resulted in penalties being imposed by the court.
PN35
Your Honour, my instructor is checking but I, subject to correction, the permit matters that I'm aware of have involved imposed consequences. Until recently, these matters had commonly been heard by the delegate of the Commission and I think I am correct to say that - in the matters that I'm aware of it's operated on past events for which consequences have been found.
PN36
That would seem to make sense, your Honour, in circumstances where there's different provision in the Act for different bodies to exercise different powers on matters which have been found. It would also make sense in circumstances where in determining whether or not a person is fit and proper to hold an entry permit, having regard to the specified matters in section 513 the Commission must take account that past conduct, really the legislature has chosen to be the yardstick.
PN37
Your Honour, we say whether it be by way of operation of the ejusdem generis principle or whether it be just on a proper interpretation of the statute, we say section 513(1)(g) relates to matters, consequences of which have been found and it does not relate or include matters which are now only the subject of allegation.
PN38
To the extent that it operates by way of the ejusdem generis there's clear generis in each of the earlier matters in subsection 513(1) that refer to concluded matters. To the extent that the proposition we make operates on a construction of the statute, we say that is supported by the different roles and functions of different bodies which are referred to in the different powers which are given to them.
PN39
Your Honour, first of all we say these statements, affidavits, referring as they do to allegations which haven't been the subject of any consideration by the court, Commissioner or any other body, we say are not relevant and should not be admitted to evidence. Secondly, we say that as a matter of discretion the Commission should not admit these affidavits into evidence.
PN40
There is reference in our submissions, your Honour, which were filed I think on 16 June to correspondence between the parties. We thought we would have copies but the organisational matters have broken down, but can I advise your Honour of this and it's not, as I understand it, contentious. My instructors wrote to Mr Herbert's instructors indicating that in the event that the matters, the subject of - that the affidavits were to be the subject of the court proceedings, that Mr Myles would invoke his privilege against self-incrimination or the privilege against exposure to a penalty, and sought from the director an undertaking that the subject matter of the affidavits would not found any action in court.
PN41
That undertaking was not given so Mr Myles is now faced with this proposition; first, these matters are alleged against him, each of which if were true could found a breach of the Act. Each of which on their face might possibly justify the commencement of proceedings and in respect of each of which there's an undertaking requested but not given that they won't be the subject of court proceedings.
PN42
In order to meet the matters today if these affidavits were admitted into evidence, there would be a necessity either of Mr Myles giving evidence or me cross-examining the deponents of the affidavits on instructions, but regardless of which path was adopted it is clear we say, and once again we don't think it contentious that by doing either of those things, Mr Myles would have waived his privilege. The nature of the privilege we say akin to the privilege against self-incrimination has been recently the subject of a range of decisions but can I hand to the Commission a copy of Reid v Howard [1995] 184 CLR 1. This was a case about an accountant who had defalcated and an order was made in proceedings in the Supreme Court New South Wales requiring him to make discovery and the like.
PN43
Commencing at page 11 of that decision, the High Court - sorry, the plurality I think is the current phrase of Toohey, Gordon, McHugh and Gummow JJ, discuss the nature of the claim of privilege. Now in that case I say it was privilege against self-incrimination. In this case it's the privilege against self-exposure to a penalty but we say no different considerations apply. Can I invite, your Honour, rather than me, to read from page 11, the last paragraph, commencing; "As there was no appearance", to the end of that paragraph on page 12. Could I ask your Honour to read the third paragraph commencing:
PN44
The privilege against self-incrimination may be abridged by statute.
PN45
Could I ask your Honour to look at page 14, the paragraph commencing:
PN46
There is simply no scope for an exception to the privilege other than by statute -
PN47
That paragraph. I'm assuming your Honour finds it more convenient to read rather than me to read it.
PN48
THE VICE PRESIDENT: Well, equally Mr White.
PN49
MR WHITE: Your Honour, each of the matters could form the basis of an allegation of breach of the Act. Each of them could be the subject of court proceedings. There is no undertaking that they won't be and in order for Mr Myles to meet the allegations, he would have to do something which would necessarily abrogate his privilege. The importance of the privileges as has been described in the passages of that case to which I have taken your Honour.
PN50
The second basis for the application that the affidavits not be received is essentially a matter of fairness arising in circumstances where the only way to meet allegations would be to irrevocably prejudice a substantive right the Mr Myles has in the event the proceedings are instituted.
PN51
THE VICE PRESIDENT: The consequence of that argument that where privilege is intended to be claimed, no evidence can be admitted against that person\.
PN52
MR WHITE: It depends on the context in which the provision appears on the Act, so for example where for example - well, McMahon v Gould type circumstances have exercised the courts and Commission's mind over the years, where a person - for example, a defendant has sought a stay of matters in proceedings against them. But in those circumstances there's always, as McMahon v Gould principles say, a balancing of interest between the respective parties. Secondly, it depends on the context of the application, so for example it may well be different in circumstances where allegations are made which might lead to the imposition of conditions or the revocation of a permit. Those being different considerations than the grant of a permit. In this case, when you look at the nature of the earlier matters in section 513 relating to concluded matters, we say the consequence is as your Honour described in these applications.
PN53
We don't submit that there might be other applications before the Commission in which it's appropriate for the Commission to make findings of fact, as a precursor to the exercising of its discretion but it is not in this case. So your Honour, in our submission, those affidavits should not be admitted to evidence either by way of the question of relevance as I've addressed, as well as a matter of discretion. It may well be appropriate before I go on with my submissions, your Honour, that Mr Herbert address those matters.
PN54
THE VICE PRESIDENT: Yes, indeed. Thank you, Mr White. Mr Herbert.
PN55
MR HERBERT: Thank you, your Honour. Dealing with the first matter first, that is the question as to whether section 513(1)(g) only permits the Commission to have regard to matters which have been concluded presumably in some court or tribunal somewhere, and there is some form of order or declaration or something. Firstly, the absolute imposition of that concept, when does a matter become determined and by whom, and with what legal effect is not made out in my friend's submissions. The imposition of that concept tells against the possibility of it existing.
PN56
Secondly, but far more importantly, this notion that is sought to be put forward was actually dealt with by the Full Court of the Federal Court in the MUA matter. I'm sorry, did your Honour get a copy of it?
PN57
THE VICE PRESIDENT: I did.
PN58
MR HERBERT: Your Honour, the attempt that was made in that case was the submission that was rejected, firstly the submission that was rejected was that - and it's at about paragraph 18 one sees the reasoning behind it, and that is that the question of fitness and propriety was submitted to be an inquiry confined to only some convictions and penalties. In dispensing with that as a completely erroneous submission, the Full Court said a number of things which have broader application to the whole concept of whether and in what circumstances the Commission can have regard to matters under section 513. Be they convictions and penalties outside the scope of those that were sought to be confined at that time or whether the Commission can have regard to other matters, which are not convictions and penalties.
PN59
If one goes to page 8 of my copy of the decision, paragraph 21, the first reason they gave for rejecting a narrowing of the scope of the Commission's power in this regard was that;
PN60
In the absence of clearly expressed legislative intention to the contrary, there is no self-evident reason why the general integrity of an applicant seeking an entry permit should not be taken into account. Separate from the manner in which an applicant may have exceeded the authority conferred by an entry permit or flouted conditions previously imposed upon an entry permit, the general integrity of an applicant may be exposed by his or her general willingness to comply with other criminal law or statutory requirements. That is -
PN61
And I emphasise -
PN62
- his or her general willingness to comply with other common law or statutory requirements.
PN63
That's the space in which this evidence falls.
PN64
In the absence of clear words to the contrary there is no self-evident reason why an applicant's willingness to comply with any industrial law may not be relevant to an exercise of power under section 512.
PN65
Now question of willingness to comply, which are valid matters to be taken into account, can just as legitimately be shown by pointing to convictions, in which case the matter is beyond argument because the fact that the conviction stands on the public record, or by calling evidence in these proceedings going to that consideration. There is no magic under the legislation in section 513(1)(g) that suggests that in any way shape or form that the only kind of willingness or unwillingness to comply with common law or statutory requirements is that evidenced by the fact of a conviction.
PN66
There are other matters in relation to general integrity, for example if it is proven, and the examples are endless. But if it is proven that a candidate has behaved in an abusive way on a regular basis towards persons in respect of building sites, for example in this context, but that abusive conduct has not been the subject of proceedings but is nonetheless regular, routine and eminently provable by eye witness evidence, then it would be in submission on the scheme of the legislation, that would amount to wilful judicial blindness, is the well-known judicial expression.
PN67
For the Commission to refuse to accept evidence of that kind, if it goes directly towards those matters simply because perhaps the victim may have been too frightened to take proceedings - for a raft of reasons proceedings were not taken but that does not detract from the fact of the conduct itself. In my submission, there is simply no reason why that evidence should be disregard and why the Commission should proceed to make findings favourable to an applicant when the existence of that evidence and the capacity for that evidence to be proved in an incontrovertible manner exists as it does in these proceedings.
PN68
The Commission is required to evaluate the personal characteristics as my friend's put in his submissions at great length, and the personal behaviours of the person proposed - Mr Myles in this case - to hold this permit. The Commission is required to do so on whatever reliable materials the Commission has before it. There is nothing in the context of section 513(g) to suggest that because there are certain mandatory matters which must be taken into account, that when it says other matters that the Commission considers to be relevant, that it is talking about other matters that have been the subject of a final determination by a court that the Commission considers to be relevant.
PN69
There would hardly be in the circumstances anything else by way of a determination of a court that was relevant other than the matters set out in 513(1)(a) to (f). 513(1)(g) plainly gives to the Commission the widest discretion to look for and to ascertain and to determine such matters and therefore to receive evidence in respect of such matters as to do not fit into any of those categories. If there is the clearest possible contemporaneous evidence of gross misbehaviour on the part of an applicant, that would be disqualifying conduct were it the subject of a determination of a court at some time and became the subject of a finding by a court. There is no impediment on the Commission having regard to that material, determining it as being the contemporaneous conduct of the person concerned and in the circumstances holding that a person who exhibits those behaviours, whether or not they've been the subject of court or other procedures, are matters that are to be taken firmly into account in assessing the fitness or propriety of the person concerned.
PN70
Now this case is a very significant example, very close to the heart of the jurisdiction conferred on the Commission, and that is that the evidence demonstrates beyond argument, in my submission, that what Mr Myles has been doing has been deliberately flouting the whole legislative scheme of right of entry permits. There are numerous examples spoken of by the persons responsible for a number of building sites at a number of companies who have confronted Mr Myles in their premises, or at their gate, and said you have no right of entry, you cannot enter and he has given various responses or no response at all, but in each case has entered notwithstanding.
PN71
In cases where he's been found on the site, he's been told he must leave. He has no right to be there and he must leave, and his response is usually fairly derisory and when he is told that the police will be called, the response is varied but essentially on a number of occasions he's heard to say:
PN72
Well you can call the police if you like, by the time they get here I'll have done what I came here to do.
PN73
Now all of that is - as we put in the submissions, amounts of civil and probably criminal trespass on the part of Mr Myles. Now the importance of that is that it shows an absolute flat refusal to respect the rights of the persons in control of those sites, the property rights of those persons in control of those sites, which is a matter that is fundamental to the whole right of entry system. It shows a complete contempt for requests by those persons that he leave, a fundamental contempt for the entire legal system and the legislative scheme surrounding the right of entry system and yet he comes before this Commission and asks to be made a participant in that right of entry system which he, on a number of occasions, has deliberately refused to comply with and therefore has entered sites without any right to do so and has refused to leave when he's been told.
PN74
It goes to the heart of the system, in my submission, the legislative scheme that when there is to be a balance the right of entry system itself seeks, as has been pointed out in my friend's and my submissions, seeks as the Act declares to strike a balance between the rights of businesses to go about their business without unlawful intrusions, and the rights of union officials to enter sites subject to the relevant constraints that are imposed by members then as to how, when, where they go about that and the sort of notice they have to give to the employers in that regard.
PN75
The evidence that we're seeking to rely on here discloses that Mr Myles has utter contempt for that system, yet he wants the protection of it in that he wants this Commission to rule that despite conduct of that kind on a regular basis. It's not once or twice but on a dozen occasions that we've identified in the material we're seeking to adduce, he has shown utter contempt for that system.
PN76
It's not as if we are trying to produce some evidence as to how he misconducted himself on the sideline of his kid's footy match at the weekend, or anything of that kind. We are seeking to adduce evidence as to how he conducted himself vis a vis the legal rights of the controllers of building sites, in respect of whom he is seeking an extension of the right of entry which he has held throughout this period, so that he can choose to lawfully enter or unlawfully enter as he sees fit. Somebody who has such an utter disregard for the legislative scheme that gives him the right to do these things lawfully but places constraints on what he does, then in my submission that - material of that kind goes squarely to the heart of the sort of matters that the Commission would find compelling, not just relevant but compelling to have regard to in determining the question of the real Mr Myles.
PN77
The fact that he has as yet not been the subject of a court proceeding is very interesting but that doesn't - the observe of that proposition is not true, that he is therefore a fit and proper person, in light of the material that we're seeking to adduce and the Commission in my submission simply can't turn a blind eye to that material by excluding it on the basis that it's not relevant. Of course, as I submitted the Full Court of the Federal Court made it very clear that there needed to be in the passage that I took you to and on two occasions in that passage in paragraph 21 of the judgment, they made it absolutely clear that there needs to be words of a narrowing or words of a restriction in relation to the conferral on the commission of these entitlements under section 513 or the matters which the Commission is to have regard to, and where the Commission is or in what direction the Commission is to look in relation to the use it makes of those matters.
PN78
There are in relation to section 513(1)(g), there are simply no words of restriction that would require one to say that it doesn't matter how badly a person has conducted themselves in circumstances that have not yet or may not have generated some sort of criminal or other proceedings. It doesn't matter how badly they've misbehaved in that regard, it doesn't matter what that says about their character, it cannot be taken into account because - for what might be a hundred different reasons. It's not found its way into a settled proceeding or a determined proceeding. Finally, in respect of that matter one will see that most of these proceedings take notoriously two or three years to get to a court. They are in every sense historical conduct.
PN79
This is perhaps the first time in which a proceeding of this kind - because they've only recently come before the Commission, and my client's only recently become involved in bringing these matters before the Commission. But this is the first time in which, that I'm aware of, in which it's been endeavoured to be shown that his contemporary conduct, as shown by the statements within the last six or eight months is such that his absence of actual proved contraventions, or concluded court proceedings, ought not to be taken to be a true reflection of who Mr Myles really is, and the way he really behaves when he's on building sites. Because this is contemporary, that would be historical.
PN80
The submission has often been made, "Oh he was found to have contravened in 2012", and this is 2015, that was three years ago and all those things have been ameliorated by the passage of time and he's been to Lords and he's now a good boy. This makes it absolutely - this material makes it absolutely clear that that submission can't be made in this case, because his conduct very, very recently speaks contemporaneously with the bringing of this application effectively. Speaks a different story altogether. So on that basis, in my submission, it is all acutely relevant to the questions the Commission has to decide. It goes squarely to the character and the integrity as described by the Full Court in MUA.
PN81
It is absolutely completely on point because it goes to the manner and means by which he unlawfully enters building sites, which the right of entry gives him the right to do lawfully. For all of those reasons it could never be described as being irrelevant. It is the most valuable evidence that the Commission could have is to whether the real Mr Myles is as his contravention record shows or whether it is as is displayed in all of the evidence that we are seeking to adduce in these proceedings.
PN82
In relation to the second - - -
PN83
THE VICE PRESIDENT: Paragraph 26 of the Full Court's decision might support your argument as well, Mr Herbert.
PN84
MR HERBERT: I wasn't going to belabour your Honour. Paragraph 22 - - -
PN85
THE VICE PRESIDENT: It's put the other way that there was a positive record, a clean record and that was another factor.
PN86
MR HERBERT: Yes.
PN87
THE VICE PRESIDENT: But evidence about an unclean record might also be a relevant factor, on the basis of that reasoning.
PN88
MR HERBERT: Yes. Paragraph 22 was also of assistance in this regard, your Honour. I wasn't going to belabour you with the other passages but the context in which they were speaking is whether the section 513 matters should be read broadly or narrowly. They actually referred to:
PN89
Section 513(1) simply identifies those matters which must be taken into account. The subsection does not provide that other matters may not be taken into account. Indeed 513(1)(g) expressly provides that any other matters the Commission considers relevant themselves must be taken into
PN90
It doesn't - the court didn't and the legislation doesn't provide they must be concluded matters that have been concluded in a court. They could be a whole raft of matters that are germane to the issue.
PN91
It doesn't take much imagination to understand why it is that gross misbehaviours on the part of an official may not have found their way into court proceedings but yet be behaviour that would utterly disqualify a person. It may be, as I've submitted earlier, that if the behaviour involves - I'm not saying it's the case here but hypothetically dealing with the concept. If the behaviour involves some frightening intimidation of workers who were very scared to take the matter to the police, and the matter didn't find its way into police charges because of the consequences, evidence of conduct of that kind might still be called in these proceedings even though there had been no criminal charges.
PN92
There are a raft - and maybe called by witnesses or whomever, but there are - even though the victim may be too frightened to come forward. People who witnessed that sort of conduct happening and person being abused and threatened and all sorts of things happen to them. It may not have been able to be the subject of criminal charges because there may not be a complainant because he's too frightened. But that doesn't mean that this Commission can't be informed as to what happened, and the Commission take an appropriate view. The notion that that 513(1)(g) can only relate to concluded matters is, in my submission, more wishful thinking than a proper interpretation of the provisions.
PN93
The other submission my friend makes to seek to exclude this material is, with all due respect, has even less substance if that's possible. Could I hand up, your Honour, a more recent High Court decision relating to these concepts and that's the decision that was handed down a couple of weeks ago in the High Court; the CFMEU v Boral Resources.
PN94
THE VICE PRESIDENT: Thank you.
PN95
MR HERBERT: It's important, in my submission, to note that in both the point that was being decided in both of Reid v Howard and CFMEU v Boral was whether it was competent for a court to make orders requiring a person to produce incriminating material. Reading from the headnote in Reid the question was:
PN96
The former clients of a chartered accountant, having learned he was misappropriating funds applied for orders from the Supreme Court of New South Wales compelling him to disclose information about certain assets. The accountant claimed privilege against self-incrimination.
PN97
That's against orders compelling him to do something, and similarly in relation to CFMEU v Boral, what was being sought was discovery orders and again looking at the headnote:
PN98
Whether a corporation may be ordered to make discovery in a contempt proceeding -
PN99
And the question whether contempt proceedings is a criminal proceeding. It was a situation where discovery was being sought of telephone records to demonstrate whether or not certain persons had made calls to certain other persons at a particular time, which had a relevance to the question of whether the union was actually controlling industrial action that was occurring at the time in breach of orders of the court.
PN100
Again, it was about a question of whether a court can compel a person to make orders - sorry, the court by making orders can compel a person to produce material that might incriminate them and that is the same principal or the same question that was before the court in Reid v Howard, and it is not a question that is before this Commission. Nobody has sought for an order that Mr Myles do anything. The occasion for him to claim any sort of privilege does not exist, because there is no attempt to compel him. In these proceedings, and this goes to a couple of the points that my friend has made, and the principle is discussed in the CFMEU case at paragraph 36:
PN101
It is well established that the accusatorial nature of a criminal trial means that under common law the onus of proof is upon the prosecution to prove its case. As a corollary under the common law the prosecution cannot compel the accused to assist it to discharge its onus.
PN102
They then go onto quote from Lee v R over on page 10, the second paragraph of that quotation:
PN103
The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.
PN104
Et cetera:
PN105
Recognising this statute provides an accused person who's not competent to give evidence a witness for the prosecution, a protection which cannot be waived.
PN106
There is no prosecution here, none alleged. In any event, as was also held in CFMEU, neither of the unions in contention of these proceedings who are the two applicants in these two proceedings can claim privilege against self-incrimination as a matter of law. I won't take your Honour to the passage but it's in the judgment, confirming that privilege against self-incrimination doesn't repose in a corporation, which the CMFEU is, and it therefore cannot claim any form of penalty, privilege or privilege against self-incrimination.
PN107
It must - an order, if an order was being sought against the CMFEU, it would need to comply with that order and has no capacity to avoid it. In this case, what is occurring is that the applicant is seeking the indulgence of the Commission to grant a right of entry permit to its nominated employee Mr Myles. It puts Mr Myles up as a suitable candidate. In so doing, it's self-evident that the candidate will need to run the gauntlet as it were of section 513, and under section 513 which includes as I have submitted 513(1)(g), it is competent on the part of the Commission of its own motion or any other interested person to come forward, such as my client, and produce material which suggests that the person put forward by the applicant in these proceedings fails the relevant test.
PN108
Nobody compels Mr Myles to go further forward in relation to the matter. If the applicant is not comfortable that Mr Myles can pass the test by answering that material, other than by incriminating himself or potentially incriminating himself, or subjecting himself to potential penalties and other proceedings, then the applicant has it entirely within its capacity to say we will not press the application any further. We will not put - continue to put Mr Myles up as a suitable person. Because the applicant is seeking an indulgence from the Commission, well in seeking that indulgence the applicant is seeking to turn that around so that when answering material is provided that is in some way requiring Mr Myles to do something by dent of the proceedings. It's doing no such thing.
PN109
The Act requires Mr Myles to prove to the satisfaction of the Commission he's a fit and proper person. All that's happening here is that proceedings - that material is being brought forward by another party contending that that test has not been passed or can't be passed, and Mr Myles can answer it or not answer it as he sees fit. If he feels he's putting himself in legal peril by answering it, he doesn't need to answer it but he pays the price. The price he pays is that that material will remain unanswered in relation to these proceedings.
PN110
That simple. Nobody has offended any of the rules in Reid or the CMFEU by seeking to compel Mr Myles to do anything. There is no order of the Commission or anywhere else that says that he must do that thing. As to the - and so on that basis, the argument is completely misconceived. There is no relevance to be drawn from any of those proceedings that somewhere or other there's going to be an order made in these proceedings, which is going to compel Mr Myles to produce some material which would subsequently be able to be used in a prosecution against him. We're not doing anything of the kind. The Commission has no power to make orders of that kind, and if it did we wouldn't seek that it be exercised in all probability. The election is entirely his. Does he press his application or not? Does he answer to the material or not?
PN111
Now the second submission, as I understand it, that was put was that - and I think this arose largely out of a response from your Honour, and that is that there's a question on fairness here because if our evidence is received by the Commission then - and Mr Myles is required to answer it because of the nature of it. As my friend said, everything that's there suggests there's been - if true, demonstrates numerous contraventions against the legislation. That if the evidence is likely to, in effect, incriminate Mr Myles then the evidence shouldn't be given.
PN112
I couldn't imagine a criminal trial ever getting off the ground, not one ever, because all the evidence in a criminal trial is designed to incriminate or prove the guilt of a particular person. So that all of the prosecution evidence in a criminal trial has the tendency to incriminate the accused. The accused has the liberty to say nothing or say something but he certainly doesn't have the ability to say to the prosecution or say to the court the prosecution can't adduce that evidence, because if they adduce that evidence against me it tends to incriminate me and I'm going to have to answer it. If I answer it, I'll incriminate myself. Therefore, the trial stops now. You can't do that. Because to call evidence against me that might incriminate me would be contrary to my privilege against self-incrimination.
PN113
Of course the privilege is against self-incrimination and every accused person in a criminal trial going to the higher level from civil proceedings, but every accused in a criminal trial has the ability to decline to give evidence in their own trial. We see it commonly where the accused declines to give evidence at the end of the prosecution case and the jury retires, on the basis of the prosecution case, without any adverse inference from the fact that the accused has not given evidence in their defence, but considers the prosecution evidence in its own right.
PN114
The submission that the evidence can't be received because it's of an incriminating nature totally would destroy the operation of the criminal justice system, and it would destroy the operation of the civil penalty regime, administered in a large part by my client. Because if my client brought proceedings for civil penalty, not only - and there was a claim for penalty privilege, not only would the accused person be entitled to say nothing but they'd be entitled to exclude the prosecution evidence, because the prosecution evidence tended to make them have to answer it. That s a nonsense, with respect, the whole concept that that evidence can t be given, that s how the regulatory regime and the criminal justice system each work.
PN115
What that comes down to is the evidence is admitted but it is either responded to or not responded to and if it is sufficiently incriminatory or demonstrates, in this case, to the civil standard, the relevant fact that the regulator is seeking to demonstrate for the Commission, so as to give the Commission some material to work on, in relation to the fitness of Mr Myles. Well, if Mr Myles doesn t answer any of that material, well one story s been told and there is no answer.
PN116
So the notion that there s some unfairness in a prosecutor or a regulator putting on incriminating evidence, as I say, is to simply describe the criminal justice and regulatory system in this country. To suggest it s to be excluded as not fair to the accused because it might make him guilty is just a nonsense and that s what my friend s submission amounts to.
PN117
So on that basis, in my submission, there is no - the matter is crucially relevant and therefore ought to be admitted, under 513(1)(g) and there is no question, in the interests of fairness or privilege against self-incrimination or anything else. Mr Myles does not have to incriminate himself. In fact, he s chosen not to incriminate himself and he s chosen to not provide any answers to any of this material, as is his right. But that doesn t mean the evidence disappears, it just means he has chosen not to respond to it, and that s - that s the say the system works.
PN118
In a proceeding of this kind, where nobody is compelling Mr Myles to do anything, other than his own he might feel some compunction, or the union might feel some motivation to answer material which is evidently likely to disqualify Mr Myles from being found to be a fit and proper person, but beyond that, nobody is asking Mr Myles to do anything and if he chooses not to do it, that s a matter for him and that s where the matter presently stands. On that basis, we seek that all of the material be admitted.
PN119
THE VICE PRESIDENT: Thank you, Mr Herbert. Mr White?
PN120
MR WHITE: The Full Court decision in the MUA does not deal with the matters that are before the Commission. The Full Court in the MUA was dealing specifically with an argument that was put, which is described in paragraph 19 of that decision. The argument that was put and with which Full Court was dealing was that the only considerations relevant to that assessment were, for example, contraventions, offences or penalties imposed in respect to the manner in which the rights conferred by an entry permit had been exercised.
PN121
That was the confined question before the Full Court. That was the question before the Full Bench of the Commission and it does not say, we say, how, for example, the willingness to comply, referred to in paragraph 21, is to be assessed. It is to be assessed, we say, having regard to the interpretation of the section, the evident intention of the legislature that concluded matters are those matters which should be taken into account.
PN122
Now, where there is a broader power the Act has used different words. So, for example, if you look at section 508, which deals with the power of the Commission to restrict rights, the Commission can do so if it s satisfied that the official of the organisation ha misused those rights. That is a broad power to be contrasted with the very specific words, we say, used in section 513.
PN123
In terms of the submissions we made - I m sorry. The argument that was put to the Full Court in MUA, as I ve described, explains paragraph 26, the paragraph to which your Honour drew my learned friend s attention.
PN124
Now, the arguments as to penalty privilege and the prejudice that would flow from it, with all due respect to my learned friend, he has perhaps has misunderstood the proposition that we were putting. We were not putting that in criminal trials the prosecution could not lead evidence that it might be incriminatory of the accused, that straw man has been put up and knocked down, without opposition you might say. We did not say that Mr Myles, in this proceeding, was being forced by my learned friend s client, or any one else, to do anything.
PN125
The decision in Boral is completely irrelevant. I m not sure what - the principle my learned friend seeks to take from that. That question, the question in Boral, was the High Court determining whether or not a corporation, charged with contempt, being a civil matter, had to comply with the civil laws, or whether had the protection of what was described by the court as the companion principle attaching to criminal matters. That s not a relevant matter here.
PN126
The unfairness, which my learned friend didn t address, in my respectful submission, is this. The unfairness is that in order to meet the case that the director seeks to make, in reliance on the affidavits, Mr Myles would have to abrogate the privilege he has and the privileges of the type described in Reid so as that that privilege was not available in circumstances where there is certainly the possibility that proceedings will be instituted.
PN127
My learned friend s submission that there has been no occasion to claim the privilege we say misunderstands the proposition that we put and misunderstands what we say is the basis of the privilege. The privilege doesn t only arise at the time of being charged, but privilege arises and you can see it clearly in criminal matters where persons are not required to answer questions.
PN128
So I think X7, from memory, is a recent High Court case where the question for the court to determine was whether or not a person who had been served with a summons, under the National Crime Authority legislation, was obliged to answer questions and the High Court held no.
PN129
But privilege arises at any time and if, in order to run a case, one is required to abrogate that privilege in circumstances if not of pending proceedings, then certainly in circumstances where those proceedings might well be anticipated, that s the unfairness.
PN130
THE VICE PRESIDENT: Is it unfairness, or doesn t the consequence of the argument deliver, to Mr Myles, a considerable advantage of avoiding any contrary evidence, which might be subject to claim of privilege?
PN131
MR WHITE: The advantage, I didn t hear quite, your Honour. What s the advantage of Mr Myles?
PN132
THE VICE PRESIDENT: The advantage of avoiding having to deal with any evidence that might be subject to a claim of privilege.
PN133
MR WHITE: I m not understanding your Honour, I m sorry.
PN134
THE VICE PRESIDENT: Well, you say it s a matter of fairness. I m suggesting to you it might alternatively be put that the consequence of your argument delivers an advantage to your client in this matter.
PN135
MR WHITE: So be it. The privilege has consequences. It is, as you ve seen in Reid, a matter of substance and a matter of law and things flow from it. X7, the case I referred your Honour to, is (2013) HCA 29, where the privilege arises at any time, it doesn t have to be in the context of any proceedings.
PN136
I didn t understand my learned friend to make any submission - I ll withdraw that. I referred, in my submissions earlier, to correspondence which had passed between the parties. Can I hand your Honour - - -
PN137
THE VICE PRESIDENT: I think you refer to it in paragraph 32 of your outline.
PN138
MR WHITE: I did, your Honour, and this is the correspondence.
THE VICE PRESIDENT: Yes. I might mark the letter from your instructing solicitors, of 10 June, and the email response of 11 June exhibit W1.
EXHIBIT #W1 LETTER FROM INSTRUCTING SOLICITOR TO MR WHITE, DATED 10/06/2015 AND ATTACHED EMAIL RESPONSE
PN140
MR WHITE: Thank you, your Honour.
PN141
MR HERBERT: Now that your Honour has that correspondence might I be heard briefly about it?
PN142
THE VICE PRESIDENT: Yes.
PN143
MR WHITE: Unless, your Honour - I ve got no further submissions, your Honour.
PN144
THE VICE PRESIDENT: Thank you. Mr Herbert?
PN145
MR HERBERT: Yes, your Honour, what was sought is an undertaking that Mr Myles be able to give evidence in these proceedings, which would be otherwise incriminatory or could otherwise be incriminatory and that he and two unions would gain diplomatic immunity from every being proceeded against, in relation to any of those matters. That s essentially what s sought in the letter from the union.
PN146
The response doesn t particularise the reason why an undertaking not to do that thing wasn t provided, but it s self-evident from the nature of the - what was sought as to why that might be so and it is plain that the CFMU - well, the CFMU, firstly, do not have, as I submitted earlier, any right to penalty privilege in any event, but they were seeking to piggyback on Mr Myles to get some, get a protection they could not otherwise have. But Mr Myles was seeking the advantage, as your Honour put it earlier, of being able to give evidence in these proceedings in a completely protected environment such that he could give evidence of all sorts of wrongdoing and he, alone, in Australia would be entitled to escape the legal consequences of that, simply because he wanted to be able to establish his fitness in order to get a right of entry permit. That is simply no basis for him to be protected against all of the matters which are set out in the affidavits, there would be - the regulator would be extraordinarily remiss in their duty to give him the double privilege of being able to answer material in an incriminatory form, his answer being in an incriminatory form and, in addition, that he be completely protected from the consequences of his behaviour.
PN147
That would be an extraordinary advantage to Mr Myles, for no particular purpose. There is no social or administrative or industry utility in giving Mr Myles that massive leg up and diplomatic immunity, in relation to his conduct, just so that he could prove or endeavour to prove that he was a fit and proper person to hold the right of entry permit. If he is, he should stand on his own two feet and his own evidence in that regard and for that reason no such undertaking was given and nor would a responsible regulator ever do so.
PN148
THE VICE PRESIDENT: I do not propose to exclude the evidence proposed to be led by the Fair Work Building Commission. I consider that excluding that material would undermine my determination and consideration of the application under section 513 of the Act. I ll provide further reasons for that ruling in the decision in this matter, to the extent that that s necessary. That ruling does not deal with the argument alluded to at paragraph 32 of the outline that the evidence should be given little weight, that s an argument that can be dealt with in due course.
PN149
Mr White did you wish to open?
PN150
MR WHITE: Your Honour s had the material, your Honour s obviously read the material. There s only a couple of things which I want to emphasise, by way of our argument, your Honour.
PN151
THE VICE PRESIDENT: Yes.
PN152
MR WHITE: I don t know if you need to go through the formalities of attending to the evidence in those affidavits.
PN153
MR HERBERT: It s in and it s not to be cross-examined so I m happy to leave it as it stands. There are some - perhaps - well, the affidavits, can I formally tender them so that my friend can make his submissions on the basis of them forming part of the evidence and they are, for the record, the affidavit of Allen Frederick Ware.
THE VICE PRESIDENT: I mark that affidavit exhibit H1.
EXHIBIT #H1 AFFIDAVIT OF ALLEN FREDERICK WARE SWORN 20/05/2015
PN155
MR HERBERT: That, again for the record, sworn 20 May 2015. There is a statement of Mick Prestridge, dated 12 May 2015.
THE VICE PRESIDENT: That will be exhibit H2.
EXHIBIT #H2 STATEMENT OF MICK PRESTRIDGE DATED 12/05/2015
PN157
MR HERBERT: A statement of Scott Thomson, dated 13 May 2015.
PN158
THE VICE PRESIDENT: That has annexures and CD attached, I think.
PN159
MR HERBERT: Mr Ware and Mr Prestridge have both attached - have attachments, which comprise video footage and photographs.
THE VICE PRESIDENT: Yes. Thomson s statement will exhibit H3.
EXHIBIT #H3 STATEMENT OF SCOTT THOMSON DATED 13/05/2015
PN161
MR HERBERT: Thank you. The affidavit of John Thomas Allen Salotti, sworn 13 May 2015.
THE VICE PRESIDENT: Exhibit H4.
EXHIBIT #H4 AFFIDAVIT OF JOHN THOMAS ALLEN SALOTTI SWORN 13/05/2015
PN163
MR HERBERT: The affidavit of Bradley John Ross, sworn 13 May 2015.
THE VICE PRESIDENT: Exhibit H5.
EXHIBIT #H5 AFFIDAVIT OF BRADLEY JOHN ROSS SWORN 13/05/2015
PN165
MR HERBERT: Affidavit of Michael McEwan, affirmed 12 May 2015.
THE VICE PRESIDENT: Exhibit H6.
EXHIBIT #H6 AFFIDAVIT OF MICHAEL McEWAN AFFIRMED 12 MAY 2015
PN167
MR HERBERT: Affidavit of Kenneth Allan Fitzjohn, sworn 14 May 2015.
THE VICE PRESIDENT: Exhibit H7.
EXHIBIT #H7 AFFIDAVIT OF KENNETH ALLAN FITZJOHN SWORN 14 MAY 2015
PN169
MR HERBERT: There are also, of course, submissions. I m not sure if your Honour proposes to make them exhibits, but there are submissions, lodged by the director, dated 14 May 2015.
THE VICE PRESIDENT: I ll mark that as exhibit H8.
EXHIBIT #H8 SUBMISSIONS LODGED 14/05/2015
PN171
MR HERBERT: Your Honour, a number of those affidavits, as I mentioned, those affidavits and statements have video attachments. We contemplated, at one point when we were told that the witnesses were not required for cross-examination, putting witnesses in the box in any event to identify the content of the video evidence. On reflection, each of the witnesses has described, in some detail, what the video evidence depicts and I don t know if your Honour, having seen the material, remains uncertain about those matters, but I don t - we don t propose to call those witnesses to further identify the players, in relation to those matters.
PN172
THE VICE PRESIDENT: Should I consider the entirety of the video evidence?
PN173
MR HERBERT: Yes. The evidence has been - we ve tried to edit it down to the point where it only contains material which is probative of the matters that are described in the affidavits and statements and, yes, we d ask that your Honour have regard to the entirety of that material. We don t wish to take the time of the court in playing it here now.
PN174
The only other thing, your Honour, is your Honour will note there are, I think, six affidavits, or five affidavits and two statements. We dealt - I ve spoken to my friend about this, and the agreement between the parties is that no issue is taken about the fact that Mr Prestridge and Mr Thomson s evidence is not sworn, it s in the form of an unsworn statement and rather than simply calling them to depose to that, that those two can be treated as having the standing - the same standing as affidavit evidence, for the purposes of these proceedings.
PN175
THE VICE PRESIDENT: Thank you.
PN176
MR HERBERT: That s the material that we ll be relying on.
THE VICE PRESIDENT: Thank you. Mr White, we might mark your outline as well, at W2.
EXHIBIT #W2 OUTLINE OF SUBMISSIONS FOR APPLICANT
PN178
MR WHITE: Thank you, your Honour. There are only a few matters that I wanted to address you briefly, orally, on, your Honour.
PN179
THE VICE PRESIDENT: Yes.
PN180
MR WHITE: The first of those I ve dealt briefly in the written outline with, but it is, perhaps only by way of emphasis, that we turn to it now. That is the submission contained in the director s outline of submission, paragraphs 32 to 37.
PN181
In paragraphs 32 to 37 the director goes through some aspects of the record of the CFMEU. I stress the CFMEU, not Mr Myles, and extracts from a number of decisions observations made a number of justices and judges of the CFMEU, I once again stress, not of Mr Myles. The director concludes, in paragraph 37:
PN182
Having earlier posited a number of questions about the CFMEU
PN183
I emphasise again, not Mr Myles:
PN184
might, theoretically, have done or not done.
PN185
Then submits:
PN186
The caution should be exercised before granting an application made by the CFMEU in relation to any person it nominates.
PN187
Your Honour, that, we say, fundamentally misstates the task of the Commission. In the written submissions, in both parties written submissions, the cases indicate very clearly it is the personal characteristics of the person for whom a permit is sought is determinative. That is, the fit and proper person test is to be assessed not by the conduct of someone else, but by the characteristics of the person for whom the permit is sought. We say, your Honour - once again we deal with this in our written outline, but the suggestion there of such a broad sweep proposition is contrary to law and is wrong. Sorry, obviously it s wrong, is contrary to law.
PN188
Now, the second thing I wish to just briefly discuss your Honour is there is criticism made, in paragraphs 39 to 43, about the disclosure. Of course there is no complaint made about the content of the declarations on which the applicants rely, whether they be the declarations of Mr Ravbar or of Mr Myles.
PN189
In those declarations there was explicit reference to and recording of public court proceedings. We don t, your Honour, read what you ve had to say, in CFMEU (2014) FW 7209, as requiring exegesis on each of the proceedings. Certainly the proceedings are well known to the intervener in this proceeding and, as your Honour will have noted, they are, once again, merely allegations, allegations which have been denied. But to suggest that giving a full record of proceedings, which have been instituted, somehow fails the obligation to disclose, we say, is misconceived.
PN190
The last matter, your Honour, that I wish to address on, is the question of weight to be given to the statements and affidavits which you ve admitted to evidence. It is, of course, up to the Commission to determine what weight it gives to any particular matter. The argument that had been made in MUA, Full Court, as I earlier described, was whether or not the Commissioner is only able to take into account breaches of the right of entry provisions of the Act.
PN191
Of course, breach of right of entry provisions of the Act would be directly relevant and we don t suggest that it s not. However, your Honour, the Commission is not tasked, and nor should it be encouraged, to go on a general analysis of an applicant or officer s conduct. The word general integrity as used by the Full Court, in paragraph 21, must always be - must always be read confined to or only relevant insofar as they relate to the purpose for which the permit is sought.
PN192
In circumstances where the evidence does not disclose against Mr Myles even any allegation of breach of right of entry permit matters, well then we say that s one aspect for your Honour to take into account. In terms of the general integrity, it must be referrable to the right of entry powers given to Mr Myles. There s no suggestion that any of the matters alleged against him arose by way of breach of right of entry powers, in fact the opposite is put, as we apprehend. It says that because he has chosen not to use right of entry powers somehow that should be taken into account against him in an application for right of entry powers. There s an internal inconsistency there and it s a matter which should cause the Commission to give less weight to those matters.
PN193
Lastly, in relation to weight, your Honour, your Honour referred to it at the end of your ruling in relation to the evidence, but I think the Commission still acts according to equity, good conscious and the like, but in any event, to be properly informed and the like, the Commission, when weighing that evidence up in determining what it might do in relation to this application, should take into account that the position Mr Myles found himself in was such as to be unable to answer these matters where there were pending or possible or probable proceedings without abrogating a fundamental right.
PN194
In determining the weight to be given to the subject matter of the statements, your Honour, we think that s a relevant consideration. It may also be, your Honour, a direct consideration if your Honour was to come to consider the question of conditions. Following the MUA decision of the Full Court, the Commission is now able to, in determining fitness and propriety, take into account conditions it might impose, rather than has hitherto been the position, a finding of fitness and propriety had to be made and thereafter conditions could have been imposed.
PN195
One such condition your Honour might think would be appropriate is that the condition that be imposed on the permit that Mr Myles immediately inform the Commission and/or intervener of the resolution of any of the proceedings - resolution, determination. That would form a balance, we say, your Honour, between what we say are allegations which Mr Myles is not properly in a position to answer now, without, we say, any appropriate burden being placed on him and the protection of the scheme of the Act.
PN196
We ve dealt with other matters in our written outline and unless your Honour wants or desires further expansion on any of those matters, those are the submissions.
PN197
THE VICE PRESIDENT: I wonder, Mr White, whether you could clarify for me paragraph 27 of your outline, second sentence. I m not sure that all the words there are intended to be there, but if you could clarify how that s intended to be worded.
PN198
MR WHITE: Yes:
PN199
In respect of that matter and the other matters listed in court -
PN200
Yes, well I ll tell you what I meant, your Honour. In the declarations there were a number of matters which had been listed against Mr Myles, and he identified those in his declarations.
PN201
THE VICE PRESIDENT: So what follows after that? I thought you said earlier Mr Myles intends to invoke.
PN202
MR WHITE: Yes, there s three categories of matters, your Honour. There are those which are the subject of current proceedings, or were the subject of current proceedings at the time the application was made, and those are identified in the declarations. In each of those matters Mr Myles has invoked his privilege against self-incrimination, or the exposure to a penalty.
PN203
Since the institution of this application there has been a further matter, commenced by the director, that is BRG 312 of 2015, which was disclosed. In that matter he has also invoked the privilege. So it s a very clumsy way of saying - sorry, the third category of the potential or pending proceedings are subject to the affidavits and my instructions are that he intends to invoke his privilege against self-exposure to a penalty in the event that those proceedings are commenced.
PN204
So however clumsily 27 is worded, your Honour, it says no more and it means to say no more than in respect of the matters disclosed and the new matter instituted by the director, Mr Myles has invoked his privilege. So if we delete word either I think, will that fix up the -
PN205
THE VICE PRESIDENT: Yes.
PN206
MR WHITE: I should have said that earlier, your Honour, without that big explanation, that would have been much quicker.
PN207
THE VICE PRESIDENT: I understood you anyway, Mr White. Mr Herbert?
PN208
MR HERBERT: I get concerned every time I think I understand Mr White. Your Honour has our submissions I ll endeavour not to belabour anything that s actually in them. Can I focus on matters that my friend has addressed in his submissions and questions that arise directly out of the evidence, which has now been delivered admitted and which is only dealt with in a very brief way in the written submissions.
PN209
Firstly, the question of the conduct of the CFMEU who is one of the applicants in these proceedings and it being a federal organisation is dealt with in the submissions and was called in to question by my learned friend. That needs to be read - in my submission, those submissions need to be read in conjunction with the other material on which we now rely.
PN210
The application of this matter discloses that Mr Myles is an employee of that union, he s an employee of both unions is the explanation as to why the application is brought on behalf of both unions. As an employee one expects that he is required to comply with reasonable, lawful directions by his employer, he s not at liberty to simply decide how he s going to go about doing his work and proceed off into the wilderness and do things unbidden, unchecked, unmonitored and uncontrolled.
PN211
In light of the now uncontested evidence in the proceedings as to the way Mr Myles has been conducting himself over an extended period of time in the workplace, that is, he has been, it appears, deliberately avoiding the right of entry legislative system and has been doing so for a long period - for an extended period of time in circumstances where it would have been perfectly open to him to utilise the system which he has the privilege of participating in and that would be a responsibility, one would have thought, that rested fairly firmly with the union whose bidding he is doing, or the unions whose bidding he is doing.
PN212
Given the - that s a long way of leading into the point, and the point is this. Given the appalling record of the CFMEU of industrial contraventions, over a long period of time, including a period involving some of this behaviour, it cannot be thought other than that Mr Myles is acting under direction from his employer in continuing to behave in this unlawful way. He s certainly not being controlled, in any way, shape or form, by his employer and one would think as an employee of the union and if the union wants him to go and enter onto a site they would have a system and a mechanism in place for the providing of right of entry - by the union to the relevant employer and be giving the relevant notice, through the systems that are described in the affidavit evidence on a couple of occasions where there is a dedicated email address to which right of entries are sent. Then the information contained in that email from the union is then dispatched to the relevant site manager and in each case that evidence was gone to, to demonstrate that that system had simply not been triggered at all.
PN213
Now, if Mr Myles is doing the business of the union on these sites and is attending to organisational matters, on behalf of those sites, and is conducting investigations or other things, or whatever it is that he thought he was doing, or talking to members and, on a number of occasions, appearing to be involved in taking members and workers off site and conducting meetings, he must be doing so with the knowledge of the union, of his employer, he must - there must be some reporting mechanism by which he reports that information back to his employer as to what he s doing and to how he s acquitting his time and, somewhere along the line, one would have thought, over the period of time covered by this evidence, the union would have known and understood that what he was doing was, in every sense, completely illegal on the evidence that you now have.
PN214
The question is, is it likely that Mr Myles was a lone wolf, out there on a frolic of his own, as it was described in the Full Court decision, in relation to the Barberro matter. The Full Court of the Federal Court, as your Honour will recall, recently held that the Barberro principle applies to penalty proceedings and what they - that is, we re no long able, in penalty proceedings, to make recommendations to the court as to the range of penalties or anything of that kind and that special leave has been granted for an appeal to the High Court in relation to that matter, but in the course of their discussion of that matter, the Full Court, who was dealing with penalty proceedings at first instance, but as sitting as a Full Court, described as a circumstance of aggravation one in which the employee was on a frolic of their own, that s a circumstance of aggravation for the employee, or had they been dispatched to do that thing by their employer, which is circumstance of aggravation for the employer. That is the contravening conduct.
PN215
Now, in this case, we go to the evidence of the appalling propensity, on the part of the CFMEU, to conduct themselves in an unlawful way, without any respect whatsoever for the industrial laws or any relevant other laws of the country. Then we ask that you look at what Mr Myles was doing and we ask you to draw the inference that Mr Myles was not doing so without instructions or without following orders and that his employer was well aware of what he was doing and he wasn t on a frolic of his own.
PN216
But that, in this case, doesn t improve the picture from Mr Myles point of view, because it demonstrates a preparedness to routinely and regularly follow instructions or directions, on the part of his employer, to misconduct himself in the way that he was doing. If one had any other union in the country as the employer, one would be inclined to think that this was a lone wolf situation and that he was off on a frolic of his own and he could be brought back to heel. But, obviously, he has, in these circumstances, in my submission, he presents as a compliant individual who will do precisely what he s told, irrespective of what the law might happen to be and that he ll continue to behave in that way going forward and therefore questions of training, conditions, anything else of that kind, can t possibly have any effect on his behaviour.
PN217
So the two matters are connected in that way, that is, the behaviour of the CFMU is such that you can comfortably assume that they re behind him and supporting him in giving these directions. There s no other realistic conclusion that can be drawn.
PN218
THE VICE PRESIDENT: You don t say that an employee of the CFMEU is not a fit and proper person because of the record of the CFMEU?
PN219
MR HERBERT: No.
PN220
THE VICE PRESIDENT: But you put it in terms of the context of Mr Myles.
PN221
MR HERBERT: Yes, the context, entirely. Looking at Mr Myles, is his conduct explicable by inexperience, lack of training, rush of blood to the head, an unfortunate independent streak on his part that might be able to be moulded back into some appropriate conduct by the imposition of conditions, answer no. He s doing what he s told by his employer and an employer who s got an extraordinary history of doing exactly that with its officials and its employees.
PN222
So conditions aren t going to help because he has no regard, on the face of it. If that s true, he can t be assumed to have any regard for the laws of the land of any description. The only rule to which he has regard is the rule imposed on him by his employer, in relation of telling him what to do and how to do it, as far as one can infer. Given that none of this is explained, there is no other proposition put forward, in relation to the proceedings. So there is only one story in relation to these matters and you re at liberty to draw inferences from the only evidence you have, because you only have one set of evidence in relation to that and you add to that.
PN223
We certainly can t say the mere fact that a person is employed by the CFMEU means that they are, by that fact alone, deemed to be not a fit and proper person because the CFMEU may have, somewhere, probably does, an official who is prepared to comply with the law and not prepared to take directions to behave in this way. In which case, they would certainly be a fit and proper person, but Mr Myles isn t that employee, very clearly. This doesn t happen by mistake, it doesn t happen by coincidence, it doesn t happen as a rush of blood to the head, or a as a one-off. So that s the relevance of why you need to know the history of the CFMEU in the course of these proceedings.
PN224
In relation to the evidence itself, my learned friend has, quite properly put it that the search is for the personal propensities and behaviours of the person concerned to the extent to which they bear on the question of whether they can be - whether they re a suitable candidate to be granted the privileges of right of entry.
PN225
One needs to then go back a step, however, and my friend did not, and that is, what is it that a person who has a right of entry, what vulnerabilities do people have, at the hands of an improper person, inappropriate person who has a right of entry? And the answer is, that person has the right, irrespective of what the employer says or thinks about the matter, to walk into that employer s business, speak to employees in non-working time and do the other things that the Act allows him to do, in the employer s business.
PN226
No one else, other than the law enforcement authorities, legal regulative authorities, has that privilege. No other civilian has the ability to be able to do that. That s a right which, if it is misused, means that they can actually go to senior employees and address them and talk to them and ask questions. They can examine books and records which might be confidential. If they can t be trusted to maintain books and records confidentially but leak material of that kind to people who they think might have an interest in misusing that sort of material, or making personal gain out of that sort of material, then you would not grant that person access to material that they could leak or use for personal gain or for the gain of their employer.
PN227
Similarly, they have access to employees within the workplace, where they gather together in one place, with significant advantages of being able to gather those employees, or have those employees already gathered in a group, with a view - presumably in a crib room, or something similar, with a view to addressing them and with a view to being able to much more easily organise industrial action if that is what the person is proposing to do, in relation to those employees.
PN228
They don t have to wait until they leave the worksite and then chase them all over the place like rabbits in a paddock and trying to catch them all and round them up to put them together into a collegiate group, they re already collected there by the employer in the meal breaks or in the non-working time.
PN229
They can examine all sorts of parts of the employer s business which, again, only a law enforcement authority would otherwise be able to do, with impunity, as these people do. If they choose to use that power in - those powers, that is, the power of being able to address and deal with - speak to workers, in non-working time but in the workplace, if they choose to use that power to engage in unprotected industrial action and to shut down the business unlawfully and improperly, that s not a person that you would ordinarily allow to have that power.
PN230
If they choose to misuse their powers of inspection by, for example, pretending that there is a fake safety issue on the site and drumming up a fake industrial - sorry, fake safety contention, as an excuse of willing people to open the gate for a completely different reason, again you would not give a person the power to go into premises and inspect the premises or purport to inspect the premises so as to come up with some sort of fake excuse for engaging in industrial action in that way.
PN231
All of those things bear on the question of whether you would trust the person to go into your premises, whether, when they re on your premises, for a raft of reasons, are they persons you can trust to have respect for the law, to comply with the law and generally play the game, in accordance with the rules that allowed them that privilege of being able to - the set of rules that allows them to go onto that site also confines what they can do. But to a certain extent, of course, there has to be a great deal of trust on those persons that once they re in those - on those sites and once they re exercising the privilege of going onto those sites, they are the sort of person who will not misuse the privilege because the whole problem of if they do misuse the privilege because they have no regard for the law and they ll use whatever opportunities they have to their own or their employer s advantage, then the damage, in many cases, can be astronomical.
PN232
It s no answer, at all, to say that under section 508, or some other section, one can come along after the event, nine, 12 months later, and have their permit removed, the damage is done.
PN233
The whole purpose of the section 512/513 provisions is to ascertain, in advance, as far as it can be done, whether this person is a person who is likely to comply with the law, when push turns to shove. In this circumstance you must make an evaluation of, based on the way in which - the respect with which they have treated the law in the past as to whether they can be trusted to respect the law and comply with the law in the future.
PN234
Now, in this case, one could not find a clearer example of somebody who has absolutely not only no regard for laws, as they apply to these industrial circumstances, but the very laws, the very property laws that the right of entry scheme, as I submitted earlier, the right of entry scheme is designed to grant him privileges, in relation to the property rights of other persons, that imposes obligations on him when exercising those rights. That trade off, that quid pro quo, as between his rights and his duties, which he s seeking to - Mr Myles and the union are seeking to access by this application, have been ignored and trampled over in the most comprehensive way that one could imagine.
PN235
On every occasion described, in the only evidence that you have, Mr Myles was - where Mr Myles was apprehended or detected or reported as being coming into premises or being in premises, the evidence is he did not have - there was no right of entry provided by his employer or by himself. When challenged about his right to be on the premises he essentially said, Well, I m not leaving or I m staying or, in one case, We re not going through that bullshit again, are we? was the response when he was asked about his right of entry. In each case, as I submitted earlier, he was - there was either a criminal or civil trespass committed by him. He walked into premises to which he had not been invited by the person in control of that premises. The person in control of that premises has given evidence to say he had no right, from Grocon, Watpac, et cetera.
PN236
Your Honour, my friend s asked if we could have a five minute break. Could I ask the matter stand down for five minutes?
PN237
THE VICE PRESIDENT: Yes. We ll reconvene at midday.
PN238
MR HERBERT: Thank you.
SHORT ADJOURNMENT [11.48 AM]
RESUMED [12.00 PM]
PN239
THE VICE PRESIDENT: Mr Herbert?
PN240
MR HERBERT: Thank you. Your Honour, I ve forgotten precisely where I was so - I won t start again, but can I reboot? I think that s the term. Your Honour, the position, in relation to the evidence that we ve adduced, in respect of Mr Myles, demonstrates, and it is uncontested, as I ve submitted, that on numerous occasions he has deliberately and knowingly chosen to take a path of trespassing on premises rather than adopt the path open to him, by the legislative regime, which he now wants to invoke, namely, giving a right of entry notice and arriving on the premises, under the auspices of that notice and otherwise complying with the restrictions associated with the notice.
PN241
Instead of that, on a number of occasions and, again, your Honour has all the evidence, it s very evident that he has either, in one case, physically pushed his way past a security officer who held his arm out and was trying to stop him from entering the site, so he came onto the site against directions and by physically assaulting a person who had the authority to keep him out of those premises, as security guards usually do.
PN242
On other occasions he waited until a truck went through a gate and he snuck through the gate, having previously been told that he could not enter, he went through the gate with the truck. On other occasions he was detected on the site by a subordinate employee who reported to the deponent, in the evidence, and when he was confronted with, There is no right of entry in force in relation to you, you cannot stay here, you must leave. The answer was, in effect, I m staying. I m not leaving, you can do what you like.
PN243
Again, in ordinary civil and criminal terms he was present on property, without authority, or to the extent that authority might have been assumed at some point, he was directed to leave the property and didn t fail, but refused to do so.
PN244
On the film footage, attached to Mr Ware s statement, he is seen walking around, having been told - having been taken to the office of Mr Ware, asked - directed to leave. He refused to leave and when he went walking around the site, looking in lunch rooms, talking to employees, doing all the things he would have been entitled to do had he entered lawfully but did not - but chose not to do it that way and then when he and Mr Sutherland were being led off the site, Mr Sutherland went with Mr Ware and then Mr Myles peeled off and went off and had another frolic around the site, in circumstances where he was then being escorted off the site by a person who had the authority to do so.
PN245
Now, that is all the most flagrant disregard of the property - the person in control of the property s property rights to control who comes in, when they come in and where they go. Mr Myles treated himself, in each of those instances, as being a law unto himself. When told the police would be called, his responses again varied between, Well, do what you like, I don t care or, By the time the police get here I ll have done what I came here to do, or something of that kind.
PN246
It required the management of each of the deponents to undertake - to take time out of their day to find out what he was doing, to speak with him, to be spoken rudely to, for the most part, by him. To then follow him around attempting to direct him off the site and being regularly refused. Then having to go and ring the police and then inform the police as to what s happened and go through all those processes. A big chunk of time out of the day of the relevant employee simply dealing with Mr Myles deliberate trespassing on these premises.
PN247
It s deliberate in the sense that he s the older of a right of entry permit. He must, at some point, have satisfied some official in the Commission that he was a fit and proper person and had adequate training to hold the entry permit at the time that he did and yet he was acting as if he had - he didn t know or believe that there was such a thing as a right of entry system. When confronted by the deponent, in relation to the Watpac site, basically he said, Look, we re not going to go through that bullshit again, are we? Lend Lease don t do this anymore and they ve got more employees than you or words to that effect. I m paraphrasing, but that was the concept. Like, Give it up, there s no point in you trying to insist on me going through the whole right of entry thing because I m not doing it.
PN248
At one stage he came in with a large carry bag, said he was here in relation to what appears to have been a suggestion that there was a health and safety issue, but it turned out the carry bag was full of the RDO calendars and he walked around - merely walked around the site with his carry bag distributing RDO calendars to all the members on the site and then left again, all the time being told that he was a trespasser, in effect, that he had no right to be there and being directed to leave the premises. Absolute sheer arrogance, a complete refusal to accept that the persons who controlled that site had any property rights or any other rights, whatsoever, that he didn t agree with. And he consciously elected - and there can be no other conclusion other than he consciously elected to choose an unlawful path, rather than the lawful path which the Act provides him, in light of the fact that he was the older of a right of entry permit. And he did so, over the course of the period covered by the statements, which was about 18 months. And he did so, in some cases, day after day after day.
PN249
Now, he made - this is repeated at the one worksite, he was - it was - he appeared, on the basis of the evidence that you have, the uncontroverted evidence you have, to be absolutely determined to get onto the site, come what may, by unlawful means and without having recourse to the right of entry provisions.
PN250
Now, the Commission is then entitled to ask the question, why would this be so? Why would the holder of a right of entry, with all the privileges - right of entry permit, with all the privileges that attach to it, why would he not simply comply with the legislative regime which gave him those significant privileges and give the relevant notices and put all this to rights? Why would he not do it legally? Why would he choose, deliberately, to do it illegally, one asks.
PN251
There can be either he is arrogant and disrespectful of people s legal rights, beyond all comprehension, or he s acting under some form of direction from his employer to do this thing. Either way it doesn t matter but he s either doing it off his own bat, in which case he s an extraordinarily disrespectful person with no regard for the law whatsoever, perfectly prepared to break it, as and when he sees fit.
PN252
So if questions of privacy or questions of unlawful industrial action or other things came up during the course of his occupancy of the site, then he would have no compunction, one would have thought, in breaching those provisions as well, which goes directly to the question of whether he is a suitable candidate for right of entry, because he has no respect for any law that he doesn t wish to follow, on the basis of what s been going on here.
PN253
It s not as if he was without right of entry permit and was completely frustrated because he hadn t been able to get his permit for various reasons, so he was trying to bluff his way onto sites, by guile or otherwise, to see if he could get an invitation onto the site, or something of that kind, to get around the necessity of having a right of entry permit, he didn t seek to do any of that. He just walked on, I m coming on, don t care what you say, don t care what you think. I ve got a job to do, get out of my way, what I want is what s going to happen end of story.
PN254
Now, that can only be a direction from his employer, as I ve submitted, unless he an utterly unlawful character. But if that is right, then this is a systemic problem coming from his employer.
PN255
Now, one then asks the question, why would his employer direct him to do a thing like that? We put part of the answer to that in the submissions, as far as one can infer, and that is - the key to some of that is in my learned friend s submissions. You can really only - and the submissions was put in the MUA, which has, of course, since been demolished. That you can only deal with a person for contraventions in this context of section 513 if the contraventions go squarely to the exercise of rights of entry and right of entry powers.
PN256
Of course, if he comes on as a trespasser, section 500, which is the primary section which deals with right of entry contraventions, section 500 doesn t apply, nor does section 508 because - section 500 only applies to a person -
PN257
A permit holder exercising, or seeking to exercise rights, in accordance with this part must not intentionally hinder or obstruct any person or otherwise act in an improper manner.
PN258
Now, telling the building - the contractor, the site contractor, that, I am going to conduct a meeting here and you will get the hoist driver down here as he did on one of the occasions, You ll get the hoist driver down here to go to this meeting. Until the hoist driver gets here the meeting can t start. You are to get him here and that s all there is to it. The supervisor, in effect, says, Well, I m not going to direct him to come down here. Then Mr Myles is reported, on the uncontroverted evidence, as saying that he is a dog and a scab, that is the hoist driver and, he ll be named and shamed and never work in the industry again if he doesn t come to this meeting. Then conduct the meeting and then all the workers walk off the site which, on its face, would appear, in the circumstances, to be a gross misuse of the powers, if they were exercised under the right of entry. But, of course, under section - he can t be proceeded against, under section 500, because he s a trespasser, curiously enough. So a trespasser can t be - isn t exercising or purporting to exercise or attempting to exercise rights under this section.
PN259
So, ironically, by compounding his wrongdoing, that is, acting inappropriately on the site, by just convening a meeting and then everybody marching off the site in that way, as a trespasser, puts him in a better position, viz a viz, some of the provisions of the Act, than if he were actually the owner of his right of entry.
PN260
Of course that s the scheme of the Act. The scheme of the Act is that if we give you these privileges and you misuse them, then you will be dealt with in particular ways, so you must mind your manners and you must behave appropriately if we re to give you this privilege. And people using the privilege then, if they misuse it, face the consequences.
PN261
The same thing applies in section 508. You see, section 508(1) requires:
PN262
Satisfaction on the part of the Commission that the person has misused the rights under this part.
PN263
Well, if you re a trespasser you won t have misused the rights. So coming on as a trespasser and then misconducting yourself, in the circumstances, does not attract a contravention under 500 or 508. That doesn t mean that it s right, it means it s twice wrong, in both the trespasser and behaving inappropriately on the premises. But the primary remedies, under the Act, do not apply.
PN264
Now, it may well be that if a person continues to conduct themselves as a trespasser, as the evidence discloses that Mr Myles has, that they may be amenable to some sort of injunctive relief or some other provision of the Act may be able to be invoked against them. But the primary remedies of section 500 and 508 are not available to the employers in those circumstances.
PN265
That may, as we ve said in the submissions, provide a reason why Mr Myles, presumably at the direction of his employer, has gone down the unlawful entry route, rather than the lawful entry route, because that manages to dodge significant liabilities under the Act.
PN266
Now, we re speculating here because Mr Myles has exercised his entitlement to not be heard about these matters, but the evidence is that he routinely trespassed onto sites instead of using his right of entry and one cannot imagine if all he s doing is coming on the site to speak to employees and hand out RDO roster calendars, why he would not have given 24 hours notice, turned up, done his business in non-working time and left again. It s not rocket science and it s what is required of him by the Act, but he chose not to do it that way, he chose to do it the other way.
PN267
Now, seeking a rational explanation, other than irrational disregard for the law, in my submission, that s a reasonable candidate, in the absence of any other explanation.
PN268
Now, that being so, that leaves available the Coote argument that, Well, by trespassing on the site and conducting myself by swearing at people and calling hoist drivers scabs and dogs and things of that kind, and demanding people attend meetings, et cetera, and engaging in industrial action on the site and everything else, I can do all of that as a trespasser and there s not much anyone can do about me. Therefore if nothing is done, other than calling the police and have him prosecuted for trespass or whatever, or taking the expense of civil proceedings to have a person dealt with for a civil trespass, which is obviously completely unwieldy, expensive and highly unproductive, one would have thought.
PN269
The normal path of invoking the regulation, under section 500 or section 508 not being available, that then allows for the Coote submission to be made that, Well, he s never been found to have contravened a right of entry provision under the Act. That being so, in my submission, is the primary reason why the director has taken the course that it has.
PN270
The fact that Mr Myles has not contravened right of entry provisions is explicable by the fact that he doesn t use them but he still, in effect bullies his way onto sites, under the cover of being a union official who has a right of entry, but he doesn t, in that situation - in the instances that we ve provided in the evidence here, and there are plenty of them, he doesn t use it and therefore doesn t run the risk of being found to have contravened the right of entry provisions and therefore put his right of entry at risk, right of entry permit at risk, just in case he needs it sometime.
PN271
Now, as we put in the submissions, if you ever wanted an example of somebody who should be found by the Commission to have utterly disrespected the regime which he wishes to shelter behind when it suits him, Mr Myles is the man because the utter disrespect and contempt with which he s holding the entire system, by way of deliberately trespassing, knowing that he s a union official and that it s going to be very difficult for employers to do anything very much about it, and knowing the ropes, but then wanting to keep his right of entry so he can use it when he wants to but then not use it when it doesn t suit him either and artfully dodging his way around section 500 and 508 and the other penalty provisions that relate to these matters and preserving himself in a position where he can say, truthfully, I have not been - a court has not found me to have contravened the right of entry provisions, even though I have trespassed on premises dozens of times.
PN272
If that is a proper inference to be drawn, and we submit it is, it s a particularly nasty form of behaviour in seeking to exploit rather than lawfully use the right of entry provisions under the Act and it renders Mr Myles an utterly unsuitable candidate to be granted a right of entry in proceedings such as these.
PN273
He should be, in that sense, as we ve put in the written submissions, granted his - put in the position that he was in when he came to all these sites, no right of entry, no notice of right of entry, no capacity to enter the place lawfully by refusing to grant him the right of entry he will be where he apparently wants to be and that is a person who has to trespass onto sites in order to do what he wants to do. With all due respect we ll see how long that lasts.
PN274
The other side of the equation is that your Honour having received that evidence, and that evidence now being part of these proceedings, and it is now absolutely crystal clear the modus operandi adopted by Mr Myles, were your Honour to rule that Mr Myles is, notwithstanding that evidence, a fit and proper person, your Honour s decision in that regard would be seen as sanctioning this behaviour, as in the sense of approving it, tacitly, by saying, Notwithstanding that he has behaved himself in that way, he is still a fit and proper person ergo, behaving yourself in this way, that is, utterly compromising the system in which he is a participant, is acceptable behaviour, on the part of an official of a union of this kind.
PN275
To give the tacit approval by - and the tacit - for the Commission to give it s imprimatur to behaviour of that kind by saying that behaving in that way doesn t affect your entitlement to hold the right of entry permit would be to encourage this behaviour of this crime because if it has no consequences for Mr Myles, then legitimately others could argue that it should have no consequences for anybody.
PN276
That would grossly undermine the entire system of right of entry permits because officials of this union with their propensities which they have been displayed over history as the submissions show, would no longer, one would have thought, feel the necessity to utilise the right of entry system at all. Trespassing, only if it happened to suit them, would be considered to be acceptable conduct as an alternative to using your right of entry permit. Whereas I say, the entire system from part 3-4 is intended to ensure that people don t get access to premises unless they comply with the restrictions of the system and the system would be compromised.
PN277
Now the uncontested evidence is in, it s what Mr Myles has been doing. That would be the template for conduct for other officials in a similar position. It is conduct of this kind in my submission that the Commission needs to come down very firmly and voice its disapproval for that conduct.
PN278
If Mr Myles wants to play rules of the jungle in relation to trespassing on premises to do his business, well then he should be consigned to the jungle in the sense that he should not be allowed to participate in the lawful system and an unlawful, unregulated system, both at the same time.
PN279
THE VICE PRESIDENT: Mr Herbert, you may or may not be able to answer this, but I note some of the conduct alleged against Mr Myles was engaged in conjunction with other officials.
PN280
MR HERBERT: Yes.
PN281
THE VICE PRESIDENT: What is the position regarding other officials of the Queensland Branch of the CFMEU, the CFMEU Queensland and the consideration of these issues in other similar proceedings?
PN282
MR HERBERT: I can t answer with any precision. I do know that a number of them have had their right of entry contested. At least one proceeding for an application has been discontinued. One, the right of entry has been refused. Two others, Gostencnik DP has issued a provisional decision in which he s expressed very strong views against granting further rights of entry in relation to other officials. The final decision in that regard hasn t come down because he relisted the matter for the purposes of considering conditions.
PN283
The branch secretary, Mr Ravbar succeeded in an application before Lawrence DP. That matter is listed for appeal on 8 July, an appeal against the decision of Lawrence DP, on the basis that the conduct of the CFMEU, of which he is the branch secretary, was put to one side.
PN284
There has been a plethora of opposition, if I can put it that way, by my client against any of the persons involved in the conduct of this kind having rights of entry granted and they ve taken a consistent approach in that regard. In most cases, as I understand it, they have waited for the rights of entry to come for renewal rather than take direct action under 508.
PN285
The difficulty is, as I say, if in the case of Mr Myles, if that was what he had been doing over the last 12, 18 months, quite apart from the other six matters in respect of which he is in court, he has been named as the respondent and none of those matters have yet been resolved and penalty privileges have been claimed in respect of each of them, so we can t take that issue much further. But in relation to this particular conduct, because he is not seeking in any way to rely on part 3-4, there are some considerable difficulties about taking enforcement procedures against him because the Act hasn t made comprehensive provision for what happens in the case when the holder of a right of entry permit inexplicably refuses to use it and trespasses onto premises anyway.
PN286
It s obviously grossly improper conduct but not in the course of exercising the powers and therefore there would seem to be unlawful conduct, but it s not one that would necessarily give rise to too much by way of proceedings under the Act as a discrete matter like it would be under section 500 or 508. The appropriate time to deal with that then, under the Act, is when that person does make an application for the grant of a further right of entry permit to say well, look, you ve been grossly misbehaving yourself in relation to building sites and industrial arrangements on those sites for the last period of time and that sounds in your general integrity in terms of the MUA case and specifically as it relates to the way you behave yourself when trying to get entry on building sites and to ask the Commission to exercise its powers to at least stem the flow in relation to that person by refusing them further right of entry.
PN287
In relation to this particular conduct, section 500 and 508 which would be the ordinary way one would deal with a misbehaving official, can t be accessed in relation to the conduct of which we ve given evidence in these proceedings. But that doesn t mean that the Commission should give its imprimatur to what s been going on simply because section 500 and 508 didn t seem to contemplate that somebody would behave themselves in this way. Then we put it in the submissions, this seems to be a calculated attempt to avoid the contravention provisions by breaking another law instead. That is the law relating to the rights of property owners and the law relating to trespass.
PN288
It can t be too strongly emphasised in my submission that now that the matter has been squarely placed on the Commission s table, that these instances have now been shown to have occurred, the evidence is all reliable, it s probative, it s not a matter that ought to be discarded or diminished in weight in any way, shape or form. No reason has been shown as to why it should be accorded little weight. The evidence clearly shows trespass conduct on a number of occasions. One asks rhetorically, why would one discount that and give it little weight, simply because it hasn t been the subject of contravention provisions in proceedings in a court when for the most part, as I ve point out, it can t be.
PN289
That doesn t diminish the seriousness of what s going on and doesn t diminish the availability of a finding that Mr Myles, in behaving in that way, just simply he can t be trusted to comply with laws when he gets into a position where he has a decision to make. Do I comply with the law or do something illegal? In his case, he s made the clear decision on innumerable occasions do I give it notice of entry, because I might want to misconduct myself when I get in there, and then I ve got a section 500, section 508 application around my neck, or do I just barge in the site and go and do it illegally, in which case I can misconduct myself with no consequences, or much more difficult and ordered consequences.
PN290
Well the news for Mr Myles in my submission is that the time for consequences has arrived and it is now for the Commission to say well, you were given the privilege to allow you to do this lawfully, you chose to do in unlawfully and that privilege should now be taken away from you. That s pretty much as simple as that.
PN291
For those reasons and the reasons set out in the written submissions, we say that the application should be refused. The question of conditions, we ve also put in the submissions, and at the risk of repeating myself, we say it again. Somebody who would conduct themselves in such a calculating, unlawful way when they had a right of entry permit, could have behaved lawfully, chose not to, went down the other track, presumably with a view to avoiding those consequences, or whatever the reason was, demonstrates that they are, in my submission, beyond redemption.
PN292
There has to be a line drawn at some point and say well, somebody with your experience and your knowledge of these things. Somebody who s doing this week in, week out for a living, who knows perfectly well that they re supposed to give a right of entry notice and chooses not to do it with a view to bullying people out of even asking for it, well that s somebody who refuses to leave a property when they re told and all the other things that he did, a few conditions from this Commission would be considered to be a very very light tap on the wrist. He s got away with it all now, got another right of entry, it s all okay. I did all this, the Commission knows it and they gave me a right of entry. How bad can it be?
PN293
My friend didn t put forward any conditions that suggest for example - it seems a bit incongruous, but a condition that he comply with the law. One would have thought the Act was a condition that he comply with the law, with which he s not been complying so far, so there aren t too many other conditions that you could put on there which aren t already obligations imposed upon him by the Act and regulations.
PN294
Were it something like the recent matter before Hamburger SDP where there was evidence given that a particular organiser in the AMIU had a medical issue which had caused some of the behavioural problems which his Honour earlier identified as being disqualifying conduct. When medical evidence was given, it was shown that that medical condition contributed to those behaviours and the medical condition was under control and his Honour imposed conditions related to the question of his compliance with a medical regime and things of that kind so as to seek to facilitate reformed behaviour on his part by reference to matters which were medically controllable.
PN295
In this case, there s no suggestion of anything of that kind where we could say there is an external factor in play here which is able to be controlled by persons and conditions can be fashioned around that. You know, an external factor around here is the fact that the CFMEU has been giving directions presumably to Mr Myles on the face of the material to disobey the law and he s been accepting them. If the Commission were to impose conditions on him, one would have thought in the circumstances, there d be not much hope that he d comply with them to make him any more fit or more proper.
PN296
The last submission we make about that is why in the world would, somebody who taken the conscious decision to disobey the law in full knowledge of what he was doing, for as long as he had and as often as he had, why would the Commission allow him to continue in the system by imposing some conditions and give him another chance in relation to the matter? The first opportunity he had, one would have thought he d go around behind the law or do whatever it is that he s been doing all this time.
PN297
He is utterly undeserving of any further chances in relation to matters and I invite your Honour in that regard to view the video evidence and the affidavit of Mr Fitzjohn to give your Honour an understanding of the absolute mouthful that was inflicted upon a Fair Work Building Commission inspector, a mouthful of obscenities and other things simply because he was doing his job.
PN298
To give one a bit of a flavour of the sort of character that one is dealing with Mr Myles when it doesn t seem that he has, at any level, despite all of the instructions that he s been given over the years that he isn t to behave this way. That s he s a trespasser and that he has to leave et cetera, et cetera and the police escorting him off sites.
PN299
He doesn t seem to be a character capable of redemption or interested in redemption and so the Commission shouldn t raise any false hope they could do that by giving him another chance.
PN300
Unless there s anything further your Honour, those are my submissions.
PN301
THE VICE PRESIDENT: Can I just clarify Mr Herbert, paragraph 53, reference to paragraph 16(a) and (b) is intended to be 46(a) and (b) of your written submissions?
PN302
MR HERBERT: I m sorry, yes. Paragraph 53?
PN303
THE VICE PRESIDENT: The LendLease matters have been discontinued.
PN304
MR HERBERT: Yes, that should have been a reference to 46(a) and (b). I apologise your Honour. I had that marked to - that s a typographical error. That s not 16(a) and (b).
PN305
THE VICE PRESIDENT: Is it a typographical error or a new spellcheck? Paragraph 57, second line. Should that be satisfied ?
PN306
MR HERBERT: Should not satisfy . That looks like my typing. Such that it is, your Honour, I think both my typing fingers were tired at that point. Satisfy the Commission , yes.
PN307
THE VICE PRESIDENT: Yes, thank you Mr Herbert.
PN308
MR HERBERT: Thank you.
PN309
THE VICE PRESIDENT: Mr White?
PN310
MR WHITE: I hadn t picked up satisfacting in paragraph 75.
PN311
Your Honour, I ve only got a few matters in reply. In answer to your Honour s question about whether the submission of the director was that any official of the CFMEU should be refused a permit, my learned friend said no. It s an appropriate answer in my submission but that follows that paragraphs 32 to 37 of the director s written outlines should be put to one side.
PN312
There is, in my submission, a danger in the way in which the director has put the submissions in this case. The effect of the director s submissions in my submission, is to circumvent or to push to the background the requirements in relation to the issuing of a permit for a determination that the fitness and propriety is directed to the purpose of the permit, the right of entry permit.
PN313
Many submissions have been made as to the general integrity, picking up a phrase from the MUA Full Court, but your Honour, that is always a confined matter. That is the general integrity of which the Full Court was speaking, was directed to, and I m being repetitive, the purpose of the permit. It s not directed to a general moral judgment of conduct or of a particular person, it is directed to a particular confined discretion for a particular confined purpose.
PN314
In this matter, how it s played out, at least at one level, is this. The submissions have been made at a level of generality regarding Mr Myles and the conduct which is alleged against him. But there s been no specific attempt, we say, to identify how that conduct might go to the questions of privacy or the inspection of books or the examination of the employer s business or to confidentiality matters referred to by my learned friend.
PN315
Rather, it s all at a very general level and it s expressed by my learned friend saying whether or not the Commissioning determining whether or not Mr Myles is likely to comply with the law. No, with all due respect to my learned friend, that is not the question the Commission is asked to determine. It is, as I ve submitted, a much more confined question and a much more confined discretion exercise by the Commission.
PN316
THE VICE PRESIDENT: If the person is demonstrably not willing to comply with the law, is he or she a fit and proper person to receive a right of entry permit?
PN317
MR WHITE: That s the right question, but the question is then in what way do the allegations about breach of the law impact or reflect on the right of entry permit holders, not at a much more general level as to a general - no. That s the right question and it can be answered by specific findings relating to right of entry and the rights attaching to a permit. My submission is that the director s submissions operate at such a level of generality that without that specific narrowing down, whilst it s the right question, they haven t supplied the answers.
PN318
THE VICE PRESIDENT: Well the question is whether the evidence enables findings to be made that are relevant to the correct question.
PN319
MR WHITE: Yes, and the director s submissions, we say, are at such a level of generality as to not assist the Commission in that question. My learned friend s submissions, as I understand, posed a question whether it s likely Mr Myles would comply with the law. That s not a relevant question.
PN320
THE VICE PRESIDENT: I think in fairness he says there is evidence before the Commission of conduct which shows disregard to the law. That s an important consideration when there are requirements such as undergoing training as to the law relating to right of entry and those sort of matters. The evidence establishes a history of non-compliance and that then should lead to a conclusion that Mr Myles is not a fit and proper person. That s really the way he puts it, as I understand it.
PN321
MR WHITE: At a level of impermissible generality. It s a question of whether he s not a fit and proper - - -
PN322
THE VICE PRESIDENT: Well the evidence isn t general. The evidence is quite specific.
PN323
MR WHITE: Yes, and then you need to, in my submission, look at the right of entry rights, granted to a permit holder and then to make the analysis at a much more specific level.
PN324
Mr Herbert gave a number of examples of the rights of entry permit holders, privacy, inspection of books, examining employer s business. How is it that the general matters alleged, somehow impact on those? And those matters, in my submission, are not addressed with any sufficient degree of specificity by my learned friend.
PN325
The question of general submissions are really seen more clearly when my learned friend made almost an in terrorem argument when he said that if the Commission was to grant this permit, it would be giving tacit approval to Mr Myles conduct or sanctioning his behaviour. In my submission, that encapsulates the difficulty of which I ve been speaking, in that that submission has the risk of diverting the Commission s attention away from the confined questions in the confined discretion. It doesn t undermine the entire system or doesn t provide a template for conduct or if the Commission was to grant a permit. Rather, the Commission, should confine itself to the confined question rather than take into account any in terrorem arguments about questions of greater application.
PN326
Your Honour s question about, what about other officials in Queensland in some ways, with all due respect shows one of the dangers of approaching these matters in such a general way. Any other official in Queensland who wants a permit has to come here and apply for it. It will be that person s personal characteristics which the Commission will consider. It s not, in my submission, a role of the Commission in this individual s application, or an application in respect of a particular individual to lay down some general rule of conduct, but rather it s the Commission s role to look at the specific conduct within a confined way, exercising a confined discretion.
PN327
THE VICE PRESIDENT: Well, I was thinking a bit more in terms of any guidance from other considerations of similar questions insofar as similar conduct might have been considered.
PN328
MR WHITE: Can I tell the Commission then, that - I m sorry, I ve misunderstood. There have been a number of matters. One of the matters, and this is not a complete list, but this is the Director v CFMEU [2014] FWCFB 5947 in respect of Mr Kong. There are, as my learned friend said, two applications currently before Gostencnik DP. They are in the matters of Mr Jarvis and Mr Tomaho. Your Honour, if you d bear with me. Those matters are yet to be decided, but the matter numbers are RE2014/467, 468 and 531.
PN329
Lawrence DP has decided an application in respect of Mr Ravbar, as my learned friend said, that s the subject of an appeal. I don t have the matter reference to that. As I understand, there have been a number of officials who have been granted permits, uncontested. They include, and this isn t a final list, Messrs Steel, Ramsay and Nieland.
PN330
I can give you the appeal reference for the appeal in the Ravbar decision C2015/3799 and the decision below - - -
PN331
THE VICE PRESIDENT: No, that s fine, I m sure I can find it.
PN332
MR WHITE: [2015] FWC 2158. Related to the more general observations about the problem of general submissions is the last thing I wish to make some submissions about your Honour, and that is the Commission in this application, as I submit, is exercising a confined discretion. It is not enforcing the Act generally, nor making any general comments or observations about someone s moral behaviour.
PN333
To the extent that my learned friend said that there were difficulties in taking action against Mr Myles, your Honour, in our submission, should pay no regard to that. There are any number of ways of taking action against Mr Myles, and it is not the role of the Commission in this application to take it upon itself to take action against Mr Myles, it s rather as I say, I promise for the last time your Honour, to exercise a confined discretion.
PN334
The last thing, your Honour, is this and I understand it was raised at a directions hearing. Mr Myles permit expires on 2 August 2015. Your Honour, I make this submission, not knowing of your Honour s workload or capacity to deliver a decision, but we would ask that the permit pursuant to section 516 be extended for five to six weeks after 2 August 2015.
PN335
Of course, your Honour, any extension, of course could be made subject to any decision your Honour makes in this matter.
PN336
THE VICE PRESIDENT: Thank you Mr White. Do you want to be heard Mr Herbert in relation to that last application?
PN337
MR HERBERT: No, your Honour. There is some precedent for the Commission extending permits that might expire prior to a determination being made. I think there s some support for it in the Act. I don t want your Honour to be put under any extra pressure in relation to making this decision by any time consideration. We would hope there might be a decision by then, but if it does run over then the current permit can remain in force while your Honour does that, makes a decision.
PN338
So long as the current permit is coterminous with the making of your Honour s decision in relation to the permit applied for, then we can t really object.
PN339
THE VICE PRESIDENT: Thank you. I propose to reserve my decision in this matter. I now adjourn the proceedings.
ADJOURNED INDEFINITELY [12.49 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #W1 LETTER FROM INSTRUCTING SOLICITOR TO MR WHITE, DATED 10/06/2015 AND ATTACHED EMAIL RESPONSE........................................................... PN139
EXHIBIT #H1 AFFIDAVIT OF ALLEN FREDERICK WARE SWORN 20/05/2015 PN154
EXHIBIT #H2 STATEMENT OF MICK PRESTRIDGE DATED 12/05/2015 PN156
EXHIBIT #H3 STATEMENT OF SCOTT THOMSON DATED 13/05/2015 PN160
EXHIBIT #H4 AFFIDAVIT OF JOHN THOMAS ALLEN SALOTTI SWORN 13/05/2015................................................................................................................................. PN162
EXHIBIT #H5 AFFIDAVIT OF BRADLEY JOHN ROSS SWORN 13/05/2015 PN164
EXHIBIT #H6 AFFIDAVIT OF MICHAEL MCEWAN AFFIRMED 12 MAY 2015 PN166
EXHIBIT #H7 AFFIDAVIT OF KENNETH ALLAN FITZJOHN SWORN 14 MAY 2015 PN168
EXHIBIT #H8 SUBMISSIONS LODGED 14/05/2015...................................... PN170
EXHIBIT #W2 OUTLINE OF SUBMISSIONS FOR APPLICANT.............. PN177
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