C2015/3799, Transcript of Proceedings [2015] FWCTrans 447 (4 August 2015)

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PN1

VICE PRESIDENT CATANZARITI: Thank you. Can I have appearances. Mr Herbert.

PN2

MR HERBERT: Yes. Thank you, your Honour. My name is Herbert, initial A, counsel. I seek permission to appear on behalf of the appellant.

PN3

VICE PRESIDENT CATANZARITI: Yes, Mr Herbert. Mr Reitano.

PN4

MR REITANO: May it please the Commission, I seek leave to appear for the respondent.

PN5

VICE PRESIDENT CATANZARITI: Thank you. Permission to appear is granted to both counsel. The Full Bench has had the opportunity to read all the submissions. Mr Herbert, it seems to the Full Bench that the central argument is that which follows from paragraph 65 of the decision at first instance.

PN6

MR HERBERT: Yes.

PN7

VICE PRESIDENT CATANZARITI: If we’re right about that, that would mean that what you’re inviting this full bench to do is to say that the conduct of Mr Ravbar should be implied when dealing with section 513(1)(g), that other matters have been taken into account. We note that in the decision at first instance the member at first instance took the view that it was not sufficient to rely on the operation of the rules without concrete evidence as to Mr Ravbar’s conduct.

PN8

Nor was it sufficient to rely on the assertion of the CFMEU’s history of non-compliance with industrial laws and the cultural wilful disobedience. We note that you’ve tendered at first instance the actual rules of the management group.

PN9

MR HERBERT: Yes.

PN10

VICE PRESIDENT CATANZARITI: Are we right in saying that’s the core argument in this appeal?

PN11

MR HERBERT: That’s the core argument.

PN12

VICE PRESIDENT CATANZARITI: All right. Well, perhaps you should limit your oral submissions to the core argument then for the purpose of today.

PN13

MR HERBERT: Yes. Thank you, your Honour. Your Honour, the approach which is contended for in these proceedings, which should have been taken by the Deputy President in the exercise of the discretion conferred upon him by section 513(1)(g), is to embark upon the usual process of fact-finding and discovery, which this tribunal and essentially all similar tribunals are accustomed to employing. That is to have regard to – not only to direct what was described as concrete evidence of such eye witness evidence, et cetera, first person evidence.

PN14

But also to have regard to approved facts and inferences which can readily be drawn from those proved facts. To decline to have regard to what we have described in the submissions as inescapable inferences from the proved facts, is a clear failure on the part of the Deputy President to properly exercise the discretion vested in him in House v King principles.

PN15

That’s essentially what occurred here, is that the Deputy President, in effect set an extraordinarily high, and we would say unattainable, standard in relation to these questions, and turned, with respect to his Honour, a blind eye – I say that in rhetorical terms – to the facts that were before him, and the conclusions which cried out to be reached. But the matter is not quite as simple as that because this – and this raises a matter which goes to the question obviously of permission to appeal and whether there are matters of public interest that are raised in these proceedings are matters of general principle.

PN16

The fundamental core of this matter is that the application for the grant of right of entry is made by the CFMEU. The CFMEU has been found by a number of courts on numerous occasions to have engaged in serious contraventions, and we’ve listed them in the material. I won’t go to them in any detail. But having found that that organisation has been responsible for a range of very serious contraventions, and a very large number of them, and the ones that we attributed to the divisional branch of which Mr Ravbar was the secretary during the time, was – up to the point of that hearing, was very close to $1 million worth of penalties on his watch.

PN17

The fact of the matter is, although they are attributed to the CFMEU, the CFMEU is like all corporations an artificial entity. It’s a legal fiction. It does not exist in anything other than the law. It must do everything it does through the agency of human activity.

PN18

VICE PRESIDENT CATANZARITI: Well, isn’t that effectively what the first instance member is doing. He’s saying, you know – he’s saying the reverse of what you’re putting in one sense. He’s saying the argument you’re running on this appeal is in fact you’re saying, to use that expression, attributing the sins of the children to the father. And the father here being Mr Ravbar, and saying, on your analysis, anybody working in a managerial role under the rules of the CFMEU in this division could not get a permit.

PN19

MR HERBERT: No. No. We don’t take it anywhere near that far. Not anyone, because Mr Ravbar had a very special position under the rules.

PN20

VICE PRESIDENT CATANZARITI: But anyone under the rules has got the managerial responsibility.

PN21

MR HERBERT: No, it’s deeper than that, your Honour, and it – as we went to the rules, Mr Ravbar’s responsibilities under the rule – under rule 46 – and we’ve set it out in the submissions – set it out below before his Honour. I’m sorry, rule 42. I do correct myself again, I’m sorry, your Honour. It’s appeal book 181, rule 46H.

PN22

VICE PRESIDENT CATANZARITI: Yes.

PN23

MR HERBERT: Now, that’s not a matter delegated to him by any of the decision-making bodies. That is a duty which he has under the rules which is of course, under the Registered Organisations Act, is enforceable by an observe and perform order by the courts were he not to perform that. That is not a delegated function. That’s a direct function under the rules.

PN24

Now, in the cases, when one reads the seven authorities in particular that we referred to, then the conduct in question was undertaken by persons variously described as organisers and officials. Now, so we don’t make the general submission that anybody engaged in a management capacity is therefore ineligible for a right of entry permit.

PN25

What we do say is in the specific circumstances of this case, a person who presents seeking the indulgence of the Commission in relation to a matter of this kind, who has those obligations enforceable by law, one must assume that if the law is being complied with in relation to the operation of this union that Mr Ravbar is doing that thing. When one goes to the cases – and I’ll only take you to one of them just by way of illustration.

PN26

When one goes to the cases, when one sees organisers employed by this branch of this union turning up at building sites on eight or nine sequential occasions, engaging in various kinds of breaches of the Industrial Act, including coercion, and that is subsequently admitted by the union to have occurred, how could it conceivably be that those organisers turned up day after day after day, closing down building sites, without Mr Ravbar’s imprimatur, if not his direction. It can’t be inferred to the contrary, in my submission.

PN27

VICE PRESIDENT CATANZARITI: I don’t think that’s what the member infers he’s actually saying. You’re saying that’s the way – he’s saying that there’s just no evidence that Mr Ravbar, himself, did something. He’s not - - -

PN28

MR HERBERT: He did say that but there is evidence. If one joins – and sometimes in order to come to a conclusion, firstly, the sort of evidence that his Honour was talking about is evidence which is only created behind a closed door. That is, a door that’s closed to my client and finish it.

PN29

VICE PRESIDENT CATANZARITI: Well, is that really correct, because the other people who have lost their permits from the CFMEU, there doesn’t seem to be much difficulty getting evidence about individual people.

PN30

MR HERBERT: No.

PN31

VICE PRESIDENT CATANZARITI: It’s only Mr Ravbar that seems to be the person where the difficulty occurs. So in terms of a forensic view, bearing in mind the seriousness of taking away the right of entry permit, one needs to be satisfied that it’s done appropriately in all the circumstances.

PN32

MR HERBERT: Yes, but on the other side of that coin, your Honour, is the seriousness of granting a permit to a person who is not fit and proper, requires – and that’s the scheme of the Act – requires the Commission to have a certain level of satisfaction.

PN33

VICE PRESIDENT CATANZARITI: Yes but, Mr Herbert, apart from 513(1)(g), none of the other criteria have been met in the case, on any view. You’re relying on the other matters in account to run this appeal.

PN34

MR HERBERT: Yes. Yes.

PN35

VICE PRESIDENT CATANZARITI: So we don’t even go to all those other tests.

PN36

MR HERBERT: No, but if there is evidence of the other organisers who have – some of whom have lost their permits in relation to conduct of this kind, it cannot be suggested, in my submission, that if on a hypothetical case there was a person in a managerial position who was directing such persons to go out and conduct such unlawful activity and/or - - -

PN37

VICE PRESIDENT CATANZARITI: Why would that not apply to every single person in an organisation in Mr Ravbar’s position in any union about when a right of entry is refused, permit, for other officials? That proposition as a general proposition.

PN38

MR HERBERT: I’m not - - -

PN39

VICE PRESIDENT CATANZARITI: Is that what you’re urging upon the Commission?

PN40

MR HERBERT: No. No, and I’ve said – no, your Honour, with respect, and I said that before. I’m not urging that proposition. We’re dealing with a particular circumstance where Mr Ravbar has come forward. We’re not dealing with other members of the management committees or the council or anywhere else. Mr Ravbar has been put forward by this union as being a person who has the relevant integrity and character attributes to be granted a right of entry.

PN41

As was said by the Full Court of the Federal Court in the MUA matter, questions of general integrity are relevant to these matters and should be taken into account. They are 513(1)(g) matters. General integrity is – to paraphrase what the Full Court said – the decision is in the book of cases that we’ve handed up. Questions of general integrity can be revealed by the person’s propensity to comply with statute legislative provisions. Now, that is – as a 513(1)(g) matter – no less important than any of the others.

PN42

This is a general integrity issue that goes only to Mr Ravbar and only because the union has put forward him as a person of relevant character attributes, and his character has been then brought into the spotlight by section 512 and 513. This is not an exercise in chasing down the members of other parts of the union or the holders of other offices in the union in order to have their character brought out and assessed, because they are not before the Commission asking to be held to be a fit and proper person.

PN43

They are persons – only Mr Ravbar is in that position, and when one examines the evidence of his situation, vis-à-vis the actual conduct of the organisers, all of whom have been involved in the conduct in question, then what we say about him in particular, and nobody else, is that he must be found in the circumstances to have a sufficient involvement in these roles that a – in this conduct and these contraventions, that a very clear inference arises that he is responsible in some way that he chooses not to explain for those contraventions.

PN44

But, your Honour, I was seeming to say that we don’t simply rely on the fact of the rules, Mr Ravbar’s position under those rules and his duties under those rules, and the fact that contraventions by persons for whom the rules say he is responsible for their itineraries. We also relied heavily before his Honour, and we do again today, on the fact that when confronted with this material and this submission in July of last year, in the course of proceedings, and when an opportunity was given by his Honour for the union to put on submissions as to why the inferences that were being suggested should be drawn or not be drawn, the CFMEU responded with silence in this aspect of the matter.

PN45

They did not, at any point, attempt by evidence of any kind to seek to rebut the clear inference that was available and was being sought to be drawn. This wasn’t an ambush of the proceedings. This was a matter that was raised in July of last year for proceedings.

PN46

VICE PRESIDENT CATANZARITI: That was picked up in paragraph 70 of the decision where it was squarely looked at.

PN47

The applicant was criticised for not providing a more detailed witness statement for Mr Ravbar, which could have been the subject of cross-examination. I do not think that this criticism is justified. There was no specific allegation in relation to Mr Ravbar’s personal conduct to be answered. The courts’ decisions in the seven matters which the FWBC relied on were tendered and dealt with extensively in submissions. There was no evidence that Mr Ravbar was “a ring-master in a union office in a managerial position who was sending his organisers out to breach the law”. Rather, the general picture which emerges is of the union determinedly pursuing its industrial and health and safety agendas and its activity coming into collision with the industrial legislation. There are remedies under that legislation to deal with that conduct if breaches are found to occur.

PN48

So the member at first instance clearly dealt with your point. You don’t like the way he’s dealt with it but that’s a different matter, isn’t it?

PN49

MR HERBERT: No. No.

PN50

VICE PRESIDENT CATANZARITI: He’s addressed it.

PN51

MR HERBERT: With respect, it was not dealt with appropriately because there were – there was what might amount to a very clear allegation in relation to Mr Ravbar’s conduct that was put before his Honour. Rules 42 and 46 were referred to in detail in the submissions and before his Honour. In his Honour’s decision he set out the nature of what was being said by myself in the course of the proceedings below. That’s at paragraph 56. His Honour sets out three passages from the transcript to save me taking the Full Bench to the transcript.

PN52

VICE PRESIDENT CATANZARITI: Yes.

PN53

MR HERBERT: Those passages more or less summarised the allegation that was made. Now, the important thing which his Honour entirely failed to deal with in this regard and as in my submission acting on a wrong principle has put to one side in the passage in paragraph 70, is that if there is material of that kind that gives rise to a clear inference that it is Mr Ravbar who is guiding and steering this conduct because the rules require that he be responsible – and this is over a period of years.

PN54

This didn’t happen one week when he was away on holidays. These seven cases that we referred to were over a period of years and involved numerous contraventions within a number of the cases. We say that once it gives rise to an inference of that kind, the union that puts Mr Ravbar forward. This is, the union which has been found to have contravened all of this legislation which is a perpetrator in that regard carries a practical onus of persuading the Commission that the relevant roads do not all lead to Rome. That the inference that points to Mr Ravbar’s involvement in this matter is not a correct inference.

PN55

VICE PRESIDENT CATANZARITI: The way it’s put in that extract of transcript in paragraph 53 is you say Mr Ravbar should have done something positive to stop the behaviour of the other people.

PN56

MR HERBERT: That’s an alternative because I was then addressing what the Full Bench said in Kong.

PN57

VICE PRESIDENT CATANZARITI: Yes, well, that’s the context in which the whole paragraph 53 is attributed.

PN58

MR HERBERT: Yes. Yes. And the paragraph in Kong raises that if the person has been responsible for or has failed to stop, as being available alternatives, is equally as bad as each other, in my submission. That would, if the – an executive officer in an organisation is aware that their employees are regularly contravening laws, and they take no steps to stop it where the organisation of which they are the executive officer is being held regularly to be liable for the actions of those persons, then that executive officer must be taken to approve of that or have absolutely no regard for the laws that are being broken.

PN59

Either way, they are matters of general integrity, all of which is adverted to by the Full Bench in Kong, which go to the, in my submission, the heart of the fitness of that person. As I was endeavouring to submit before – before I interrupted myself – that if one has an organiser sent out in the field to break the law, the person who sends them is equally culpable as is the person who goes and does the unlawful act; if not more culpable, because they should know better.

PN60

With the vicarious liability provisions of the Act of course, the person responsible for controlling the affairs of the organisation relevantly, or this particular part of the organisation relevantly, is a person who has extra responsibilities to protect the assets of the organisation and to ensure that the organisation itself does not put its registration and other things at risk, and that there are proper measures taken that the persons who represent that organisation in the field are not contravening laws.

PN61

Over a long period of years and over numerous, numerous contraventions, whoever was responsible in this organisation for ensuring that its employees did not routinely go out and break the law, did not act in that way, and when one goes searching through the rules for who it is that the rules say is responsible in that regard, the submission is that the – Mr Ravbar is the person who regularly in the rules comes out as being the person to whom the relevant accusations must fall.

PN62

Now, in those circumstances, as I submitted, the union, that is the applicant in these proceedings – not necessarily Mr Ravbar because he’s not an applicant; he’s a candidate put forward by the applicant – the union had a responsibility to dispel the clear inferences that might be drawn and should have been drawn from the evidence that the Deputy President had before him, and the union utterly failed to take the opportunity to do so, and left the drawing of those inferences intact.

PN63

No attempt was made to attack them in any way or to suggest that they weren’t true by way of any form of evidence which, as we put in the submissions and we put below, gives rise to a Jones v Dunkel inference in relation to the matter. Now, we’ve put in the list of authorities, we’ve put Jones v Dunkel in the book of authorities. The case, itself, was authority number 6. Number 7, Kuhl v Zurich Financial Services is a more recent exposition or explanation of what the principle is in relation to those matters.

PN64

Of course the rule in Jones v Dunkel is well-known. It was explained by the High Court in the 2011 decision of the Zurich matter, at page 385 of that CLR decision at paragraph 64, by Heydon, Crennan and Bell JJ.

PN65

The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.

PN66

Paragraph 63 is perhaps a more open explanation.

PN67

The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all –

PN68

et cetera –

PN69

to instances where a witness has been called but not questioned on particular topics.

PN70

So armed with that, if that principle was to be observed in this matter then the failure on the part of the CFMEU to call any evidence which might explain the clear inferences to be drawn not from the hypothetical operation of the rules but from the actual written and legally enforceable provisions of the rules imposing obligations on Mr Ravbar, to the extent that his Honour failed to make any attempt at all to consider what the effect of the CFMEU failing to explain these things had, his Honour has in that sense, in my submission, erred.

PN71

But the fundamental difficulty with that is that his Honour simply put that whole question of the evidence of the content of the rules, the persons who were committing these contraventions, and all the matters that I’ve referred to, to one side. He did not deal with them in a way in which he has assessed their weight and their value, and put it to one side as being insubstantial or inconsequential. In the absence of an explanation in matters such as this, the clear policy question arises in relation to the conduct of these matters in the Commission.

PN72

That is, the extent to which – and it really calls – it’s a question that in my submission calls for some guidance and determination from this Full Bench, and that is the extent to which an organisation in this position – and one would expect there wouldn’t be too many of them, but this organisation in particular that is in this position, that has an official, the rules of which suggest in the strongest possible terms indicate that the particular official is likely to have been responsible for some significant wrongful activities, contravening activities, which if he committed them himself would be disqualifying activities, or did any of the things that were referred to by the Full Bench in Kong, if that inference arises, to what extent should the Commission have required that the organisation explain why the obvious inference should not be drawn.

PN73

If the organisation chooses to elect not to provide any explanation in that regard, that is to explain why the obvious inference should not apply, then whether the Commission should apply a Jones v Dunkel inference to the circumstances to support a conclusion that at the end of the day the organisation cannot explain why this inference should not be drawn, and that would assist in the favourable drawing of that inference. Because his Honour was not prepared to draw inferences from any of this material, then his Honour did not go down that path at all.

PN74

Were that to be the message that is to be taken from this case for the purposes of guidance of those other parties who are involved in applications of this kind, then the message would be that silence, that is a refusal to explain apparent adverse conduct, because it’s conduct that occurred behind closed doors and whilst it appears inferentially to be clear who may and who should have been responsible for it under the rules of the organisation, the best path to take in relation to such a matter is absolute silence and a refusal to explain the matter when it’s brought to their attention.

PN75

In that way, the Commission has denied the materials from which either guilt or innocence might be found to be correct. Now, in circumstances where the Commission is engaged in a form of administrative inquiry into the general integrity of a particular person, concealing the true state of affairs from the Commission when inferences and information of this kind is raised before the Commission, in my submission should have been treated as a matter of principle as being unacceptable, and that a proper explanation as to why it is or who it is was responsible for conduct of this kind, so that, for example, Mr Ravbar might be exonerated and be found to have not been involved in that matter and, therefore, cleared of the possibility that he might have been behind it.

PN76

Or alternatively, if the truth be told by the organisation as to who is behind it and who is the directing mind behind all this industrial action, then Mr Ravbar, as – if that were to be found to be the case, would in those circumstances would be found to be equally culpable, if not more culpable than the people who actually did the conduct. The conduct which, as I said before, if it was actually personally carried out by him, would be contravening conduct under section 413.

PN77

So in those – on that basis, in my submission, it does not – there has been a significant error of principle here on the part of the Deputy President below, in that the acceptance of silence in such overwhelming circumstances as being tantamount to an explanation or it’s a basis upon which the Commission should then proceed to be satisfied that despite the obvious inferences in these things, I haven’t been told what the truth is so I’m just going to infer nothing. That, in my submission, is a very wrong approach to these proceedings for that not to have been adopted.

PN78

There can be, in my submission, no merit whatever in the encouragement by decisions of this Commission for non-disclosure and the encouragement of erecting a corporate veil around contravening conduct in circumstances where somebody must have done it. Mr Ravbar is the number 1 candidate but we’re not going to tell you whether it was him or it was somebody else. We do not – and, again, in answer to something your Honour, Vice President, raised with me earlier, we do not say that this a broad brush that applies to everybody. Mr Ravbar is in addition to his responsibilities under rule 46, if I might very briefly take you to the other rules which have currency in this matter.

PN79

There are two governing bodies in relation to this organisation. Rule 40 at appeal book 157. One is the Divisional Branch Council which – it’s the highest governing body of the divisional branch, and Mr Ravbar is a member of that, as appears on appeal book page 159. None of this is, as I understand it, contentious. He has under the – at page 171, under rule 40(4), all of the obligations of the divisional branch council of which he is a member, are listed and they are comprehensive.

PN80

There is a Divisional Branch Management Committee, and that is at page 173 of the appeal book. Mr Ravbar is a member of the Divisional Branch Management Committee. That is relevantly descried as the branch management committee and the branch executive. Finally in relation to these matters, at page 175 at sub-rule (e), which is 42(e) – and this is a reference to the committee:

PN81

The committee shall be responsible for the control and supervision of all officers. They may delegate this responsibility in respect to nominated classes of officers to the divisional branch secretary –

PN82

Mr Ravbar –

PN83

for the exercise of this responsibility on a daily basis in between meetings of the divisional branch management committee on a temporary or ongoing basis, and on any terms or conditions as they see fit.

PN84

Now, that rule was raised in the proceedings, that the management committee for which Mr Ravbar was a member, could delegate to him as the branch secretary, the day to day responsibility for all employees of the union in between meetings of the management committee. That was a very common and sensible provision which allows the union to operate in a coherent way as between meetings of the management committee.

PN85

In those circumstances there is a very clear power on the part of the management committee, of which he is a member, to empower him and to be responsible not just for the organisers but all of the employees of the union in between management committee meetings. It was in those circumstances it raises the clear inference that a sensible provision like that may well have been implemented and that he was responsible for the day to day management of all employees who have been – if they’re not organisers, that’s a second source of authority for him to give them direction, to have direction and control over them.

PN86

Now, it was in those circumstances, in my submission, in the interests of the CFMEU being the applicant in these proceedings, properly disclosing circumstances which but for their disclosure cannot be obtained by any other party in the course of these proceedings, unless the Commission issues a direction in the course of proceedings that that material be provided, that it was incumbent upon the CFMEU to disclose the circumstances that that power had either been granted or not been granted to him, and if he wasn’t involved in that that somebody else was, and to provide him with exculpation in relation to the general operation of those rules.

PN87

That’s in addition to the provision of rule 46H to which I earlier referred. So this wasn’t a mere guilt by association case that was put. It was vastly stronger than that, and so the observations made by the Deputy President in paragraph 70, which effectively put all these matters to one side, were an entirely inadequate and inappropriate way to deal with the matter. This isn’t a case of the weight that was given to the material.

PN88

It’s the fact that the material was effectively dealt with in such a way that there was a failure to consider the entire picture of the relevant material before him; to treat the rules as being hypothetical, which they are not; and to ignore the fact that the body corporate, that is the CFMEU, could not conduct its affairs other than through the mechanism of officials such as Mr Ravbar, and the CFMEU. And whilst Mr Ravbar was the prime candidate, the CFMEU failed to disclose who, if anybody else, may have been responsible for those matters and, as I said, giving rise to the Jones v Dunkel inference.

PN89

It’s that parcel of issues linked together which makes it very clear that his Honour was simply not at liberty to put those matters to one side in the way that he has done in that part of the decision. Were he not to have put them to one side in that way, then he – the matter being considered to be a relevant matter – and if this Full Bench determines that it was in fact a relevant matter and he was in error in putting it to one side in the manner that he has done in paragraph 70, it then becomes an issue under section 513(1)(g), which is a relevant matter, and it’s a matter which his Honour is required to have – is bound to have regard to under section 513(1).

PN90

It’s a mandatory requirement that it be taken into account. Those issues which were put forward, which were evidence before his Honour were not taken into account by him at all in the manner in which he dealt with it. Your Honour, I don’t want to trespass into any areas that I think that’s – in relation to that topic, that’s more or less what I have to say about that. I of course don’t resile from the balance of the written submissions.

PN91

VICE PRESIDENT CATANZARITI: No.

PN92

MR HERBERT: But your Honour has asked me to confine the submissions I put to that point.

PN93

VICE PRESIDENT CATANZARITI: Thank you.

PN94

MR HERBERT: Unless there’s anything further, your Honour, those are the submissions.

PN95

VICE PRESIDENT CATANZARITI: Thank you, Mr Herbert. Mr Reitano.

PN96

MR REITANO: If it please the Commission, I will confine myself as well to the issue that your Honour raised but could I, before I do that or before I come directly to that, could I Make two general matters in response very frankly. The first proposition is this, that the fundamental difficulty with all of my learned friend’s submissions and everything that fell from him this morning, is that the rules don’t lead to where he wants them to go.

PN97

I think originally at least when he was asked to identify Mr Ravbar’s responsibility under the rules, he jumped to, I think, rule 46H which talks about the itinerary of the duties of organisers. Now, in ordinary English itinerary means timetable or plan. I got my itinerary from my solicitors last week that told me that I was coming to Brisbane last evening, that I was staying at a particular hotel, that I was coming – well, it didn’t say that I was coming here – that I was going home this evening. That’s the itinerary.

PN98

To suggest that that inflates itself into Mr Ravbar telling each official or organiser what they are to do when they are at a site, is outrageous, with respect. And probably as outrageous and distasteful as much of the submissions that are advanced here. The second matter that I want to deal with in a more general way is to raise this point that wasn’t raised in our written submissions but it did occur to me and it is relevant.

PN99

That is this, that one of the central platforms – and it’s put in various ways throughout the submissions. I’ve made some notes, if I could just briefly refer to some of them. In the director’s submissions – my friend referred to some of these but in the director’s written submissions below at AB234, it is said that it may be comfortably assumed that Ravbar is responsible for all the contraventions. At AB235 there’s a reference, and it finds its way into my written submissions, that Mr Ravbar’s name will not be found in any of the contraventions or penalties but he is responsible for all of them. Note: all of them.

PN100

AB236, that the contraventions happened with the active direction and support of Mr Ravbar. AB237, he is a man who sends his organisers out to contravene these laws and/or tolerates them doing so. You will find in – and I – just as a footnote at AB239, the evolution, as I describe it, of rule 46H, the one that my friend referred to, into a rule that means that Mr Ravbar is escorting every organiser to every site, every day of the week, directing their contraventions. The proposition is, with respect, absurd.

PN101

But going back to each of the ways in which the director puts it, the one thing you will not find in any of these contraventions is Mr Ravbar being found guilty of any of the contraventions as an accessory. Could I refer to the accessorial liability provisions of the Building Industry, Commission, Act, section 48(2), and I’ll provide copies in due course. The accessorial liability provision in section 550 of the Fair Work Act. Perhaps I’ll go to that one just to make the example.

PN102

You will see that those provisions provide that:

PN103

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

PN104

Then there is, in subsection (2) of section 550, if you like, the pre-requisites for accessorial liability. Aided, abetted, counseled, procured, knowingly concerned, induced the contravention, et cetera, et cetera. In none of the prosecutions that the director relies on, do you find any prosecution of Mr Ravbar. Not one. So at no time did the director, before it came to this proceeding, make any allegation of contravention in any proceeding that it relevantly relies on here against Mr Ravbar.

PN105

It did not seek to invoke that provision which has its mirror provision, if you like, in section 49(2) Of the BIC Act. So when it comes here and says Mr Ravbar, his name doesn’t appear near any of them but he’s responsible for all of them, as I say, a very disgraceful submission, in my respectful submission. At no time prior to making that submission did the director or his predecessor take the position that Mr Ravbar had contravened any of the relevant provisions in the legal sense that the legislature has provided for, in terms of what might be governed by - or, sorry, what is governed by the rule of law.

PN106

Rather, the director chooses to come to these proceedings and say Mr Ravbar, in some unspecified way, is responsible. Not legally responsible, as one would expect to find under 550 or 49(2), but in some unspecified way Mr Ravbar is responsible for these contraventions.

PN107

Could I then, having dealt with those things, could I then return to what I want to say about the issue that has been – the parties have been focused on. Could I say that my friend said in his submissions – as he puts to one side paragraph 70 of the Deputy President’s decision – in respect of the rules, presumably 46H, and in respect of the decisions he relies on, if there is material of that kind that gives rise to the clear inference – and he went on – that Ravbar is responsible, the union carries the practical onus.

PN108

The difficulty for him is that there is no clear inference. Indeed, there is no inference. There is not one fact in evidence that would point to Mr Ravbar being either knowingly concerned in terms of accessorial liability or knowing about any of these contraventions before they happened, or in any way directing them or in any way acting with the delegated authority of the branch divisional executive under the rules.

PN109

Moreover – moreover – the director had the power to put any such evidence before the Commission. Not only – and my friend sort of glosses over it, well, I suppose we could have got an order for production of documents in respect of that. But don’t be fooled, this director has extensive investigatory powers under the Building Industry Commission Act, to not only obtain documents but also to obtain information from people in the course of any investigation.

PN110

This goes to not only the accessorial liability provision but the capacity of the director to have in his hot little hands evidence that shows Ravbar’s active involvement in any of the contraventions. They had every capacity, if they wished to do so, to put that evidence before the Commission, and they chose not to. It is little wonder in that context that the finding that appears at paragraph 70 is made.

PN111

It is glaringly obvious, in our submission, that the inference that my learned friend seeks to have drawn here, and the inference that he sought to have, Deputy President Lawrence draw below, was completely uninformed by anything that Mr Ravbar had to answer. There was no allegation. My friend says, yes, there was, we stood up and we made these submissions.

PN112

Well, that doesn’t reverse the onus of proof. What he needed to do was to adduce sufficient evidence that created the inference. Not get up with bluff and blunder before the Commission and make a submission, rhetorical or otherwise, informed by hyperbole and not evidence. He had to bring evidence, cogent evidence, that raised some inference of some kind that Mr Ravbar specifically needed to deal with, i.e. we spoke to someone on this building site and they told us that Mr Ravbar had directed this organiser to do x, y and z, that was in contravention of. You answer that allegation.

PN113

There was none of that. None at all. Mr Ravbar’s name, quite correctly so said the director, didn’t appear near any of these contraventions. There was no evidence of anything he did and nothing could be inferred from the fact of contravention alone that made Mr Ravbar complicit in the matter.

PN114

Could I then finally go to the passage in Kong, which is in our book of authorities. I think it’s in my learned friend’s book of authorities. I won’t trouble – I will. Could I hand those up? It’s just easier to do so. If I could go to Kong, which is found in tab 6 of our authorities. It’s referred to in the written submissions; I just wanted to make a point starkly in terms of what my learned friend said this morning. We’ve made some submissions about the observations in Kong more generally and I don’t repeat those. But could I go to paragraph 25 first, and there the Full Bench of the Commission, Vice President Hatcher, Deputy President Sams and Commissioner Booth say this:

PN115

A matter is only required to be taken into account under section 513(1)(g) if the Commission “considers” it to be relevant - that is, the requirement operates upon the opinion as to relevance formed by the Commission. Because the formation of an opinion as to the relevance of a matter to the broad judgment required by the “fit and proper person” criterion will necessarily involve a degree of subjectivity, it is in the nature of a discretionary decision. Therefore in an appeal which challenges an opinion formed for the purposes of section 513(1)(g) it will be necessary for the appellant to demonstrate error in the decision-making process.

PN116

Here that appears to be now or perhaps before, confined to the inference that is said to have been clear that the Deputy President should have drawn.

PN117

We do not consider that the Director has demonstrated any error in the process by which the Delegate determined that the CMFEU’s history of contraventions was not relevant to his determination as to whether Mr Kong was a fit and proper person to hold an entry permit. It was reasonably open to the Delegate –

PN118

note the words “reasonably open to the Delegate” –

PN119

to conclude, as he did, that there was nothing in the annexure to the Director’s General Submissions which bore upon Mr Kong’s “status and attributes”. There was no suggestion that any of the identified contraventions involved any act or omission on the part of Mr Kong.

PN120

Could I pause there and could I interpolate there, there is no suggestion capable of being sensibly made here that any of the identified contraventions involved any act or omission by Mr Ravbar.

PN121

While it may be accepted that the susceptibility of an official to comply with a direction from his or her employing organisation to engage in unlawful conduct might well be considered to be a relevant matter under section 513(1)(g), there was nothing put to the Delegate at first instance or to us on appeal that suggested that the industrial history set out in the annexure demonstrated anything with respect to any personal susceptibility on Mr Kong’s part in that respect.

PN122

Likewise, Mr Ravbar. It is the next paragraph that is very important.

PN123

That is not to say that past contraventions of industrial or other relevant laws by an organisation can never be relevant to the consideration of an official’s fitness or propriety to hold an entry permit where those contraventions did not involve any direct contravening conduct on the part of that official.

PN124

Then the Full Bench gives the example.

PN125

If, for example, the facts of a particular contravention or contraventions supported an inference that an official with management responsibility in an organisation omitted to take reasonable steps to ensure that others under his or her control failed to comply with the law, or encouraged or tolerated a general culture of non-compliance with the law, then conceivably –

PN126

it’s not as night follows day, but then conceivably –

PN127

that might be considered to be a relevant matter under section 513(1)(g). However in this case it was simply not made apparent that the CFMEU’s history of contraventions said anything about Mr Kong’s personal conduct, character or reputation either as relevant to the exercise of rights of entry under the Act or at all.

PN128

And likewise here in respect of Mr Ravbar. But could I go back. It is important that the Full Bench does not say the fact of a particular contravention – sorry – the fact of contraventions or the fact of particular contraventions in themselves lead to the conclusion. If one goes back to the bottom of 27

PN129

If, for example, the facts of a particular contravention –

PN130

so when you look at each of the seven judgments or decisions that my learned friend relies on, you need to look at the facts of those contraventions and see if they support an inference that an official with management responsibility omitted to take reasonable steps. When you look at those contraventions you’ll find nothing in respect of Mr Ravbar anyway. You will find nothing at all that points to a reasonable step that he should have taken, or an inference that there was some reasonable step that he should take in respect of someone under his control.

PN131

The simple fact is the rules here to do not support a contention that everything that officials do, they do under the direction of Ravbar. The supreme governing body of the branch is the branch divisional executive, and the rules make that clear. There is nothing at all that would lead, as my friend has put, to any inevitable inference or anything at all that would allow you to come to a conclusion that it was Ravbar as distinct from anyone else who was responsible for any of the contraventions.

PN132

The submission that my friend made was that his Honour Deputy President Lawrence set an extraordinarily high and unattainable standard. Well, why? It was open to my learned friend or to the inspector, to the director, to bring evidence as to Ravbar’s involvement. There’s nothing high about that. People do that every day of the week in this Commission. You bring evidence to support your case. That’s the way the place works. People bring evidence on both sides and the Commission makes findings.

PN133

If the director wanted to rely on Mr Ravbar’s responsibility for any of these contraventions, then it was open to him to go out and get that evidence and bring it before the Commission. Unfortunately, the way in which the director chose to run its case was not that way. It could not reach the lofty heights that it set for itself in terms of the allegations that it wanted to make in submissions.

PN134

Could I just hand up the sections that I referred to of the Building Act about the director’s powers in an investigation. I they’re sections 52 to 56. I don’t have – I’m sorry, I don’t have with me copies of section 49. I don’t have copies of section 49(2) but it relevantly replicates section 550 of the Fair Work Act. It may not be precisely in the same terms but it’s pretty close. If it please the Commission, we rely on the written submissions; the application for leave to appeal should be dismissed and the appeal in any event should be dismissed.

PN135

VICE PRESIDENT CATANZARITI: Thank you, Mr Reitano. Mr Herbert.

PN136

MR HERBERT: Thank you. I’ll take the last matter first. Reliance upon the fact that my client has some powers in relation to investigation and finding the material relates to investigations undertaken by my client, the powers in that regard can not necessarily produce anything by way of material from those who do not wish to tell. But, in any event, this is not a matter which involves an investigation.

PN137

It was never a matter – none of these matters were matters that involved an investigation by the director on matters on which the director was coming to the Commission in response to an application brought by the CFMEU in order to point out some very clear matters in respect of which the Commission should have very considerable doubts as to the fitness of the person concerned. None of those matters actually qualify as being an occasion on which the director is entitled to exercise powers in order to in effect pull the protagonists into a room and ask them to answer questions.

PN138

So for those reasons, in my submission, my friend’s contentions as to the question of compliance powers have no place in the submissions. The other contention that because Mr Ravbar has not been convicted of a contravention of civil penalty proceedings in circumstances where the actual players in respect of the matter; those who are actually conducting the industrial action on the site, in very many instances have been, and the organisation of which he is the secretary has been, when all those around him have been found guilty of contraventions, the fact that Mr Ravbar has not, himself, been proceeded against in circumstances that would require the onus of proof which attaches to proceedings of that kind, has nothing whatsoever to do with the principles to be applied in a matter of this kind, where the inquiry is on the part of the Commission, the Commission itself to be affirmatively satisfied as to the integrity of this person.

PN139

The fact that the Commission has such a broad brief, as it were, has granted such a broad brief under section 513(1)(g) in particular, suggests in the strongest possible terms that it is not, as the Full Court of the Federal Court in MUA made very clear, it is not confined in its investigations to consider matters that have resulted in a finding of a contravention or a conviction or a formal determination in that regard. It may cast its net vastly more widely than that in terms of discovering questions of general integrity, as it should do, and it - - -

PN140

VICE PRESIDENT CATANZARITI: Yes, but except in MUA, the Full Federal Court also makes it very clear that it’s a matter of weighing up the decision-maker and the judicial review has to be – one has to form the view that what happened was unreasonable.

PN141

MR HERBERT: Yes. Yes. That is so and of course we put the matter squarely on the basis that what was done here with these matters were put out of consideration. They weren’t weighed up in any appropriate way which is the way they put it.

PN142

Finally, my learned friend sought to make something of the word “itinerary” in rule 46 and sought to equate the organiser’s itineraries and those rules with the travel arrangements which are sent to him by his solicitor. Could I ask that the Full Bench in – not now but in your own deliberations in this matter, have regard to the authority – the case which is the decision of Collier J which is behind tab 10 in the appellant’s book of authorities, in which Collier J set out her findings all of which were the subject of agreed statements of fact in relation to industrial action which occurred on almost every day between 18 and 27 May 2011.

PN143

COMMISSIONER SPENCER: What’s the paragraph?

PN144

MR HERBERT: It’s behind tab 10.

PN145

COMMISSIONER SPENCER: Yes.

PN146

MR HERBERT: The authority is Lend Lease Project Manager v CFMEU.

PN147

COMMISSIONER SPENCER: Yes.

PN148

MR HERBERT: It’s a decision of Collier J of October 2012. If one then goes to the reasons for judgment which is – it commences on about page 6, the relevant passages, there were – the dates are listed in the sequential paragraphs with the dot points from paragraph 19 as to the conduct which was undertaken by various organisers day after day after day. Interestingly, on page 8, the dot point at the top of the page, one of the relevant contraventions listed there on 23 May, there was a meeting of workers including members of those unions, a departure of those workers from the site and failure to perform work.

PN149

A meeting convened and addressed by delegates and senior officials from the CFMEU including Mr Hanna and Mr Ravbar, and so on and so on, but I won’t labour the point. But the organisers there who have received a mention are Mr Pearson, Mr O’Doherty, Mr Vink, Mr Pearson again, Mr Malone, Jarvis, McQueen, Pearson and O’Doherty. It went on for days and days in accordance with her Honour’s findings in that regard.

PN150

For my learned friend to suggest that the person in control of the itinerary of the organisers engaged in that sort of conduct was not cognisant of what they were doing, particularly when Mr Ravbar himself was there on at least one of the occasions while these things were going on, and to suggest that the power under rule 46 should be read down as meaning he’s just an office person who does the people’s timetables and has nothing more to do with it.

PN151

VICE PRESIDENT CATANZARITI: I don’t think that was suggested at all, Mr Herbert, and nor do I think in the decision of the Federal Court judge which I’ve read, of Collier J, was she having regard to the rule and how it operates. He was saying in your original submissions before DP Lawrence, you gave a lot of weight as to how we should interpret that rule. Very different point. You used that as the foundation for the argument of the inference on the Jones v Dunkel point.

PN152

MR HERBERT: Yes.

PN153

VICE PRESIDENT CATANZARITI: Very different. I can read cases too, Mr Herbert. Please don’t try to mislead us in the decision of Collier J.

PN154

MR HERBERT: I’m sorry, your Honour, I wasn’t intending to mislead. What I - - -

PN155

VICE PRESIDENT CATANZARITI: You’re talking about the rule under review.

PN156

MR HERBERT: Yes.

PN157

VICE PRESIDENT CATANZARITI: It wasn’t considered by her in that decision.

PN158

MR HERBERT: No, I’m not suggesting it was at all. I didn’t suggest that at all and I wasn’t - - -

PN159

VICE PRESIDENT CATANZARITI: Well, that’s the point of the submission that Mr Reitano is making on that point. He’s drawing your attention to how you ran it at first instance before DP Lawrence.

PN160

MR HERBERT: No, I - - -

PN161

VICE PRESIDENT CATANZARITI: So please, you know, move on, Mr Herbert.

PN162

MR HERBERT: As your Honour pleases. That was my final point and I have nothing further.

PN163

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [11.22 AM]

Fair Work Commission Transcripts

C2015/3799, Transcript of Proceedings [2015] FWCTrans 447 (4 August 2015)